[Cite as State v. McDonald, 2011-Ohio-1964.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 95651




                                   STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                         CASSANDRA MCDONALD
                                                     DEFENDANT-APPELLANT




                               JUDGMENT:
                            AFFIRMED IN PART,
                         MODIFIED, AND REMANDED



                              Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
                                Case No. CR-536156

        BEFORE: Keough, J., Kilbane A.J., and Cooney, J.
      RELEASED AND JOURNALIZED: April 21, 2011

ATTORNEY FOR APPELLANT

Steve W. Canfil
1370 Ontario Street
Standard Building
Suite 2000
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Marcus L. Wainwright
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} This case came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Cassandra

McDonald (“McDonald”), appeals her guilty plea and sentence. Finding some

merit to the appeal, we affirm in part and modify her sentence, in part.

      {¶ 2} In April 2009, McDonald was charged with one count each of

burglary, passing bad checks, aggravated menacing, and criminal damaging.

In June 2010, she pled guilty to passing bad checks and aggravated
menacing; all other charges were dismissed. She was sentenced to one year

in prison and was ordered to pay $6,900 in restitution. McDonald appeals,

raising two assignments of error.

                                        Plea

      {¶ 3} In her first assignment of error, McDonald contends that she was

deprived of her constitutional rights when the court accepted her guilty plea

without fully informing her of the consequences of her plea.

      {¶ 4} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony

matter, a trial court must personally address the defendant and (1) determine

that the defendant is making the plea voluntarily, with an understanding of

the nature of the charges and the maximum penalty; (2) inform the defendant

of and determine that the defendant understands the effect of the plea, and

that the court may proceed with judgment after accepting the plea; and (3)

inform the defendant and determine that the defendant understands that she

is waiving her constitutional rights to a jury trial, to confront the witnesses

against her, to call witnesses in her favor, and to require the state to prove

her guilt beyond a reasonable doubt at a trial where the defendant cannot be

forced to testify against herself.

      {¶ 5} A trial court must strictly comply with the mandates of Crim.R.

11(C)(2) regarding the waiver of constitutional rights, meaning the court

must actually inform the defendant of the constitutional rights she is waiving
and make sure the defendant understands them. State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶27.

      {¶ 6} McDonald argues on appeal that the trial court failed to inform

her that she enjoyed the presumption of innocence and she could choose to

have her case tried to the court, rather than to a jury. By failing to advise

her accordingly, McDonald contends that the trial court did not strictly

comply with the requirements of Crim.R. 11(C)(2). We disagree.

      {¶ 7} This court has held that Crim.R. 11 does not require the trial

court to advise an offender she is presumed innocent, but that the offender,

by her plea, is waiving the right to “‘require the state to prove the defendant’s

guilt beyond a reasonable doubt at a trial at which the defendant cannot be

compelled to testify against himself or herself.’”     State v. King (Sept. 14,

2000), Cuyahoga App. No. 76696, quoting Crim.R. 11(C)(2)(c).

      {¶ 8} Additionally, although Crim.R. 11 requires a trial court to inform

a defendant of the right to a jury trial, there is no requirement that it is

likewise required to inform a defendant of the right to a bench trial. See

State v. Steele, Cuyahoga App. No. 85901, 2005-Ohio-5541; State v. Luster

(June 20, 1985), Cuyahoga App. No. 49248.

      {¶ 9} Reviewing the entire plea colloquy, we find that prior to accepting

McDonald’s plea, the trial court strictly complied with the requirements of

Crim.R. 11(C)(2). The trial court stated:
      {¶ 10} “Okay.   You have the following rights which you’ll be waiving:

You have the right to a jury trial in this case. At your jury trial you have the

right to confront and cross-examine the State’s witnesses against you, you

may do that through your attorney. You have the right to use this Court’s

compulsory process power for subpoena and to bring into court your own

witnesses and have them testify on your behalf. You do not have to take the

witness stand and testify at your trial. If you choose not to testify, the State

cannot use your silence against you. And lastly, the State has the burden of

proof, they must prove the charges against you to the legal standard of

beyond a reasonable doubt. Do you understand those rights?

      {¶ 11} “Defendant:   Yes, sir.”

      {¶ 12} Accordingly, McDonald’s arguments are without merit and her

first assignment of error is overruled.

                                 Restitution Order

      {¶ 13} McDonald contends in her second assignment of error that the

trial abused its discretion in ordering her to pay restitution to the victim for

damages which were not caused by the offense and were arbitrary when

compared to the actual loss suffered. The State concedes this error and the

proper amount of restitution to be $1,800.

      {¶ 14} Appellate review of a lower court’s order of restitution is under an

abuse of discretion standard. State v. Berman, Cuyahoga App. No. 79542,
2002-Ohio-1277, citing State v. Marbury (1995), 104 Ohio App.3d 179, 661

N.E.2d 271.

      {¶ 15} When a defendant is ordered to pay restitution during sentencing,

there “must be a due process ascertainment that the amount of restitution

bears a reasonable relationship to the loss suffered.”      State v. Williams

(1986), 34 Ohio App.3d 33, 34, 516 N.E.2d 1270.        When a court imposes

restitution as part of a felony offender’s sentence, it must be “based on the

victim’s economic loss.” R.C. 2929.18(A)(1).

      {¶ 16} An order of restitution is therefore “limited to the actual damage

or loss caused by the offense of which the defendant is convicted.” Williams at

paragraph one of the syllabus. The amounts claimed lost by a victim must

be established with certainty. Id. “Where evidence of actual losses is not

forthcoming from those claiming restitution the trial court abuses its

discretion in ordering restitution.” Marbury at 181, citing State v. Hansen

(Mar. 22, 1990), Cuyahoga App. No. 56778.

      {¶ 17} R.C. 2929.18(A)(1) also requires the trial court to calculate the

amount of restitution owed based on the economic loss to the victim resulting

from the defendant’s crime. A sentence of restitution must be limited to the

actual economic loss caused by the illegal conduct for which the defendant

was convicted. State v. Warner (1990), 55 Ohio St.3d 31, 69, 564 N.E.2d 18;
State v. Hafer, 144 Ohio App.3d 345, 348, 2001-Ohio-2412, 760 N.E.2d 56;

State v. Hooks (2000), 135 Ohio App.3d 746, 748, 735 N.E.2d 523.

        {¶ 18} A trial court abuses its discretion when it orders restitution in an

amount that has not been determined to bear a reasonable relationship to the

actual loss suffered as a result of the defendant’s offense for which he was

convicted. See Williams at 33-34; Hooks at 748.

        {¶ 19} Here, the record demonstrates that at the time of the plea, the

State represented to the trial court that restitution for the damage to the door

was being requested in addition to $1,800 for the bad check. At sentencing,

the trial court ordered McDonald to pay $6,900 in restitution, which

represented the amount of the bad check and unpaid back rent.

        {¶ 20} We find that the trial court abused its discretion in ordering

restitution for the nonpayment of rent. McDonald was convicted of passing

bad checks and aggravated menacing. The amount of restitution reasonably

related to the actual loss suffered as a result of her convictions is $1,800, the

amount of the bad check. The trial court was not authorized to order any

restitution for nonpayment of rent. Morever, because the State dismissed

the criminal damaging count, no restitution could be ordered for the damaged

door.
      {¶ 21} Accordingly, we sustain McDonald’s second assignment of error

and, pursuant to App.R. 12(B), this court modifies the trial court’s award of

restitution, reducing the amount to $1,800.

      {¶ 22} Affirmed in part; sentence modified in part.   Case remanded to

the trial court with instructions to enter a judgment entry reflecting this

court’s decision modifying the restitution amount to $1,800.

      It is ordered that appellant recover from appellee her 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

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed in part, any bail pending appeal is

terminated. Case remanded to the trial court for correction and execution of

sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MARY EILEEN KILBANE, A. J., and
COLLEEN CONWAY COONEY, J., CONCUR
