[Cite as State v. Twitty, 2011-Ohio-4725.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24296

vs.                                               :    T.C. CASE NO. 10CR1201/1

DEONTAY M. TWITTY                                  :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Assignment                       :

                                        . . . . . . . . .

                                             O P I N I O N

                 Rendered on the 16th day of September, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No. 0067685, P.O. Box 972, Dayton, OH 45422
     Attorney for Plaintiff-Appellee

Christopher W. Thompson, Atty. Reg. No. 0055379, 130 West Second
Street, Suite 2050, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

VUKOVICH, J. (BY ASSIGNMENT):

        {¶ 1} Defendant-appellant Deontay Twitty appeals from the

sentence entered in the Montgomery County Common Pleas Court for

aggravated robbery, failure to comply with an order of a police

officer and kidnapping.                      Three arguments are made for reversal.

        {¶ 2} In appellant’s first argument, he contends that the trial
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court erred in disapproving transitional control in its termination

entry.   Appellant’s next two arguments concern the trial court’s

order of restitution. He contends that the court failed to consider

his ability to pay prior to ordering financial sanctions.      He also

asserts that the amount of restitution is not supported by competent

credible evidence.

     {¶ 3} The state admits that there is merit with appellant’s

first argument, however, it contends that the remaining arguments

are meritless.

     {¶ 4} Considering the arguments presented we find that the

trial court erred in prematurely denying transitional control.

We also find that while the trial court did consider appellant’s

ability to pay restitution, the amount of restitution ordered

permits double recovery and is in error.       Thus, for the reasons

expressed in depth below, the sentence is affirmed in part, reversed

in part and remanded for further proceedings.

                         STATEMENT OF THE CASE

     {¶ 5} Appellant   was   indicted   for   Aggravated   Robbery,   a

violation R.C. 291101(A), a first-degree felony; two counts of

Failure to Comply with a Police Officer’s Order, violations of

R.C. 2921.331(B), (C)(5) and (B), (C)(4), third and fourth-degree

felonies; and two counts of kidnapping, violations of R.C.

2905.01(A)(2), second-degree felonies.        The aggravated robbery
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and both kidnapping charges contained firearm specifications.

The alleged victims of the offenses were Third Base Drive Thru,

its owner and one of its employees.

     {¶ 6} The state and appellant entered into plea negotiations.

 Appellant pled no contest to the first-degree felony aggravated

robbery charge, the third-degree felony failure to comply charge,

and to one of the second-degree felony kidnapping charges. The

state   dismissed   the   remaining   charges   and   all   firearm

specifications.     The parties also agreed that the aggregate

sentence would not exceed five years.   Following a plea colloquy,

the trial court accepted the no contest pleas, found appellant

guilty and set sentencing for a later date.

     {¶ 7} At sentencing, the trial court, after hearing from two

of appellant’s character witnesses and from appellant, reluctantly

abided by the plea agreement and sentenced appellant to an aggregate

sentence of four years.    He received a three year sentence for

the aggravated robbery conviction, a two year sentence for the

kidnapping conviction and a one year sentence for the failure to

comply conviction. The sentences for the aggravated robbery and

kidnapping convictions were ordered to be served concurrent to

each other but consecutive to the sentence for the failure to comply

conviction.   The trial court ordered appellant to pay costs and

restitution. Restitution was ordered to be paid to Third Base Drive
                                                                      4

Thru in the amount of $4,077. Also in rendering the sentence, the

trial court stated:

     {¶ 8} “The Court disapproves of the defendant’s placement in

a program of shock incarceration under Section 5120.031 of the

Revised Code, or in the intensive program prison under Section

5120.032 of the Revised Code, and disapproves the transfer of the

defendant to transitional control under Section 2967.26 of the

Revised Code.”

                       FIRST ASSIGNMENT OF ERROR

     {¶ 9} “THE TRIAL COURT ERRED IN DISAPPROVING TRANSITIONAL

CONTROL.”

     {¶ 10} The trial court’s indication of its disapproval of

transitional control was stated in the termination entry.          The

trial court made no mention of transitional control at the

sentencing hearing.

     {¶ 11} This court has recently held that a termination entry

cannot contain a provision that disapproves of transitional

control.    State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283.

 In that case we provided the following analysis:

     {¶ 12} “R.C. 2967.26(A)(1) states:

     {¶ 13} “‘Subject to disapproval by the sentencing judge, the

adult   parole   authority   may   grant   furloughs   to   trustworthy

prisoners, other than those serving a prison term or term of life
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imprisonment without parole imposed pursuant to section 2971.03

of the Revised Code or a sentence of imprisonment for life imposed

for an offense committed on or after October 19, 1981, who are

confined in any state correctional institution for the purpose

of employment, vocational training, educational programs, or other

programs   designated   by    the    director   of   rehabilitation   and

correction within this state.’

     {¶ 14} “R.C. 2967.26(A)(2) requires the adult parole authority

to give the trial court three weeks' notice of the pendency of

a prisoner's intended furlough, and of the fact that the court

may disapprove the furlough.         Upon request of the adult parole

authority, the head of the institution in which the prisoner is

confined must give the trial court a report on the prisoner's

conduct in the institution, any disciplinary action, and the

prisoner's participation in school, vocational training, and other

rehabilitative programs. After receiving the notice and report,

the trial court must give the adult parole authority timely notice

of its disapproval.     Id.

     {¶ 15} “Because the furlough recommendation does not occur

until after a prisoner has been confined, the trial court's

disapproval was premature.”         Id. at ¶41-44.

     {¶ 16} Accordingly, based upon our prior decision, there is

merit with this assignment of error.
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                  SECOND AND THIRD ASSIGNMENTS OF ERROR

     {¶ 17} “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ORDERED

RESTITUTION IN AN AMOUNT THAT EXCEEDED VICTIM’S ACTUAL LOSS.”

     {¶ 18} “THE TRIAL COURT ERRED IN FAILING TO CONSIDER OFFENDER’S

PRESENT AND FUTURE ABILITY TO PAY THE AMOUNT OF THE SANCTION OR

FINE.”

     {¶ 19} The second and third assignments of error address the

trial court’s order of restitution and, as such, are addressed

simultaneously.

     {¶ 20} Our analysis will start with appellant’s position that

the trial court did not consider his ability to pay restitution

prior to ordering it.

     {¶ 21} R.C. 2929.18(A)(1) allows a trial court to order, as

a financial sanction, an amount of restitution to be paid by an

offender to his victim “based on the victim's economic loss.      *

     {¶ 22} *   If the court imposes restitution, the court may base

the amount of restitution it orders on an amount recommended by

the victim, the offender, a presentence investigation report,

estimates or receipts indicating the cost of repairing or replacing

property, and other information, provided that the amount the court

orders as restitution shall not exceed the amount of the economic

loss suffered by the victim as a direct and proximate result of

the commission of the offense.      If the court decides to impose
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restitution, the court shall hold a hearing on restitution if the

offender, victim, or survivor disputes the amount.”

     {¶ 23} R.C. 2929.19(B)(6) imposes a duty upon the trial court

to “consider the offender's present or future ability to pay” before

imposing any financial sanctions under R.C. 2929.18.       State v.

Ratliff, Clark App. No. 10-CA-61, 2011-Ohio-2313, ¶12, citing,

State v. Martin, 140 Ohio App.3d 326, 338, 2000–Ohio–1942.      The

statute does not require a hearing and is devoid of any particular

factors for the court to take into consideration in making its

determination.    Id.   Case law indicates that ability to pay can

be derived from consideration of a pre-sentence investigation

report, which includes information about the defendant's age,

health, education, and work history. Id. See, also, State v. Miller,

Clark App. No. 08CA0090, 2010-Ohio-4760, ¶39.       A finding that

appellant is indigent for purposes of appointed counsel at the

trial level does not shield him from paying a financial sanction.

 Miller, supra.



     {¶ 24} In this case, the trial court clearly stated at the

sentencing hearing that it considered the PSI and was incorporating

it into the record.     Tr. 46.   The PSI indicates that appellant

graduated from Dayton Technology and Design High School in 2009

and that he was attending Sinclair Community College at the time
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of the commission of the offense.         The report indicates that he

is in good physical and mental health. Although at the time of

the offense appellant was unemployed and was being supported by

his girlfriend, who was on public assistance, there is nothing

in the report to suggest that appellant could not obtain a job

after his incarceration and pay restitution.

      {¶ 25} Consequently, the trial court did consider appellant’s

ability to pay.      Likewise, considering the information in the PSI,

we cannot conclude that the trial court’s implicit ruling that

there was an ability to pay is incorrect.

      {¶ 26} Our attention now shifts to whether the amount of

restitution ordered was incorrect.            A defendant who does not

dispute an amount of restitution, request a hearing, or otherwise

object waives all but plain error in regards to the order of

restitution.    Ratliff, supra, at ¶14.       At the sentencing hearing,

appellant did not object to the restitution order.        Thus, he waives

all but plain error.          Plain error does not exist unless it can

be said that, but for the error, the outcome of the trial clearly

would have been different.         State v. Long (1978), 53 Ohio St.2d

91.

      {¶ 27} As previously indicated, R.C. 2929.18(A)(1) permits a

trial   court   to    order    restitution.    However,   “an   order   of

restitution must be supported by competent, credible evidence in
                                                                        9

the record.   ‘It is well settled that there must be a due process

ascertainment that the amount of restitution bears a reasonable

relationship to the loss suffered.’ * * * ‘Implicit in this

principle is that the amount claimed must be established to a

reasonable degree of certainty before restitution can be ordered.’”

 State v. Cochran, 2d Dist. No. 09CA0024, 2010-Ohio-3444, ¶17

(internal citations omitted).

     {¶ 28} Here,   the   trial   court   ordered   appellant    to   pay

restitution to Third Base Drive Thru in the amount of $4,077.

Attached to the PSI is a “Victim Input Request” form.           This form

was filled out by Tom Mauro, the owner of Third Base Drive Thru.

 The form states that the economic loss was $4,682.     However, after

the $1,000 deductible, his insurance company, Erie Insurance Group,

paid him $3,682.

     {¶ 29} We have previously stated that restitution may not exceed

the victim’s economic loss and therefore, the economic loss “must

be reduced by any insurance payment received.”       State v. Clayton,

Montgomery App. No. 22937, 2009-Ohio-7040, ¶56.         This court has

also stated that when a victim has already received payment from

their insurance company an award of restitution paid by the offender

to the victim would constitute impermissible double recovery.

State v. Colon, 185 Ohio App.3d 671, 2010-Ohio-492, ¶6-7.

     {¶ 30} Based on the above case law, the trial court’s order
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of restitution permitted the victim to recover more than its

     {¶ 31} economic loss.   Thus, the record does not support the

amount of the trial court’s award of restitution; the trial court

committed plain error in ordering restitution that allowed double

recovery.

     {¶ 32} Therefore, the second and third assignments of error

have some merit.   The trial court did properly consider appellant’s

ability to pay when ordering restitution. However, the amount of

restitution ordered is incorrect.           Given the evidence, the

restitution award should be $1,000, the amount of the victim’s

insurance deductible.

                                 CONCLUSION

     {¶ 33} In conclusion, the sentence is hereby affirmed in part,

reversed in part and remanded.    The trial court prematurely stated

in its termination entry that transitional control was disapproved.

 Thus, that portion of the sentence is reversed and the matter

is remanded with instructions to remove that language from the

termination entry.    As to the order of restitution, the trial court

considered     appellant’s   ability   to   pay   prior   to   ordering

restitution.    Therefore, that portion of the judgment is affirmed.

However, the amount of restitution ordered by the court allowed

the victim double recovery.      As such, the amount of restitution

ordered is reversed and remanded.       Upon remand the trial court
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is instructed to lower the amount of restitution to $1,000, the

amount of the victim’s insurance deductible.

FAIN, J. And DONOVAN, J., concur.


(Hon. Joseph J. Vukovich, Seventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)


Copies mailed to:

Johnna M. Shia, Esq.
Christopher W. Thompson, Esq.
Hon. Mary Katherine Huffman
