[Cite as State v. Furness, 2014-Ohio-414.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99930


                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    GEORGE FURNESS
                                                       DEFENDANT-APPELLANT




                                    JUDGMENT:
                               VACATED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-571056

             BEFORE:           E.A. Gallagher, J., Boyle, A.J., and Blackmon, J.

             RELEASED AND JOURNALIZED:                     February 6, 2014
                               -i-


ATTORNEY FOR APPELLANT

Eric M. Levy
55 Public Square
Suite 1600
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Katherine Mullin
       Brad S. Meyer
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant George Furness appeals his sentence rendered in the

Cuyahoga County Court of Common Pleas. Furness argues that the trial court erred in

imposing a prison term as opposed to community control sanctions, that his restitution

order violated R.C. 2929.18(A)(1) and that his trial attorney provided ineffective

assistance of counsel.    For the following reasons, we vacate Furness’ sentence and

remand.

       {¶2} Furness was indicted on February 5, 2013, charged with one count of

receiving stolen property, a felony of the fifth degree.   The indictment alleged that the

offense was committed on October 27, 2012, and involved three items of jewelry.

       {¶3} On March 21, 2013, Furness entered a guilty plea to the charge and was

referred for a presentence investigation report.   At sentencing, the matter of restitution

was raised.   The trial court allowed a recess for the prosecutor and Furness’ counsel to

properly calculate restitution.   After conferring with the prosecutor, defense counsel and

Furness himself represented to the trial court that the proper amount of restitution was

$2,946.00.    The prosecutor specifically noted that this amount accounted for sums the

victim received from her insurance company as well as a $1,000 insurance deductible

paid by the victim.

       {¶4} The victim spoke at sentencing and described the significant harm caused

by Furness’ conduct and referenced a Lake County case wherein she alleged that Furness
had committed another theft four weeks after the conduct in this case.     Neither party

introduced any documentary evidence regarding the Lake County case.

      {¶5} The trial court noted that Furness had a prior felony conviction but noted

that, pursuant to R.C. 2929.13, prior to a recent revision, Furness would not have been

eligible for imprisonment.   The trial court stated that since the law had been recently

revised, the court could sentence Furness to a prison term.   The trial court imposed a

prison term of ten months to run concurrent to a sentence Furness received in Lake

County case No. 12CR-055. 1 The court also ordered restitution in the amount of

$2,946.00. Furness appeals, asserting three assignments of error.

      {¶6} Furness’ first assignment of error states:

      The trial court erred and violated the ex post facto clause and the due
      process clause of the United States Constitution when it sentenced appellant
      under the guidelines of R.C. 2929.13 as modified after appellant’s entering
      his guilty plea.

      {¶7} R.C. 2929.13 was amended as part of 2011 Am.Sub.H.B. No. 86. At the
time Furness committed the crime in this case, R.C. 2929.13(B)(1)(a) provided:

      Except as provided in division (B)(1)(b) of this section, if an offender is
      convicted of or pleads guilty to a felony of the fourth or fifth degree that
      is not an offense of violence, the court shall sentence the offender to a
      community control sanction of at least one year’s duration if all of the
      following apply:

      (i) The offender previously has not been convicted of or pleaded guilty to a
      felony offense or to an offense of violence that is a misdemeanor and that


      1
         The presentence investigation report references a Lake County case filed
on February 20, 2013, with the charge “RSP.” The report indicates that Furness
plead guilty on April 1, 2013, and was sentenced to two years of community control
with the condition that he serve 125 days in Lake County jail.
        the offender committed within two years prior to the offense for which
        sentence is being imposed.

        (ii) The most serious charge against the offender at the time of sentencing is
        a felony of the fourth or fifth degree.

        (iii) If the court made a request of the department of rehabilitation and
        correction pursuant to division (B)(1)(c) of this section, the department,
        within the forty-five-day period specified in that division, provided the
        court with the names of, contact information for, and program details of one
        or more community control sanctions of at least one year’s duration that are
        available for persons sentenced by the court.

        {¶8} Pursuant to R.C. 2929.13(B)(1)(a), in effect at the time of Furness’ offense,

if subsections (i), (ii) and (iii) are satisfied, then the trial court was required to sentence

Furness to community control sanctions and lacked the discretion to sentence him to a

term of imprisonment. State v. Johnson, 8th Dist. Cuyahoga No. 98245, 2013-Ohio-575,

¶ 59.

        {¶9} In Johnson, this court held that the two-year time period in R.C.

2929.13(B)(1)(a)(i) applied to both felony offenses and misdemeanor offenses of

violence, such that if an offender committed a felony outside the two-year time frame

subsection (i) remained satisfied.   Id. at ¶ 60.

        {¶10} R.C. 2929.13(B)(1)(a) was amended by the legislature, effective March 22,

2013, to provide that if an offender had ever been convicted of a felony, then the trial

court was not required to impose community control sanctions. However, this was not

the law in effect at the time of the commission of Furness’ offense. Furness argues that

the application of the amended version of R.C. 2929.13 is prohibited by the ex post facto
clause of the Ohio Constitution, Article II, Section 28 and the U.S. Constitution, Article I,

Section 10.   We agree.

       {¶11} Retroactive changes in the measure of punishment are impermissibly ex post

facto if they subject a defendant to a more severe sentence than was available at the time

of the offense. State v. Walls, 96 Ohio St.3d 447, 2002-Ohio-5059, 775 N.E.2d 841, ¶

29, citing Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937).

To violate the ex post facto clause,

       the law must be retrospective so that it applies to events occurring before its
       enactment and it must disadvantage the person affected by altering the
       definition of criminal conduct or increasing the punishment for the crime.

State v. Glaude, 8th Dist. Cuyahoga No. 73757, 1999 Ohio App. LEXIS 4076 (Sept. 2,

1999), citing Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997).

       The clause prohibits the enactment of any law that criminalizes conduct
       which was innocent and not punishable at the time it was committed; or that
       makes the crime more serious than it was when committed; or that inflicts a
       greater punishment than that prescribed at the time the crime was
       committed; or that alters the legal rules of evidence either by requiring less
       or different evidence in order to convict or by eliminating a defense
       available when the crime was committed.

Id., citing Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925); State v.

Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 24.

       {¶12} The record in this case is not a model of clarity.    Neither party introduced

documentary evidence regarding Furness’ Lake County case and we are loathe to rely on

an unsworn statement by the victim at sentencing to determine, as a matter of fact, the

date that Furness’ Lake County offense was committed.         However, it is clear from the
record that the trial court was aware of that case and the trial court plainly stated that

although Furness had a prior felony conviction, he would not have been eligible for

imprisonment without the recent amendments to R.C. 2929.13.                 We are left to

conclude, consistent with the statements made by both the trial court and the victim, that

Furness’ offense in Lake County was committed subsequent to his offense in this case.

We note that the state has not disputed this point. Pursuant to the language of R.C.

2929.13(B)(1)(a) as in effect at the time of Furness’ offense, the appropriate result is that

the trial court is bound to impose community control sanctions in the case dealing with

the earlier committed offense but not the latter. See, e.g., State v. Coleman, 8th Dist.

Cuyahoga Nos. 98557 and 98558, 2013-Ohio-1658, ¶ 8-11.

       {¶13} The trial court erred in applying the amended version of R.C.

2929.13(B)(1)(a) because it plainly was not in effect at the time of Furness’ offense.

The trial court itself noted that the version of the statute in effect prior to the recent

amendments and at the time of Furness’ offense would have required the imposition of a

community control sanction. As such, the trial court’s application of the amended statute

to impose a prison term clearly violates the ex post facto clause.

       {¶14}   Furness’ first assignment of error is sustained.

       {¶15}   Furness’ second assignment of error states:

       The trial court erred and violated appellant’s right to due process of law
       when it imposed an order of restitution greater than the victim’s economic
       loss.
       {¶16}    Appellant argues that the trial court’s restitution order violated R.C.

2929.18 because it exceeded the amount of the victim’s actual economic loss.         Because

Furness did not object at his sentencing hearing to the order of restitution or the amount

ordered, he has waived all but plain error. State v. Jarrett, 8th Dist. Cuyahoga No. 90404,

2008-Ohio-4868, ¶ 14, citing State v. Marbury, 104 Ohio App.3d 179, 181, 661 N.E.2d

271 (8th Dist.1995).

       {¶17}   R.C. 2929.18(A)(1) requires that when restitution is imposed as part of a

criminal sanction for felony offenses, “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.” Ohio courts have recognized that the amount of

restitution ordered by a trial court must bear a reasonable relationship to the loss suffered

and is limited to the actual loss caused by the offender’s criminal conduct for which he

was convicted. State v. McRae, 8th Dist. Cuyahoga No. 96253, 2011-Ohio-6157, ¶ 37.

       {¶18}   We find no plain error in the present instance. The victim spoke at

sentencing regarding the financial impact of Furness’ crime beyond merely the value of

the items at issue.    The trial court properly raised the issue of calculating an accurate

amount of restitution and provided the parties with a recess for the same purpose.     When

the parties returned they stipulated to an amount of restitution which, contrary to Furness’

present argument, the record reflects took into account insurance proceeds and a

deductible paid by the victim. In addition to the stipulations by both the prosecutor and

Furness’ defense counsel, Furness himself indicated to the trial court that the stipulated
restitution amount was correct. We find no evidence in the record to support Furness’

argument that the stipulated restitution amount was incorrect. The parties’ stipulation to

the amount of restitution served as a sufficient basis to support the trial court’s order and

precludes Furness from complaining about it now on appeal.          State v. Hody, 8th Dist.

Cuyahoga No. 94328, 2010-Ohio-6020, ¶ 25, citing State v. Sancho, 8th Dist. Cuyahoga

No. 91903, 2009-Ohio-5478.

       {¶19}   Furness’ second assignment of error is overruled.

       {¶20}   Furness’ third assignment of error states:

       Appellant was denied his sixth amendment right to counsel due to the
       ineffective assistance of trial counsel.

       {¶21}   In his third assignment of error, Furness asks that in the event that we deny

either of his first two assignments of error due to actions of his trial counsel in preserving

those errors for our review we find that his counsel rendered ineffective assistance of

counsel.

       {¶22}   In order to demonstrate a claim of ineffective assistance of counsel, the

appellant must show that his counsel deprived him of a fair trial. State v. Sanders, 8th

Dist. Cuyahoga No. 55524, 1989 Ohio App. LEXIS 2362 (June 15, 1989). The appellant

must specifically show that: (1) defense counsel’s performance at trial was seriously

flawed and deficient; and (2) the result of the trial would have been different if defense

counsel had provided proper representation at trial. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
       {¶23}   Furness’ argument is plainly moot in respect to his first assignment of

error which we have sustained. We further find absolutely no evidence in the record to

indicate that his counsel was deficient in regards to the stipulated amount of restitution, in

light of the fact that Furness himself represented to the trial court that the calculation was

correct.

       {¶24}   Furness’ third assignment of error is overruled.

       {¶25} Furness’ sentence is vacated and this matter is remanded for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.




EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
