State v. Oliver

Citation176 N.E.3d 1054
Decision Date26 July 2021
Docket NumberNO. CA2020-07-041,CA2020-07-041
Parties STATE of Ohio, Appellee, v. Gregory OLIVER, Appellant.
CourtOhio Court of Appeals

Mark J. Tekulve, Clermont County Prosecuting Attorney, Nicholas Horton, Assistant Prosecuting Attorney, for appellee.

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, Assistant Public Defender, for appellant.

OPINION

HENDRICKSON, J.

{¶1} Appellant, Gregory Oliver, appeals his conviction and sentence in the Clermont County Court of Common Pleas for multiple theft offenses. For the reasons set forth below, we affirm the trial court's decision.

{¶2} In February 2020 Oliver was charged by information with six counts of theft in violation of R.C. 2913.02(A)(2), a felony of the third degree. The charges stemmed from allegations that between November 2011 and December 2018 Oliver used his position as the owner of "Oliver Financial Services Corporation" to take over $1 million from his elderly clients. In March 2020 Oliver waived the indictment and pleaded guilty as charged in the information.1 As a part of Oliver's plea agreement, the state indicated it intended to seek restitution, and Oliver agreed the amount of restitution would not be limited to the six counts in the information. After a hearing, the trial court imposed an order of restitution for $990,027.83 and sentenced Oliver to 18 months in prison for each of the six counts, each to be served consecutively with one another, for an aggregate prison term of nine years.

{¶3} Oliver now appeals, raising six assignments of error for our review.

{¶4} Assignment of Error No. 1:

{¶5} THE TRIAL COURT ERRED IN ORDERING $990,027.83 IN RESTITUTION.

{¶6} Oliver initially argues the trial court's decision to award $990,027.83 in restitution was plain error and a breach of his plea agreement. Specifically, Oliver claims he had a right to have his restitution capped at $515,761.76, and the trial court's decision to award an amount greater than what the parties agreed to without addressing Oliver directly was a breach of his plea agreement and constitutes plain error. We disagree with Oliver's claims.

{¶7} R.C. 2929.18(A)(1) grants a trial court the authority to order restitution by an offender to the victim, or any survivor of the victim, in an amount commensurate with the victim's economic loss. State v. Hubbard , 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-646, 2015 WL 758653, ¶ 65. When imposing restitution, the amount of restitution must bear a reasonable relationship to the victim's actual loss to comport with due process. State v. Bowling , 12th Dist. Butler No. CA2018-07-148, 2019-Ohio-751, 2019 WL 1011126, ¶ 6. Thus, the restitution amount is limited to the actual loss or damage caused by the offender and must be established to a reasonable degree of certainty. State v. Collins , 12th Dist., 2015-Ohio-3710, 41 N.E.3d 899, ¶ 32.

{¶8} In order to determine the proper amount of restitution, R.C. 2929.18(A)(1) indicates the court "may base the amount of restitution it orders" on the following:

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.

{¶9} As noted above, Oliver does not claim the amount of restitution ordered, $990,027.83, inaccurately reflects the outstanding economic loss suffered by the 18 victims. Instead, Oliver argues on appeal that the state agreed, as a part of his plea, that his restitution would be capped at $515,761.76, and that victims with pending civil lawsuits would not be included in the restitution figure. Thus, by ordering a restitution amount greater than the allegedly agreed amount, Oliver contends the trial court breached his plea agreement.

{¶10} Generally, a plea agreement is contractual in nature and subject to contract law principles. State v. Bethel , 110 Ohio St. 3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 50. In order to determine whether a plea agreement has been breached, courts must examine what the parties reasonably understood at the time the defendant entered his guilty plea. State v. McCartney , 12th Dist. Clinton No. CA2005-03-008, 2005-Ohio-5627, 2005 WL 2714809, ¶ 8, citing State v. Vincent , 4th Dist. Ross No. 02CA2672, 2003-Ohio-2591, 2003 WL 21152515. The intent of the parties to a contract presumptively resides in the ordinary meaning of the language employed in their agreement. State v. Todd , 12th Dist. Brown Nos. CA2003-01-001 and CA2003-03-006, 2004-Ohio-2902, 2004 WL 1238969, ¶ 8, citing State v. Ford , 4th Dist. Lawrence No. 97CA32, 1998 WL 79885, *1–2 (Feb. 18, 1998).

{¶11} During the plea hearing, the trial court reviewed the "Written Plea of Guilty on Information" form ("plea form") with Oliver during its Crim.R. 11 colloquy. The trial court asked Oliver whether he had read the front and back of the plea form and signed it, and confirmed he had no questions about the form. Oliver responded affirmatively to each question.

{¶12} The trial court then discussed the specific charges of the information with Oliver and detailed the potential prison term and maximum fine for each count. The trial court then turned to the issue of restitution, and the following discussion ensued:

The Court: All right. The state is seeking restitution in this matter. Do you understand that?
[Oliver]: Yes, I do.
The Court: All right. Now, I thought there was some more details about the restitution in terms of are people included in the restitution amount that aren't part of the six counts?
[The state]: Yes, your honor.
The Court: Okay.
[The state]: And I was going to read that with the facts, if that's okay[.]
The Court: It is. * * * But I also, when probation goes over -- for me, to have a memory -- * * * of the thousands of cases I see and do, I just want to make sure that we're -- that the restitution is not just limited to the six counts.
[The state]: That's correct.
The Court: All right. Can you just put that in writing in here? * * * You don't have to apologize, I just want to know that I'm going outside the six counts. Is that your understanding, Mr. Haas?
[Defense counsel]: That is our understanding, Judge.

{¶13} At that point, the prosecutor added a handwritten notation to the plea form which states "Restitution not limited to 6 counts." Oliver and his counsel agreed to the amended language on the record at the hearing. With the newly added language, that section of the plea form states in its entirety that, "No promises have been made except as part of this plea agreement, stated entirely as follows: State is seeking restitution and prison. Restitution not limited to 6 counts."

{¶14} In addition to the state's notation described above, the plea form contains other handwritten notes from the trial court judge, including the notations of "18 victims" and "Rest $515,761.76, state seeking" near the signature lines on the back of the form. It is unclear from the record when the trial court judge made these notations.

{¶15} The trial court then advised Oliver of the constitutional rights he was waiving by pleading guilty, and Oliver indicated he understood those rights. Oliver confirmed a final time that he had no remaining questions and proceeded to plead guilty on the six counts of the information.

{¶16} After Oliver entered his pleas, the state proceeded with its statement of facts. During its statement of facts, the prosecutor stated, "as to restitution, just for the record, the state is seeking restitution, your honor, for most of the victims. The total amount taken is, as I've said before 1.1 million dollars. However, the state is only seeking restitution of $515,761.76, as some of those victims have filed civil suits against [Oliver], and * * * the state believes restitution can be handled through those civil suits appropriately, and then also a small percentage of the monies has been paid back[.]"

{¶17} Defense counsel accepted the state's facts as being accurate, but noted that "there's a lot of money involved here, and there could be some more owed, or a little less." According to defense counsel, the restitution amount was "fluid" at the time of the plea hearing.

{¶18} The trial court then accepted Oliver's guilty pleas and set the matter for sentencing.

{¶19} At the sentencing hearing, the trial court discussed the restitution order at length. The trial court's discussion began with the restitution amount, and whether that amount should include the pending civil lawsuits. The trial court concluded that, although the plea form indicated the state was seeking restitution in the amount of $515,761.76, it planned to include all victims in its restitution award. According to the record, the trial court and defense counsel "talked about that, and all the numbers." The trial court then, in open court and on the record, advised the victims with pending lawsuits regarding their inability to recover from the defendant in this case if they settled their civil claims in full.

{¶20} The trial court then named each of the 18 victims, many of whom either attended the sentencing hearing or had a family member present in their absence, and noted on the record the amount of restitution owed for each individual. The court indicated the total restitution owed was $990,027.83, and defense counsel indicated the number was accurate, they were "good with that," and confirmed they had "nothing contradictory to that[.]"

{¶21} With regard to the original $515,761.76 the state set forth at the plea hearing, the trial court explained that number was "completely off the table." Instead, consistent with Marsy's Law as set forth in the Ohio Constitution, the trial court ordered "full and timely restitution" for all the victims, and concluded it had no ability to...

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