[Cite as State v. Rossiter, 2017-Ohio-316.]


                                        COURT OF APPEALS
                                    COSHOCTON COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :      Hon. William B. Hoffman, J.
                                              :      Hon. John W. Wise, J.
-vs-                                          :
                                              :
BRIAN ROSSITER                                :      Case No. 2016CA0001
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 15CR0111




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 26, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JASON W. GIVEN                                       DAVID A. SAMS
318 Chestnut Street                                  P.O. Box 40
Coshocton, OH 43812                                  West Jefferson, OH 43162
Coshocton County, Case No. 2016CA0001                                                  2


Farmer, P.J.

         {¶1}   On January 11, 2016, appellant, Brian Rossiter, pled guilty pursuant to a

plea agreement to two counts of receiving stolen property in violation of R.C. 2913.51

and one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32.

One of the stolen items was a concrete pulverizer belonging to Shelly & Sands, Inc. By

judgment entry filed January 13, 2016, the trial court sentenced appellant to an

aggregate term of three years in prison, and ordered him to pay restitution to Shelly &

Sands in the amount of $64,395.00.

         {¶2}   Appellant filed a pro se appeal and argued the following assignments of

error:

                                         PRO SE I

         {¶3}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED

RESTITUTION OF $64,395.00 BY FAILING TO: (A) ENSURE THE RECORD

POSSESSED COMPETENT, CREDIBLE EVIDENCE FROM WHICH THE COURT

COULD DISCERN THE AMOUNT OF RESTITUTION TO A REASONABLE DEGREE

OF CERTAINTY BEFORE ORDERING RESTITUTION; (B) FAILING TO INQUIRE

INTO THE ABILITY OF THE APPELLANT TO PAY THE $64,395.00 DOLLARS IN

RESTITUTION AND FAILED TO CONSIDER THE APPELLANT'S PRESENT OR

FUTURE ABILITY TO PAY WITHIN THE RECORD; (C) THE TRIAL COURT FAILED

TO INFORM THE APPELLANT OF RESTITUTION PRIOR TO APPELLANT

PLEADING GUILTY AND WAIVING HIS CONST. RIGHTS. TRIAL COURT VIOLATED

APPELLANT'S 6TH AND 14TH U.S. CONST. RIGHTS AND HIS ARTICLE I, SEC. 10

OF THE OHIO CONST."
Coshocton County, Case No. 2016CA0001                                                 3


                                        PRO SE II

       {¶4}    "DEFENSE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

OBJECT TO THE RESTITUTION ORDER BY TRIAL COURT.                              COUNSEL

POSSESSED EVIDENCE THAT SHOWED NO RESTITUTION WAS DUE IN THIS

CASE.         COUNSEL'S INEFFECTIVENESS PREJUDICED THE APPELLANT &

VIOLATED DUE PROCESS & EQUAL PROTECTION OF LAW, A VIOLATON OF

APPELLANT'S 5TH, 6TH, & 14TH U.S. CONST. AMENDS AND HIS ARTICLE I, SEC.

10 OF THE OHIO CONST."

       {¶5}    Thereafter, appellant was appointed counsel who submitted the following

assignment of error:

                                       COUNSEL I

       {¶6}    "DEFENDANT-APPELLANT WAS              DENIED     EFFECTIVE    COUNSEL

WHEN RESTITUTION FOR WHICH THERE WAS NO BASIS WAS ORDERED

WITHOUT A HEARING REQUEST OR OBJECTION."

                                        PRO SE I

       {¶7}    Appellant claims the trial court erred in ordering him to pay restitution

without determining the reasonableness of the amount and his ability to pay, and

without informing him of restitution prior to his plea. We disagree.

       {¶8}    Appellant was indicted on five counts, and pled guilty to three counts

pursuant to a plea agreement. During the change of plea and dispositional hearing held

on January 11, 2016, the following exchange occurred (T. at 14-15):
Coshocton County, Case No. 2016CA0001                                              4


            MR. MERANDA [Defense Counsel]: Thank you, Your Honor. Just

     real briefly. My client is 42 years old. He has made mistakes in his life.

     Currently serving out an eight-year prison sentence. I would ask the court

     to impose consecutive three years on these cases here today. It is my

     understanding he has five days' jail credit. We take no objection to the

     restitution that's going to be asked for by the state, if any.

            With regards to the first two counts, Your Honor, I would ask the

     court to take into consideration that he is going to be serving out a hefty

     prison sentence with today's sentence and his current eight year sentence

     that he is serving, to waive any fines and court costs here today. Thank

     you.

            THE COURT: Thank you. Mr. Rossiter, let me ask you, do you

     have any statement or information that you wish to offer on your own

     behalf in mitigation of punishment? Is there anything about sentencing

     that you want to say?

            THE DEFENDANT: No, sir.

            THE COURT: Mr. Hall, anything on behalf of the State of Ohio?

            MR. HALL [Prosecutor]: The state agreed to take no position, Your

     Honor.

            THE COURT: What's the restitution amount?

            MR. HALL: $64,395.

            THE COURT: Payable to who?

            MR. HALL: Shelly & Sands.
Coshocton County, Case No. 2016CA0001                                                     5


              THE COURT: Brian Rossiter is hereby ordered to pay as and for

       restitution in this matter $64,395 to the Shelley & Sands Company. That's

       as and for the concrete pulverizer in Count 4 of the indictment.



       {¶9}    The trial court deferred payment until after appellant is released from

prison. T. at 19; Judgment Entry Plea of Guilty and Sentencing filed January 13, 2016.

       {¶10} We find no further analysis is necessary. Appellant and his trial counsel

waived any right to object to the restitution order.

       {¶11} Assignment of Error I is denied.

                                  PRO SE II, COUNSEL I

       {¶12} Appellant claims his trial counsel was ineffective for failing to object to the

restitution order. We disagree.

       {¶13} As noted in Assignment of Error I, the record demonstrates all the

participants were aware of and waived any error with the order of restitution.

       {¶14} Assignment of Error II is denied.
Coshocton County, Case No. 2016CA0001                                        6


      {¶15} The judgment of the Court of Common Pleas of Coshocton County, Ohio

is hereby affirmed.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.




SGF/sg 118
