[Cite as State v. Stevens, 2017-Ohio-2970.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :      Hon. Craig R. Baldwin, J.
                                              :      Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
JAMES STEVENS                                 :      Case No. 16CA60
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2015-CR-791




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    May 23, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

LINDA MAJESKA POWERS                                 JOHN C. O'DONNELL
615 West Superior Avenue                             10 West Newlon Place
11th Floor                                           Mansfield, OH 44902
Cleveland, OH 44113
Richland County, Case No. 16CA60                                                         2

Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant, James Stevens, appeals the September 1, 2016

sentencing entry of the Court of Common Pleas of Richland County, Ohio. Defendant-

Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On September 30, 2009, Don and Marsha Jaenke (spelled Yanke in the

sentencing transcript), each in their seventies, entered into a contract with appellant for

appellant to replace the roof of their residence. The Jaenkes paid appellant a $9,000.00

deposit. Although appellant delivered a few materials to the home and started minimal

work, he never completed the job, nor did he return the deposit money.

       {¶ 3} On September 2, 2015, the Richland County Grand Jury indicted appellant

on two counts of theft from an elderly person or disabled adult in violation of R.C.

2913.02(A)(2) and (3). On June 1, 2016, an order for deposit on restitution was filed

wherein the state and appellant agreed to a restitution amount of $8,609.46 owed to the

Jaenkes. The amount of $3,300.00 was to be deposited into an account created by the

Richland County Clerk of Courts which was to be maintained pending appellant's plea

and sentencing.

       {¶ 4} In order to make the deposit, appellant borrowed $3,000.00 on the same

day from Stanley and Patsy Newmeyer, another elderly couple who were present in the

courtroom. Thereafter, appellant pled guilty to the R.C. 2913.02(A)(2) count, a felony in

the third degree. The additional count was dismissed. The state agreed if appellant

deposited the remainder of the restitution amount prior to the sentencing date, the count
Richland County, Case No. 16CA60                                                       3


would be amended to a felony in the fourth degree.              The trial court ordered a

presentence investigation report.

       {¶ 5} A sentencing hearing was held on August 31, 2016. The trial court heard

from the prosecutor, defense counsel, appellant, the Jaenkes, and Mrs. Newmeyer. By

judgment entry filed September 1, 2016, the trial court sentenced appellant to three

years in prison.

       {¶ 6} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶ 7} "THE     TRIAL         COURT        ERRED    IN        CONSIDERING    THAT

DEFENDANT/APPELLANT BORROWED FOR RESTITUTION WAS A FACTOR THAT

REQUIRED HIM TO BE IMPRISONED."

                                            II

       {¶ 8} "THE TRIAL COURT'S REFUSAL TO CONSIDER THE RECIDIVIST

ASPECT OF THE PRE SENTENCE INVESTIGATION WAS IN VIOLATION OF ORC

§2929.12 AND RULE 11."

                                            III

       {¶ 9} "THE      TRIAL        COURT         ERRED        IN     SENTENCE      (SIC)

DEFENDANT/APPELLANT WITHOUT FIRST ORDERING AN ACCURATE PRE

SENTENCE INVESTIGATION."
Richland County, Case No. 16CA60                                                         4


                                             I

       {¶ 10} In his first assignment of error, appellant claims the trial court erred in

determining the fact that he borrowed money to pay a portion of his restitution was a

factor to be considered in sentencing him to prison. We disagree.

       {¶ 11} During the sentencing hearing, the trial court noted the following (T. at 20-

21):



              One thing that did come up in the case was there was a $3,000

       payment made, and the payment was made for the victims in this case, for

       Don and Marsha Yanke. However, that payment now is in dispute. The

       payment was made by Stanley and Patsy Newmeyer.              They indicated

       though that they would like their money back. They do not want that

       money to go to the Yankes. And so that was made I think on June 1st.

       So there is that issue. I know that counsel indicated he felt that wasn't

       relevant to the case we have here. I disagree with that. I think it is

       relevant, because it is money that was allegedly to be paid to the victims

       in this case, but now those individuals are claiming they were duped or

       talked into paying this money without their knowledge, and they obviously

       want that money back, returned to them. And I believe that they have

       talked to the attorney general. The attorney general has indicated they do

       not want to pursue with criminal charges in the matter. However, the

       Newmeyers have talked to the sheriff's department here locally, and the

       sheriff's department may want to.
Richland County, Case No. 16CA60                                                         5




      {¶ 12} The trial court indicated it would "hear from anybody who wants to address

the court as far as Mr. Stevens' case and what has occurred since the change of plea,"

including hearing from the Newmeyers. T. at 23. Defense counsel objected, stating the

dispute with the Newmeyers is a "different matter entirely" and "any evidence

considered by the court with relation to that matter is at this point unreliable and should

not be used to enhance any sentence that might be imposed by the court." T. at 23, 24.

      {¶ 13} The trial court replied with the following (T. at 24-25):



             I understand that. For the record, his sentence would be relating to

      the Yanke case.      I just think it's relevant to understand that we had

      conversations about whether or not restitution would be paid. He may or

      may not have paid $3,000.        He actually paid $3,000.          I am sure the

      Yankes want that money. The problem is now I am going to have to have

      a hearing after this hearing to determine if the money should go to them or

      does the money go back to the Newmeyers. And so I will consider it on

      that basis. So, in other words, it won't be an enhancing factor for him, but

      I do need to figure out what to do with the restitution, whether that money

      can be counted as restitution toward these victims or not.

             So the sentence in this case will be regarding what happened in

      this particular case. I will consider what the Newmeyers paid with respect

      to what the restitution - - the ultimate restitution amount is in the case. So,

      for the record, that is the way that I will be considering it. But I would like
Richland County, Case No. 16CA60                                                          6


       to at least hear that information so I can know what we are talking about

       when we get to the restitution amount.



       {¶ 14} Other than the $3,000.00 payment made on June 1, 2016, appellant has

not paid on the restitution order. T. at 26, 30. Appellant made no effort to obtain a full-

time job or pay toward the restitution order with his roofing business. T. at 30. This

matter has been ongoing for the Jaenkes for seven years. T. at 36.

       {¶ 15} Mrs. Newmeyer told the trial court appellant "borrowed $3,000 from us

with a promise to repay by the end of June 2016." T. at 37. He has not paid any

amount back. T. at 38. Mrs. Newmeyer asked for the money back that they loaned

appellant in good faith. Id.

       {¶ 16} In sentencing appellant to serve three years in prison, the trial court noted:

"When you take money from somebody and you can't pay it back, the only thing you

have to offer to those people is your freedom. That's the only thing you have left to

offer. You can't pay any of their money back, because you don't have it. But you have

your freedom. * * * You had all summer to try to get one of these jobs that you talked

about." T. at 40. The trial court concluded: "I don't have any confidence that I can do

anything that's going to make you pay these people back. What I can do is I can send

you to prison for 36 months, which is exactly what I am going to do." T. at 41.

       {¶ 17} Upon review, we do not find the fact that appellant borrowed money to pay

his restitution to be a consideration by the trial court in sentencing him to prison. At the

time of the sentencing hearing on August 31, 2016, appellant had not paid one dime

toward the restitution order since June 1, 2016, and did not seek reliable employment in
Richland County, Case No. 16CA60                                                          7


an attempt to pay the restitution amount. He still owed the Jaenkes over sixty percent

($5,609.46) of the restitution amount. Appellant was sentenced on a third degree felony

as explained to him during the plea hearing. June 1, 2016 T. at 5-6. We find the trial

court complied with R.C. 2929.11 and 2929.12.

       {¶ 18} Assignment of Error I is denied.

                                             II

       {¶ 19} In his second assignment of error, appellant claims the trial court erred in

refusing to consider the recidivism aspect of the presentence investigation report in

violation of R.C. 2929.12 and Crim.R. 11. We disagree.

       {¶ 20} In his appellate brief at 6, appellant argues the trial court should have

considered the state's recommendation on sentencing made during the plea hearing as

"PSI dictate." June 1, 2016 T. at 6. The presentence investigation indicated if the trial

court imposed community control, moderate supervision was recommended. Appellant

argues the trial court refused to consider the report because of the erroneous facts

contained therein.    The presentence investigation report referred to facts involving

appellant and another couple, not the Jaenkes.

       {¶ 21} However, the trial court did not indicate it would not consider the report as

a whole, just the version of the facts that discussed a different matter involving appellant

and another couple: "In this particular case he was charged with Don and Marsha

Yanke. And I know about the facts in that case, because we had a pretrial. So for the

record, the PSI talks about an incident with other people other than the victim in this

particular case, so I have not considered that as far as a sentence in this particular

case." August 31, 2016 T. at 20.
Richland County, Case No. 16CA60                                                        8


      {¶ 22} During the plea hearing, the trial court informed appellant of the maximum

sentence and indicated it would not promise a sentence. June 1, 2016 T. at 6, 11. The

trial court was in compliance with Crim.R. 11.

      {¶ 23} During the sentencing hearing, defense counsel noted this was appellant's

first felony offense. T. at 27. "He has got a track record with misdemeanors. Most of

those are alcohol-related types of incidents, not job-related as this case was. Other

than the positive test last April, I believe he has been fairly compliant on pretrial

supervision."   T. at 27-28.     Without revealing the contents of the presentence

investigation report, we note the report supports these statements.

      {¶ 24} As discussed in the first assignment of error, appellant made no effort to

pay toward the restitution order or obtain reliable employment. A trial court is not bound

by a prosecutor's recommendation. State v. Ybarra, 5th Dist. Licking No. 14-CA-8,

2014-Ohio-3485, ¶ 22, citing State v. Rink, 6th Dist. Lucas No. L-02-1307, 2003-Ohio-

4097, at ¶ 5. "When a trial court imposes a greater sentence than recommended in the

plea agreement, and when the defendant is forewarned of the applicable maximum

penalties, there is no error on behalf of the trial court if it imposes a more severe

sentence than was recommended by the prosecutor."            State v. Brooks, 5th Dist.

Richland No. 16CA36, 2016-Ohio-8250, ¶ 20, citing State v. Darmour, 38 Ohio App.3d

160, 160-161, 529 N.E.2d 208 (1987).

      {¶ 25} Assignment of Error II is denied.
Richland County, Case No. 16CA60                                                         9


                                               III

         {¶ 26} In his third assignment of error, appellant claims the trial court erred in

sentencing him without ordering an accurate presentence investigation report.           We

disagree.

         {¶ 27} As discussed in the second assignment of error, the trial court did not

consider the facts in the presentence investigation report referring to appellant and

another couple, in compliance with R.C. 2951.03(B)(5)(b) which states:



                  (5) If the comments of the defendant or the defendant's counsel,

         the testimony they introduce, or any of the other information they introduce

         alleges any factual inaccuracy in the presentence investigation report or

         the summary of the report, the court shall do either of the following with

         respect to each alleged factual inaccuracy:

                  (b) Make a determination that no finding is necessary with respect

         to the allegation, because the factual matter will not be taken into account

         in the sentencing of the defendant.



         {¶ 28} An objection was not made to the inaccurate report and the trial court's

handling of the issue. An error not raised in the trial court must be plain error for an

appellate court to reverse. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978);

Crim.R. 52(B). In order to prevail under a plain error analysis, appellant bears the

burden of demonstrating that the outcome clearly would have been different but for the

error.    Long.     Notice of plain error "is to be taken with the utmost caution, under
Richland County, Case No. 16CA60                                                        10

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at

paragraph three of the syllabus.

      {¶ 29} The trial court conducted a pretrial on June 1, 2016, and was part of the

negotiations between the state and appellant which resulted in the restitution order.

The trial court specifically stated it was not going to consider the erroneous facts in the

report referring to appellant and the other couple. We do not find the outcome would

have been different if the report had contained the correct facts, and do not find a

manifest miscarriage of justice.

      {¶ 30} Assignment of Error III is denied.

      {¶ 31} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




EEW/sg 427
