[Cite as State v. Casteel, 2012-Ohio-5673.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                    JUDGES:
                                                 Hon. Sheila G. Farmer, P.J.
       Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                 Hon. Julie A. Edwards, J.
-vs-

DOUGLAS M. CASTEEL                               Case No. 2012 AP 07 0044

       Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Court of Common Pleas,
                                                 Case No. 2009CR060138



JUDGMENT:                                        Affirmed




DATE OF JUDGMENT ENTRY:                          November 30, 2012



APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

MICHAEL J. ERNEST                                MARK A. PERLAKY
125 East High Avenue                             153 North Broadway Street
New Philadelphia, OH 44663                       New Philadelphia, OH 44663
Tuscarawas County, Case No. 2012 AP 07 0044                                             2

Farmer, P.J.

        {¶1}    On December 2, 2009, appellant, Douglas Casteel, was sentenced to an

aggregate term of four years in prison. Appellant commenced his prison sentence on

January 5, 2010. A hearing was scheduled for July 5, 2011 wherein the trial court was

to consider judicial release and the imposition of restitution. Following the hearing, the

trial court granted appellant judicial release, but did not impose restitution.

        {¶2}    On September 7, 2011, an evidentiary hearing was held to address the

restitution issue.   By judgment entry filed October 18, 2011, the trial court ordered

appellant to pay the victims a total amount of $4,526.37.

        {¶3}    Appellant filed an appeal, and this court reversed and remanded the

matter to the trial court to comply with State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-

3330.    State v. Casteel, 5th Dist. No. 11AP110043, 2012-Ohio-2295 (hereinafter

"Casteel I").

        {¶4}    Upon remand, by judgment entry filed June 13, 2012, the trial court

resentenced appellant to the exact same sentence it had imposed on December 2,

2009 and ordered the exact same amount of restitution it had imposed on October 18,

2011. The trial court filed a judgment entry nunc pro tunc on July 19, 2012 to include

the manner of conviction.

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

consideration. Assignment of error is as follows:

                                              I

        {¶6}    "THE TRIAL COURT ERRED IN RESERVING THE ISSUE OF

RESTITUTION IN THIS CASE AND IMPOSING IT AT A DATE AFTER APPELLANT'S
Tuscarawas County, Case No. 2012 AP 07 0044                                                  3


INITIAL SENTENCING HEARING, AS THE TRIAL COURT HAD LOST JURISDICTION

TO IMPOSE RESTITUTION."

                                               I

       {¶7}    Appellant claims the trial court erred in reserving restitution and imposing

it after the sentencing hearing as the trial court had lost jurisdiction to impose restitution.

We disagree.

       {¶8}    R.C. 2929.18 governs financial sanctions. Subsection (A)(1) states the

following:



       (A) Except as otherwise provided in this division and in addition to

       imposing court costs pursuant to section 2947.23 of the Revised Code,

       the court imposing a sentence upon an offender for a felony may sentence

       the offender to any financial sanction or combination of financial sanctions

       authorized under this section or, in the circumstances specified in section

       2929.32 of the Revised Code, may impose upon the offender a fine in

       accordance with that section. Financial sanctions that may be imposed

       pursuant to this section include, but are not limited to, the following:

       (1) Restitution by the offender to the victim of the offender's crime or any

       survivor of the victim, in an amount based on the victim's economic loss.

       If the court imposes restitution, the court shall order that the restitution be

       made to the victim in open court, to the adult probation department that

       serves the county on behalf of the victim, to the clerk of courts, or to

       another agency designated by the court. If the court imposes restitution,
Tuscarawas County, Case No. 2012 AP 07 0044                                              4


       at sentencing, the court shall determine the amount of restitution to be

       made by the offender. 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.



       {¶9}   Appellant argues the trial court erred in ordering restitution after he was

originally sentenced as the trial court no longer had jurisdiction.       In support of his

argument, appellant cites this court to cases from this district, State v. Carr, 5th Dist.

No. 2007AP120076, 2008-Ohio-3423, and State v. Riggs, 5th Dist. No. 2010 CA 20,

2010-Ohio-5697.

       {¶10} In Carr, restitution had been ordered after the original sentence and after

the defendant's probation had ended. This court reversed the restitution order, finding

at ¶ 16 that because the defendant's probation period had ended, "the trial court was

divested of jurisdiction to impose additional sanctions."
Tuscarawas County, Case No. 2012 AP 07 0044                                                5

       {¶11} In Riggs, the defendant was sentenced with the trial court reserving

jurisdiction to impose restitution at a later date.       The defendant filed an appeal.

Thereafter, an agreed entry was filed on restitution. This court dismissed the appeal per

State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, finding a non-final appealable

order, and remanded the matter to the trial court for resentencing. State v. Riggs, 5th

Dist. No. 2009 CA 00041, 2009-Ohio-6821. Upon remand, the trial court resentenced

the defendant and included the restitution order. Unfortunately, the trial court did so

outside the presence of the defendant. This court reversed and remanded the case to

the trial court for resentencing in accordance with the restitution statute.

       {¶12} In the case sub judice, appellant was sentenced on December 2, 2009

with the trial court reserving the restitution amount pending further hearing. Appellant

did not object. On July 5, 2011, appellant was released on judicial release and placed

on five years probation.     By judgment entry filed October 18, 2011, the trial court,

referencing the December 2, 2009 sentencing judgment entry and the July 6, 2011

judicial release orders, imposed a restitution order. Appellant appealed and following

reversal and remand by this court (Casteel I), the trial court issued a judgment entry

nunc pro tunc on July 19, 2012, resentencing appellant to the exact same sentence it

had imposed on December 2, 2009 and ordering the exact same amount of restitution it

had imposed on October 18, 2011.

       {¶13} The state argues this case is similar to the case of State v. Brown, 5th

Dist. No. 10-CA-133, 2011-Ohio-3645. In Brown, the defendant was sentenced with the

trial court reserving jurisdiction to impose restitution at a later date. The defendant filed

an appeal. Thereafter, the trial court filed a second sentencing entry which included a
Tuscarawas County, Case No. 2012 AP 07 0044                                               6


restitution order. The defendant did not file an appeal on this second entry. This court

dismissed the appeal, finding the first sentencing entry was not a final appealable order

consistent with Riggs, supra, and an appeal had not been filed on the second

sentencing entry.

       {¶14} In Riggs, the trial court sentenced the defendant and reserved jurisdiction

to impose restitution at a later date. Thereafter, an agreed entry on restitution was filed.

This court remanded the case for a final entry to comply with Baker. This is what

occurred in this case. In Casteel I, this court remanded the matter to the trial court to

file a final entry pursuant to Baker. The trial court did so, and we now have a final order

to review.

       {¶15} Unlike Carr wherein restitution was imposed after the defendant's

sentence and probation had ended, restitution in this case was imposed after appellant

had been granted judicial release and while he was serving five years of probation.

Therefore, this case is distinguishable from Carr, as the trial court sub judice had

jurisdiction to impose the restitution order.

       {¶16} During the original sentencing hearing, the trial court and counsel agreed

to the issuance of a supplemental order on restitution at a later date in order for the

prosecutor to obtain all of the required documentation from the victims. November 25,

2009 T. at 10-12.

       {¶17} Upon review, we find the trial court did not err in imposing restitution after

the sentencing hearing.
Tuscarawas County, Case No. 2012 AP 07 0044                                   7


      {¶18} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.




                                        Hon. Sheila G. Farmer




                                        Hon. John W. Wise




                                        Hon. Julie A. Edwards

                                                   JUDGES

SGF/db 1114
[Cite as State v. Casteel, 2012-Ohio-5673.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                    :
                                                 :
        Plaintiff-Appellee                       :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
DOUGLAS M. CASTEEL                               :
                                                 :
        Defendant-Appellant                      :       Case No. 2012 AP 07 0044




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.

Costs to appellant.




                                                 Hon. Sheila G. Farmer



                                                 Hon. John W. Wise



                                                 Hon. Julie A. Edwards

                                                                JUDGES
