[Cite as State v. Jackson, 2012-Ohio-4235.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               ROSS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA3263
                               :
     vs.                       : Released: September 14, 2012
                               :
PATRICK JACKSON,               : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Benjamin J. Partee, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C.
Marks, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Patrick Jackson, appeals the order of restitution

imposed by the Ross County Court of Common Pleas in connection with his

plea of no contest to improper handling of a firearm in a motor vehicle and

vandalism, both fifth degree felonies. On appeal, Appellant contends that the

trial court committed plain error in ordering a restitution amount not

supported by the record or evidence presented. After reviewing the

restitution order under an abuse of discretion standard, which we apply in

light of the fact that Appellant disputed the amount of restitution during the
Ross App. No. 11CA3263                                                         2


sentencing hearing, we find that the amount of restitution ordered is not

supported by competent, credible evidence in the record. As such, we

conclude that the trial court erred and abused its discretion in ordering

restitution in the amount that it did. Accordingly, Appellant’s sole

assignment of error is sustained and the decision of the trial court, as to

restitution, is reversed and the matter is remanded for further proceedings.

                                       FACTS

      {¶2} With one exception, the parties agree on the following facts, as

set forth in Appellant’s brief on appeal:

      “On February 6, 2011, Appellant was pulled over in

      Chillicothe. Upon approaching the vehicle, the arresting officer

      noticed an open container of alcohol, for which Appellant was

      arrested. Upon further search, the officer located a loaded

      handgun in Appellant’s bag, within reach of Appellant. Upon

      being placed in the cruiser, Appellant was able to get his

      handcuffed arms from behind to in front of him. At that time,

      Appellant pulled on the wires attached to the in-cruiser video

      camera. Appellant pulled the wires from the camera,

      destroying the wires and bending the camera’s mounting

      bracket. * * *.”
Ross App. No. 11CA3263                                                           3


The State’s exception to Appellant’s version of the facts deals with the

amount of damage that was caused to the cruiser video system. The State

instead directs this Court to the reports provided as part of the pre-sentence

investigation.

      {¶3} The record further reveals that on April 12, 2011, based upon the

above facts, Appellant entered no contest pleas to improper handling of a

firearm in a vehicle, in violation of R.C. 2923.16, and vandalism, in

violation of R.C. 2909.05, both fifth degree felonies. The transcript of the

sentencing hearing held on May 24, 2011, indicates that the trial court

considered a pre-sentence investigation report, as well as a police report and

a document consisting of a price list for replacement camera parts, that was

submitted by the State as part of the pre-sentence investigation. However,

the reports referenced by the State on appeal and by the trial court in the

transcript do not appear in the record before us, and were not attached to the

pre-sentence investigation report.

      {¶4} Although Appellant’s counsel disputed the amount of damage

done to the cruiser video system, which the State claimed totaled $3,235.00,

the trial court ordered the full amount in restitution. It is from this

sentencing order imposing restitution that Appellant now brings his timely

appeal, setting forth a single assignment of error for our review.
Ross App. No. 11CA3263                                                          4


                         ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT COMMITTED PLAIN ERROR IN
      ORDERING A RESTITUTION AMOUNT NOT SUPPORTED BY
      THE RECORD OR EVIDENCE PRESENTED.”

                             LEGAL ANALYSIS

      {¶5} In his sole assignment of error, Appellant contends that the trial

court committed plain error in ordering a restitution amount not supported

by the record or evidence presented. However, as the record indicates that

Appellant’s trial counsel disputed the amount of restitution requested by the

State, and which the trial court ordered, we find it unnecessary to employ a

plain error analysis. Instead, we apply the analysis recently acknowledged

by this Court in State v. Rizer, 4th Dist. No. 10CA3, 2011-Ohio-5702, ¶ 41,

which applied the analysis for review of felony sentences as set forth in State

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.

      {¶6} In State v. Kalish, the Supreme Court of Ohio announced the

standard for appellate review of felony sentences which involves a two-step

analysis. First, we “must examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether

the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If

the sentence is not clearly and convincingly contrary to law, we review the

trial court's sentence for an abuse of discretion. Id. The term “abuse of
Ross App. No. 11CA3263                                                         5


discretion” implies that the court's attitude is unreasonable, arbitrary, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144.

      {¶7} R.C. 2929.18 governs the imposition of financial sanctions and

provides in section (A)(1) as follows:

      “(A) Except as otherwise provided in this division and in

      addition to imposing court costs pursuant to section 2947.23 of

      the Revised Code, the court imposing a sentence upon an

      offender for a felony may sentence the offender to any financial

      sanction or combination of financial sanctions authorized under

      this section or, in the circumstances specified in section

      2929.32 of the Revised Code, may impose upon the offender a

      fine in accordance with that section. Financial sanctions that

      may be imposed pursuant to this section include, but are not

      limited to, the following:

      (1) Restitution by the offender to the victim of the offender's

      crime or any survivor of the victim, in an amount based on the

      victim's economic loss. If the court imposes restitution, the

      court shall order that the restitution be made to the victim in

      open court, to the adult probation department that serves the

      county on behalf of the victim, to the clerk of courts, or to
Ross App. No. 11CA3263                                                     6


      another agency designated by the court. If the court imposes

      restitution, at sentencing, the court shall determine the amount

      of restitution to be made by the offender. 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

      restitution, the court shall hold a hearing on restitution if the

      offender, victim, or survivor disputes the amount. All restitution

      payments shall be credited against any recovery of economic

      loss in a civil action brought by the victim or any survivor of

      the victim against the offender.

      If the court imposes restitution, the court may order that the

      offender pay a surcharge of not more than five per cent of the

      amount of the restitution otherwise ordered to the entity

      responsible for collecting and processing restitution payments.
Ross App. No. 11CA3263                                                                                      7


        The victim or survivor may request that the prosecutor in the

        case file a motion, or the offender may file a motion, for

        modification of the payment terms of any restitution ordered. If

        the court grants the motion, it may modify the payment terms as

        it determines appropriate.”1 (Emphasis added).

        {¶8} Here, Appellant pled no contest to vandalism with regard to the

cruiser video system. Thus, Appellant does not dispute that he damaged the

system, he simply disputes the extent of the damage and the cost of repair.

Moreover, he does not dispute that restitution was proper, he simply disputes

the amount. The record reveals that the trial court relied upon information

permitted by R.C. 2929.18(A)(1), specifically, a pre-sentence investigation

report indicating Appellant caused damage to the system, as well as

estimates indicating cost of replacement in arriving at its restitution order.

However, the estimates reviewed by the trial court were not admitted into

evidence as exhibits and thus were not made part of the record. Further,

although the pre-sentence investigation report was reviewed by the trial

court, that report simply states the restitution amount as “$3,235.00 to

Chillicothe Police” and references that the amount was based upon

“information contained in the Prosecutor file[.]”

1
 We apply a prior version of R.C. 2929.18 with an effective date of April 7, 2009, as the current version
did not become effective until September 23, 2011.
Ross App. No. 11CA3263                                                          8


      {¶9} “A trial court abuses its discretion when it orders restitution in an

amount that has not been determined to bear a reasonable relationship to the

actual loss suffered as a result of the defendant’s offense.” State v. Johnson,

4th Dist. No. 03CA11, 2004-Ohio-2236, ¶ 11; citing State v. Martin, 140

Ohio App.3d 326, 747 N.E.2d 318 (2000) and State v. Williams, 34 Ohio

App.3d 33, 34, 516 N.E.2d 1270 (1986). “[T]he amount of the restitution

must be supported by competent, credible evidence in the record from which

the court can discern the amount of the restitution to a reasonable degree of

certainty.” Johnson at ¶ 10; citing State v. Sommer, 154 Ohio App.3d 421,

424, 2003-Ohio-5022, 797 N.E.2d 559, ¶ 12 and State v. Gears, 135 Ohio

App.3d 297, 300, 733 N.E.2d 683 (1999). “Since the amount of restitution

must bear some reasonable relationship to the loss suffered, it logically

follows that there must be some factual findings in the record to substantiate

the figures.” State v. Poole, 4th Dist. No. 522, 1992 WL 276564 (Oct. 6,

1992); See, also, State v. Poole , 4th Dist. No. 563, 1994 WL 146829 (Apr.

14, 1994) (reversing and remanding case when there was no evidence in the

record to substantiate a restitution order).

      {¶10} As statements made by the prosecutor are not considered

evidence, the replacement parts sheet was not made part of the record (either

as an admitted exhibit or as an attachment to the PSI), and there was no
Ross App. No. 11CA3263                                                           9


witness testimony as to the extent of the damage or cost to repair or replace,

there is no evidence “in the record” for us to review. As such, we conclude

that the trial court’s order of restitution was contrary to law, and thus, was

also an abuse of discretion.

      {¶11} Having determined that the trial court’s order of restitution was

an abuse of discretion, Appellant’s sole assignment of error is sustained.

Accordingly, the decision of the trial court is reversed, and the matter is

remanded to the trial court for further proceedings.

                           JUDGMENT REVERSED AND REMANDED.
Ross App. No. 11CA3263                                                        10


                           JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED and that the Appellant recover of Appellee 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 Ross County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.

                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
