         [Cite as State v. Johnson, 2011-Ohio-5913.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-100702
                                                       TRIAL NO. B-1005248
        Plaintiff-Appellee,                       :
                                                       O P I N I O N.
  vs.                                             :

JASON M. JOHNSON,                                 :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: November 18, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael A. Woodford, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Presiding Judge.

        {¶1}     Jason Johnson appeals from the trial court’s judgment that ordered

him to pay restitution to Ada Goldston, Cash America, and Auto Owners Insurance

(“Auto Owners”). We conclude that the trial court erred when it ordered Johnson to

pay restitution to the victim’s insurance company, and we modify the trial court’s

judgment to remove that restitution obligation. As modified, we affirm the judgment

of the trial court.

        {¶2}     Johnson was indicted for the fourth-degree felony of receiving

property stolen from Goldston worth $5,000 or more, but less than $100,000. As

the result of plea negotiations, Johnson pleaded guilty to a reduced charge of fifth-

degree receiving stolen property.

        {¶3}     After accepting Johnson’s guilty plea, the trial court held a hearing on

restitution. During the hearing, Goldston testified that a gold chain with a 1.45-carat

diamond pendant had been stolen from her home.              The gold chain had been

recovered from Cash America where it had been pawned, but the diamond was still

missing.    According to Goldston, the diamond was valued at $11,400 on her

homeowner’s insurance policy. Goldston’s insurance company, Auto Owners, had

paid her $5,631 for her loss.

        {¶4}     After a sentencing hearing, the trial court sentenced Johnson to five

months of community control, fined him $250, and ordered him to pay restitution as

follows: $5,769 to Goldston, $125 to Cash America, and $5,631 to Auto Owners.

Johnson now appeals.

        {¶5}     In his first assignment of error, Johnson asserts that the trial court

erred when it ordered him to pay restitution to Auto Owners. We agree. R.C.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



2929.18(A)(1) provides that a trial court may order that a defendant pay restitution

to his victim in the amount of 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 another agency designated by the court.” R.C.

2929.18(A)(1). In 2004, the General Assembly amended the former version of R.C.

2929.18(A)(1) to remove language that allowed the trial court to order that

restitution be paid to a third party on behalf of the victim. See State v. Berlinger, 1st

Dist. No. C-100541, 2011-Ohio-2223. Given this deletion, the legislature’s intent to

disallow payment to victims’ insurance companies is clear. See State v. Colon, 185

Ohio App.3d 671, 2010-Ohio-492, 925 N.E.2d 212; State v. Kelly, 4th Dist. Nos.

10CA28 and 10CA29, 2011-Ohio-4902. The state concedes that the trial court erred

when it ordered that restitution be paid to Auto Owners. The first assignment of

error is sustained.

       {¶6}    We consider Johnson’s next two assignments of error together, as

both take issue with the amount of restitution that Johnson was ordered to pay

Goldston. We reframe the assignments together to assert that the court erred when

it ordered Johnson to pay $5,631 in restitution to Goldston. We note that after the

trial court announced that it was ordering Johnson to pay restitution to Goldston,

Cash America, and Auto Owners, Johnson objected only to “any evidence that we

have regarding the restitution to the insurance company.” Therefore, he has waived

all but plain error with respect to the amount awarded to Goldston. Under the plain-

error standard, Johnson cannot prevail on his claim “unless, but for the error, the

outcome * * * would have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91,

372 N.E.2d 804, paragraph two of the syllabus.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}    When determining the amount of restitution to order, a trial court

may consider “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.” R.C.

2929.18(A)(1). “[C]ompetent, credible evidence must support a restitution order so

that the court can discern the amount to a reasonable degree of certainty.” State v.

Sexton, 1st Dist. No. C-110037, 2011-Ohio-5246, ¶3, citing State v. Webb, 173 Ohio

App.3d 547, 2007-Ohio-5670, 879 N.E.2d 254, ¶34; State v. Purnell, 171 Ohio

App.3d 446, 2006-Ohio-6160, 871 N.E.2d 613, ¶16.

       {¶8}    Johnson argues that evidence of the amount that the insurance

company had paid Goldston was competent, credible evidence of the extent of her

loss. But Goldston testified that the diamond had been valued at $11,400 on her

insurance claim. The trial court was in the best position to determine whether

Goldston was credible and whether her testimony supported a restitution award of

$11,400. The amount of restitution that Johnson was ordered to pay Goldston was

$11,400 less the amount that she had been paid by the insurance company.

       {¶9}    Johnson also argues that the amount of restitution the trial court had

the authority to award was limited by his plea to fifth-degree receiving stolen

property, which indicated that the property in question had a value of $500 to

$5000. But the trial court was not limited to the negotiated plea amount. See State

v. Brumett, 12th Dist. No. CA2003-06-135, 2004-Ohio-2211. In her statement of the

facts of the offense, the prosecutor stated that the property was worth $11,000, and

Johnson did not object at the time to that figure. We note that Johnson seems to



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                     OHIO FIRST DISTRICT COURT OF APPEALS



contend within his argument under the third assignment of error that his plea was

involuntary because he was unaware that restitution would be ordered. But because

he has not assigned this as error, we do not consider it as an assignment of error.

       {¶10}   Johnson also contends that the trial court improperly considered the

sentimental value of the diamond when determining the restitution amount. This

contention is not borne out by the record. Although the prosecutor asked Goldston

about the sentimental value of the diamond, it is clear that the amount of restitution

that was ordered by the trial court was based on the amount at which the diamond

had been valued for Goldston’s insurance policy and the amount that had been paid

to Goldston by the insurance company.

       {¶11}   We conclude that Johnson has not demonstrated plain error. The

second and third assignments of error are therefore without merit.

       {¶12}   Because we have determined that the trial court erred when it ordered

that restitution be paid to Auto Owners, we reverse that part of the trial court’s

judgment and modify the trial court’s judgment to remove that part of the restitution

order. The judgment of the trial court is affirmed as modified.

                                                         Judgment affirmed as modified.




C UNNINGHAM and F ISCHER , JJ., concur.


Please Note:
       The court has recorded its own entry this date.




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