[Cite as State v. St. Martin, 2012-Ohio-1633.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96834




                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 JEFFREY ST. MARTIN
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-536179

        BEFORE: Keough, J., Sweeney, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: April 12, 2012
ATTORNEY FOR APPELLANT

Jeffrey S. Richardson
Richardson & Kucharski Co., LPA
1200 West 3rd Street
Suite 190
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Michael E. Jackson
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Jeffrey St. Martin (“St. Martin”), appeals his sentence.

 For the reasons that follow, we affirm.

                             I. Facts and Procedural History

       {¶2} In 2010, St. Martin was indicted on 127 counts stemming from a fraudulent

mortgage scheme he and 17 co-defendants were involved in from 2005 to 2006. In 2010,

St. Martin pled to 21 of those counts, which included an amended count of engaging in a

pattern of corrupt activity, a second-degree felony, in violation of R.C. 2923.32; one

count of money laundering, a third-degree felony, in violation of R.C. 1315.55; five

counts of theft by deception, felonies of the third degree, in violation of R.C. 2913.02;

twelve counts of tampering with records, felonies of the third degree, in violation of R.C.

2913.42; and two counts of Mortgage Banker Registration, fifth-degree felonies, in

violation of R.C. 1332.02.

       {¶3} As part of the plea agreement, St. Martin also agreed to (1) forfeit $30,000

and the seized computers obtained by law enforcement, (2) pay $3,089,750 in restitution,

and (3) cooperate with law enforcement in other mortgage fraud investigations.          In

exchange, the State agreed to dismiss the remaining 106 counts against St. Martin, and

that his guilty pleas would be dispositive of any other charges that may arise concerning

mortgage deals in Cuyahoga County where St. Martin acted as a “broker or deal maker.”
       {¶4} In January 2011, the trial court sentenced St. Martin to six years in prison on

the one count of engaging in a pattern of corrupt activity; the court sentenced him to

concurrent prison terms on the remaining charges. St. Martin, in his delayed appeal,

challenges the court’s imposition of restitution and his sentence.

                                   II. Restitution Order

       {¶5} In his first assignment of error, St. Martin contends that the trial court

committed plain error when it sentenced him to pay an amount of restitution in violation

of his state and federal rights to due process as guaranteed by Article I, Section 10 of the

Ohio Constitution and the Fourteenth Amendment of the United States Constitution

because (1) the restitution amount was beyond what was statutorily allowed, and (2) he

lacks the ability to pay the amount ordered.

       {¶6} “R.C. 2929.18(A)(1) permits a trial court, as part of a sentence, to order

restitution to the victim of the offender’s crime in an amount based on the victim’s

economic loss.” State v. Hody, 8th Dist. No. 94328, 2010-Ohio-6020, ¶ 24, quoting

State v. Stamper, 12th Dist. No. CA2009-04-115, 2010-Ohio-1939, ¶ 16. Pursuant to

R.C. 2929.19(B)(6), before ordering restitution, the trial court must consider the

offender’s present and future ability to pay the restitution. Id. The court must also

determine the amount of restitution to a reasonable degree of certainty, ensuring that the

amount is supported by competent, credible evidence. Id., citing State v. Warner, 55

Ohio St.3d 31, 69, 564 N.E.2d 18 (1990). If there is a plea agreement, the trial court may

satisfy its burden to consider a defendant’s ability to pay by asking the defendant if he
understands that the restitution amount is part of the sentence. State v. Myrick, 8th Dist.

No. 91492, 2009-Ohio-2030, ¶ 31.

       {¶7} In this case, St. Martin agreed to the restitution order as part of his plea

agreement with the State. Neither he nor his defense counsel raised any objection to the

amount of restitution ordered or to whether St. Martin would be able to pay that amount.

Failure to object waives all but plain error.       State v. Lalain, 8th Dist. No. 95857,

2011-Ohio-4813, ¶ 11, citing State v. Jarrett, 8th Dist. No. 90404, 2008-Ohio-4868.

Under Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” “Plain error exists only if

but for the error, the outcome of the trial clearly would have been otherwise, and is

applied under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” (Citation and quotations omitted.) State v. Harrison, 122 Ohio St.3d 512,

2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61.

       {¶8} This court has repeatedly held that when the State and the defense enter into a

stipulation as to the amount of restitution, the stipulation is sufficient to support the trial

court’s order and precludes the defendant from complaining about it on appeal. Hody at

¶25, citing State v. Sancho, 8th Dist. No. 91903, 2009-Ohio-5478. See also State v.

Alberto, 8th Dist. No. 94639, 2011-Ohio-208; Myrick. Furthermore, nothing in R.C.

2929.18(A)(1) prohibits an award of restitution greater than the maximum associated with

the degree of offense when the defendant has agreed to pay more as part of a plea
agreement. Lalain at ¶ 27, S. Gallagher, J., dissenting, citing State v. Wickline, 3d Dist.

No. 8-10-20, 2011-Ohio-3004, ¶ 14-15.

       {¶9} The record reflects that St. Martin, who holds a bachelor’s degree in

accounting, specifically agreed to the restitution amount at the plea hearing. The trial

court asked during the plea colloquy, “And do you also understand that you must make

restitution in the amount of $3,089,750? Do you understand that?” St. Martin replied in

the affirmative, “I do, yes.” During the sentencing phase, the prosecutor set forth the

amount of restitution and delineated and apportioned the amount of restitution to be paid

to each financial institution victim. At no time during the plea colloquy or during the

sentence did St. Martin interject to object to the amount or his ability to pay the restitution

amount.

       {¶10} Accordingly, because St. Martin entered into a negotiated plea agreement

and did not object to the restitution at the time of entering his plea or when he was

sentenced, we find no error, plain or otherwise, by the trial court in ordering restitution in

the amount of $3,089,750, even though the amount ordered is beyond the statutory

maximum. St. Martin’s first assignment of error is overruled.

                                        III. Sentence

       {¶11} St. Martin contends in his second assignment of error that his sentence is

contrary to law because the trial court erred by imposing a sentence that is not consistent

to similarly situated offenders, thereby violating R.C. 2929.11(B).
       {¶12} As relevant to this appeal, under R.C. 2929.11(B), a felony sentence must be

“consistent with sentences imposed for similar crimes committed by similar offenders.”

“To support a claim that a ‘sentence is disproportionate to sentences imposed upon other

offenders, a defendant must raise this issue before the trial court and present some

evidence, however minimal, in order to provide a starting point for analysis and to

preserve the issue for appeal.’” State v. Searles, 8th Dist. No. 96549, 2011-Ohio-6275, ¶

25, quoting State v. Edwards, 8th Dist. No. 89181, 2007-Ohio-6068, ¶ 11. In this case,

St. Martin did not raise the issue of proportionality with the trial court. Nevertheless, we

find that St. Martin’s argument is without merit.

       {¶13} A felony sentence should be proportionate to the severity of the offense

committed, so as not to “shock the sense of justice in the community.” State v. Chafin,

30 Ohio St.2d 13, 17, 282 N.E.2d 46 (1972). See also R.C. 2929.11(B). A defendant

alleging disproportionality in felony sentencing has the burden of producing evidence to

“indicate that his sentence is directly disproportionate to sentences given to other

offenders with similar records who have committed these offenses * * *.” State v.

Breeden, 8th Dist. No. 84663, 2005-Ohio-510, ¶ 81.

       {¶14} St. Martin argues that his co-defendants were similarly situated to him, yet

each co-defendant was sentenced to a term of probation whereas he was sentenced to a

six-year term of imprisonment. Although St. Martin recognizes that his co-defendants

were sentenced “for a lesser amount of crimes,” he contends that the differences in the

sentences demonstrate that his sentence violates R.C. 2929.11(B).
      {¶15} In State v. Berlingeri, 8th Dist. No. 95458, 2011-Ohio-2528, this court

addressed a similar proportionality argument and noted:

      There is no requirement that co-defendants receive equal sentences. Each
      defendant is different and nothing prohibits a trial court from imposing two
      different sentences upon individuals convicted of similar crimes. When
      that happens, the task of the appellate court is to determine whether the
      sentence is so unusual as to be outside the mainstream of local judicial
      practice. We bear in mind that although offenses may be similar, there may
      be distinguishing factors that justify dissimilar sentences. (Internal citations
      and quotations omitted). Id. at ¶ 12; see also State v. Smith, 8th Dist. No.
      95243, 2011-Ohio-3051, appeal not allowed, 130 Ohio St.3d 1477,
      2011-Ohio-6124, 957 N.E.2d 1168.

      {¶16} A review of the record in this case reflects that the first distinguishing factor

is that neither of St. Martin’s co-defendants pled to a second-degree felony. Pursuant to

R.C. 2929.14(A)(2), a second-degree felony, which carries a presumption of prison, is

punishable from two to eight years in prison; therefore, the six years imposed is

well-within the statutory range allowed by law.        Moreover, St. Martin pled to an

additional 20 counts, including 18 third-degree felonies and two fifth-degree felonies.

Finally, as the trial court noted, St. Martin was alleged to be the “ringleader” of this

fraudulent mortgage scheme enterprise.

      {¶17} Accordingly, we find that the trial court’s decision to impose a six-year

prison term was not contrary to law.        St. Martin’s second assignment of error is

overruled.

      {¶18} Affirmed.

      It is ordered that appellee recover from appellant 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

JAMES J. SWEENEY, P.J., and
LARRY A. JONES, SR., J., CONCUR
