[Cite as State v. Veto, 2013-Ohio-1797.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98770




                                       STATE OF OHIO
                                             PLAINTIFF-APPELLEE

                                               vs.


                                    ANTHONY T. VETO
                                             DEFENDANT-APPELLANT




                       JUDGMENT:
    AFFIRMED IN PART; REVERSED IN PART AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-559232

        BEFORE: Kilbane, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: May 2, 2013
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
William Leland
Katherine Mullin
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} This appeal is a companion case arising out of the same events as contained

in State v. Piscura, 8th Dist. No. 98712.

       {¶2} Defendant-appellant, Anthony Veto (“Veto”), appeals his sentence from his

convictions for aggravated arson, attempted murder, unlawful possession of a dangerous

ordnance, and possessing criminal tools. For the reasons set forth below, we affirm in

part, reverse in part, and remand for a hearing on the issue of restitution.

       {¶3} In February 2012, Veto and codefendant David Piscura (“Piscura”) were

charged in a nine-count indictment resulting from the firebombing of a house on Russell

Avenue in Parma. Counts 1, 3, and 5 charged both defendants with aggravated arson in

violation of R.C. 2909.02(A)(1).           Counts 2, 4, and 6 charged both defendants with

attempted murder in violation of R.C. 2923.02 and R.C. 2903.02(A). Count 7 charged

both defendants with aggravated arson in violation of R.C. 2909.02(A)(2). Count 8

charged both defendants with unlawful possession of a dangerous ordnance in violation of

R.C. 2923.17(A). Count 9 charged both defendants with possessing criminal tools in

violation of R.C. 2923.24(A) and carried a furthermore clause that they possessed an

incendiary device “and/or a Rock and/or a 2004 Toyota” with the purpose to use them

criminally.1 In Counts 1 and 2, the named victim was Kimberly Stillman (“Stillman”).

In Counts 3 and 4, the named victim was Jason Hamila (“Hamila”).                 Angeline

Zimmerman (“Zimmerman”) was the named victim in Counts 5 and 6. As the owners of


       1Each   of Counts 1-9 carried a forfeiture specification.
the Russell Avenue residence, Ronald and Roxanne Churby (“the Churbys”) were the

victims in Count 7.

         {¶4} In June 2012, Veto pled guilty to the indictment.          The trial court then

referred Veto to the probation department for a presentence investigation and the court

psychiatric clinic for a mitigation report.   The trial court held a sentencing hearing in July

2012 for both Veto and Piscura.     The victims and law enforcement officials addressed the

court.

         {¶5} Hamila and Zimmerman lived in a rental house on Russell Avenue that is

owned by the Churbys. Stillman, who was Veto’s ex-girlfriend, was temporarily living

with Hamila and Zimmerman. During the early morning hours of January 13, 2012, Veto

texted Piscura that “I can make three firebombs, and I know one place that needs it.     ***

Got all the tools.    Just need a ride.   * * * Got rags and a bottle and a sledgehammer

ready. I’m going to gas them up as soon as you get here.”         Piscura agreed to pick Veto

up and drive him to Russell Avenue. Veto brought with him two Molotov cocktails that

he had constructed out of glass bottles filled with gasoline, a sledgehammer, and a rock.

         {¶6} Piscura parked his car down the street from the Churbys’ house. Neighbors

observed both the car and “a hooded man” approach the Churbys’ house.          Veto used the

rock to break the front window of the house and threw both firebombs into the house.

When the firebombs hit the home, it exploded in fire.         Zimmerman and Hamila were

awake at the time and were able to wake up Stillman.      They were all able to run out of the
house before it exploded.   The house was a total loss, and the three of them lost all of

their personal property.

       {¶7} At the sentencing hearing, Veto argued that all counts should merge.2 The

state of Ohio (“State”) conceded that only Counts 1 and 2, Counts 3 and 4, and Counts 5

and 6 merge for the purposes of sentencing.    The State elected to have the court sentence

Veto on Counts 2, 4, and 6. The trial court sentenced Veto to nine years in prison on

each of Counts 2, 4, and 6, seven years in prison on Count 7, and six months in prison on

each of Counts 8 and 9, with all counts to be served concurrently, for a total of nine years

in prison. The trial court ordered that court costs and fines be waived.

       {¶8} Veto now appeals, raising the following three assignments of error for

review.



                            ASSIGNMENT OF ERROR ONE




       2We   acknowledge that the concurring opinion would sua sponte consider the
issue of allied offenses. However, as noted in the concurrence, Veto raised the
issue of allied offenses at his sentencing hearing, but failed to raise the issue before
this court on direct appeal. App.R. 16 requires that the appellant’s brief shall
include a “statement of the assignments of error presented for review” and “[a]n
argument containing the contentions of the appellant with respect to each
assignment of error presented[.]” Id. at (A)(3) and (7). Furthermore, the court of
appeals shall “[d]etermine the appeal on its merits on the assignments of error set
forth in the briefs under App.R. 16” and the “[t]he court may disregard an
assignment of error presented for review if the party raising it fails to * * * argue
the assignment separately in the brief, as required under App.R. 16(A).” App.R.
12(A)(1)(b) and (2). Therefore, pursuant to App.R. 12(A) and 16(A), we decline to
sua sponte consider the issue of allied offenses.
       The sentencing of the trial court is contrary to law because it did not properly
       consider the purposes and principles of felony sentencing contained in R.C.
       2929.11.

                              ASSIGNMENT OF ERROR TWO

       [Veto] was denied due process of law when the trial court ordered restitution
       in its sentencing entry but did not order restitution at [Veto’s] sentencing
       hearing.

                              ASSIGNMENT OF ERROR THREE

       The trial court erred in failing to consider [Veto’s] present and future ability
       to pay restitution in the amount of $2,000.

                                        R.C. 2929.11

       {¶9} In the first assignment of error, Veto argues that his sentence is contrary to

law because the trial court failed to impose a sentence consistent with sentences imposed

upon similarly situated offenders. Veto contends that the trial court failed to consider the

purposes of felony sentencing as set forth in R.C. 2929.11 when it sentenced him to nine

years in prison, but sentenced codefendant Piscura to six years in prison.

       {¶10} In reviewing a felony sentence, we take note of R.C. 2953.08(G)(2), which

provides in pertinent part:

       The court hearing an appeal * * * shall review the record, including the
       findings underlying the sentence or modification given by the sentencing
       court.

       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.

       {¶11} Relevant to this appeal, a felony sentence shall be “commensurate with and

not [demean] the seriousness of the offender’s conduct and its impact upon the victim, and

[shall be] consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B).

       {¶12} This court has previously found that in order to support a contention that a

sentence is disproportionate to sentences imposed upon other offenders, the defendant

must raise this issue before the trial court and present some evidence, however minimal, in

order to provide a starting point for analysis and to preserve the issue for appeal. State v.

Edwards, 8th Dist. No. 89181, 2007-Ohio-6068; State v. Lang, 8th Dist. No. 92099,

2010-Ohio-433, discretionary appeal not allowed, 126 Ohio St.3d 1545, 2010-Ohio-3855;

State v. Cooper, 8th Dist. No. 93308, 2010-Ohio-1983. A review of the record in the

instant case reveals that defense counsel raised the issue of proportionality at the

sentencing hearing.    Defense counsel incorporated as “Exhibit A” a list of arson cases in

Cuyahoga County in the past two years. Defense counsel included this exhibit “for the

proportionality argument for a reviewing court.”        Therefore, because Veto raised the

issue of proportionality in the trial court, he has preserved the issue for appeal.

       {¶13} Veto contends that he and Piscura were similarly situated and his nine-year

sentence is disproportionate to Piscura’s six-year sentence.       The applicable analysis in
assessing the proportionality of a sentence, however, is whether the sentence is

proportionate to the severity of the offense committed, so as not to “shock the sense of

justice in the community.” State v. St. Martin, 8th Dist. No. 96834, 2012-Ohio-1633, ¶

13, quoting State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972).          See also R.C.

2929.11(B). In State v. Berlingeri, 8th Dist. No. 95458, 2011-Ohio-2528, we stated:

       There is no requirement that co-defendants receive equal sentences. “Each
       defendant is different and nothing prohibits a trial court from imposing two
       different sentences upon individuals convicted of similar crimes.” When
       that happens, “the task of the appellate court is to determine whether the
       sentence is so unusual as to be outside the mainstream of local judicial
       practice. We bear in mind that although offenses may be similar, there may
       be distinguishing factors that justify dissimilar sentences.” (Citations
       omitted.)

  Id. at ¶ 12.

       {¶14} Here, there were distinguishing factors to justify the dissimilar sentences,

which the trial court stated on the record.         Veto was the mastermind behind the

firebombing of the home where his ex-girlfriend was living, and Piscura assisted Veto

with his plan.    The trial court stated that:     “[Veto] did intentionally do this.     [He]

planned it out. It was very callous.” The trial court noted that Veto sought Piscura’s

assistance via texts.    Veto texted to Piscura:   “I can make three firebombs, and I know

one place that needs it. * * * Got all the tools. Just need a ride. * * * Got rags and a

bottle and a sledgehammer ready. I’m going to gas them up as soon as you get here.”

Piscura responded:      “Sweet. * * * [I’m in] your driveway.”   The trial court further stated

that Veto “went to the house, threw [the firebombs] in, and then fled.”       With respect to

Piscura, the trial court stated he knew that incendiary devices were being prepared and
then assisted Veto to utilize those devices.     Based on the foregoing, we cannot say that

Veto’s sentence is so unusual as to be outside the mainstream of local judicial practice.

         {¶15} Therefore, the first assignment of error is overruled.

                                          Restitution

         {¶16} In the second assignment of error, Veto challenges the trial court’s restitution

order in the amount of $2,000. He contends that the restitution order is contrary to law

because it was not made in open court as required by R.C. 2929.18(A)(1).            The State

concedes this error and requests that we remand the matter for a hearing on the restitution

order.

         {¶17} R.C. 2929.18(A)(1) provides in pertinent part:

         [T]he 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[.] Financial sanctions that may be imposed
         pursuant to this section include * * * [r]estitution by the offender to the
         victim of the offender’s crime * * * 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.

         {¶18} In the instant case, a review of the sentencing hearing transcript reveals that

the trial court failed to inform Veto in open court that he was required to pay restitution,

but imposed a restitution order of $2,000 in the sentencing journal entry. “Accordingly,

we are compelled to reverse the order of restitution and remand for the trial court to

address the matter in open court as required by law.” State v. Burrell, 8th Dist. No.

96123, 2011-Ohio-5655, ¶ 32 (where we reversed the order of restitution and remanded
for a hearing when the trial court ordered restitution in the sentencing entry, but not at the

sentencing hearing.)

       {¶19} Therefore, the second assignment of error is sustained.

       {¶20} In the third assignment of error, Veto contends that the trial court erred in

failing to consider his present and future ability to pay restitution as required by R.C.

2929.19(B)(5). However, based on our disposition of the second assignment of error, the

third assignment of error is moot. See App.R. 12(A)(1)(c).

       {¶21} Accordingly, judgment is affirmed in part, reversed in part solely as to the

restitution order, and remanded for a hearing on the issue of restitution.

       It is ordered that appellee and appellant share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
LARRY A. JONES, SR., P.J., CONCURS IN JUDGMENT ONLY (SEE SEPARATE
OPINION)


LARRY A. JONES, SR., P.J., CONCURRING IN JUDGMENT ONLY:
       {¶22} I concur in judgment only.     While I agree with the majority on the their

disposition of the assigned errors, I would also consider whether Veto’s convictions were

allied offenses of similar import that should have merged pursuant to R.C. 2941.25.

Although the issue of allied offenses was not raised in his appeal, it was raised by counsel

at Veto’s sentencing hearing. Thus, I would sua sponte consider the issue.      See State v.

David Piscura, 8th Dist. No. 98712.
