State v. Allen
| Citation | 2018 Ohio 1529,101 N.E.3d 734 |
| Decision Date | 19 April 2018 |
| Docket Number | No. 17AP–296,17AP–296 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Zachary C. ALLEN, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, Columbus, for appellee. Argued: Barbara A. Farnbacher.
On brief: Yeura R. Venters, Public Defender, and Robert D. Essex, Columbus, for appellant. Argued: Robert D. Essex.
DECISION
{¶ 1} Defendant-appellant, Zachary C. Allen, appeals from the March 28, 2017 decision of the Franklin County Court of Common Pleas ordering him to pay restitution to three different banks. Because the banks were not the victims of the underlying offenses, we reverse.
{¶ 2} Allen was indicted on seven counts of forgery, in violation of R.C. 2913.31, all felonies of the fifth degree, and seven counts of possession of criminal tools, in violation of R.C. 2923.24, all felonies of the fifth degree. On January 5, 2017, he withdrew his not guilty plea and entered a guilty plea to the seven counts of forgery.
{¶ 3} At the plea hearing, the state represented that 0n July 5, 2016, Allen entered three different Chase Banks and cashed four checks. All of the checks were made payable to Allen for the amount of $598.23 on an account identified as belonging to Park Club Apartments. On July 19, 2016, Allen went to the Middlefield Banking Company in Westerville, Ohio, and in Dublin, Ohio. At these banks, he cashed two checks made payable to himself on an account identified as belonging to Tuttle's Grove Apartments. Also, on July 25, 2016, Allen cashed a check written on an account identified as belonging to Progressive Flooring Services at First Merchants Bank. Allen admitted in an interview that he had been given the checks by someone else, that he went to the banks at that person's request, and that he knew the checks were counterfeit.
{¶ 4} In accordance with the plea agreement, the trial court entered a nolle prosequi on the seven counts of possession of criminal tools. The parties also agreed to jointly recommend to the trial court that Allen be placed on community control. The plea agreement further contained a provision that stated:
{¶ 5} On March 13, 2017, Allen appeared before the trial court for sentencing. The state requested that Allen be ordered to pay restitution to Middlefield Banking Company, First Merchants Bank, and Chase Bank. Allen objected because the banks were not the account holders on the checks but third parties. When the issue of whether the banks would be reimbursed by insurance arose, the court continued the hearing.
{¶ 6} At the March 27, 2017 sentencing hearing, Allen continued to object to being ordered to pay restitution. He did not dispute the amount of the forged checks but argued there was no evidence that the accounts for Progressive Flooring, Park Club Apartments, and Tuttle's Grove Apartments had been reimbursed by the banks. If the banks had reimbursed the accounts, then Allen contended the reimbursement made the banks third parties and not eligible to receive restitution pursuant to R.C. 2929.18.
{¶ 7} The state responded by noting that the indictment does not list a specific victim for the forgery counts. It represented that the banks did not have insurance coverage for the losses they suffered. Because the checks were presented to the banks and the banks paid out the money, the state contended that the banks were the victims.
{¶ 8} The trial court sentenced Allen to a period of community control for three years. The trial court did not impose a fine and waived court costs. However, the trial court ordered Allen to pay restitution to Middlefield Banking Company in the amount of $1,750.48; to First Merchants Bank in the amount of $675.13; and to Chase Bank in the amount of $2,392.92. The trial court found that because these were forgery offenses, the banks were the victims as they had the utterances directed at them.
{¶ 9} Allen appealed that decision, asserting the following assignment of error:
The trial court committed reversible error by ordering Defendant–Appellant to pay restitution to banks at which he had cashed checks he had forged.
{¶ 10} Allen argues that the trial court erred when it ordered him to pay restitution to the three banks. He contends that the banks were not the victims. As a result, the imposition of restitution to the banks violated R.C. 2929.18(A)(1).
{¶ 11} A sentencing court has discretion to order restitution for the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. State v. Lalain , 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 3. On review of a trial court's imposition of restitution as part of a felony sentence, we apply the standard set forth in R.C. 2953.08(G)(2)(b), inquiring whether the imposition of restitution is clearly and convincingly contrary to law. State v. Richmond , 10th Dist. No. 17AP-366, 2018-Ohio-147, 2018 WL 417592, ¶ 8 ; State v. Thornton , 2017-Ohio-4037, 91 N.E.3d 359, ¶ 12 ; State v. Brown , 2017-Ohio-9225, ––– N.E.3d ––––, ¶ 25. However, when the issue is to whom restitution can be awarded, we apply a de novo standard of review. State v. Johnson , 10th Dist. No. 14AP-336, 2014-Ohio-4826, 2014 WL 5493964, ¶ 5 ; State v. Cartwright , 12th Dist. No. CA2016-11-018, 2017-Ohio-7212, 2017 WL 3475416, ¶ 11 ; State v. Shifflet , 2015-Ohio-4250, 44 N.E.3d 966 ; State v. Harris , 2015-Ohio-4412, 46 N.E.3d 198, ¶ 8 ; State v. Maurer , 2016-Ohio-1380, 63 N.E.3d 534 ; and In re M.A. , 2016-Ohio-1161, 61 N.E.3d 630.
{¶ 12} R.C. 2929.18 provides in pertinent part:
{¶ 13} The statute sets forth four possible payees to whom a trial court may order restitution to be paid: the victim, the adult probation department that serves the county on behalf of the victim, the clerk of courts, or another agency designated by the court. The restitution order must be based on the victim's economic loss. "Economic loss" is "any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense." R.C. 2929.01(L). As the banks are not an adult probation department, clerk of court, or another agency designated by the court such as the reparations fund, the banks must be "victims" in order to be entitled to an order of restitution.
{¶ 14} R.C. 2929.18 does not define "victim." "The Ohio Revised Code contains a number of different definitions for ‘victim’ at various junctures in the Code, but at no point is there promulgated a generally applicable definition that applies to the entire Revised Code or even to the state's criminal code, found in Title 29." State v. Orms , 10th Dist. No. 14AP-750, 2015-Ohio-2870, 2015 WL 4386346, ¶ 15. Some Ohio appellate districts have relied on R.C. 2930.01(H)(1) to determine who qualifies as a victim for purposes of restitution. See, e.g., Thornton at ¶ 15 ; State v. Hunter , 2d Dist. No. 25521, 2013-Ohio-3759, 2013 WL 4716164 ; Harris at ¶ 8 ; and Maurer at ¶ 19. That section defines "victim" as "[a] person who is identified as the victim of a crime or specified delinquent act in a police report or in a complaint, indictment, or information that charges the commission of a...
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