[Cite as State v. Slagle, 2012-Ohio-1575.]




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

STATE OF OHIO                                     :
                                                  :      Appellate Case No. 23934
        Plaintiff-Appellee                        :
                                                  :      Trial Court Case No. 04-CR-526
v.                                                :
                                                  :
JOHN W. SLAGLE                                    :      (Criminal Appeal from
                                                  :      (Common Pleas Court)
        Defendant-Appellant                  :
                                                   :
                                                 ...........

                                                 OPINION

                                   Rendered on the 6th day of April, 2012.

                                                 ...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

R. JASON HOWARD, Atty. Reg. #0074662, 4130 Linden Avenue, Suite 304, Dayton, Ohio
45432-3015
      Attorney for Defendant-Appellant

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

FAIN, J.

           {¶ 1} Defendant-appellant John W. Slagle appeals from his conviction and sentence for

 Theft of an amount equaling at least $100,000, but less than $500,000, in violation of R.C.
                                                                                                                               2


 2913.02(A)(2) and 2913.02(A)(3).1 He contends that: (1) the trial court committed error when

 the successor to the deceased judge who had presided over his bench trial rendered a verdict

 based on her review of the audiovisual record of the original trial; (2) his conviction is not

 supported by sufficient evidence, because he owned the legal fees he was alleged to have stolen

 from his law firm; (3) his four-year sentence is disproportionate to his offense; and (4) the

 restitution ordered by the trial court is against the manifest weight of the evidence, and also

 exceeds the dollar amount corresponding to the degree of Theft of which he was convicted.

           {¶ 2} We agree with Slagle that the procedure followed by the trial court – a successor

 judge rendering a verdict based on review of an audiovisual record of a bench trial presided over

 by her deceased predecessor – is not proper under Ohio law. But the doctrine of collateral

 estoppel precludes relitigation of that issue. That procedure was ordered in a federal habeas

 corpus action brought by Slagle in which the State was a real party in interest.

           {¶ 3} We conclude that by virtue of Slagle’s contract of employment with his law firm,

 he did not own the legal fees he stole from the firm.

           {¶ 4} We conclude that the four-year sentence is not disproportionate to the offense,

 which was the Theft of over $500,000 from a law firm in which Slagle was a partner.

         {¶ 5} We conclude that the restitution ordered, $521,000, is not against the manifest

weight of the evidence, but we agree with Slagle that it was plain error to order restitution in

excess of the maximum dollar amount – $500,000 – corresponding to the degree of Theft with

which Slagle was charged, and of which he was convicted.


           1
         The dollar amounts set forth in R.C. 2913.02(B)(2) have been increased, to $150,000 and $750,000, respectively, by statutory
 amendment subsequently to Slagle’s commission of this offense.
                                                                                                3


       {¶ 6} The order of restitution is Reversed. The judgment of the trial court is Affirmed in

all other respects. This cause is Remanded to the trial court for the limited purpose of reducing

the order of restitution to $500,000.



                     I. Slagle Steals $780,000 from the Law Firm in Which

                     He Is a Shareholder and of Which He is an Employee.

       {¶ 7} Pickrel, Schaeffer, and Ebeling (PS&E) is a law firm operated as a professional

corporation, located in Dayton. It is managed by officers selected by its shareholders.

       {¶ 8} In 1986, Slagle was hired by PS&E as a litigator. In the early 1990's, he became a

shareholder.   All attorneys at PS&E, including shareholders, enter into written employment

contracts that regulate their conduct. Slagle executed written employment contracts for the years

he worked at PS&E.

       {¶ 9} Slagle’s contracts of employment with PS&E included the following provisions: (1)

all attorneys were to devote full time and best efforts in the practice of law exclusively for the

firm; (2) all fees received from the practice of law were to be turned over to the firm; (3) all clients

were clients of the firm, not of the individual attorney; (4) all attorneys were to keep a daily record

of their work for the firm, both billable and non-billable, in the form and manner designated by the

firm; and (5) all client fees belonged to the firm.



       {¶ 10} PS&E’s non-shareholder attorneys received salaries for their services.                  Its

shareholder attorneys received percentages of the firm’s net profits, determined by a compensation

committee and subject to shareholder approval, based on the shareholder’s contribution to
                                                                                              4


management, billing responsibility, gross fees, and hours worked. Shareholders were paid during

the year with draws against the year-end net profits.

       {¶ 11} Customarily, an attorney receiving a settlement check would deposit that check into

the firm’s trust account. After payments out of the trust account for expenses, to clients, and to

other parties entitled to payment, a separate check would be paid out of the trust account to the

firm for attorney fees. PS&E’s attorneys were not permitted to individually endorse a check, or to

receive a check from a client to the attorney, individually, as payment of an attorney fee.

       {¶ 12} Between February 1, 1999, and July 13, 2001, Slagle received attorney fees for

work he performed while employed at PS&E, but pocketed the moneys himself rather than

depositing them into the firm trust account as required by his contract with PS&E.

       {¶ 13} Slagle concealed his theft by falsifying PS&E’s billing memoranda. The results of

his falsifications were that anyone reviewing the billing memoranda would see relatively small

amounts of unbilled time in cases that appeared to be unresolved. But in reality, these cases had

been settled, sometimes years earlier, and Slagle had received attorney fees far in excess of the

unbilled time listed in the memoranda.

       {¶ 14} In one case, in which Slagle worked as co-counsel with another local attorney not

affiliated with PS&E, Slagle received $100,000 as his share of the attorney fees from the other

attorney’s trust account, but in multiple checks instead of one check. Slagle deposited some of

these checks into his own personal account, and others he caused to be deposited into PS&E’s trust

account, altering each check in the process. In this way, he was able to minimize the number of

client files showing unbilled time.

       {¶ 15} In another case, Slagle used this same attorney’s trust account as a conduit into
                                                                                           5


which to deposit fees from a case that had been referred to him by yet another non-PS&E lawyer.

Again, Slagle deposited some of the multiple checks written out of this trust account into his own

personal account, and caused others to be paid into PS&E’s trust account, altering them to

facilitate doing so. When the attorney who had referred the case to Slagle inquired as to when she

might expect to receive her share of the settlement, Slagle lied and told her that the case had not

yet settled.

        {¶ 16} In other cases, Slagle endorsed settlement checks over to clients, and then had the

client write a personal check back to him to pay the attorney fees. In one case, Slagle had the

client’s father write Slagle a check personally for the attorney fees.

        {¶ 17} Slagle was able to avoid detection of his thefts until April 2001. When PS&E

finally discovered Slagle’s thefts and confronted him, he resigned from the firm. Both before and

after Slagle’s resignation from the firm, PS&E attempted multiple times to obtain the information

from Slagle or his attorney that would permit PS&E to compute how much Slagle had stolen from

the firm. Slagle either ignored these requests or avoided them by lying. In one case, Slagle

responded that although he had received a settlement check, he could not disburse it, because the

client was accusing him of malpractice. This was a lie.

        {¶ 18} After unsuccessful negotiations between Slagle and PS&E, Slagle did return about

$159,000 to the firm. But this was far less than the total of the amounts of fees he had stolen

from the firm.

        {¶ 19} In August 2004, Slagle was charged by indictment with one count of Theft in an

amount in excess of $100,000, but not exceeding $500,000, in violation of R.C. 2913.02(A)(2)

(beyond the scope of the express or implied consent of the owner or person authorized to give
                                                                                                6


consent), and one count of Theft, in the same amount, in violation of R.C. 2913.02(A)(3) (by

deception).



                                     II. Course of Proceedings.

                      A. Slagle Waives a Jury Trial, Is Tried to the Bench,
                        and the Judge Dies Before Rendering a Verdict.

        {¶ 20} Slagle filed a written waiver of his right to a jury trial. The waiver included the

following language: “I hereby voluntarily waive and relinquish my right to a trial by jury and elect

to be tried by Judge G. Jack Davis.”

        {¶ 21} The case was tried to Judge Davis. At the conclusion of the trial, it was agreed

that counsel would file post-trial briefs in lieu of closing argument. Slagle filed his post-trial brief

on November 13, 2006. The State filed its response on December 1, 2006. On March 4, 2007,

without having rendered a verdict, Judge Davis died.




                     B. A Mistrial Is Declared; Slagle’s Motion to Dismiss
                           on Double Jeopardy Grounds Is Denied;
                  and His Attempts to Obtain Immediate Appellate Relief Fail.

        {¶ 22} Sixteen days after Judge Davis’s death, the State moved for a mistrial, citing the

death of the trial judge as grounds. The same day, another judge of the Montgomery County

Common Pleas Court entered an order declaring a mistrial, concluding that as a result of the death

of Judge Davis while the case was awaiting his verdict “a manifest necessity exists for this Court

to declare a mistrial in order to prevent a failure of justice.”
                                                                                          7


       {¶ 23} Subsequently, Slagle moved to dismiss the indictment upon double-jeopardy

grounds. In his memorandum in support of that motion, Slagle noted that after the entry declaring

a mistrial, “the parties were discussing a procedure whereby Judge Kessler would review the

audio/visual record and the written arguments of the parties, and render a verdict without

conducting a full blown retrial.” Slagle cited a Request for Disqualification filed by Judge

Kessler after the declaration of mistrial that included the following comment in Judge Kessler’s

handwriting:

               This case was originally Judge Davis’. It was tried, but no verdict was

       rendered. After Judge Davis’ death, there was discussion between π & Δ whether

       upon transfer here, both sides would agree to retry the case on the video record.

       The π has decided no [this word is doubly underlined], therefore the case should

       return to Davis’ docket for scheduling.

       {¶ 24} In his memorandum in support of his motion to dismiss on double-jeopardy

grounds, Slagle argued that because the case could be decided by a successor judge upon the

audiovisual record of the trial and the written arguments of the parties, there was no manifest

necessity for a declaration of mistrial. Therefore, Slagle could not be re-tried.

       {¶ 25} The trial court denied Slagle’s motion to dismiss the indictment. Slagle appealed.

We dismissed Slagle’s appeal for lack of a final appealable order. Slagle appealed our dismissal

of his appeal to the Supreme Court of Ohio, which did not accept the appeal for review. State v.

Slagle, 117 Ohio St.3d 1460, 2008-Ohio-1635, 884 N.E.2d 68.



                   C. Slagle Obtains a Conditional Writ of Habeas Corpus
                              from the Federal District Court.
                                                                                             8



       {¶ 26} Slagle then filed a habeas corpus action in the United States District Court for the

Southern District of Ohio, naming the Montgomery County Common Pleas Court as respondent.

That court, in Slagle v. Court of Common Pleas of Montgomery County, Ohio, S.D. Ohio 2009,

No. 3-:08-cv-146. 2009 WL 2982880, adopted the report and recommendations of a magistrate

judge, and granted Slagle a conditional writ of habeas corpus:

               A Conditional Writ of Habeas Corpus is hereby issued to Slagle. Slagle

       shall be discharged from further responding to the Indictment unless the Common

       Pleas Court renders a decision on the video record already created not later than

       180 days from the date judgment is entered in this matter.




               D. The Trial Court Complies with the Writ of Habeas Corpus;
                       Slagle Is Convicted; and this Appeal Ensues.

       {¶ 27} Pursuant to the federal court’s conditional writ of habeas corpus, the Montgomery

County Common Pleas Court, in the person of the judge who succeeded Judge Davis in office,

rendered a verdict convicting Slagle on both counts of Theft contained in the indictment.

       {¶ 28} At sentencing, the trial court merged the sentences on both counts into a single

four-year sentence. The trial court ordered restitution to PS&E in the amount of $521,000.

       {¶ 29} From his conviction and sentence, Slagle appeals.



              III. The Procedure Followed by the Trial Court Violated Neither
                   the Due Process Clause Nor the Double Jeopardy Clause.

               A. In the Opinion of this Court, the Procedure Followed by the
                                                                                          9


                        Trial Court Was Not Proper Under Ohio Law.

      {¶ 30} Slagle’s First Assignment of Error is as follows:

      THE TRIAL COURT’S PROCEDURE IN GRANTING THE PROSECUTION’S

      MOTION FOR MISTRIAL DENIED THE DEFENDANT A FAIR TRIAL AND

      DUE PROCESS UNDER THE FIFTH AMENDMENT TO THE U.S.

      CONSTITUTION. THE COURT SHOULD HAVE CONDUCTED A HEARING,

      CONDUCTING           A    CRIMINAL        RULE       25(B)    ANALYSIS,        WHICH

      NECESSITATES THE APPLICATION OF CIVIL RULE 63.                             FAILURE TO

      HOLD      SAID     HEARING        ALSO      DENIED      THE      DEFENDANT       THE

      OPPORTUNITY TO RAISE OTHER OPTIONS TO AVOID A MISTRIAL,

      THUS CREATING DOUBLE JEOPARDY AND NECESSITATING DISMISSAL

      OF THE INDICTMENT.

       {¶ 31} In his argument in support of this assignment of error, Slagle appears to be

arguing both: (1) that the trial court could not properly proceed by having Judge Davis’s

successor view the audiovisual record of the trial and then render a verdict; and (2) that once a

mistrial was improperly declared, it became too late to do anything other than discharge Slagle

on Double Jeopardy grounds. We decline to address the merits of Slagle’s second argument,

beyond noting, in Part III-B, below, that it is barred by collateral estoppel.

       {¶ 32} Slagle’s first argument is also barred by collateral estoppel, but because we agree

with him, we choose to address it.

       {¶ 33} Slagle argues that when a judge is the finder of fact, in a bench trial, that judge,

and that judge alone, can evaluate the evidence and return a verdict. A successor judge may not
                                                                                             10


 render a verdict, because the successor judge was not present to hear and see the witnesses.

         {¶ 34} One case Slagle cites, Welsh v. Brown Graves Lumber Co., 58 Ohio App.2d 49,

 389 N.E.2d 514 (9th Dist. 1978), even goes so far as to hold, in a civil case, that the parties may

 not even stipulate to a procedure whereby a successor judge shall issue findings of fact and

 conclusions of law on a record made up before the predecessor judge. We would not go so far.

 We cannot distinguish that situation from one in which the parties appear before the successor

 judge for a new trial, and by stipulation, submit the case to the successor judge on the transcripts

 of the testimony at the first trial, without presenting any live witnesses.

       {¶ 35} Slagle does cite a number of other cases in which it has been held that a successor

judge may not render a verdict in a bench trial based upon review of the record made up in the

original trial before the predecessor judge. See, e.g., State v. Adewusi, 1st Dist. No. C-070270,

2008-Ohio-2055. In none of those cases, however, does it appear that the successor judge had an

audiovisual record, as opposed to a written transcript, upon which to base a verdict.

       {¶ 36} An audiovisual recording may seem, at first thought, to contain the necessary

predicates for evaluating testimony that a printed record lacks. But in our view, an audiovisual

record still falls short of being an adequate substitute for having been present, in the courtroom, to

see and hear the witnesses. For one thing, we can testify to the deficiencies of the audiovisual

recordings available of proceedings in the Montgomery County Common Pleas Court. They are

routinely available to us on appeal, and we sometimes view them, as a way of supplementing the

printed transcript. Their video quality is not good; these are not high-definition recordings.

Much of what is said is inaudible, or badly distorted. Even when we can make out what is being

said, we have the sense that a great deal of what occurred in the courtroom is lost to us.
                                                                                             11


       {¶ 37} But even if the quality of the audiovisual recordings of proceedings in the

Montgomery County Common Pleas Court were vastly improved, they would still not be able to

pick up the ambience in the courtroom that is not within the view of the camera or within the

effective range of the microphones. As just one example, imagine that a medical witness is

testifying in a homicide case concerning the extent of the victim’s injuries. The factfinder is

aware that the mother of the victim is present in the courtroom. That factfinder will appreciate

that the witness may be soft-pedaling the horrific nature of the victim’s injuries in consideration of

the mother’s feelings, and can evaluate the testimony accordingly, but the person viewing the

recording later will not be in a position to include that consideration in evaluating the testimony.

The reader can doubtless think of countless other examples where the ambience in the courtroom

may effect the testimony from the witness stand, or the demeanor of the witness, in a way that only

persons who are present in the courtroom can appreciate.

       {¶ 38} We realize, of course, that we are expressing an opinion of this issue that conflicts

with the opinion of the trial court in Slagle’s federal habeas corpus proceeding. In the report and

recommendation of the magistrate judge that was adopted by the federal district court, reference is

made to the ubiquity of police cruiser videos in search and seizure cases, as reflecting the impact

of audiovisual recordings on the extent of the deference normally accorded to the finder of fact by

a reviewing court. Slagle v. Court of Common Pleas of Montgomery County, Ohio, supra, 2009

WL 2982880, at *7, fn. 6. We point out that a police cruiser video is ordinarily an exhibit that has

been admitted in evidence, so that it can be evaluated just as readily by the appellate court on

review as by the trial court; both courts are looking at exactly the same thing – they are having the

identical evidentiary experience.
                                                                                            12


        {¶ 39} Finally, we note that the logic of the federal court’s decision is not necessarily

limited to bench trials. If reviewing an audiovisual recording of a trial is not distinguishable, for

double-jeopardy purposes, from the experience of actually being in attendance at a trial, then there

would seem to be few, if any, situations in which there would be a manifest necessity for a mistrial

in a courtroom equipped with audiovisual recording equipment. If, for example, a jury were

hung, then it could be excused, and a new jury empaneled to watch the audiovisual recording and

arrive at a verdict.      This would be a significant change in Ohio law to result from an

administrative decision to record trials with audiovisual recording equipment, rather than through

stenography.

        {¶ 40} We conclude that a successor judge in a bench trial, absent the consent of the

parties, may not render a verdict in a bench trial based solely upon a review of an audiovisual

recording of the trial.

        B. But a Contrary Result Is Required by the Doctrine of Collateral Estoppel.

        {¶ 41} Although we disagree with the decision of the federal district court in Slagle’s

habeas corpus proceeding, the doctrine of collateral estoppel precludes relitigation of that issue.

That doctrine was explained by the Supreme Court of Ohio in Whitehead v. General Tel. Co., 20

Ohio St.2d 108, 112, 254 N.E.2d 10 (1969), as follows:

        The second aspect of the doctrine of res judicata is ‘collateral estoppel.’ While the

        merger and bar aspects of res judicata have the effect of precluding a plaintiff from

        relitigating the same cause of action against the same defendant, the collateral

        estoppel aspect precludes the relitigation, in a second action, of an issue that has

        been actually and necessarily litigated and determined in a prior action which was
                                                                                              13


        based on a different cause of action. Restatement of the Law, Judgments, Section

        45, comment (c) and Section 68(2); Cromwell v. County of Sac (1876), 94 U.S.

        351, 24 L.Ed. 195. In short, under the rule of collateral estoppel, even where the

        cause of action is different in a subsequent suit, a judgment in a prior suit may

        nevertheless affect the outcome of the second suit.

        {¶ 42} The federal district court unquestionably had jurisdiction; Slagle actually invoked

that jurisdiction. Although the parties adverse to Slagle in the two actions are nominally different

– the Montgomery County Common Pleas Court in the federal action, the State of Ohio in the case

before us – we agree with the State that the State of Ohio is the real party in interest in both cases.

The requirement of mutuality of parties, which Slagle argues is not satisfied here, is satisfied

where all of the parties to the present proceeding were bound by the prior judgment. North

Olmstead v. Eliza Jennings, Inc., 91 Ohio App.3d 173, 184, 631 N.E.2d 1130 (8th Dist. 1993).

The State was surely bound by the federal court order in Slagle’s habeas corpus proceeding; had

the common pleas court failed to render a verdict in the manner prescribed by, or within the time

limit prescribed by, the federal order, the State could not have continued to incarcerate Slagle in

defiance of the federal court’s order.

        {¶ 43} In adopting the reasoning set forth in State v. Lemmer (Minn. 2007), 736 N.W.2d

650, the Supreme Court of Ohio has held that: “ * * * the dispositive issue is whether the party

sought to be bound by the previous determination ‘had a controlling participation in the first

action.’ ”   State ex rel. Estate of Miles v. Village of Piketon, 121 Ohio St.3d 231, 2009-Ohio-786,

903 N.E.2d 311, at ¶ 29, quoting from Lemmer. Slagle clearly had a “controlling participation” in

the federal habeas corpus action. He was the petitioner, and he obtained relief, if not the precise
                                                                                             14


relief he was requesting.



       {¶ 44} In the federal habeas corpus proceeding, Slagle took the position that there was no

manifest necessity for a mistrial upon the death of Judge Davis, because the trial court had the

alternative of submitting the case to a successor judge, to render a verdict after reviewing the

audiovisual record of the trial. Presumably, Slagle also took the position he had taken when he

moved for dismissal of the indictment on double-jeopardy grounds – that a mistrial having been

declared, albeit improperly, it was now too late to afford him any remedy short of dismissal of the

indictment.

       {¶ 45} The federal court agreed with Slagle in part; and disagreed with him in part. It

agreed with Slagle that a mistrial ought not to have been declared; but it disagreed with him that it

was now too late to provide a remedy less than outright dismissal of the indictment. It issued a

conditional writ of habeas corpus ordering that: “Slagle shall be discharged from further

responding to the Indictment unless the Common Pleas Court renders a decision on the video

record already created not later than 180 days from the date judgment is entered in this matter.”

Slagle v. Court of Common Pleas of Montgomery County, Ohio, 2009 WL 2982880 at *1.

Having invoked the jurisdiction of the federal court to obtain that result, Slagle is now bound by it.

       {¶ 46} Slagle argues that the federal court’s holding that the state trial court could proceed

by having a successor judge render a verdict on the audiovisual record of the completed bench trial

was not necessary to its judgment, so that the doctrine of collateral estoppel does not apply. This

argument is difficult for us to understand. The judgment of the federal district court was that the

state trial court must either proceed in the specified manner, or Slagle must be discharged under
                                                                                                15


double-jeopardy grounds. Essential to the federal court’s holding that double jeopardy would

apply was its conclusion that the mistrial declared by the state trial court was not necessary,

because the alternative procedure was available.

       {¶ 47} Thus, even though we disagree that a successor judge in a bench trial may properly,

under Ohio law, render a verdict based solely upon review of the audiovisual record of the trial, for

the reasons set forth in Part III-A, above, the federal court so held, and the doctrine of collateral

estoppel precludes relitigation of that issue.       Likewise, the doctrine of collateral estoppel

precludes relitigation of the holding of the federal court, which is at least implicit in its order, that

for the trial court to follow the procedure set forth in the federal court’s order does not violate the

Double Jeopardy clause.

       {¶ 48} Slagle’s First Assignment of Error is overruled.



                         IV. Slagle Did Not Own the Fees He Stole, for
                         Purposes of the Theft Statute – R.C. 2913.02(A).

       {¶ 49} Slagle’s Second Assignment of Error is as follows:

       THE COURT ERRORED IN DENYING DEFENDANT’S CRIMINAL RULE

       29(A) MOTION BECAUSE THE STATE PRESENTED INSUFFICIENT

       EVIDENCE TO SUSTAIN A FINDING OF GUILT FOR THEFT UNDER R.C.

       2913.02(A)(2) AND R.C. 2913.02(A)(3).

       {¶ 50} Slagle was charged with Theft under both R.C. 2913.02(A)(2) and 2913.02(A)(3),

which provide as follows:

               (A) No person, with purpose to deprive the owner of property or services,

       shall knowingly obtain or exert control over either the property or services in any of
                                                                                            16


        the following ways:

               (1) * * * ;

               (2) Beyond the scope of the express or implied consent of the owner or

        person authorized to give consent;

               (3) By deception;

               ***

        {¶ 51} Slagle predicated his motion for judgment of acquittal – and he predicates this

assignment of error – upon the proposition that one cannot be convicted of Theft of property in

which one has an ownership interest. He cites State v. Rhodes, 2 Ohio St.3d 74, 76, 442 N.E.2d

1299 (1982), for the proposition that: “The important question is not whether the person from

whom the property was stolen was the actual owner, but rather whether the defendant had any

lawful right to possession.”

        {¶ 52} Slagle claims that he had an ownership interest in the fees that he stole from

Pickrel, Schaeffer, Ebeling, Co. But as the State points out, his contract of employment with

PS&E unequivocally states that all clients are clients of the law firm, not of individual attorneys,

and that all fees received from the practice of law belonged to, and were to be turned over to, the

firm.

        {¶ 53} Slagle asserts that he had an interest in the fees by virtue of quantum meruit. But

quantum meruit is a doctrine providing for reasonable compensation for services where there is no

contract. The doctrine has been held to apply in the case of an attorney who is discharged by a

client, even if there had been a contract retaining the services of the attorney, but that is because

the contract is no longer enforceable, the client having exercised his or her right to dispense with
                                                                                               17


the services of the attorney. See, Fox & Associates Co. L.P.A. v. Purdon, 44 Ohio St.3d 69, 541

N.Ed.2d 448 (1989). In the case before us, there was a contract between Slagle and PS&E, still in

force, providing that the fees belonged to PS&E.

       {¶ 54} Slagle contends that some of the fees he was alleged to have stolen were earned for

work performed after he left PS&E, but he provides no support in the record for this contention.

Finally, he contends that he had an ownership interest in the fees generated from his work by

virtue of his status as a shareholder in the corporation.         He provides no authority for this

proposition. He may have owned shares of stock in General Motors, as well, but that would not

make his theft of a General Motors automobile from a local dealer any less than Theft under the

Ohio Revised Code.

       {¶ 55} Slagle’s Second Assignment of Error is overruled.



        V. Slagle’s Four-Year Sentence Was Appropriate, and Not Disproportionate.

       {¶ 56} Slagle’s Third Assignment of Error is as follows:

       SLAGLE’S FOUR YEAR SENTENCE FOR THEFT UNDER R.C. 2913.02(A)(2)

       AND       R.C.     2913.02(A)(3)      WAS       INAPPROPRIATE,           AND          NOT

       PROPORTIONATE TO THE CRIMES.

       {¶ 57} Slagle stole at least $500,000 from the law firm in which he was a shareholder,

trusted by his colleagues. This was the maximum amount corresponding to the degree of his

offense, a third-degree felony, under the statute in existence at the time of his offense.



       {¶ 58} Before Slagle was sentenced, he had been convicted in Highland County in two
                                                                                             18


cases for stealing money from clients out of settlements they had won.

       {¶ 59} Slagle showed no remorse.          In the pre-sentence investigation report, under

“Offender’s Statement,” it is noted that Slagle still did not appreciate the criminal nature of his

conduct, in the course of which he plotted and schemed to steal legal fees that did not belong to

him:

               During the presentence investigation interview, Mr. Slagle stated that this

       case is really a civil case in that it is a breach of contract. Beyond that, he does not

       really know what happened, except he went from employment to having to deal

       with Mat Heck [the Montgomery County Prosecutor]. He indicated that this case

       has been going on for many years and part of it is still in Federal Court. Mr. Slagle

       stated that the whole situation is very complicated. Mr. Slagle stated that the case

       is about a dispute between him and the law firm that employed him.

       {¶ 60} The trial court had the option of sentencing Slagle to one, two, three, four, or five

years in prison. It chose a sentence of four years. To argue that this sentence is disproportionate

to the magnitude of Slagle’s offense, or is otherwise inappropriate, borders on the ludicrous.

       {¶ 61} Slagle’s Third Assignment of Error is overruled.



               VI. The Award of Restitution in Excess of $500,000 Was Error.

       {¶ 62} Slagle’s Fourth Assignment of Error is as follows:



       THE COURT’S ORDER OF RESTITUTION FOR $521,000 WAS AGAINST

       THE MANIFEST WEIGHT OF THE EVIDENCE AND PLAIN ERROR.
                                                                                                19




        {¶ 63} When Slagle stole the money, Aggravated Theft was defined by R.C.

2913.02(B)(2) as the theft of property having a value of $100,000 or more, but less than $500,000.

 The trial court found that he had stolen $780,000, but had returned $159,333.33, leaving a

balance of $521,000. The court ordered restitution in that amount.

        {¶ 64} Slagle contends that there is nothing in the record to support the amount of

restitution awarded. The pre-sentence investigation report recites that PS&E reported that the fees

stolen totaled “approximately $780,000,” that Slagle had returned $159,333.33 to the firm, and

that PS&E had received $100,000 from its insurer, Cincinnati Insurance Company, which had

initiated subrogation litigation (presumably against Slagle). $780,000 less the $100,000

subrogation payment, and less the $159,333.33 Slagle returned to PS&E, leaves a balance of

$520,666.67, which the trial court appears to have rounded off as $521,000. The pre-sentence

investigation report supports a restitution figure of $520,666.67.

        {¶ 65} We have held, however, that in the absence of an agreement by a defendant to a

larger award, restitution may not be awarded in an amount in excess of the amount of loss charged

in the indictment. State v. Ratliff, 194 Ohio App.3d 202, 2011-Ohio-2313, 955 N.E.2d 425 (2d

Dist.), at ¶ 2, 17. In this case, Slagle did not agree to pay restitution in excess of $500,000, the

maximum amount of the element of theft of which he was convicted. Therefore, the award of

restitution in excess of that amount is error.

        {¶ 66} Slagle also contends that the trial court failed to consider his present and future

ability to pay restitution before awarding it. He did not object to the award, and he has not

demonstrated in the record that the trial court failed to consider his ability to pay restitution.
                                                                                           20


       {¶ 67} As the State notes, Slagle has been a successful litigation attorney in the private

sector for over twenty-five years. Therefore, even assuming that his ability to earn income has

been substantially reduced as a result of his conviction and incarceration, it is reasonable to

assume that he has significant assets. He did not present evidence that the fees he stole from

PS&E have all been dissipated.

       {¶ 68} Because Slagle did not dispute the amount of restitution awarded, request a hearing,

or otherwise object, he has waived all but plain error. State v. Cochran, 2d Dist. Champaign No.

09CA0024, 2010-Ohio-3444, at ¶ 19. To the extent that the award of restitution in this case

exceeds the maximum amount – $500,000 – of the element of the theft of which Slagle was

convicted, we find plain error to be demonstrated in the record. Otherwise, we find no plain error.

       {¶ 69} Slagle’s Fourth Assignment of Error is sustained in part.



                                        VII. Conclusion.

       {¶ 70} Slagle’s Fourth Assignment of Error having been sustained in part, and all his other

assignments of error having been overruled, that part of the judgment ordering restitution in the

amount of $521,000 is Reversed, the judgment is Affirmed in all other respects, and this cause is

Remanded to the trial court for the limited purpose of reducing the amount of restitution ordered to

$500,000.

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

GRADY, P.J., and FROELICH, J., concur.



Copies mailed to:
                        21


Mathias H. Heck
Kirsten A. Brandt
R. Jason Howard
Hon. Frances E. McGee
