[Cite as State v. Harris, 2015-Ohio-4412.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-14-069

        Appellee                                 Trial Court No. 2014-CR-0047

v.

Gregory Michael Harris, Jr.                      DECISION AND JUDGMENT

        Appellant                                Decided: October 23, 2015

                                             *****

        Paul A. Dobson, Wood County Prosecuting Attorney,
        Gwen K. Howe-Gebers and David T. Harold, Assistant
        Prosecuting Attorneys, for appellee.

        Eric Allen Marks, for appellant.

                                             *****

        SINGER, J.

        {¶ 1} Appellant, Gregory Michael Harris, Jr., appeals from the September 2, 2014

judgment of the Wood County Court of Common Pleas convicting him of attempted

engaging in a pattern of corrupt activity and theft and sentencing him to imprisonment

and ordering him to pay restitution. For the reasons which follow, we reverse the

sentencing judgment in part.
       {¶ 2} On appeal, appellant asserts a single assignment of error:

              THE TRIAL COURT ERRED IN ORDERING APPELLANT TO

       PAY $81,083.00 IN RESTITUTION TO THIRD PARTY FINANCIAL

       INSTITUTIONS

       {¶ 3} Appellant was named along with other individuals or corporations who were

allegedly participating in a criminal enterprise from November 2011 to May 2013, which

involved in part the skimming of credit cards and using cloned cards to purchase goods

from retailers. On June 4, 2014, the court accepted appellant’s guilty plea to amended

charges of attempted engaging in a pattern of corrupt activity, a violation of R.C. 2923.02

and 2923.32(B)(1). Appellant also entered a plea to amended charges based on incidents

Nos. 18 and 19, which are both theft offenses in violation of R.C. 2913.02(A)(1), when

appellant purchased goods using the cloned credit cards. The victim was named in the

indictment as the true owner of the credit card information. The victim’s bank

reimbursed the victim for the loss.

       {¶ 4} Appellant was sentenced on September 2, 2014, to a term of imprisonment

and the court further ordered appellant to pay restitution, jointly and severally, in the

approximate amount of $81,083. Appellant objected to the restitution being joint and

several rather than pro rata.

       {¶ 5} Appellant sought an appeal to this court on September 22, 2014. A nunc pro

tunc entry was journalized on November 7, 2014, ordering appellant to pay restitution,

jointly and severally, in the amount of $81,083 to the Wood County Clerk of Court who




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shall disburse said funds as follows: 5/3 Bank—$44,516; Citi—$3,228.19; PNC—

$7,737.58; Woodforest Bank—$8,853.28; First Federal Bank—$3,145.75; Discover—

$5,130.14; and Key Bank—$8,472.08. Appellant filed an appeal from this judgment as

well.

        {¶ 6} In his sole assignment of error, appellant argues that the trial court erred in

ordering him to pay restitution to third-party financial institutions because they were not

crime “victims” referenced in the statute authorizing the court to issue a restitution

judgment.

        {¶ 7} R.C. 2929.18(A)(1) provides that the court imposing a sentence upon an

offender for a felony may sentence the defendant to pay restitution

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

        victim’s economic loss. * * * 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




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       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.

       {¶ 8} The question of who constitutes a “victim” under the statute is a question of

law that is reviewed de novo. State v. Hunter, 2d Dist. Montgomery No. 25521, 2013-

Ohio-3759, ¶ 7. A “victim” is defined by R.C. 2930.01(H)(1) as

       [a] person who is identified as the victim of a crime or specified delinquent

       act in a police report or in a complaint, indictment, or information that

       charges the commission of a crime and that provides the basis for the

       criminal prosecution or delinquency proceeding and subsequent

       proceedings to which this chapter makes reference.

Therefore, the victim is only the person named in the indictment as the victim. Hunter.

If the named victim has been reimbursed, he has not suffered an economic loss and,

therefore, is not entitled to reimbursement. State v. Crum, 5th Dist. Delaware No.

12 CAA 08 0056, 2013-Ohio-903, ¶ 12. Furthermore, a bank which reimburses a

customer/victim is not a “victim” of the crime and, therefore, the trial court cannot

require restitution to be paid to the bank. Id.; State v. Stump, 4th Dist. Athens No.

13CA10, 2014-Ohio-1487, ¶ 12; State v. Kiser, 2d Dist. Montgomery No. 24419, 2011-

Ohio-5551, ¶ 16; State v. Dull, 3d Dist. Seneca No. 13-12-33, 2013-Ohio-1395, ¶ 11; and

State v. Kelley, 4th Dist. Pickaway Nos. 10CA28 and 10CA29, 2011-Ohio-4902, ¶ 7.

However, if the defendant agreed to pay the third party restitution as part of his plea




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agreement, that agreement is enforceable. State v. Johnson, 2d Dist. Montgomery No.

24288, 2012-Ohio-1230, ¶ 14, and State v. Burns, 2012-Ohio-4191, 976 N.E.2d 969, ¶ 20

(6th Dist.)

       {¶ 9} The state argues, however, that the Ohio Supreme Court has held that

restitution can be made to a third party, citing State v. Bartholomew, 119 Ohio St.3d 359,

363, 2008-Ohio-4080, 894 N.E.2d 307. We disagree. The Bartholomew case involved

an order of restitution to the “Attorney General’s Victims of Crime” fund for

reimbursement to the victim for counseling expenses. The court found that the fund was

a state “agency designated by the court” and therefore was an eligible recipient for the

payment of restitution under R.C. 2929.18(A). We conclude that the holding does not

support the state’s argument that a court may order restitution to be paid to an insurance

company because it is not an agency of the state. Our conclusion is supported by State v.

Aguirre, Slip Opinion No. 2014-Ohio-4603, ¶ 1 (wherein the court stated in dicta that

“after June 1, 2004, ‘[a] court may not order a defendant to pay restitution to a victim’s

insurance company’”) and State v. Moyer, 2d Dist. Montgomery No. 24415, 2011-Ohio-

5206, ¶ 11.

       {¶ 10} Alternatively, the state argues that the trial court could award restitution in

the sentencing judgment because payment of restitution to an insurer was a part of the

“firmament surrounding the plea.” We reject this argument as well because the payment

of restitution was not specifically included in the plea agreement. R.C. 2929.18(A)(1)

does not restrict the parties from entering into an agreement to pay restitution that is not




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provided for in the statute. State v. Williams, 6th Dist. Sandusky No. S-13-007, 2013-

Ohio-4838, ¶ 8 (if there had been an agreement, the court could have awarded

restitution); Burns, supra; Johnson, supra (defendant not only “orally agreed to pay

restitution to * * * a known third-party claimant, but also acquiesced to the inclusion of

the restitution agreement in the plea form”); and State v. Stewart, 3d Dist. Wyandot No.

16-08-11, 2008-Ohio-5823, ¶ 13 ( “[b]y agreeing to the restitution award in exchange for

pleading guilty, he received the benefit of his bargain,” a reduced sentence).

       {¶ 11} In the case before us, the parties did not include the payment of restitution

to the insurer as a condition of the plea agreement. While the court stated that the

payment of restitution could be ordered, neither the court nor the prosecution stated that

restitution was required as the result of a plea.

       {¶ 12} Therefore, we find appellant’s sole assignment of error well-taken.

       {¶ 13} Having found that the trial court did commit error prejudicial to appellant,

the judgment of the Wood County Court of Common Pleas is reversed, in part. That

portion of the sentencing judgment which imposed restitution to be paid to the insurers is

void. Appellee is ordered to pay the court costs of this appeal pursuant to App.R. 24.


                                                                Judgment reversed, in part.




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                                                               State v. Harris
                                                               C.A. No. WD-14-069




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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