[Cite as State v. Hewitt, 2015-Ohio-5489.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                        MIAMI COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2015-CA-5
                                                   :
 v.                                                :   Trial Court Case No. 2014-CR-382
                                                   :
 HUSTON W. HEWITT                                  :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 30th day of December, 2015.

                                              ...........

PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Miami County Prosecuting
Attorney, 201 West Main Street, Troy, Ohio 45373
       Attorney for Plaintiff-Appellee

ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, 5540 Far Hills Avenue, Suite 202,
Dayton, Ohio 45429
      Attorney for Defendant-Appellant

                                             .............
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WELBAUM, J.



       {¶ 1} Defendant-appellant, Huston W. Hewitt, appeals from the sentence he

received in the Miami County Court of Common Pleas after he was found guilty of

possessing cocaine following a no contest plea. For the reasons outlined below, the

judgment of the trial court will be affirmed.



                            Facts and Course of Proceedings

       {¶ 2} On August 25, 2014, Hewitt was arraigned in the Miami County Municipal

Court for possessing cocaine. His case was then bound over to the Miami County Court

of Common Pleas. Thereafter, on October 22, 2014, a bill of information was filed

charging Hewitt with one count of possessing cocaine in an amount less than five grams

in violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree. The charge

arose after an officer discovered cocaine in Hewitt’s vehicle following a traffic stop.

       {¶ 3} Hewitt initially pled not guilty to the possession charge. However, as part of

a plea agreement, Hewitt later agreed to plead no contest in exchange for the State

remaining silent at sentencing. Accordingly, the trial court held a change of plea hearing

on January 12, 2015, during which Hewitt entered a plea of no contest. After entering

his plea, the trial court found Hewitt guilty of possessing cocaine and scheduled a

sentencing hearing for February 18, 2015.

       {¶ 4} At Hewitt’s sentencing hearing, the trial court imposed a ten-month prison

sentence and suspended Hewitt’s driver’s license for six months. The trial court also
                                                                                         -3-


ordered Hewitt to pay court costs and restitution to the Piqua Police Department in the

amount of $125 for the cost of having the cocaine tested by the Miami Valley Regional

Crime Lab (MVRCL).

          {¶ 5} Hewitt now appeals from his sentence, raising two assignments of error for

review. For purposes of clarity, we will address Hewitt’s assignments of error out of

order.



                                Second Assignment of Error

          {¶ 6} Hewitt’s Second Assignment of Error is as follows:

          THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY

          RESTITUTION TO A LAW ENFORCEMENT AGENCY WITHOUT HIS

          CONSENT.

          {¶ 7} Under his Second Assignment of Error, Hewitt contends the trial court erred

in ordering him to pay $125 in restitution to the Piqua Police Department for the cost of

testing the drugs found inside his vehicle. Although the State also believes the trial court

erred by ordering him to pay the restitution, we disagree.

          {¶ 8} In support of his argument, Hewitt cites to State v. Moody, 2d Dist. Greene

No. 2011-CA-29, 2013-Ohio-2234.          In Moody, the appellant was a registered sex

offender who was convicted of attempted failure to provide notice of a change of

residence. Id. at ¶ 1. At sentencing, the trial court ordered the appellant to pay $302.94

in restitution to the Greene County Sheriff’s Department for unknown expenses incurred

in the investigation. Thereafter, the appellant appealed from the order of restitution. Id.

at ¶ 9.
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       {¶ 9} In deciding the appeal, we noted that “[p]ursuant to R.C. 2929.18(A)(1), a

trial court may order ‘[r]estitution by the offender to the victim of the offender’s crime * * *

in an amount based on the victim’s economic loss.’ ”              Id. at ¶ 11, quoting R.C.

2929.18(A)(1). However, we recognized that law-enforcement agencies are not entitled

to restitution for funds spent in the performance of their investigative or other duties. Id.

at ¶ 12.   We also noted that a defendant can consent to pay restitution to a law-

enforcement agency pursuant to a plea agreement, but the mere inclusion of language in

a plea form listing restitution as a possible financial sanction does not establish consent.

Id.   Thus, we held the trial court in Moody erred by ordering the appellant to pay

restitution to the Greene County Sheriff’s Department because it was not authorized by

R.C. 2929.18(A)(1) and the appellant had not consented to the restitution as part of his

plea agreement. Id. at ¶ 16. We recently followed our holding in Moody in State v.

Payne, 2d Dist. Clark No. 2014-CA-21, 2015-Ohio-698, finding the trial court erred in

ordering the appellant to pay restitution to the Clark County Sheriff’s department for

money spent on controlled drug purchases by a confidential informant. Id. at ¶ 6.

       {¶ 10} The present case, however, is distinguishable from both Moody and Payne.

Unlike Moody and Payne, the $125 restitution order at issue in this case accrued as a

result of the Piqua Police Department sending the substance found in Hewitt’s vehicle to

MVRCL for testing. Effective October 12, 2006, R.C. 2925.511 authorizes a sentencing

court to order an offender to reimburse law enforcement agencies for the costs of tests to

identify the controlled substance at issue, so long as the tests come back positive. H.B.

No. 163, 2006 Ohio Laws 135.

       {¶ 11} Specifically, R.C. 2925.511 states the following:
                                                                                          -5-


              In addition to the financial sanctions authorized or required under

       sections 2929.18 and 2929.28 of the Revised Code and to any costs

       otherwise authorized or required under any provision of law, the court

       imposing sentence upon an offender who is convicted of or pleads guilty to

       a drug abuse offense may order the offender to pay to the state, municipal,

       or county law enforcement agencies that handled the investigation and

       prosecution all of the costs that the state, municipal corporation, or county

       reasonably incurred in having tests performed under section 2925.51 of the

       Revised Code or in any other manner on any substance that was the basis

       of, or involved in, the offense to determine whether the substance contained

       any amount of a controlled substance if the results of the tests indicate that

       the substance tested contained any controlled substance. No court shall

       order an offender under this section to pay the costs of tests performed on

       a substance if the results of the tests do not indicate that the substance

       tested contained any controlled substance. The court shall hold a hearing

       to determine the amount of costs to be imposed under this section. The

       court may hold the hearing as part of the sentencing hearing for the

       offender.

(Emphasis added.)

       {¶ 12} In this case, the record indicates that the substance found in Hewitt’s vehicle

yielded positive results for cocaine when it was initially field tested. Following the field

test, the substance was sent to MVRCL for additional testing.             The presentence

investigation report noted that the MVRCL analysis cost $125. The report also noted
                                                                                            -6-


that the author of the report “was not in receipt of the final [lab] results at the submission

of this report[.]” The final results were not otherwise incorporated in the record; however,

we presume the MVRCL test results showed positive results for cocaine since: (1) Hewitt

pled no contest to possessing cocaine and admitted during the presentence investigation

that he had cocaine in his car;1 and (2) the initial field test showed positive results for

cocaine. Based on these circumstances, it would not have been an abuse of discretion

for the trial court to make the same presumption at sentencing when it ordered Hewitt to

pay the cost of the MVRCL analysis. In addition, the cost of the MVRCL analysis was

discussed, albeit briefly, as part of the sentencing hearing and was clearly stated in the

presentence investigation report that was reviewed by the trial court. Accordingly, under

R.C. 2925.511, the trial court did not err in ordering Hewitt to pay $125 in restitution to the

Piqua Police Department for the testing performed by MVRCL.

       {¶ 13} Hewitt’s Second Assignment of Error is overruled.



                                First Assignment of Error

       {¶ 14} Hewitt’s First Assignment of error is as follows:

       THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

       APPELLANT TO A NEAR-MAXIMUM SENTENCE.

       {¶ 15} Under his First Assignment of Error, Hewitt claims the trial court’s decision

to impose a ten-month prison sentence was an abuse of discretion because the court


1
  Under the defendant’s version of events, the presentence investigation report states
the following: “In conjunction with the PSI, the Defendant wrote the following statement:
‘was driving to a dentist appointment got pulled over with cocaine in car.’ ” The report
also notes that Hewitt indicated “he was addicted to cocaine at the time of the Instant
Offense, but that he has not used since the date of arrest.”
                                                                                         -7-


weighed the sentencing factors in R.C. 2929.12 in an unreasonable and arbitrary manner.

We disagree.

       {¶ 16} In reviewing felony sentences, this court now applies R.C. 2953.08(G)(2) as

the appellate standard of review. State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069,

¶ 29 (2d Dist.). R.C. 2953.08(G)(2) states, in pertinent part, that:

       The appellate court may increase, reduce, or otherwise modify a sentence

       that is appealed under this section or may vacate the sentence and remand

       the matter to the sentencing court for resentencing. The appellate court’s

       standard for review is not whether the sentencing court abused its

       discretion. The appellate court may take any action authorized by this

       division if it clearly and convincingly finds either of the following:

       (a) That the record does not support the sentencing court’s findings under

       division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

       2929.14, or division (I) of section 2929. 20 of the Revised Code, whichever,

       if any, is relevant;

       (b) That the sentence is otherwise contrary to law.

       {¶ 17} “ ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an

issue or factor which a statute requires a court to consider.” (Citation omitted.) State v.

Lofton, 2d Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. “[A] sentence is not

contrary to law when the trial court imposes a sentence within the statutory range, after

expressly stating that it had considered the purposes and principles of sentencing set

forth in R.C. 2929.11, as well as the factors in R .C. 2929.12.” Rodeffer at ¶ 32, citing

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.
                                                                                         -8-


       {¶ 18} Hewitt concedes that his sentence cannot be modified or vacated under the

standard of review set forth in R.C. 2953.08(G)(2). Specifically, he concedes that the

trial court had discretion to impose a prison term under R.C. 2929.13(B)(1)(b)(x), that his

ten-month prison sentence was within the prescribed statutory range for fifth degree

felonies, and that the trial court considered the purposes and principles of sentencing

under R.C. 2929.11 and R.C. 2929.12. Nevertheless, in conjunction with the standard

of review in R.C. 2953.08(G)(2), Hewitt urges this court to also review his sentence for an

abuse of discretion. However, R.C. 2953.08(G)(2) specifically states that “[t]he appellate

court’s standard for review is not whether the sentencing court abused its discretion[.]”

Regardless of this provision, even when reviewing Hewitt’s sentence for an abuse of

discretion, we find no error.

       {¶ 19} “A trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary. An abuse of discretion includes a situation

in which a trial court did not engage in a ‘ “sound reasoning process.” ’ Abuse-of-

discretion review is deferential and does not permit an appellate court to simply substitute

its judgment for that of the trial court.” (Citations omitted.) State v. Darmond, 135 Ohio

St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34, quoting State v. Morris, 132 Ohio St.3d

337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990).

       {¶ 20} As previously noted, Hewitt contends his ten-month prison sentence was

an abuse of discretion because the trial court weighed the seriousness and recidivism

factors in R.C. 2929.12 in an unreasonable and arbitrary manner. In support of this
                                                                                             -9-


claim, Hewitt argues the trial court’s “more serious” finding under R.C. 2929.12(B)(2), i.e.,

that he caused the victim serious economic harm as a result of the offense, was made in

error because it was based on the $125 fee for the drug testing, which he claims does

not amount to serious economic harm and was not to be paid to the victim, but rather the

Piqua Police Department. Hewitt also notes that the trial court made a “less serious”

finding under R.C. 2929.12(C)(3), i.e., that he did not cause or expect to cause physical

harm to persons or property.        Lastly, Hewitt contends the trial court should have

considered that recidivism is unlikely under the factors set forth in R.C. 2929.12(D)(5) and

(E)(5) because he was genuinely remorseful for his offense.

       {¶ 21} With respect to genuine remorse, the trial court was not obligated to believe

Hewitt’s claim that he was remorseful, as the court was free to determine the remorseful

factor for itself, and it was not obligated to weigh the factor in Hewitt’s favor. Hewitt’s

claim otherwise is simply incorrect.

       {¶ 22} As for the trial court’s finding that Hewitt caused the victim serious economic

harm, we find the trial court partially rectified the finding on the record after Hewitt’s trial

counsel objected to it at the sentencing hearing. In response to Hewitt’s objection, the

author of the presentence investigation report clarified that the finding was made in the

report as a result of the Piqua Police Department’s economic loss. Thereafter, the trial

court noted the clarification on the record and stated it was “the economic harm that [was]

the result of Defendant’s conduct.” Sentencing Trans. (Feb. 18, 2015), p. 14. We find

that this statement sufficiently negated the trial court’s initial finding that the economic

harm suffered by the Police Department was serious; therefore, that finding no longer had

any effect.
                                                                                         -10-


       {¶ 23} Nevertheless, the trial court’s modified finding still implies that the Piqua

Police Department was a victim that suffered economic harm.            A law enforcement

agency cannot be characterized as a victim entitled to restitution as the result of economic

harm that arose out of its investigation of the offense. State v. Jones, 7th Dist. Jefferson

Nos. 08 JE 20, 08 JE 29, 2010-Ohio-2704, ¶ 44-47 (“the government or a police

department is not a victim merely because they expended funds in order to gather

evidence against the offender”), citing State v. Samuels, 4th Dist. Washington No. 03CA8,

2003-Ohio-6106, ¶ 5.     (Other citation omitted.)    Accord State v. Christian, 2d Dist.

Montgomery No. 25256, 2014-Ohio-2672, ¶ 126-129, vacated on other grounds, 143

Ohio St.3d 417, 2015-Ohio-3374, 38 N.E.3d 888.

       {¶ 24} Regardless, we find the trial court’s error in characterizing the Piqua Police

Department as a victim is harmless error. We come to this conclusion because pursuant

to R.C. 2925.511, the trial court was permitted to order Hewitt to pay the Department for

the cost of the drug testing and Hewitt’s ten-month prison sentence was reasonable in

light of all the other factors weighed by the trial court at sentencing. For example, during

the sentencing hearing, the trial court found that several other recidivism factors under

R.C. 2929.12(B) applied and indicated that recidivism was likely. Specifically, the trial

court found, based on the presentence investigation report, that recidivism was likely

because Hewitt was on bail awaiting trial or sentencing when the offense was committed;

had a history of juvenile adjudications and criminal convictions; and failed to respond

favorably to past sanctions, which included a prior prison term.         The presentence

investigation report also indicated that Hewitt previously had his probation revoked.

       {¶ 25} Also, upon reviewing the record, we find that Hewitt’s extensive criminal
                                                                                           -11-


history is, by itself, a reasonable basis to affirm his ten-month prison sentence, as the trial

court summarized his lengthy criminal record as follows:

              I had a chance to look over the PSI that was done by Ms. Scott, and

       some things to be noted are your extensive criminal record both as a

       juvenile and as well as an adult. Specifically in 1993 you had an Assault

       charge in Juvenile Court where you received four hours of Community

       Service, and 1995 you had another Assault where you also received twelve

       hours of Community Service. In 1996 you had an Assault with twelve

       hours Community Service. In 1995 you had a Robbery where you were

       placed on probation and were—did a temporary stint at the DYS. Again in

       1996 you had Criminal * * * Damaging and a Contempt charge and

       conviction and where you got twelve and twenty hours of Community

       Service. Again in ‘97 you had another Assault, twelve hours of Community

       Service; 1998 a Squealing Tires and Criminal Damaging where those were

       brought to the Juvenile Court’s attention. You received fines and costs and

       had to pay restitution. * * *

              Now as an adult you had a Felonious Assault case which was bound

       over in 2000. And as part of that incident you had an Aggravated Assault

       where you served twelve months in ODRC [.] * * *

              Let’s see—again in 2002 you had an Assault, which was amended

       to Attempted Assault, did a hundred twenty-eight days (sic) sentence, as

       well as a ninety day sentence with fines and costs. In 2005 you had a

       Disorderly Conduct which was amended from an Assault, thirty days
                                                                                         -12-


      suspended. 2005 an Open Container. 2006 a DUI/Physical Control and

      Reasonable Control, thirty days suspended as well as fines and costs.

      2007 you were convicted of * * * Willful Wanton Disregard of Property as

      well as—that was well just that one charge where you received a one-year

      probation sentence. 2007 Disorderly Conduct, amended from an Assault,

      thirty days suspended. 2008 Disorderly Conduct, fines and costs. 2008

      Disorderly Conduct, fines and costs. 2009 Obstructing Official Business,

      fines and costs; 2010 Disorderly Conduct, again in 2010 an Attempted

      Assault where you received probation and had a revocation hearing and put

      back on probation as well. 2010 a Disorderly Conduct, fines and costs.

      2011 Domestic Violence, thirty days suspended. 2012 an OVI, another

      2012 Assault—two counts, a hundred eighty – eighty days suspended,

      placed on probation, fines, costs, restitution. 2012 a Menacing that was

      part of your two years’ probation in the earlier charge. As part of this

      incident you had the Physical Control, While Under the Influence, which you

      noted as being currently on probation through Municipal Court.

Sentencing Trans. (Feb. 18, 2015), p. 6-9.

      {¶ 26} For the foregoing reasons, we do not find the trial court abused its discretion

when it weighed the seriousness and recidivism factors in R.C. 2929.12, as the recidivism

factors, especially Hewitt’s extensive criminal history, provided a reasonable basis for

imposing the ten-month prison sentence at issue.

      {¶ 27} Hewitt’s First Assignment of Error is overruled.
                                                                                         -13-


                                       Conclusion

       {¶ 28} Having overruled both assignments of error raised by Hewitt, the judgment

of the trial court is affirmed.

                                     .............



HALL, J., concurs.

DONOVAN, J., concurring in part and dissenting in part:
       {¶ 29} I disagree with the majority’s resolution of the second assignment of error.

The PSI lists a single seriousness factor out of nine factors. Specifically, it notes, and

the judge made a finding that, the “Victim suffered serious physical, psychological or

economic harm as a result of the offense.”        Under “Explanation,” the PSI indicates

“Economic loss incurred by Piqua Police Department (drug analysis).”

       {¶ 30} Assuming arguendo, the court modified its finding from “serious economic

harm” to “economic harm” (a fact which is not clear to this author), the law, in my view, is

clear that the Piqua Police Department cannot be characterized as a “victim” under R.C.

2929.12(B)(2) in a drug possession offense. “[A] police department is not a victim of an

offense when the only economic harm arising out of the offense is the cost of investigating

that offense,” State v. Moody, 2d Dist. Greene No. 2011-CA-29, 2013-Ohio-2234, ¶ 12

(citing in part State v. Jones, 7th Dist. Jefferson Nos. 08 JE 20, 08 JE 29, 2010-Ohio-

2704, ¶ 40, 47, which found plain error where the trial court ordered Appellant to pay

restitution to the government, noting “that the government is not a victim under the

restitution statute merely because it expended funds in some manner as a result of the

defendant’s offense.”) The fact that the Piqua Police Dept. can recoup the expense of
                                                                                          -14-


lab analysis under R.C. 2929.511 does not make them a victim for purposes of

sentencing.

       {¶ 31} The question of who constitutes a victim under R.C. 2929.12(B)(2) is

reviewed under a de novo standard. See generally State v. Hunter, 2d Dist. Montgomery

No. 25521, 2013-Ohio-3759, ¶ 7. In relevant part, R.C. 2930.01(H) defines victim as “a

person who is identified as the victim of a crime. . . in a police report or in a complaint,

information or indictment that charges the commission of a crime and that provides the

basis for the criminal prosecution . . . .” The bill of information filed against Hewitt does

not identify the police as the victim, nor should it. In this case, it is an error of law to

characterize the Piqua Police Dept. as the victim for purposes of sentencing analysis.

       {¶ 32} Accordingly, I would reverse and remand for resentencing as to the

restitution issue.

                                       ...........




Copies mailed to:


Paul M. Watkins
Andrew C. Schlueter
Hon. Jeannine N. Pratt
