[Cite as State v. Graupmann, 2014-Ohio-3637.]




              IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :       C.A. CASE NO.      2013 CA 65

v.                                                     :      T.C. NO.    TRD1211371

JORDAN L. GRAUPMANN                                    :       (Criminal appeal from
                                                                Municipal Court)
        Defendant-Appellant                            :

                                                       :

                                            ..........

                                          OPINION

                        Rendered on the         22nd       day of        August        , 2014.

                                            ..........

BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant Fairborn Prosecutor, 510 West Main
Street, Fairborn, Ohio 45324
        Attorney for Plaintiff-Appellee

CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 100 E. Third Street, Suite 400,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, P.J.

                {¶ 1} Jordan Graupmann appeals from a judgment of the Fairborn

Municipal Court, which found him guilty, on his guilty plea, of reckless operation of a
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vehicle, a misdemeanor of the fourth degree. The court sentenced him to 30 days in jail, all

of which was suspended, imposed a fine of $150, plus court costs, and ordered Graupmann

to pay restitution in the amount of $2,761.27. Graupmann appeals from his conviction,

challenging the trial court’s refusal to consider his untimely objections to its order of

restitution.

        {¶ 2}   On December 11, 2012, Graupmann backed out of a driveway in a

residential neighborhood and struck a vehicle parked on the street. According to the police

report, Graupmann left the scene “without making any notification” regarding the accident.

The Fairborn Police Department investigated the incident and, on December 19, Graupmann

was cited for improper backing, failure to stop after an accident, and operating a vehicle

without a valid license.

        {¶ 3}   In the Fairborn Municipal Court, the matter was heard by a magistrate. On

July 22, 2013, Graupmann pled guilty at a plea hearing to an amended charge (from the

failure to stop after an accident) of reckless operation of a vehicle, in exchange for which the

charges for improper backing and driving without a valid operator’s license were dropped.

        {¶ 4}    The magistrate held a sentencing/restitution hearing on September 5, 2013.

At the hearing, the owner of the damaged car, a 1999 Pontiac Grand Am, presented three

estimates for the repairs, which totaled $2,761.27, $2,770.41, and $2,950.10. The owner

also presented evidence, based on AutoTrader, that the value of the car was between

approximately $2,600 and $5,900. Graupmann presented pictures of the vehicle, which was

dented on the rear driver’s side, and suggested that, considering the age and condition of the

car, a damage award in the range requested by the owner “would be effectively totaling [the
                                                                                                                                         3

car] out;” however, he did not present any specific evidence as to the cost of the repairs or

the value of the car. The magistrate sentenced Graupmann as described above, ordered that

Graupmann pay restitution in the amount of $2,761.27, and informed Graupmann that he had

14 days to file objections to her decision.

         {¶ 5}        On September 9, 2013, the trial court adopted the magistrate’s decision.1

         {¶ 6}          Graupmann did not file any objections within 14 days. On September 24,

2013 (the 19th day), he filed a motion to file objections out of time and the proposed

objections themselves, which related to the amount of restitution awarded.                                                      In the

objections, Graupmann argued that, according to the NADA Older Used Car Guide, the

trade-in value of the damaged car was only $500-$800, that even in “clean” condition, the

car would at most have a value of $2,875, and that the car was not in “clean” condition; none

of this evidence was presented at the sentencing/restitution hearing.

         {¶ 7}        On October 2, 2013, the trial court overruled Graupmann’s motion to file

objections out of time. It based its decision on the language of Crim.R. 19(D)(4)(e)(i) and

of the magistrate’s decision, which stated that such objections were to be filed within 14

days of the magistrate’s decision, and on Graupmann’s failure to show any good cause for an

extension. Graupmann appeals from this decision.

         {¶ 8}        In his first assignment of error on appeal, Graupmann contends that he

should have been allowed to file his objections, because “a seeming miscommunication


              1
                Pursuant to Crim.R. 19(D)(4)(e)(i), “[t]he court may enter a judgment either during the fourteen days permitted * * *
   for the filing of objections to a magistrate’s decision or after the fourteen days have expired. If the court enters a judgment during
   the fourteen days * * *, the timely filing of objections to the magistrate’s decision shall operate as an automatic stay of execution of
   the judgment until the court disposes of those objections and vacates, modifies, or adheres to the judgment previously entered.”
                                                                                             4

between counsel and client” constituted “excusable neglect.” Specifically, Graupmann did

not inform counsel until 17 days after the magistrate’s entry that he wanted to file an

objection. Graupmann asserts that he had “viable defense[s]” based on the unreasonable

amount of the magistrate’s restitution award and the magistrate’s failure to consider his

ability to pay.

        {¶ 9}     The question whether good cause has been shown for the extension of a

filing deadline is within a trial court’s discretion. See, e.g., Cincinnati v. Parker, 22 Ohio

St.2d 209, 211, 259 N.E.2d 114 (1970); Whipple v. Warren Corr. Inst., 10th Dist. Franklin

No. 09AP-253, 2009-Ohio-4841, ¶ 6, citing Johnson v. Univ. Hosp. Case Med. Ctr., 8th

Dist. Cuyahoga No. 90960, 2009-Ohio-2119, ¶ 5; Falvey v. Falvey, 5th Dist. Fairfield No.

09-CA-0061, 2010-Ohio-2144, ¶ 21.       We will not reverse a trial court’s decision unless the

court has abused its discretion. “Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary, or unconscionable.    Lewis v. Lewis, 2d Dist. Greene No. 2013 CA

68, 2014-Ohio-958, ¶ 11.

       {¶ 10} In this case, we cannot find that the trial court abused its discretion in

concluding that Graupmann had not shown good cause for the untimeliness of his objections

to the magistrate’s decision. It appears that Graupmann had simply failed to pursue the

matter within the time provided by Crim.R. 19(D)(3)(b)(i), of which he was informed at the

sentencing/restitution hearing and in the magistrate’s written decision. Moreover, although

the record does not contain a transcript of the plea hearing, the magistrate stated at the

sentencing/restitution hearing that it was explained to Graupmann at the plea hearing “that he

would be ordered to make restitution.” In the absence of any compelling reason to allow the
                                                                                            5

untimely filing of objections, we cannot conclude that the trial court abused its discretion in

overruling Graupmann’s motion to file such objections.

       {¶ 11}    The first assignment of error is overruled.

       {¶ 12} In his second assignment of error, Graupmann argues that the amount of

restitution awarded by the trial court was unreasonable and that the trial court did not

consider his ability to pay restitution. Because Graupmann did not file timely objections or

timely present the evidence he attached to his untimely objections, these issues are not

properly before us. However, we will comment briefly on these arguments.

       {¶ 13} With respect to Graupmann’s argument that the amount of restitution was

disproportionate to the value of the victim’s car, we note that Graupmann did not present any

evidence regarding the value of the victim’s car at the hearing that was scheduled to examine

this issue, although he did object to the amounts proposed by the victim. When Graupmann

filed his motion to file objections out of time (with the proposed objections), he discussed

values that were based on the NADA Older Used Car Guide, attaching a page that appeared

to be from this guide. He also referenced his inability to take the car to a repair shop for an

estimate, because it was not in his possession.         Finally, Graupmann attached grainy,

black-and-white copies of photographs depicting parts of the damaged car, which were

intended to show its poor condition apart from the damage caused by the collision, but these

copies are of such poor quality as to be of almost no value.

       {¶ 14} A court must base an award of restitution on evidence that is in the record.

State v. MacQuarrie, 2d Dist. Montgomery No. 22763, 2009-Ohio-2182, ¶ 7, citing State v.

Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (1990). On the plea form, the magistrate
                                                                                           6

ordered that the sentencing/restitution hearing be set “about 45 days” from that date (it was

held 41 days later), which gave the parties time to gather evidence about the amount of the

damage. There appear to have been discussions, which are not contained in the record

before us, in which the magistrate asked the victim to “get a second opinion” about the repair

costs during this period, although the precise context is unclear. As discussed above, the

victim presented three estimates and information about the value of the car at the

sentencing/restitution hearing.

       {¶ 15} Following the sentencing/restitution hearing, the magistrate reasonably

credited the victim’s print-outs from AutoTrader of the values of similar vehicles and his

detailed, professionally-prepared estimates from three auto dealer collision shops as to the

cost of the repairs. The magistrate awarded the lowest of these three amounts. The fact that

Graupmann failed to present documentary or photographic evidence at the hearing on

restitution to refute the victim’s claimed damages did not constitute “good cause” for the

court to provide him with another opportunity to do so.

       {¶ 16} Graupmann also contends that the trial court erred in failing to consider his

ability to pay the restitution award. He raises this argument for the first time on appeal; he

did not raise his ability to pay at the sentencing/restitution hearing or in his proposed

objections to the magistrate’s decision.

       {¶ 17}    R.C. 2929.28 specifies the types of financial sanctions that the trial court

may impose in misdemeanor cases, including restitution.          R.C. 2929.28(A)(1).     R.C.

2929.28(B) makes holding a hearing on defendant’s ability to pay any financial sanction,

including restitution, discretionary with the court; such a hearing is not mandatory. State v.
                                                                                            7

Ratliff, 194 Ohio App.3d 202, 2011-Ohio-2313, 955 N.E.2d 425, ¶ 12 (2d Dist.). The trial

court did not err in failing to hold such a hearing in this case, because Graupmann had not

raised with the court any concern about his ability to pay. A defendant who does not dispute

an amount of restitution, request a hearing, or otherwise object waives all but plain error in

regard to an order of restitution. Ratliff at ¶ 14, citing State v. Cochran, 2d Dist. Champaign

No. 09CA0024, 2010-Ohio-3444, ¶ 19. The plain error rule is to be invoked only under

exceptional circumstances in order to avoid a manifest miscarriage of justice. State v. Long,

53 Ohio St.2d 91, 95, 372 N.E.2d 804 (1978). Plain error does not occur unless, but for the

error, the outcome of the trial clearly would have been different. Id. at 97; Crim.R. 52(B).

Graupmann does not argue, and we do not find, that plain error occurred in this case.

       {¶ 18}    Graupmann correctly points out that, after his conviction, on November 1,

2013, the court found him to be indigent, based on his financial disclosure/affidavit of

indigency, on which he claimed to have no income and no assets. However, a finding that a

defendant is indigent for purposes of appointed counsel does not shield him from paying a

financial sanction.   See State v. Miller, 2d Dist. Clark App. 08CA0090, 2010-Ohio-4760, ¶

39; State v. Twitty, 2d Dist. Montgomery No. 24296, 2011-Ohio-4725, ¶ 23. A defendant’s

ability to pay a financial sanction may be derived from consideration of information about the

defendant’s age, health, education, and work history.             Ratliff at ¶12.       At the

sentencing/restitution hearing in this case, defense counsel stated that Graupmann had

obtained a job at Meijer the previous week, earning minimum wage, and that he would be a

full-time college student in January 2014. These assertions suggest that Graupmann had

some means to pay restitution and that he was able to work.
                                                                  8

       {¶ 19}   Graupmann’s assignments of error are overruled.

       {¶ 20} The judgment of the trial court will be affirmed.

                                        ..........

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Betsy A. Deeds
Christopher B. Epley
Hon. Beth W. Root
