State v. Perkins
| Decision Date | 27 May 2014 |
| Docket Number | CASE NO. 9-13-52 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. ADAM D. PERKINS, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Appeal from Marion County Common Pleas Court
Judgment Reversed and Cause Remanded
APPEARANCES:
Kevin P. Collins for Appellant
Brent W. Yager for Appellee
{¶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 toattempted 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$1,000.00 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.
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 wasinsufficient 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 causedto 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. {¶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,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's2008 purchase of the jacks ...
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