[Cite as State v. Weaver, 2011-Ohio-6163.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96505




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                      JAMES WEAVER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                Case Nos. CR-539953 and 540025

        BEFORE: Sweeney, P.J., Keough, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: December 1, 2011
ATTORNEY FOR APPELLANT

Rick L. Ferrara, Esq.
2077 East Fourth Street
Second Floor
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Daniel South, Esq.
       Mary McGrath, Esq.
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, P.J.:

       {¶ 1} Defendant-appellant James Weaver asserts two issues in this appeal: (1) that

the trial court’s restitution order was an abuse of discretion, and (2) that the trial court

erred by imposing consecutive sentences without making statutory findings. For the

reasons that follow, we affirm.

       {¶ 2} This appeal involves defendant’s guilty pleas and the sentences he received

in two separate cases: CR-540025 and CR-539953. 1 In these cases, defendant pleaded

guilty to two counts of breaking and entering, vandalism, and theft, which exposed him to

a maximum potential prison sentence of 48 months. As part of his guilty plea, defendant
agreed to pay restitution to the victims in both cases but demanded a hearing. We note

that at the plea hearing, the state sought restitution to North American Switchgear in the

amount of $3,180 and $1,000 to Rent-A-Wreck. Both parties agreed to a restitution

hearing and the matter was referred to probation for a pre-sentence investigation.

        {¶ 3} On November 1, 2010, the court held a sentencing hearing where it imposed

a one-year concurrent prison sentence for each conviction in CR-540025 and also a

one-year concurrent prison sentence for each conviction in CR-539953, but the trial court

ordered the sentences from each case to run consecutively for an aggregate sentence of 24

months. The court ordered defendant to pay $1,780 in restitution to American Switch-gear

and $750 in restitution to Tim Bozak. Defendant objected and the matter was continued

for a restitution hearing. On November 8, 2010, the court advised that “prior to coming on

the bench I had the opportunity to review the entire case file, the presentence investigation

report, * * *.” The state placed on the record its discussions with the victims, who had

provided receipts to the probation department for the restitution sought. The state

elaborated that the amounts involved a catalytic converter and installation in the amount of

$750, and the other case involved a specialty door with various pieces of chain, “other

pieces of scrap,” with damages totaling $1,780. The victims insisted the amounts were

accurate. The defense maintained there was no damage to the catalytic converter, that there

was no evidence as to whether the losses were covered by insurance, and otherwise

disputed that any money had actually been expended by the victims. At the first hearing,


1
    The record reflects that defendant was also sentenced on other matters that are
the state had advised the court that defendant had cut off the converter with a sawzall such

that it could not be put back on an automobile. After hearing arguments and reviewing the

evidence, the court imposed the same restitution order. Defendant has appealed.

       {¶ 4} “Assignment of Error I: The trial court erred because it issued a restitution

order without competent and credible evidence of economic harm.”

       {¶ 5} R.C. 2929.18(A)(1) provides in relevant part:

       {¶ 6} “Financial sanctions that may be imposed pursuant to this section include,

but are not limited to, the following:

       {¶ 7} “(1) Restitution by the offender to the victim of the offender’s crime or any

survivor of the victim, 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. If the court imposes

restitution at sentencing, the court shall determine the amount of restitution to be made 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


not the subject of this appeal.
restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor

disputes the amount. 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.”

       {¶ 8} We review court-ordered restitution for an abuse of discretion. “To establish

the amount of restitution within a reasonable certainty, there must be some competent,

credible evidence. Sufficient evidence of the amount of restitution may appear in the

record. Where evidence of the appropriate amount of restitution does not appear in the

record, an evidentiary hearing is required.” State v. Carrino (May 11, 1995), Cuyahoga

App. No. 67696, citing State v. Warner (1990), 55 Ohio St.3d 31, 69, 564 N.E.2d 18.

       {¶ 9} Here, the court complied with the statute and held a restitution hearing when

defendant disputed the amount. The state offered the receipts that were submitted by the

victims to the probation department indicating the amounts of their respective economic

harm. In opposition, defendant continued a generalized objection and did not present any

evidence that would refute the amounts suggested by the victims, such as contrary

estimates. The trial court’s restitution order was not an abuse of discretion. This

assignment of error is overruled.

       {¶ 10} “Assignment of Error II: The trial court erred because it failed to state its

justification for imposing consecutive sentences.”

       {¶ 11} The trial court imposed defendant’s sentence on November 8, 2010. At that

time, the law in Ohio did not require it to make any statutory findings as a prerequisite to
imposing consecutive sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470; State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. Hodge

held the following:

       {¶ 12} “1. The jury-trial guarantee of the Sixth Amendment to the United States

Constitution does not preclude states from requiring trial court judges to engage in judicial

fact-finding prior to imposing consecutive sentences. (Oregon v. Ice (2009), 555 U.S. 160,

129 S.Ct. 711, 172 L.Ed.2d 517, construed.)

       {¶ 13} “2. The United States Supreme Court’s decision in Oregon v. Ice (2009), 555

U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio’s former

consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which

were held unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470.

       {¶ 14} “3. Trial court judges are not obligated to engage in judicial fact-finding

prior to imposing consecutive sentences unless the General Assembly enacts new

legislation requiring that findings be made.”

       {¶ 15} Contrary to defendant’s argument, Hodge did not automatically revive the

statutes that were excised by Foster. Hodge is dispositive of this assignment of error,

which is overruled.2

       Judgment affirmed.



2
  We realize that the General Assembly subsequently enacted legislation that
affected Ohio’s sentencing laws; however, those provisions did not take effect until
      It is ordered that appellee recover from appellant 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. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

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

Rules of Appellate Procedure.



JAMES J. SWEENEY, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J. CONCUR




September 30, 2011 (months after Weaver was sentenced) and were not raised or
addressed in this appeal.
