[Cite as State v. Perkins, 2014-Ohio-2242.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-13-52

       v.

ADAM D. PERKINS,                                          OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 12-CR-0584

                       Judgment Reversed and Cause Remanded

                               Date of Decision: May 27, 2014




APPEARANCES:

        Kevin P. Collins for Appellant

        Brent W. Yager for Appellee
Case No. 9-13-52



PRESTON, J.

      {¶1} Defendant-appellant, Adam D. Perkins (“Perkins”), appeals the

judgment entry of sentence of the Marion County Court of Common Pleas. For

the reasons below, we reverse.

      {¶2} This case stems from a July 2, 2012 incident, in which Perkins and

two others stole hydraulic jacks, a hydraulic pump, a generator, and other

equipment belonging to Aztec Construction (“Aztec”). (July 11, 2013 Tr. at 10).

Perkins and the others stole the equipment from a Marion County farm, where

Aztec was erecting grain bins for the owner. (Id.).

      {¶3} On December 6, 2012, the Marion County Grand Jury indicted

Perkins on three counts: Count One of theft in violation of R.C. 2913.02(A)(1), a

fourth-degree felony; Count Two of breaking and entering in violation of R.C.

2911.13(B), a fifth-degree felony; and, Count Three of tampering with evidence in

violation of R.C. 2921.12(A)(1), a third-degree felony. (Doc. No. 1).

      {¶4} The trial court held an arraignment hearing on December 10, 2012, at

which Perkins, represented by counsel, entered pleas of not guilty. (Doc. No. 3).

      {¶5} On July 11, 2013, the parties reached a negotiated plea agreement, and

the trial court held a change-of-plea hearing. (Doc. No. 27); (July 11, 2013 Tr. at

1). As part of the plea agreement, plaintiff-appellee, State of Ohio (“State”),

agreed to enter a nolle prosequi as to Count Two and to amend Count Three to

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attempted tampering with evidence in violation of R.C. 2923.02 and

2921.12(A)(1), a fourth-degree felony, in exchange for Perkins pleading guilty to

Count One and Count Three, as amended. (Id.); (Id.). The trial court accepted

Perkins’s guilty pleas and found him guilty of Counts One and Three. (July 11,

2013 Tr. at 12); (Doc. No. 30). The trial court ordered a presentence investigation

and scheduled a dispositional and sentencing hearing. (Id.); (Doc. No. 29).

        {¶6} The trial court held the dispositional and sentencing hearing on

September 9, 2013. (Sept. 9, 2013 Tr. at 1); (Doc. No. 30). At the change-of-plea

hearing two months earlier, the State agreed to recommend Perkins receive

community-control sanctions for a period of two years. (July 11, 2013 Tr. at 1-2).

The State also indicated that it would seek restitution.1                      (Id. at 2).      At the

September 9, 2013 hearing, the State presented testimony and exhibits in support

of its recommended restitution. (Sept. 9, 2013 Tr. at 2-20).

        {¶7} The trial court sentenced Perkins to two years of community control.

(Id. at 32-34). The trial court also ordered as part of its sentence that Perkins “pay

restitution to the Clerk of Court Office in the amount of $177,470.00 for Aztec

Construction, * * * and Aztec Construction is granted judgment against the

Defendant in the sum of $177,470.00.” (Doc. No. 30). (See also Sept. 9, 2013 Tr.

at 32). The trial court ordered that Perkins pay the restitution at the rate of
1
  The plea agreement did not specify an amount of restitution but did say, “Court costs, restitution, and
other financial sanctions may also be imposed.” (Doc. No. 27).

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$1,000.00 per month. (Sept. 9, 2013 Tr. at 32); (Doc. No. 30). The trial court

filed its judgment entry of sentence on September 30, 2013. (Doc. No. 30).2

         {¶8} On October 11, 2013, Perkins filed a notice of appeal. (Doc. No. 31).

He raises one assignment of error for our review.

                                       Assignment of Error

         The trial court erred to the prejudice of defendant-appellant by
         ordering him to pay restitution in excess of the victim’s
         economic damages.

         {¶9} In his assignment of error, Perkins argues that the trial court abused its

discretion by ordering him to pay $177,470 because “there is insufficient detail or

verification to support a restitution award,” aside from $500 for a generator that

was not recovered and that Perkins agrees was worth $500.                        (Appellant’s Brief at

10). Specifically, Perkins argues: that the trial court should not have awarded

restitution for the “jacks and related equipment” because they were recovered; that

the trial court should not have awarded restitution for Aztec’s private investigator

and lost income because there is insufficient evidence concerning those items and

because Aztec has instituted a civil action seeking lost profits; and, that there was




2
  Although Perkins does not raise the issue in his brief, we note that the judge who sentenced Perkins at the
sentencing hearing is not the same judge who, apparently sitting “by assignment,” signed the judgment
entry of sentence. (Compare Sept. 9, 2013 Tr. with Doc. No. 30). While this procedure may very well
have been permitted by Crim.R. 25(B), our disposition of this appeal negates any need there may have been
to address the issue.

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insufficient evidence concerning the value of miscellaneous hand tools that were

not recovered.

       {¶10} “An appellate court reviews a trial court’s decision to impose

restitution under an abuse-of-discretion standard.” State v. Rohrbaugh, 191 Ohio

App.3d 117, 2010-Ohio-6375, ¶ 14 (3d Dist.), citing State v. Griffus, 3d Dist.

Union No. 14-08-39, 2009-Ohio-304, ¶ 7. An abuse of discretion suggests the

trial court’s decision is unreasonable, arbitrary, or unconscionable.      State v.

Adams, 62 Ohio St.2d 151, 157 (1980). See also State v. Adams, 3d Dist. Defiance

No. 4-09-16, 2009-Ohio-6863, ¶ 33. “Under this standard of review, an appellate

court may not simply substitute its judgment for that of the trial court.” Adams,

2009-Ohio-6863, at ¶ 33.

       {¶11} R.C. 2929.18(A)(1) governs restitution orders and “permits a trial

court to order a convicted felon to make restitution to the victims of his crime ‘in

an amount based on the victim’s economic loss.’” State v. Halcomb, 3d Dist.

Seneca No. 13-12-13, 2013-Ohio-1301, ¶ 31, quoting R.C. 2929.18(A)(1). R.C.

2929.01(L) defines “economic loss” 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



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         to the victim, and any property loss, medical cost, or funeral expense

         incurred as a result of the commission of the offense.

Halcomb at ¶ 31, quoting R.C. 2929.01(L).

         {¶12} The trial court may base the amount of restitution it orders on any of

a number of sources:

         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.

R.C. 2929.18(A)(1). “‘However, the amount of the restitution must be supported

by competent, credible evidence in the record from which the court can discern the

amount of the restitution to a reasonable degree of certainty.’” State v.

Didion, 173 Ohio App.3d 130, 2007-Ohio-4494, ¶ 20 (3d Dist.), quoting State v.

Policaro, 10th Dist. Franklin No. 06AP-913, 2007-Ohio-1469, ¶ 7. If the offender

or the victim disputes the amount of restitution, the trial court must hold a hearing

on restitution. State v. Lamere, 3d Dist. Allen No. 1-07-11, 2007-Ohio-4930, ¶ 10,

citing R.C. 2929.18(A)(1); State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, ¶

22-23.

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       {¶13} “‘In an order of restitution, the amount of restitution must bear a

reasonable relationship to the loss suffered.’” State v. Estes, 3d Dist. Seneca No.

13-11-14, 2011-Ohio-5740, ¶ 20, quoting State v. Marbury, 104 Ohio App.3d 179,

181 (8th Dist.1995).     “A restitution order that does not bear a reasonable

relationship to the actual loss suffered by the victim is an abuse of a trial court’s

discretion.” State v. Hipsher, 12th Dist. Warren No. CA2011-12-128, 2012-Ohio-

3206, ¶ 13, citing State v. Stamper, 12th Dist. Butler No. CA2009-04-115, 2010-

Ohio-1939, ¶ 17.

       {¶14} At the final dispositional and sentencing hearing, the State offered

the testimony of one witness—Monica Rodriguez, Aztec’s secretary. (Sept. 9,

2013 Tr. at 3). The State first asked Rodriguez about “miscellaneous hand tools,

small wrenches, punches, sockets, and other miscellaneous hand tools,” which

were not recovered. (Id. at 3-4). Rodriguez testified that receipts reflected these

miscellaneous hand tools totaled $33,000 when purchased in new condition, but

Aztec was requesting half of that amount in restitution—$16,500. (Id. at 4).

Rodriguez testified that a generator, which was also not recovered, was worth

$500. (Id.).

       {¶15} Rodriguez testified that Aztec was missing: (1) 64 hose extensions at

$95 for each replacement, totaling $6,080; (2) 48 brackets at $78 for each

replacement, totaling $3,744; and, (3) 24 blocks at $84 for each replacement,

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totaling $2,016. (Id. at 6-7). According to Rodriguez, Aztec was also missing:

(1) 24 hydraulic jacks, which cost $52,400 to replace; and, (2) a hydraulic pump,

which cost $12,800 to replace. (Id. at 7-8). Rodriguez identified State’s Exhibit 1

as a July 5, 2012 invoice itemizing the purchase of the replacement jacks

($52,440, before discount and shipping), hydraulic pump ($12,800, before

discount and shipping), hose extensions ($4,560, before discount and shipping),

and brackets ($1,872.00, before discount and shipping). (Id. at 5-8); (State’s Ex.

1). The July 5, 2012 invoice totaled $69,172, after the discount and shipping, and

did not reflect the blocks that were missing. (State’s Ex. 1); (Sept. 9, 2013 Tr. at

7).      Additionally, the prosecution’s official version of the offense in the

presentence investigation report (“PSI”) states that Perkins stole from Aztec 24

hydraulic jacks valued at $72,000, one hydraulic pump valued at $15,000, 24

stabilizing blocks valued at $2,000, and 48 wall connectors valued at $5,000.

(PSI).

         {¶16} Aztec recovered the jacks and pump three months after ordering the

replacements, but it did not recover the blocks, and the record is unclear

concerning whether Aztec recovered the hose extensions and brackets. (Sept. 9,

2013 Tr. at 5-8, 17). The recovered jacks and pump are sitting unused in Aztec’s

shop in North Carolina because Aztec “cannot use two at the same time.” (Id. at

8, 19-20). Rodriguez identified State’s Exhibit 2 as the invoice reflecting Aztec’s

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2008 purchase of the jacks ($49,200, before discount and shipping) and pump

($9,900, before discount and shipping) stolen by Perkins. (Id. at 8); (State’s Ex.

2).

       {¶17} Rodriguez testified that Aztec hired a private investigator for

$23,000 to investigate the theft. (Sept. 9, 2013 Tr. at 8). She testified that Aztec

lost a job for $73,500. (Id. at 9).

       {¶18} On cross-examination, Rodriguez testified that Aztec has a total of

32 jacks and runs 24 on one jobsite. (Id. at 13). She also testified that on August

19, 2013, Aztec filed a civil lawsuit against Perkins and his companies, seeking

damages for much of what it was requesting in restitution.          (Id. at 15-16).

Rodriguez testified that the recovered equipment still works and has monetary

value, and she agreed that Aztec could sell the jacks and, if awarded restitution,

get “double paid.” (Id. at 17-18).

       {¶19} At the conclusion of Rodriguez’s testimony, the trial court admitted

State’s Exhibits 1 and 2 over Perkins’s objection. (Id. at 20). Counsel for the

State then offered a statement concerning its recommended sentence, which

included restitution, although the State did not recommend an amount of

restitution. (Id. at 22-23).

       {¶20} Next, the trial court heard statements from Rodriguez and the general

manager of Custom Agri Systems. (Id. at 23-25). It appears from the record that

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the farm owner in need of grain bins hired Custom Agri Systems, and Custom

Agri Systems contracted with Aztec to construct the grain bins. (See id. at 24-25).

(See also July 11, 2013 Tr. at 10). According to the general manager, the delay in

constructing the grain bins because of the theft cost Custom Agri Systems money,

but he said Custom Agri Systems’s costs were “immaterial.” (Sept. 9, 2013 Tr. at

24-25).

       {¶21} Perkins’s counsel then made a statement, contesting all of the items

for which the State was requesting restitution, except for the generator. (Id. at 25-

30). Finally, Perkins made a statement to the trial court. (Id. at 30-31).

       {¶22} The trial court took a short recess “to contemplate the restitution

portion.” (Id. at 31). Once back in session, the trial court said it “considered the

testimony related to restitution as well as the statements presented by the State of

Ohio and the victims and the defense.” (Id. at 32). The trial court then sentenced

Perkins. (Id. at 32-34). As part of the sentence, the trial court ordered that Perkins

pay Aztec, via the clerk of courts, $177,470 in restitution; however, the trial court

did not explain how it arrived at that amount. (Id.); (Doc. No. 30).

       {¶23} A trial court is under no duty to itemize or otherwise explain how it

arrived at the amount of restitution it orders, so long as the trial court can discern

the amount of restitution to a reasonable degree of certainty from competent,

credible evidence in the record. See Didion, 173 Ohio App.3d 130, at ¶ 20.

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Moreover, if an appellate court can discern from the record that the restitution

order bears a reasonable relationship to the actual loss suffered by the victim, it

will conclude that the trial court did not abuse its discretion. See Hipsher, 2012-

Ohio-3206, at ¶ 12-14 (affirming the trial court’s restitution order notwithstanding

that the trial court did not itemize or explain how it arrived at the amount of

restitution it ordered, because testimony in the record supported the amount of

restitution).

       {¶24} However, the converse is also true—if an appellate court cannot

discern from the record that the restitution order bears a reasonable relationship to

the actual loss suffered by the victim, it will conclude that the trial court abused its

discretion.     See State v. Bruce, 95 Ohio App.3d 169, 173-174 (12th

Dist.1994) (remanding to the trial court for a redetermination of restitution where

the record seemed to indicate that the trial court included impermissible expenses

in its restitution order).

       {¶25} It appears that to arrive at $177,470 in restitution, the trial court

included items that were recovered (i.e. the hydraulic jacks and hydraulic pump)

and items that the record suggests may have been recovered, although that is

unclear (i.e. the hose extensions and brackets). (See Sept. 9, 2013 Tr. at 5-8, 17).

A trial court abuses its discretion when it orders restitution for the full value of

property stolen even though that property was recovered and returned to the

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victim. See State v. Vorhees, 3d Dist. Allen No. 1-05-63, 2006-Ohio-612, ¶ 4. To

do so would be to award restitution to a victim in excess of the economic loss

suffered by that victim, contrary to R.C. 2929.18(A)(1)’s command that the

amount of restitution be “based on the victim’s economic loss,” which R.C.

2929.01(L) defines as including “any property loss.” (Emphasis added.) See

Vorhees at ¶ 4 (“Although the recovered property may have diminished in value, it

is not without value. Since the victim did not suffer an economic loss of the full

value, restitution can only be ordered for the economic loss suffered.”). See also

State v. Bowman, 181 Ohio App.3d 407, 2009-Ohio-1281, ¶ 12 (2d Dist.) (noting

that allowing “double recovery” results in a windfall to the victim and a restitution

amount in excess of the amount of the victim’s economic loss).

       {¶26} Moreover, R.C. 2929.01(L)’s definition of “economic loss” makes

clear that in the case of stolen property, a victim cannot recover the amount paid to

replace stolen property, but only the value of the “property loss.” In other words,

if a victim’s stolen property is returned to him, and the property’s value when

returned is the same as the property’s value at the time it was stolen, then the

victim has not suffered “economic loss” for which restitution can be ordered, at

least as to the value of that property. See R.C. 2929.18(A)(1) and 2929.01(L). Of

course, the victim may have suffered other losses as a direct and proximate result



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of the theft of the property, such as costs to rent replacement property until the

stolen property was returned.

       {¶27} In this case, the record indicates that the trial court may have failed

in its restitution order to account for returned property, making the restitution

amount greater than Aztec’s economic loss contrary to R.C. 2929.18(A)(1). In

other words, we cannot discern from the record that the restitution order bears a

reasonable relationship to the actual loss suffered by Aztec as to recovered

property.

       {¶28} Nor can we discern from the record that the restitution order bears a

reasonable relationship to the actual loss suffered by Aztec as to the “lost job” for

$73,500, which it appears the trial court included in its restitution order. A

victim’s economic loss may include “any loss of income due to lost time at work

because of any injury caused to the victim.” R.C. 2929.01(L). See also R.C.

2929.18(A)(1); State v. Belbachir, 7th Dist. Belmont No. 08 BE 24, 2009-Ohio-

1511, ¶ 5, 23 (affirming the trial court’s restitution award for lost wages based on

the victim’s testimony that she missed work because the defendant damaged the

door of her mobile home). However, economic loss “does not include fixed

overhead costs that would have been incurred regardless of the offense.” State v.

Brown, 167 Ohio Misc.2d 45, 2011-Ohio-6994, ¶ 10 (M.C.). In other words,

while economic loss may include lost income, it does not include costs that, if

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included in a restitution order, would put the victim in a better position than if the

offense had not occurred. See id. at ¶ 5.

         {¶29} Here, when counsel for the State asked Rodriguez whether Aztec

“los[t] any jobs because of this theft,” she responded by saying, “Yes, sir. We

did.” (Sept. 9, 2013 Tr. at 9). Counsel for the State asked, “And what was that

job for?” (Id.). Rodriguez responded, “That one job site was $73,500.00.” (Id.).

Based on this testimony, it is unclear whether the $73,500 was purely lost income

or whether it included costs that Aztec would have incurred regardless of whether

Perkins committed the offense. For that reason, we cannot conclude that the

restitution order bears a reasonable relationship to the actual loss suffered by

Aztec as to the lost job.

         {¶30} For the reasons above, we hold that the trial court abused its

discretion by ordering Perkins to pay $177,470 in restitution.3




3
  “R.C. 2913.02(B)(2) categorizes theft offenses into different degrees depending on the value of the
property or services stolen.” State v. Edmondson, 92 Ohio St.3d 393, 397 (2001). Although Perkins does
not raise the issue, we note that he was charged with and pled guilty to fourth-degree-felony “theft” in
violation of R.C. 2913.02(A)(1). R.C. 2913.02(B)(2) provides, “If the value of the property or services
stolen is [$7,500] or more and is less than [$150,000], a violation of this section is grand theft, a felony of
the fourth degree.” Therefore, the trial court ordered that Perkins pay restitution in an amount—
$177,470—exceeding the upper parameter—$149,999.99—of his offense. This Court has stated that
absent a plea-agreement term to the contrary, the amount of restitution generally must be limited to the
offenses for which a defendant is charged and convicted. State v. Wickline, 3d Dist. Logan No. 8-10-20,
2011-Ohio-3004, ¶ 13-19. In Lalain, the Supreme Court of Ohio declined to address the issue of “whether
restitution for a theft offense is limited to the property value corresponding to the degree of the theft
conviction,” although the Court said in dicta, “[W]e recognize that the amount of restitution is not
correlated to the degree of the theft offense.” 136 Ohio St.3d 248, at ¶ 19, 24. Regardless, based on our
disposition of this appeal, we need not and do not address this issue.

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       {¶31} We disagree with Perkins’s other arguments, however. It appears

that to arrive at its restitution amount of $177,470, the trial court included the cost

of Aztec’s private investigator, $23,000. Perkins argues that there was insufficient

evidence concerning the private investigator.       The Court of Appeals for the

Second District has held that R.C. 2929.18(A)(1) permits a trial court to order a

defendant to pay restitution for the cost of a private investigator that the victim

incurred as a direct and proximate result of the defendant’s wrongdoing. State v.

Rigsbee, 174 Ohio App.3d 12, 2007-Ohio-6267, ¶ 31-36 (2d Dist.). We agree

with the Second District’s reasoning in Rigsbee.

       {¶32} Here, Rodriguez testified at the hearing that Aztec hired a private

investigator, Ron Scheiderer, and paid $23,000 for Scheiderer’s services. (Sept. 9,

2013 Tr. at 8-9). The PSI stated that Aztec retained Scheiderer, who located one

of Perkins’s codefendants, Benjamin Shores. (PSI). According to the PSI, Shores

confessed and told Scheiderer the location of the stolen equipment.             (PSI).

Rodriguez’s testimony and the PSI are sources on which the trial court was

allowed to base its amount of restitution. See R.C. 2929.18(A)(1). Therefore,

there was competent, credible evidence from which the trial court could have

ascertained to a reasonable degree of certainty the amount of restitution for the

cost of Aztec’s private investigator.



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       {¶33} Perkins also argues that the trial court should not have awarded

restitution for Aztec’s private investigator, as well as for Aztec’s lost job, because

Aztec instituted a civil action seeking lost profits. Perkins cites no authority in

support of this argument, and we reject it. R.C. 2929.18(A)(1) permits a trial court

to order a defendant to pay restitution regardless of whether the victim filed a civil

suit. See R.C. 2929.18(A)(1) (“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.”); State v. Tuemler, 12th Dist. Warren

No. CA2004-06-068, 2005-Ohio-1240, ¶ 13 (“[A] court ‘can order restitution

regardless of [a] civil suit settlement as long as it credits any amounts paid toward

its determination of economic loss.’”), quoting State v. Gray, 7th Dist. Belmont

No. 02 BA 26, 2003-Ohio-805, ¶ 21.

       {¶34} Finally, Perkins argues that there was insufficient evidence

concerning the value of miscellaneous hand tools that were not recovered. We

disagree. Rodriguez testified that Aztec had receipts for hand tools purchased new

for $33,000 but was requesting only half of that amount in restitution. (Sept. 9,

2013 Tr. at 4, 11-12). Therefore, there was competent, credible evidence from

which the trial court could have ascertained to a reasonable degree of certainty the

amount of restitution for Aztec’s miscellaneous hand tools.



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       {¶35} Perkins’s assignment of error is sustained, and we reverse the trial

court’s judgment and remand to the trial court for resentencing in a manner

consistent with this opinion.

       {¶36} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

SHAW, J., concurs.

/jlr



ROGERS, J., concurring separately.

       {¶37} I concur in the reversal and remand of this case but would limit the

opinion to what is necessary and decline to comment on specific types of

restitution.

       {¶38} The question raised in this appeal is whether the trial court abused its

discretion in determining the amount of restitution it ordered. The Ohio Supreme

Court has found that it is an abuse of discretion to issue a ruling that “lacks a

‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-

2407, ¶14, quoting AAAA Ents., Inc. v. River Place Community Urban


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Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). This court has found that

an “absence of reasoning suggests that [a] decision was ‘[f]ixed or arrived at

through an exercise of will or by caprice, without consideration or adjustment with

reference to principles, circumstances, or significance, or given to making

decisions thus; decisive but unreasoned.’ ” State v. Corthell, 3d Dist. Seneca No.

13-06-58, 2007-Ohio-4742, ¶ 24, quoting Urmston v. City of North College Hill,

114 Ohio App. 213, 216 (1st Dist.1961). Other courts have overruled orders of

restitution where it was unclear from the record how the trial court determined the

amount. See State v. Radway, 10th Dist. Franklin No. 06AP-1003, 2007-Ohio-

4273, ¶ 14; State v. Carson, 2d Dist. Greene No. 2002-CA-73, 2003-Ohio-5958, ¶

35.

       {¶39} Here, the trial court, both at the sentencing hearing and in the

judgment entry, pronounced the amount of restitution without giving any

explanation as to how the court arrived at the figure. In our review of the record,

this court is unable to replicate the math the trial court used to arrive at the amount

it ordered. As this court held in Corthell, the absence of the court’s reasoning

under these circumstances suggests that the amount was arrived at arbitrarily.

Therefore, as this court is unable to discern how the amount of restitution was




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determined, the trial court abused its discretion for not explaining its reasoning

process.4

         {¶40} While the majority has recognized that the record here is insufficient

to determine how the trial court calculated the amount of restitution it then

continues to discuss various claims of the victim. This is outside the scope of our

review. The Ohio Supreme Court has refused to speculate as to the possible line

of reasoning a trial court may have utilized when it is otherwise unclear from the

record. State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 54. Even where

no specific findings of fact or conclusions of law are required, the Court found

that:

         [t]he trial court’s failure to specify any reasons in its journal entry *
         * * severely hampers any consideration of whether an abuse of
         discretion occurred. * * * [T]he failure to explain the reasoning
         places significant obstacles in the way of meaningful appellate
         review when, as here, so many variables are potentially relevant to a
         trial court’s consideration.

(Emphasis added.) Id. at ¶ 52. Even where there may be valid reasons for a trial

court’s determination, it

         would be speculative to comment on the propriety of [the other
         reasons] * * * because we have no way of knowing whether [those]
         issue[s] played any part in the trial court’s bare ruling. We point out
         [these other reasons] not for any substantive value but merely as an


4
  This is not to say that this court cannot engage in a review of the trial court’s reasoning when it is clear
from the record as to how it arrived at the amount of restitution. See State v. Johnson, 3d Dist. Auglaize
No. 2-98-39, 1999 WL 455301, *5 (June 30, 1999).

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       additional feature that supports our decision to remand this cause to
       the trial court for a more thorough review.

(Emphasis added.) Id. at ¶ 54. Indeed, where the judgment entry fails to explain

the trial court’s reasoning, speculating on the basis for the courts judgment is

“tantamount to issuing an advisory opinion on those matters which is something

from which an appellate court should refrain.” Karmasu v. Bendolf, 4th Dist.

Scioto No. 93CA2160, 1994 WL 529961, *3 (Sept. 28, 1994); see also Ntl. City

Real Estate Servs. LLC v. Shields, 11th Dist. Trumbull No. 2012-T-0076, 2013-

Ohio-2839, ¶ 43.

       {¶1} When determining whether a trial court has abused its discretion it is

necessary for a reviewing court to know what the trial court considered in making

its decision.   We should not speculate as to what the trial court may have

considered, and then rule on whether that may be proper. Here, the trial court

issued a bare judgment ordering restitution in an amount that was determined in a

way this court cannot replicate from the record.      There was a great deal of

evidence in the record, and many variables that the trial court may have considered

when ordering restitution. Where, as here, we cannot determine from the record

how the trial court determined the amount of restitution, we should remand and

allow the trial court the opportunity to justify its judgment. Because we do not

know upon what claims the trial court based its calculations, any analysis would


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be based upon mere speculation. Therefore, I do not think we should discuss any

of them.




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