[Cite as State v. Simmons, 2015-Ohio-446.]




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

STATE OF OHIO                                      :
                                                   :
        Plaintiff-Appellee                         :   C.A. CASE NO. 26181
                                                   :
v.                                                 :   T.C. NO. 14CRB15
                                                   :
DAVID A. SIMMONS                                   :   (Criminal Appeal from
                                                   :    Municipal Court)
        Defendant-Appellant                        :
                                                   :

                                              ...........

                                             OPINION

                   Rendered on the __6th__ day of ___February___, 2015.

                                              ...........

STEPHANIE L. COOK, Atty. Reg. No. 0067101, Chief Prosecutor, City of Dayton, 335 W.
Third Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

JULIA M. MARTIN, Atty. Reg. No. 0084156, Assistant Public Defender, 117 S. Main
Street, Suite 400, Dayton, Ohio 45422
       Attorney for Defendant-Appellant

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

FROELICH, P.J.

        {¶ 1} David A. Simmons pled no contest in the Dayton Municipal Court to one

count of assault, a first-degree misdemeanor. The trial court found him guilty, sentenced
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him to 180 days in jail, all of which were suspended on the condition that he successfully

complete two years of community control, and ordered him to pay restitution of $8,595.45

and court costs.

       {¶ 2} Simmons appeals from his conviction, claiming (1) that the trial court erred

in ordering restitution without affording him a hearing on the amount of restitution, (2) that

the amount of ecomonic loss was not established, and (3) that the trial court failed to

determine that he had a present or future ability to pay the financial sanction. In its

appellate brief, the State concedes that the trial court erred in failing to afford Simmons a

restitution hearing and in failing to determine whether he had an ability to pay financial

sanctions. The State asserts that Simmons’s second assignment of error as to the

amount of economic loss is rendered moot. We agree with the State’s assessment.

       {¶ 3} According to the record, on March 11, 2014, Simmons filed a motion asking

the court to release the complainant’s medical records. In his motion, Simmons states

that the complainant’s hospital bills had been provided to support an amount of

restitution, but that defense counsel “questions the amount of these receipts.” Simmons

sought to review the medical records to “more fully explore what amount should actually

be ordered for restitution.” Specifically, Simmons questioned whether a full body CT

scan was related to the assault, in which the complainant suffered a lip laceration.

Simmons also asserted that he was entitled to benefit from any write-off that the hospital

provided to the complainant as a result of the complainant’s inability to pay. Finally,

Simmons noted that there was a discrepancy in the amount that the complainant had

been billed for the CT scan and the procedure’s cost as listed in the hospital’s pricing

disclosure documents.
                                                                                         -3-
       {¶ 4} The motion was discussed at a sentencing hearing later that day. The

State argued that the bills represented procedures done on the day of the assault and that

the court should not second-guess the doctor’s decision as to what procedures were

necessary. Simmons responded that he was not disputing what was billed; instead, he

was asserting that the amount the complainant would be required to pay to the hospital

might not be the amount reflected on the bill, as the hospital might have reduced the

amount owed due to the complainant’s inability to pay. Simmons reiterated that he also

questioned whether the full body scan was related to her injuries from the assault. The

trial court denied the motion and proceeded to sentence Simmons. The court ordered

restitution in the amount reflected on the hospital bills.

       {¶ 5} R.C. 2929.28 specifies the types of financial sanctions that the trial court

may impose in misdemeanor cases, including restitution. R.C. 2929.28(A)(1). That

statute provides, in part:

       If the court imposes restitution, the court shall determine the amount of

       restitution to be paid 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 an evidentiary

       hearing on restitution if the offender, victim, or survivor disputes the amount
                                                                                           -4-
       of restitution. If the court holds an evidentiary hearing, at the hearing the

       victim or survivor has the burden to prove by a preponderance of the

       evidence the amount of restitution sought from the offender.

       {¶ 6} “Economic loss” is defined in R.C. 2929.01(L) as “any economic detriment

suffered by a victim as a direct and proximate result of the commission of an offense and

includes any loss of income due to lost time at work because of any injury caused to the

victim, and any property loss, medical cost, or funeral expense incurred as a result of the

commission of the offense. ‘Economic loss’ does not include non-economic loss or any

punitive or exemplary damages.”

       {¶ 7} We agree with the parties that Simmons disputed the amount of restitution

requested by the State and challenged whether the hospital bills accurately reflected the

complainant’s economic loss. We also agree that the trial court failed to conduct a

hearing on restitution, as required by R.C. 2929.28(A)(1) when the amount of restitution is

disputed. We have held that the trial court’s taking of evidence on the issue of restitution

at the sentencing hearing is sufficient to constitute a “hearing” for purposes of the

restitution statute, State v. Graham, 2d Dist. Montgomery No. 25934, 2014-Ohio-4250, ¶

56 (addressing the analogous provision in R.C. 2929.18(A)(1)), but no testimony was

presented at Simmons’s sentencing hearing to support the amount of restitution.

Simmons’s first assignment of error is sustained.

       {¶ 8} R.C. 2929.28(B) makes holding a hearing on defendant’s ability to pay any

financial sanction, including restitution, discretionary with the court; such a hearing is not

mandatory. State v. Graupmann, 2d Dist. Greene No. 2013 CA 65, 2014-Ohio-3637, ¶

17. However, there must be “some evidence in the record that the court considered the
                                                                                        -5-
defendant’s present and future ability to pay the sanction imposed.”        E.g., State v.

Kinsworthy, 12th Dist. Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 34, quoting State

v. Reigsecker, 6th Dist. Fulton No. F-03-022, 2004-Ohio-3808, ¶ 11.

      {¶ 9} Although a finding that a defendant is indigent for purposes of appointed

counsel does not shield the defendant from paying a financial sanction, Graupman at ¶

18, the only information in the record related to Simmons’s ability to pay a financial

sanction is the fact that Simmons had been determined to be indigent and was

represented by a public defender. There was no discussion at the sentencing hearing

regarding Simmons’s present or future ability to pay financial sanctions or of any factors

(such as Simmons’s work history, health, education, and the like) that could reflect his

ability to pay restitution. The trial court ordered a presentence investigation, but the

report also did not include any information from which the trial court could determine that

Simmons had either a present or future ability to pay restitution. It simply stated that

Simmons was referred to the probation department for a presentence investigation, that

Simmons had been found guilty of assault/physical harm, that restitution was to be paid to

the complainant, and that the amount of restitution was $8,595.45; the PSI included

copies of medical bills from Miami Valley Hospital and the physicians who treated the

complainant.

      {¶ 10} Based on the record, we agree that the trial court failed to consider

Simmons’s present and future ability to pay restitution. Simmons’s third assignment of

error is sustained.    And, in light of our disposition of Simmons’s first and third

assignments of error, the second assignment of error is rendered moot.

      {¶ 11} We appreciate the professionalism of the State’s counsel in filing a
                                                                                          -6-
separate notice of conceded error, as required by Loc.R. 2.24 of the Court of Appeals of

Ohio, Second Appellate District.

       {¶ 12} The trial court’s order of restitution will be reversed, and the matter will be

remanded for further proceedings consistent with this opinion. In all other respects, the

trial court’s judgment will be affirmed.

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

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Stephanie L. Cook
Julia M. Martin
Hon. Deirdre E. Logan
