[Cite as State v. McDaniel, 2013-Ohio-4003.]
                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       MEIGS COUNTY


STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :   Case No. 12CA6

        vs.                                         :

NATHAN MCDANIEL,                                    :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                        :

_________________________________________________________________

                                               APPEARANCES:

COUNSEL FOR APPELLANT:                    Timothy Young, Ohio Public Defender, and Dennis
                                          Pusateri, Ohio Assistant Public Defender, 250 East Broad
                                          Street, Ste. 1400, Columbus, Ohio 43215

COUNSEL FOR APPELLEE:                     Colleen S. Williams, Meigs County Prosecuting Attorney,
                                          and Amanda Franzmann, Meigs County Assistant
                                          Prosecuting Attorney, 117 West Second Street, Pomeroy,
                                          Ohio 45769

_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-11-13
ABELE, J.

        {¶ 1} This is an appeal from a Meigs County Common Pleas Court judgment of

conviction and sentence. A jury found Nathan McDaniel, defendant below and appellant herein,

guilty of (1) felonious assault in violation of R.C. 2903.11(A)(2), and (2) kidnapping in violation

of R.C. 2905.01(A)(4). Appellant assigns the following errors for review:
MEIGS, 12CA6                                                                                      2


               FIRST ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ERRED BY ORDERING RESTITUTION
               WITHOUT CREDIBLE EVIDENCE FROM WHICH IT COULD
               DISCERN THE AMOUNT OF THE RESTITUTION TO A
               REASONABLE DEGREE OF CERTAINTY.”

               SECOND ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ERRED BY ORDERING RESTITUTION
               KNOWING THAT THE DEFENDANT DID NOT HAVE THE
               ABILITY TO PAY IT.”

               THIRD ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ERRED BY ORDERING RESTITUTION
               FOR ITEMS NOT PERMITTED UNDER R.C. 2929.18(A).”

       {¶ 2} Willa Dean Dailey and Curtis Dailey were married for sixteen years and have two

daughters. The couple later divorced, but when their daughter Courtney gave birth to a child,

(S), Curtis moved in with his ex-wife to help raise their granddaughter.

       {¶ 3} Appellant was a family friend. He and Courtney met as teenagers and had been

friends ever since. Late in the evening of November 2, 2011, appellant arrived at the Dailey

house. Neither Curtis nor Willa Dean suspected anything amiss, but when they were not

looking, appellant snatched S and took her to his vehicle. When the Daileys noticed their

granddaughter missing, Curtis bolted from the house and saw appellant with the child.

       {¶ 4} The two men engaged in a tug-of-war over the child that Curtis finally won when

S (who was not wearing diapers because of a rash) urinated in appellant’s face. Appellant then

proceeded to beat Curtis and inflict substantial injuries. Appellant eventually left the scene.

       {¶ 5} When the Sheriff’s Department arrived at the Dailey home, Willa Dean called
MEIGS, 12CA6                                                                                            3

appellant on the phone. Both she and a sheriff’s office dispatcher heard appellant threaten the

family if Courtney did not repay him money that she allegedly owed.

        {¶ 6} The Meigs County Grand Jury returned an indictment that charged appellant with

felonious assault, kidnapping and extortion. Appellant pled not guilty and the matter proceeded

to a jury trial. At the conclusion of the trial, the jury found appellant guilty of felonious assault

and kidnapping, but acquitted him of extortion.

        {¶ 7} At the sentencing hearing the prosecution did not request restitution. However,

the “victim’s advocate” requested restitution in the event that appellant may “fall into some kind

of money in the future[.]” The advocate explained that the victim (Curtis Dailey) incurred

medical expenses exceeding $300,000 and would incur $800,000 in future medical expenses.

Counsel objected, noting that appellant is indigent. The trial court stated that “I am going to

order 1.4 million dollars . . . in restitution to the victims in this case knowing that your client

can’t pay it.” (Emphasis added.) In addition, the court sentenced appellant to serve eight years

in prison for felonious assault and ten years for kidnapping, with the sentences to be served

consecutively for an eighteen year cumulative total. This appeal followed.

                                                   I

        {¶ 8} Appellant challenges neither his conviction nor his prison sentences. Rather, his

assignments of error are directed at the part of the judgment that ordered him to pay $1.4 million

in restitution.

        {¶ 9} Generally, appellate courts will reverse a restitution order if it is demonstrated that

a trial court abused its discretion. See In re Williams, 4th Dist. Washington No. 05CA56,

2006-Ohio-4657, at ¶15; State v. Johnson, 4th Dist. Washington No. 03CA11, 2004- Ohio-2236,
MEIGS, 12CA6                                                                                         4

at ¶11. We note that an “abuse of discretion” is more than an error of law or judgment; rather, it

implies that a court's attitude is unreasonable, arbitrary or unconscionable. State v. Herring, 94

Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v. Adams, 60 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980). Additionally, in reviewing for an abuse of discretion, appellate courts must

not substitute their judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp.

Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135,

137-138, 566 N.E.2d 1181 (1991).

                                                  II

       {¶ 10} In his first assignment of error, appellant asserts that the trial court erred by

ordering him to pay $1.4 million in restitution when no credible evidence exists to support that

amount.

       {¶ 11} R.C. 2929.18(A)(1) provides in pertinent part:

       “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 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.”

       {¶ 12} In the case sub judice, the trial court based the restitution ordered entirely on

figures that the victim’s advocate presented. Those figures were, apparently, included in the

Victim Impact Statement (VIS) from which she summarized and, the hearing transcript reveals,

that the trial court judge reviewed. The problem here, however, is that the VIS is not a part of
MEIGS, 12CA6                                                                                        5

the record on appeal.

       {¶ 13} Moreover, we note that in her unsworn statement to the trial court, the advocate

gave no itemization of the victim’s medical bills. At one point, the advocate stated that the

victim incurred “over” $35,000 in medical bills, but did not give a precise figure. In any event,

the advocate conceded that his amount had been paid by the “Healthcare Assurance Program for

people that are low income.” The advocate also speculated that the victim might live another

twenty years and, if so, could incur expenses of $827,000. The trial court then noted that the

VIS had “documented medical expenses” that exceeded $380,000. There is no mention,

however, of what those expenses are, if they included the aforementioned $35,000 that the

Healthcare Assurance Program paid, or if Medicare, Medicaid or some other insurance covered

any of those medical expenses. Compounding the problem, even if we accept the $380,000 and

add it to the $827,000, the total appears to be $1.27 million ($193,000 shy of the $1.4 million

restitution order). Also, no medical bills or receipts had been submitted to the court to support

any of these figures.

       {¶ 14} Consequently, this Court is being asked to affirm a restitution order that is based

on a victim’s advocate unsworn statement, without anything in the record to support that

statement. Furthermore, the amounts mentioned at the hearing do not appear to equal the

amount included in the trial court's order.

       {¶ 15} Ohio case law indicates that a court abuses its discretion when it orders restitution

in an amount that has not been determined to have any reasonable relationship to actual loss

suffered. See State v. Rizer, 4th Dist. Meigs No. 10CA3, 2011-Ohio-5702, at ¶53; State v.

Johnson, 4th Dist. Washington No. 03CA11, 2004– Ohio–2236, at ¶¶10–11. Here, we do not
MEIGS, 12CA6                                                                                         6

believe that the record substantiates the amount of the victim’s actual loss. Thus, at this

juncture, the restitution amount is arbitrary.

       {¶ 16} The appellee counters that the trial court considered “many factors” when it

determined the restitution amount. First, the appellee asserts that the court reviewed the VSI.

Although this may be true, as we mentioned earlier, the VSI is not part of the record and we

cannot review it. Second, the appellee argues that the trial court reviewed the Pre-Sentence

Investigation Report (PSI). This is also true, but this particular PSI gives no details concerning

financial costs and expenses stemming from the victim’s injuries.

       {¶ 17} We also point out that the PSI appears to weigh against imposing restitution.

First, under the “Victim’s Version and Restitution,” the document states “[t]here is no restitution,

OVCCP is paying all of the incurred expenses.” The PSI also reveals that appellant’s

“FINANCIAL CONDITION” as “-0-“, that the highest degree of education he obtained is a GED

and that he has had three jobs in the previous seven years, with none lasting for more than a year.

 The PSI also reveals that appellant has two small children, and although they may be adults by

the time he leaves prison, he will no doubt owe child support. In any event, we see nothing in

the PSI to support the amount of restitution.

       {¶ 18} Finally, the appellee argues that the trial court also considered “the wishes of the

victims . . . via the victim’s advocate and a doctor’s letter regarding the victim’s present and

future ability to work.” Once again, however, the VSI does not appear in the record. As to the

doctor’s letter, we find no mention of it in the cited transcript pages. However, even if the letter

had been mentioned, that letter does not appear in the record.

       {¶ 19} We acknowledge that R.C. 2929.18(A)(1) allows for appellant to request a
MEIGS, 12CA6                                                                                             7

hearing if he questions the amount of the restitution. However, in the case at bar the defense had

no warning that this issue would be discussed at the sentencing hearing. We will not hold

appellant responsible for waiver of a right to a hearing when he had no notice of the restitution

request. Also, nothing appears in the record to suggest that prior to that hearing, appellant

received a copy of the VIS.

        {¶ 20} We wish to emphasize that we are not unsympathetic with the reasons that the

victim's advocate and the trial court expressed for imposing restitution. The facts and

circumstances of these offenses are horrific. To secure the payment of a debt, appellant seized,

and attempted to kidnap, a child, then viciously struck her grandfather when he went to the

child’s rescue. Later, appellant threatened the family again if they did not pay him money.

        {¶ 21} Having already acknowledged that appellant would not be able to pay restitution,

the trial court may have, out of sympathy for the family, taken the advocate's figures and ordered

appellant to pay that amount. However, this does not constitute a sufficient reason to order

restitution without including evidence in the record to support the amount.

        {¶ 22} Accordingly, based upon the foregoing reasons, we hereby sustain appellant's first

assignment of error.

                                                   III

        {¶ 23} Having sustained appellant’s first assignment of error, we hereby reverse that part

of the trial court’s judgment that awarded restitution and remand that portion of the judgment for

further proceedings consistent with this opinion. On remand, the trial court (1) should entertain

a request for restitution if supported by sufficient evidence and (2) consider, as the law provides,

the appellant's ability to pay restitution as well as the appropriate subjects of a restitution order.
MEIGS, 12CA6                                                                                      8

We disregarded the two remaining assignments of error as moot.       See App.R. 12(A)(1)(c).



                                                             JUDGMENT REVERSED IN PART
                                                             AND CASE REMANDED FOR
                                                             FURTHER PROCEEDINGS.

                                      JUDGMENT ENTRY

       It is ordered that the judgment be reversed in part and remanded for further proceedings
consistent with this opinion. Appellant shall recover of appellee the 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 Meigs County
Common Pleas Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

       Harsha, J. & Hoover, J.: Concur in Judgment & Opinion

                                                             For the Court




                                                             BY:
                                            Peter B. Abele, Judge
MEIGS, 12CA6                                                                                     9


                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
