[Cite as State v. Weimert, 2011-Ohio-2846.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-10-35

        v.

JOSHUA B. WEIMERT,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Auglaize County Common Pleas Court
                          Trial Court No. 2010-CR-107

                     Judgment Affirmed in Part, Reversed in Part

                              Date of Decision: June 13, 2011




APPEARANCES:

        E. Kelly Mihocik for Appellant

        R. Andrew Augsburger for Appellee
Case No. 2-10-35



WILLAMOWKI, J.

       {¶1} Defendant-appellant Joshua Weimert. (“Weimert”) brings this appeal

from the judgment of the Court of Common Pleas of Auglaize County sentencing

him to consecutive sentences. For the reasons set forth below, the judgment is

affirmed in part and reversed in part.

       {¶2} During June 2010, a series of burglaries occurred in rural areas of

Auglaize County.        On June 28, 2010, Sgt. Detective Jerry Sawmiller

(“Sawmiller”) of the Auglaize County Sherriff’s Office was informed by the Allen

County Sheriff’s office that Weimert and Christopher Hall (“Hall”) had admitted

to committing burglaries in Auglaize County. Sawmiller was advised to speak

with Ashley Hall (“Ashley”), the girlfriend of Weimert. When questioned, Ashley

told Sawmiller that Hall and Weimert were burglarizing homes in Auglaize

County and selling the stolen property. On July 2, 2010, Sawmiller interviewed

Weimert and Hall. Weimert eventually confessed that both he and Hall had

committed the series of burglaries in Auglaize County.

       {¶3} On August 12, 2010, the Auglaize County Grand Jury indicted

Weimert on ten counts of burglary and theft, ranging from a second degree felony,

eight third degree felonies, and one fifth degree felony. Weimert entered a plea of

not guilty to each of the counts on September 1, 2010. On October 14, 2010,

Weimert entered into a written plea agreement with the state. Pursuant to the plea

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agreement, Weimert agreed to enter a guilty plea to three counts of burglary and

one count of theft, all felonies of the third degree and to pay restitution for all

indicted offenses, including those dismissed. In exchange, the State agreed to

dismiss all other charges and to refrain from prosecuting him for two additional

offenses. The trial court accepted the plea agreement and proceeded to conduct an

immediate sentencing hearing. The trial court sentenced Weimert to four years in

prison on counts one, three, and nine of the indictment, and five years in prison for

count ten of the indictment.        The sentences were ordered to be served

consecutively for a total of seventeen years. Weimert was also ordered to pay

$6,050 in restitution, which included $150 for offenses for which Weimert was not

indicted.   Weimert appeals from this judgment and raises the following

assignments of error.

                            First Assignment of Error

       The trial court sentenced [Weimert] to consecutive sentences
       without applying a presumption that concurrent sentences
       would be imposed. Because State v. Hodge * * * recognized that
       R.C. 2929.14(E)(4) and R.C. 2929.41(A) were erroneously struck
       down, the controlling public policy demands that that
       presumption be applied. [Weimert’s] sentence should be
       vacated.

                          Second Assignment of Error

       When [Weimert] pleaded guilty to theft, he agreed to pay
       restitution for an unindicted 2009 offense. Because [Weimert]
       did not plead guilty to that offense nor was it covered by the

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      indictment, the trial court erred when it ordered [Weimert] to
      pay restitution for that offense.

                           Third Assignment of Error

      The trial court erred when it did not determine [Weimert’s]
      present or future ability to pay a financial sanction before the
      court ordered [Weimert] to pay $6,050.00 in restitution.

                          Fourth Assignment of Error

      [Weimert’s] trial counsel rendered constitutionally ineffective
      assistance when counsel knew that [Weimert] was indigent, but
      did not object to the imposition of court costs.

      {¶4} In the first assignment of error, Weimert claims that the trial court

erred in sentencing him to consecutive sentences without making the necessary

findings. Weimert argues that the decision by the Supreme Court in State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, wrongly severed the

requirement that the trial court make findings before imposing consecutive

sentences. Weimert then claims that since the Supreme Court recognized its error

in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, public

policy requires the original statutory language be followed. However, the Ohio

Supreme Court in Hodge held that the holding in Foster, was still valid. The

Supreme Court admitted that the logic used to decide Foster was called into

question, but held that since it was not reversed by the U.S. Supreme Court, it was

still the law and only the legislature could reenact the severed provisions of the


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statute. Since Weimert was sentenced pursuant to the law in effect at the time of

his sentencing, the appellant has not demonstrated that the sentence is clearly and

convincingly contrary to law and the first assignment of error is overruled.

       {¶5} In the second assignment of error, Weimert claims that the trial court

erred by ordering him to pay restitution for an offense that was based on neither an

indictment nor a conviction. The amount of restitution is generally limited to the

offenses for which a defendant is tried and convicted. State v. Rohrbaugh, 191

Ohio App.3d 117, 2010-Ohio-6375, 944 N.E.2d 1230. “[A]s a matter of law, an

offender cannot be ordered to pay restitution for damage arising from a crime of

which he was not convicted.” State v. Williams, 3d Dist. No. 8-03-25, 2004-Ohio-

2801, ¶23. However, a defendant can agree to pay restitution for damages relating

to dismissed charges as part of a negotiated plea agreement. State v. Strickland,

10th Dist. No. 08AP-164, 2008-Ohio-5968, ¶12. A negotiated plea agreement is a

contract and the principles of contract law apply. State v. Bethel, 110 Ohio St.3d

416, 2006-Ohio-4853, ¶50, 854 N.E.2d 150. Thus, as long as the defendant agrees

to make the payment as part of the consideration for the dismissal of the other

charges, the defendant may contract to do things that otherwise could not be

required by law.

       {¶6} Here, Weimert claims that the trial court erred in requiring him to pay

restitution for damages resulting from offenses for which he was neither indicted

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nor convicted. The negotiated plea agreement provided that Weimert would enter

pleas of guilty to counts one, three, nine, and ten of the indictment, as amended

and that Weimert “agrees to make Restitution as to all Counts of the Indictment.”

October 14, 2010, Agreement, 2-3. In return, the State agreed to dismiss counts

two, four, five, six, seven, and eight. The State also agreed not to go forward with

the two additional charges for which no indictment was issued. This agreement

was signed by Weimert and the State.                      At the sentencing hearing, the State

informed the trial court that Weimert agreed “to make restitution as to all counts of

the indictment.” October 14, 2010, Tr. 4. Although, the trial court later discussed

whether Weimert had agreed to pay restitution for the unindicted offenses, this

was not included in the written contract. The contract, which in this case is the

negotiated plea agreement, is unambiguous and parol evidence is not necessary to

interpret it. The agreement indicates that Weimert will make restitution as to all

counts of the indictment. It does not include any additional offenses for which no

indictment was issued. If the State had wished to include the unindicted offenses

for purposes of restitution, they should have been included in the contract.1 The

State did not include them. In addition, the record does not indicate that Weimert

received any additional consideration for agreeing to pay restitution for the


1
    This court makes no determination at this time as to whether including restitution for an unindicted
offense is permissible. Since the contract was silent as to restitution for these offenses, the issue is not
before this court at this time.

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Case No. 2-10-35



unindicted offenses above what was already included in the contractual plea

agreement. Thus, there was no modification of the contract at the hearing. The

trial court erred in ordering restitution for the unindicted offenses when the written

contract did not indicate an agreement to pay them. The second assignment of

error is sustained.

       {¶7} Weimert alleges in the third assignment of error that the trial court

erred in imposing restitution without first inquiring into his ability to pay. Having

found error with the trial court’s imposition of restitution in the second assignment

of error, the issue is remanded to the trial court. Thus, this issue is moot and need

not be addressed.

       {¶8} Finally, Weimert claims that his trial counsel was ineffective.

“Reversal of convictions on ineffective assistance requires the defendant to show

‘first that counsel's performance was deficient and, second that the deficient

performance prejudice the defense so as to deprive the defendant of a fair trial.’”

State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 105, 772 N.E.2d 81. The

defendant must show that there was a reasonable probability that but for counsel's

error, the result of the trial would have been different. Id. at ¶ 108. State v.

Baughman, 3d Dist. No. 1-10-34, 2010-Ohio-4951.

       {¶9} Weimert alleges that his trial counsel was ineffective for failing to

object to court costs even though Weimert was indigent. The Ohio Supreme Court

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has held that R.C. 2947.23 requires a trial court to assess costs against all

convicted defendants. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶8,

817 N.E.2d 393. “Thus, trial counsel’s failure to object to the imposition of costs

of prosecution and court fees does not constitute ineffective assistance of counsel

because such an objection would not have been successful.” State v. Layne, 12th

Dist. No. CA2009-07-043, 2010-Ohio-2308, ¶54.         For this reason, the fourth

assignment of error is overruled.

       {¶10} Having found error prejudicial to the defendant in the imposition of

restitution, the judgment of the Court of Common Pleas of Auglaize County is

affirmed in part and reversed in part.

                                                      Judgment Affirmed in Part,
                                                               Reversed in Part

ROGERS, P.J., concurs in Assignments of Error Nos. 1, 3 and 4, and concurs
in Judgment Only in Assignment of Error No. 2

SHAW, J., concurs in Judgment Only


/jlr




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