[Cite as State v. Burns, 2011-Ohio-3056.]
                 [Vacated Opinion.          Please see 2011-Ohio-4230.]

          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95465




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     DANIEL BURNS
                                                    DEFENDANT-APPELLANT



                           JUDGMENT:
               AFFIRMED IN PART, REVERSED IN PART,
                           REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-531793

        BEFORE:            S. Gallagher, J., Kilbane, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEYS FOR APPELLANT

Stephen D. Hartman
Kerger & Hartman, LLC
33 S. Michigan Street
Suite 100
Toledo, OH 43604

Karin Coble
4334 W. Central Avenue
Suite 226
Toledo, OH 43615


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:   Mary Court Weston
      Kristen L. Sobieski
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant Daniel Burns (“Burns”) appeals his conviction following

a jury trial in Cuyahoga County Common Pleas Court Case No. CR-531793 of

one count of engaging in a pattern of corrupt activity, four counts of

tampering with records, and one count of theft in office.    The trial court

sentenced Burns to a six-year term of incarceration and ordered him to pay a
$100,000 fine and $123,192.74 in restitution. For the following reasons, we

affirm in part the decision of the trial court, reverse in part, and remand for

further proceedings consistent with this opinion.

      {¶ 2} Burns was the chief operating officer at the Cleveland Municipal

School District (“CMSD”).       Burns placed orders for three Ryobi duplicator

machines from his co-defendant, John Briggle’s (“Briggle”) company.         In

order to initiate the purchase, Burns created and processed a resolution to

purchase.   This resolution was circulated per CMSD policy to various

decision-making persons within the organization. Once approved by all the

necessary parties, the resolution was returned to Burns so a purchase order

could be prepared and sent to Briggle’s company, Superior Offset Supplies,

Inc. (“SOS”). This was done three times for the purchase of six duplicator

machines total, two at a time. CMSD issued a check for $49,500 to SOS for

each of the three invoices. Two checks for consulting services were paid to

SOS, one in the amount of $5,900. None of the duplicators or consulting

services were ever delivered.

      {¶ 3} After each check was issued, Burns had his secretary pick it up.

Burns then hand-delivered the checks to Briggle. Briggle testified that he

would cash the checks and split the proceeds with Burns. All of those events

occurred between December 17, 2007 and about June 2008.

      {¶ 4} In November 2008, a CMSD employee questioned the five
transactions. The unusual aspect of the transactions was the fact that the

three checks for the duplicators were each just under the $50,000 bid limit,

which would have required a more formal process, and the purchases of the

duplicators were accomplished in separate installments. The employee

thought that most purchases of this nature should occur at one time to get the

best pricing on the individual units. Last, the checks were hand-delivered,

and the address of SOS was a residential house in Toledo, Ohio, not a

commercial address.

      {¶ 5} Briggle testified that he and Burns had an arrangement to create

quotes and invoices for the duplicator machines without any intention to

deliver them. The same arrangement was in place for the two checks for

consulting services.   Briggle testified that they would split the proceeds.

Burns would push through the paperwork on CMSD’s end, and Briggle would

create the purchase documents and cash the checks.         The state did not

present direct evidence of a money trail from Briggle to Burns.

      {¶ 6} Briggle pleaded guilty to various charges and testified against

Burns as part of the plea deal. Burns was convicted by a jury of one count of

engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1),

four counts of tampering with records in violation of R.C. 2913.42(A), and one

count of theft in office in violation of R.C. 2921.41(A)(1).      The trial court

sentenced Burns to six years of incarceration on the theft in office count,
running all other sentences concurrent, and imposed fines and restitution.

Burns filed this timely appeal, raising six assignments of error, which are as

follow:

      “I. The trial court violated Burns’ right to Due Process by
      failing to instruct the jury on the elements of theft, or the
      element of ‘deception,’ underlying the Theft in Office
      charge, and by not dismissing the Theft in Office count
      when the jury failed to find all the elements of theft, by
      deception or otherwise.”

      “II. The trial court violated Burns’ right to due process
      by taking judicial notice of the ‘government record’
      element of the tampering with records counts, and erred
      by denying his Crim.R. 29 motion for acquittal.         In
      addition, the convictions were against the manifest weight
      of evidence.”

      “III. The trial court abused its discretion when ordering
      restitution and imposing fines.”

      “IV. There was no proof of an ‘enterprise’ separate and
      apart from the alleged criminal activity, to support a
      conviction for engaging in a pattern of corrupt activity.
      The conviction, therefore, was unsupported by the
      evidence and against the manifest weight of evidence.”

      “V. Because the tampering with records and theft in office
      counts must be reversed, the conviction for engaging in a
      pattern of corrupt activity must also be reversed.”

      “VI. The defendant was prejudiced by his trial counsel’s
      deficient performance, and was thereby deprived of his 6th
      Amendment right to counsel.”

      {¶ 7} We will address these assignments of error by combining any

overlapping arguments.

      Jury Instructions
        {¶ 8} Burns’s first assignment of error and the first part of the second

assignment of error challenge the propriety of the trial court’s jury instructions.

Burns argues that the trial court improperly instructed the jury on the elements of

a theft in office charge by omitting the specific elements of “theft” or “theft by

deception.” The relevant portion of his second assignment of error challenges the

jury instruction relating to the trial court taking judicial notice of the fact that

CMSD is a governmental entity — a fact elevating the tampering with records from

a misdemeanor to a felony level offense. These assignments of error are without

merit.

        {¶ 9} A defendant may not assign as error the giving or omitting any

instructions unless she objects before the jury retires and further objects by

“stating specifically the matter objected to and the grounds of the objection.”

Crim.R. 30(A).    The record reflects that Burns never objected to the jury

instructions at trial and therefore has waived all but plain error on appeal.

“Plain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court.” Crim.R. 52(B).

        {¶ 10} Under Ohio law, the state must prove every element of the

charged offense beyond a reasonable doubt. Jury instructions that shift the

state’s burden, or relieve it altogether, violate a defendant’s due process

rights. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29,

¶ 97.    It has been long held that “an erroneous jury instruction does not
constitute a plain error or defect under Crim.R. 52(B) unless, but for the

error, the outcome of the trial clearly would have been otherwise.

Additionally, the plain error rule is to be applied with utmost caution and

invoked only under exceptional circumstances, in order to prevent a manifest

miscarriage of justice.” (Internal citations and quotations omitted.) State v.

Cooperrider (1983), 4 Ohio St.3d 226, 227, 448 N.E.2d 452. A trial court’s

failure to charge the jury on every specific element of the offense does not per

se constitute plain error. State v. Adams (1980), 62 Ohio St.2d 151, 154, 404

N.E.2d 144.    “The reviewing court must examine the record in order to

determine whether that failure may have resulted in a manifest miscarriage

of justice.” Id. at paragraph three of the syllabus.

      1. Theft in office jury instruction

      {¶ 11} In the current case, Burns was charged with theft in office, which

is defined as follows: “No public official or party official shall commit any

theft offense, as defined in division (K) of section 2913.01 of the Revised Code,

when either of the following applies: (1) The offender uses the offender’s

office in aid of committing the offense or permits or assents to its use in aid of

committing the offense; [or] (2) [t]he property or service involved is owned by

this state, * * *.”   R.C. 2921.41(A).   A theft in office charge relies on a

predicate “theft offense,” defined as any violation of several sections of the
Revised Code, which include for our purposes both R.C. 2913.02 (Theft and

Fraud) and R.C. 2913.42 (Tampering with Records). R.C. 2913.01(K).

        {¶ 12} We first note that Burns’s conviction on the four counts of

tampering with evidence could have served as the predicate theft offense for

the theft in office charge.     The state is not limited to proving a “theft”

occurred.     The state never specified the predicate theft offense in the

indictment, nor argued that the charges of tampering with records served as

such.    Furthermore, the trial court’s jury instruction stated that a “theft

offense is [defined as] knowingly obtain[ing] or exerting control over property

or services with purpose to deprive the owner of such property or services[,]”

the first three elements of theft as defined in R.C. 2913.02(A).        We will

therefore address this assignment of error as argued by Burns; that is, by

assuming the predicate offense is theft.

        {¶ 13} Burns argues the trial court’s instruction improperly omitted all

the elements of theft, which include the three elements contained in the

court’s above instruction in addition to one of the following: that the theft was

committed without or beyond the consent of the owner, or by deception,

threat, or intimidation.

        {¶ 14} The state’s case established that Burns and Briggle received

money they were not entitled to by invoicing for equipment and services that

were not delivered to CMSD. Implicitly, either Burns received money that
exceeded the consent of CMSD or committed the theft by deceiving CMSD

into believing that equipment was actually purchased. Most important, the

jury found Burns guilty of tampering with records, which includes an element

that Burns knowingly defrauded CMSD by deception. Since the jury found

that Burns deceived CMSD for the purposes of the tampering with records

charges, the omission of the specific instruction that the jury needed to find

deception for the theft in office charge did not deprive Burns of a fair trial.

Both the offenses of theft in office and tampering with records were based on

the same pattern of conduct. We therefore cannot conclude that the trial

court’s omission of the additional elements of theft in the jury instruction

rises to the level of plain error in this case. Burns’s first assignment of error

is overruled.

      2. Tampering with records jury instruction

      {¶ 15} Burns next argues that if a trial court takes judicial notice of a

fact in a criminal case, the court must instruct that such action creates a

rebuttable presumption in favor of the fact established, compared to being

irrefutably established.

      {¶ 16} Trial courts are permitted to take judicial notice of adjudicative

facts. Evid.R. 201(A).     “A judicially noticed fact must be one not subject to

reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably be

questioned.”        Evid.R. 201(B). Parties are entitled to be heard as to the

propriety of taking judicial notice and the tenor of the matter noticed upon

timely request to an opportunity. Evid.R. 201(E). In addition, in a criminal

case, the court must instruct the jury that it may, but is not required to,

accept the fact judicially noticed. Evid.R. 201(G); State v. Baker (Sept. 23,

1982), Montgomery App. No. 7753. The defendant may present evidence to

the trier of fact that directly contradicts the judicially noticed fact. Id. The

jury is entitled to resolve the issue in favor of either party, and the judge

must instruct accordingly. Id.

        {¶ 17} In this case, the trial court took judicial notice of the fact that

CMSD is a governmental entity. Tampering with records is elevated to a

felony of the third degree if the records belong to a governmental entity.

R.C. 2913.42(B)(4). The trial court did not instruct the jury on the rebuttable

presumption created by taking judicial notice. 1                      Burns, however, did not

object to this omission and therefore has waived all but plain error. Crim.R.

30(A).


        1
          Contrary to Burns’s argument that the trial court, in instructing the jury, stated “it must be
‘governmental records’ that were tampered with in order to find Burns guilty of the felony charges,
the court stated: ‘In this case it’s the school system. It’s the public school system.’” The line Burns
attributes to the court actually came from the prosecutor during closing arguments. Although not
dispositive of this assignment of error, our review of the record reveals that the trial court was silent
as to the effect of the judicially noticed fact.
      {¶ 18} In this case, we agree with Burns.    The trial court should have

instructed the jury on the rebuttable presumption created by taking judicial

notice of the fact that CMSD is a governmental entity. However, this minor

omission would not have altered the outcome of the trial in this case, and

Burns does not argue otherwise.         The Ohio Revised Code consistently

establishes that CMSD is a governmental entity.        For example, R.C. 9.23

defines “governmental entity” as a political subdivision of the state. R.C.

2744.01(F) “declares public school districts to be political subdivisions, and

R.C. 2744.01(C)(2)(c) states that the provision of a system of public education

is a governmental function.”       Daniel v. Cleveland Mun. School Dist.,

Cuyahoga App. No. 83541, 2004-Ohio-4632, ¶ 11, (finding that CMSD is a

political subdivision for the purposes of the political subdivision immunity

statute).

      {¶ 19} Furthermore, the jury found Burns guilty of theft in office

pursuant to R.C. 2921.41, which requires a determination that either the

property involved was owned by a political subdivision or that Burns was a

public official working for a political subdivision. See R.C. 2921.41(A) and

2921.01(A). Under either, the jury must have determined that CMSD is a

political subdivision in order to find Burns guilty of theft in office. Burns

does not challenge the validity of the theft in office conviction based on the

failure of the state to prove that CMSD is a political subdivision.
      {¶ 20} Even if the jury was properly instructed on the judicial notice

issue, Ohio statutes and case law conclusively establish that CMSD is a

governmental entity and the jury already made the determination

independent of the tampering with governmental records jury charge. No

manifest miscarriage of justice stems from the trial court’s inadvertent

omission.

      {¶ 21} For the foregoing reasons, Burns’s first assignment of error and

part of his second assignment of error on the jury instructions are overruled.

      Sufficiency of the Evidence

      {¶ 22} Burns’s second assignment of error in part challenges the weight

of the evidence supporting the tampering with records counts, and the fourth

and fifth assignments of error challenge the sufficiency of the evidence

supporting the count of engaging in a pattern of corrupt activity.

      {¶ 23} Although Burns premised his fourth assignment of error and the

second part of his second assignment of error on a manifest weight of the

evidence standard, Burns essentially challenges the sufficiency of the

evidence. Burns’s theory is that the state failed to introduce any evidence

that he tampered with the specific invoices or that the “enterprise” engaged

in activity separate from the corrupt activity as required. Burns raised both

arguments in a Crim.R. 29 motion at the close of the state’s case.          We

therefore will review this part of his second assignment of error under the
sufficiency of the evidence standard. We find merit to this portion of his

second assignment of error, but find no merit to his fourth and fifth

assignments of error.

      {¶ 24} In reviewing a claim of insufficient evidence, “‘the relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio

St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks (1991),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.          The

weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of fact.      State v. Tenace, 109 Ohio St.3d 255,

2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

      1. Tampering with records

      {¶ 25} Burns was convicted of tampering with evidence.      The statute

prohibits one from knowingly defrauding or facilitating a fraud by tampering

with a record.     R.C. 2913.42(A).     Tampering is defined as falsifying,

destroying, removing, concealing, altering, defacing, or mutilating any

writing, computer software, data, or record.    Id.   An offender can also be

convicted for tampering with evidence by “uttering” a tampered record. R.C.

2913.42(A)(2).   A person “utters” if she issues, publishes, transfers, uses,

delivers, displays, or circulates a tampered record. R.C. 2913.01(H). If the
writing, data, computer software, or record is kept by or belongs to a

governmental entity, the tampering with records charge is elevated to a

felony of the third degree. R.C. 2913.42(B)(4).

       {¶ 26} In this case, the jury found Burns guilty of tampering with

records; the records being identified as four invoices from SOS. At trial, the

evidence established that Briggle created false invoices that were delivered to

Burns, who in turn delivered the false invoices to the appropriate parties at

CMSD. There was a separate count for tampering with the resolution

authorizing a purchase order that was dismissed prior to trial. Burns argues

that Briggle testified to creating the invoices and therefore Burns did not

himself tamper with the invoices. The evidence would arguably satisfy an

uttering charge pursuant to R.C. 2913.42(A)(2) or even complicity pursuant to

R.C. 2923.03. The state did not include an uttering charge in the indictment

or pursue complicity at trial. The indictment only listed the elements of

R.C. 2913.42(A)(1), tampering, and the trial court only instructed the jury on

the R.C. 2913.42(A)(1) elements.2 Thus, in order to sustain the conviction on


       2
         A jury may be instructed on complicity when the defendant is charged for the principal
offense. State v. Herring, 94 Ohio St.3d 246, 251, 2002-Ohio-796, 762 N.E.2d 940. Any due
process concerns are satisfied because “R.C. 2923.03(F) adequately notifies defendants that the jury
may be instructed on complicity, even when the charge is drawn in terms of the principal offense.”
Id. Under this rationale, we acknowledge that an indictment and bill of particulars need not
specifically include a complicity charge. See State v. White, Summit App. Nos. 23955 and 23959,
2008-Ohio-2432, ¶ 28. In this case, however, the state did not advance the theory of complicity to
commit tampering with records at trial, much less instruct the jury on such. Absent any arguments
to the contrary, we must limit our consideration of this assignment of error to the principal offense of
tampering with records in this case, the state needs to establish that Burns

falsified, destroyed, removed, concealed, altered, defaced, or mutilated each of

the four invoices.

       {¶ 27} Briggle testified to creating the invoices based on the information

Burns provided in the resolutions. The state argues that since Burns created

the resolutions that led to the creation of the invoices, he therefore tampered

with the invoices. We find this argument without merit. The state could

have charged Burns with tampering with the resolutions by providing false

information for the purpose to defraud CMSD.          Burns, however, did not

create the invoices. At best, he aided and abetted or conspired with Briggle

in that undertaking. See R.C. 2923.03.

       {¶ 28} It can also be argued that Burns tampered with the records if we

expand our consideration of the record to include more than just the single

document. However, the indictment specifically refers to “invoices.”         The

tampering with record statute relied on by the state requires proof beyond a

reasonable doubt that Burns falsified, destroyed, removed, concealed, altered,

defaced, or mutilated the four invoices listed in the indictment.           R.C.

2913.42(A)(1). Even when reviewing the evidence in a light most favorable

to the prosecution, we find that no evidence established that Burns tampered

with the invoices himself. Briggle testified that he created the invoices and


tampering with records.
that Burns would deliver them. This part of Burns’s second assignment of

error is sustained.           We are compelled by the plain meaning of R.C.

2913.42(A)(1) to reverse Burns’s conviction and vacate his sentence on the

four counts of tampering with evidence.3

       2. Engaging in a pattern of corrupt activity

       {¶ 29} In Burns’s fourth assignment of error, he argues that the state

failed to establish the “enterprise” element of the count of engaging in a

pattern of corrupt activity because an enterprise must be separate from the

pattern of corrupt activity.           In other words, Burns argues that the state

failed to establish the “distinctness element” of the pattern of corrupt activity

charge. We find this argument without merit.

       {¶ 30} The jury found Burns guilty of engaging in a pattern of corrupt

activity. The relevant statute states in pertinent part: “No person employed

by, or associated with, any enterprise shall conduct or participate in, directly

or indirectly, the affairs of the enterprise through a pattern of corrupt activity

or the collection of an unlawful debt.”                  R.C. 2923.32(A)(1).          “Pattern of

corrupt activity” is further defined as “two or more incidents of corrupt

activity, whether or not there has been a prior conviction, that are related to

       3
           Our disposition of this assignment of error does not affect the determination as to the
propriety of the theft in office jury instruction. The issue with the tampering with records counts is
whether the records were actually tampered with, not whether Burns defrauded CMSD. Burns did
not challenge the sufficiency of the evidence on the fraud element of the tampering with records
counts, which we relied on to resolve the issue with the theft in office jury instruction.
the affairs of the same enterprise, are not isolated, and are not so closely

related to each other and connected in time and place that they constitute a

single event.”    R.C. 2923.31(E).     Finally, R.C. 2923.31(C) defines an

enterprise to include “any individual, sole proprietorship, partnership, limited

partnership, corporation, trust, union, government agency, or other legal

entity, or any organization, association, or group of persons associated in fact

although not a legal entity. ‘Enterprise’ includes illicit as well as licit

enterprises.”

      {¶ 31} Burns relies on this court’s decision in Herakovic v. Catholic

Diocese of Cleveland, Cuyahoga App. No. 85467, 2005-Ohio-5985, for the

proposition that to prove an association-in-fact enterprise, the state must

establish the enterprise’s separate existence, or distinctness, from the corrupt

activity.   Such reliance is misplaced.    “Enterprise” is also defined as a

corporation, sole proprietorship, or other legal entity. In Herakovic, the issue

was whether an association in fact existed. The court specifically noted that

another appellate court employed a broader definition of “enterprise” when

that court relied on the fact that a defendant received drugs through the drug

trade from another country as the evidence that an enterprise existed. The

Herakovic court noted that in that other case, the defendant also “used his

business, a bar, as the location for partaking in the drug transactions.

Enterprise is defined in R.C. 2923.71(C) as including a ‘sole proprietorship.’
This fact establishe[d] the distinctness element from the corrupt activity

element and would be a more appropriate basis for finding the existence of an

enterprise.” Id. at ¶ 30.

      {¶ 32} In this case, SOS was the enterprise.    SOS lawfully engaged in

business activity. The state did not attempt to prove an association-in-fact

enterprise, and we find the statement from Herakovic persuasive. The fact

that SOS is a legal entity pursuing other lawful activities establishes the

distinctness element separate and apart from the corrupt activity.

Therefore, there was sufficient evidence establishing an enterprise, and

Burns’s fourth assignment of error is overruled.

      3. The predicate offenses for engaging in a pattern of corrupt activity

      {¶ 33} In his fifth assignment of error, Burns argues that because the

two predicate offenses, tampering with records and theft in office, must be

reversed, it must follow that the conviction for the engaging in a pattern of

corrupt activity also must be reversed. We note that we have already

overruled Burns’s first assignment of error pertaining to the theft in office

count.   We will address this assignment of error only as it relates to the

counts of tampering with records. Burns’s fifth assignment of error is without

merit.

      {¶ 34} The jury found Burns guilty of engaging in a pattern of corrupt

activity in violation of R.C. 2923.32, as we defined in detail in the preceding
section. In addition, the statute provides that an offender must commit “two

or more incidents of corrupt activity, whether or not there has been a prior

conviction.” R.C. 2923.31(E). In State v. Lightner, Hardin App. No. 6-08-15,

2009-Ohio-2307, the court held that “[a]lthough the predicate acts in R.C.

2923.31 need not be supported by convictions, their occurrence must at least

be proven beyond a reasonable doubt. In addition, the state must set forth

the requisite predicate acts in the indictment that it intends on using as the

foundation for a R.C. 2923.32 offense. State v. Muniz, Cuyahoga App. No.

93825, 2010-Ohio-3720, ¶ 19.       Corrupt activity is broadly defined as

“engaging in, attempting to engage in, conspiring to engage in, or soliciting,

coercing, or intimidating another person to engage * * *” in any number of

enumerated offenses, including theft and tampering with government

records. (Emphasis added.) R.C. 2923.31(I)(2)(c).

      {¶ 35} In other words, the state need not obtain a conviction for the

predicate offenses in order obtain a conviction for engaging in a pattern of

corrupt activity. It is sufficient to prove beyond a reasonable doubt the

elements of the predicate offense. More important, the state need not prove

that Burns actually engaged in the predicate offenses. Burns can be found

guilty based on conspiring to engage in the predicate offenses.          R.C.

2923.31(I)(2)(c).   Our disposition of the tampering with records counts

therefore does not compel us to reverse the conviction of engaging in corrupt
activity. There is sufficient evidence, based on Briggle’s testimony that he

created the invoices from the information provided by Burns and Burns’s

action in delivering the false invoices to CMSD, to support a finding that

Burns conspired to tamper with records. Burns’s fifth assignment of error is

overruled.

      Restitution and Fines

      {¶ 36} Burns third assignment of error challenges the trial court’s

decision to impose fines and restitution without determining his ability to pay

and without holding a hearing to establish the amount of restitution.

      {¶ 37} We review the trial court’s imposition of fines and restitution

under the abuse of discretion standard. The term abuse of discretion means

“an unreasonable, arbitrary, or unconscionable action.” State ex rel. Doe v.

Smith, 123 Ohio St.3d 44, 47, 2009-Ohio-4149, 914 N.E.2d 159.           It is “a

discretion exercised to an end or purpose not justified by, and clearly against

reason and evidence. The term has been defined as a view or action that no

conscientious judge, acting intelligently, could honestly have taken.”

(Citations and quotations omitted.) State v. Hancock, 108 Ohio St.3d 57, 77,

2006-Ohio-160, 840 N.E.2d 1032.

      {¶ 38} At the sentencing hearing, the trial court imposed restitution in

the amount of $23,192.74 for the cost of the state audit and $100,000 for the

insurance deductible paid by CMSD. The trial court also imposed a $100,000
fine. Before addressing the merits of the assignment of error, we first note

that the original sentencing entry dated July 14, 2010, incorrectly

memorialized the trial court’s announced decision. The original sentencing

entry stated the restitution totaled $223,192.74, rather than the $123,192.74

announced. Thus, the nunc pro tunc entry entered on July 29, 2010, was the

proper remedy to correct the clerical mistake regarding the restitution. State

v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15.

      {¶ 39} Courts may order restitution to compensate the victims under

certain conditions. R.C. 2929.18(A)(1). If the court imposes restitution at

sentencing, it must do so in open court at that time and also hold a hearing on

restitution if the offender disputes the amount. Id. In the current case, the

trial court imposed restitution at the sentencing hearing. Burns disputed

the amount of restitution prior to sentencing.       Rather than holding a

hearing, the court imposed restitution subject to the state providing the

necessary foundation.   The trial court specifically noted that Burns could

challenge the amount after the state filed the evidentiary support, but it

nonetheless entered the sentencing entry as a “provisional” order dated July

14, 2010, with the total amount of restitution included.       The trial court

ratified the “provisional” order on July 30, 2010, after the state filed the

required support. In the later order, the trial court stated the restitution
would be “final in ten days from the date of this order unless defendant

requests a hearing within that time.”

      {¶ 40} However, Burns filed the within appeal on July 27, 2010,

divesting the trial court of jurisdiction to resolve the restitution issue. The

July 14, 2010 order contained all the required elements to constitute a final

appealable order. Most important for this discussion, it contained a definite

amount of restitution.    See State v. Brewer, Cuyahoga App. No. 94144,

2010-Ohio-5242.    There is no statutory authority allowing the court to

exercise continuing jurisdiction to modify the amount of restitution after

sentencing. Id. at ¶15. We find the trial court erred by imposing restitution

without conducting a hearing to ascertain the amount of loss suffered by the

victim.

      {¶ 41} We now turn to the imposition-of-fines issue.   Courts may impose

fines upon the offender provided that the court considers the offender’s

present and future ability to pay the amount of restitution.              R.C.

2929.19(B)(6). The failure to object to the amount of the fine at a time when

the trial court could correct that error constitutes a waiver of all but plain

error. State v. Baker, Cuyahoga App. No. 93574, 2010-Ohio-4480, ¶ 11. “In

other words, when a defendant does not object at the sentencing hearing to

the amount of the fine and does not request an opportunity to demonstrate to
the court that he does not have the resources to pay the fine, he waives any

objection to the fine on appeal.” Id.

      {¶ 42} This court has previously held that “[p]rior to imposing

restitution, a trial court shall consider the offender’s present and future

ability to pay the amount of the sanction or fine. R.C. 2929.19(B)(6). There

must be some evidence in the record the trial court considered defendant’s

present and future ability to pay the sanction.      While a court is neither

required to hold a hearing to make this determination nor indicate in its

judgment entry that it considered a criminal defendant’s ability to pay, there

must be some evidence in the record to show that the court did consider this

question.”   (Internal citations and quotations omitted.)       State v. Cosme,

Cuyahoga App. No. 90075, 2008-Ohio-2811, ¶ 34.

      {¶ 43} Burns did not object to the amount of the fine.   His only objection

was to the amount of restitution. We agree with the state that there was

ample evidence from the sentencing hearing and the trial itself to establish

Burns’s ability to pay the fine.    Burns made over $300,000 a year from

working for CMSD and his pension, and owned a home and multiple cars.

Furthermore one of Burns’s defenses at trial was that he made enough money

and carried little debt so there was no reason to steal. The trial court may

rely on trial testimony in considering the defendant’s ability to pay fines. Id.

 The trial court, however, did not indicate at the sentencing hearing whether
it considered Burns’s present or future ability to pay the fine.

       {¶ 44} For the foregoing reasons, Burns’s third assignment of error is

sustained. We remand the case for the limited purpose of holding a hearing

on the amount restitution and to resolve whether the court considered

Burns’s present and future ability to pay the financial sanctions.

       Ineffective Assistance of Counsel

       {¶ 45} Burns’s sixth assignment of error raises an ineffective assistance

of counsel, claiming his trial counsel did not object to the improper jury

instruction on the theft in office charge and by not objecting to the imposition

of restitution and fines. Our disposition of Burns’s third assignment of error

renders the latter argument moot.

       {¶ 46} In order to substantiate a claim of ineffective assistance of

counsel, the appellant must show that (1) counsel’s performance was deficient

and (2) the deficient performance prejudiced the defendant so as to deprive

him of a fair trial.        State v. Trimble, 122 Ohio St.3d 297, 310,

2009-Ohio-2961, 911 N.E.2d 242, citing Strickland v. Washington (1984), 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Judicial scrutiny of defense

counsel’s performance must be highly deferential. Strickland, 104 S.Ct. at

2065. In Ohio, there is a presumption that a properly licensed attorney is

competent. State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d

905.    The defendant has the burden of proving his counsel rendered
ineffective assistance. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179,

920 N.E.2d 104, ¶ 223.

      {¶ 47} As we previously stated, the state’s entire case established that

Burns and Briggle received money that they were not entitled to receive by

setting up the purchase of equipment and services that were not delivered to

CMSD. Implicit in that fact pattern is that either Burns received money

that exceeded the consent of CMSD or Burns committed the theft by

deceiving CMSD into believing that equipment was actually purchased.

Most important, the jury found Burns guilty of tampering with records, which

includes an element that Burns knowingly defrauded CMSD by deception.

Both offenses were based on the same pattern of behavior. Since the jury

found that Burns deceived CMSD for the purposes of the tampering with

records charges, the trial court’s failure to specifically state that the jury

needed to find deception for the theft in office charge did not deprive Burns of

a fair trial. Burns’s sixth assignment of error is overruled.

      Conclusion

      {¶ 48} For the foregoing reasons, Burns’s second assignment of error is

sustained in part and his third assignment of error is sustained. All others

are overruled.

      {¶ 49} We affirm the decision of the trial court in part, reverse in part,

and remand for further proceeding consistent with this opinion.
       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
