City of Cleveland v. Fuller

1

2023-Ohio-1669

CITY OF CLEVELAND, Plaintiff-Appellee, v. JEROME FULLER, Defendant-Appellant.

No. 111790

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 18, 2023

Criminal Appeal from the Cleveland Municipal Court Case No 2021-TRC-023154

Appearances:

Mark Griffin, Cleveland Director of Law, and Matt Bezbatchenko Assistant City Prosecutor, for appellee.

Christina M. Joliat, for appellant.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.

{¶ 1} Defendant-appellant, Jerome Fuller ("Fuller") appeals from the trial court's order of restitution following a guilty plea. He raises the following assignment of error for review:

The court erred in awarding restitution in the amount of $7,300 for appellant's conviction under Cleveland Codified Ordinance 433.01.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

I. Procedural and Factual History

{¶ 3} On December 6, 2021, a complaint was filed against Fuller in Cleveland M.C. No. 21-TRC-023154, charging him with operating a vehicle while under the influence of alcohol or drugs ("OVI") in violation of Cleveland Codified Ordinances ("C.C.O.") 433.01; driving under suspension in violation of C.C.O. 435.07(a); failure to stop after accident in violation of C.C.O. 435.17; failure to control in violation of C.C.O. 431.34(a); and display of plates not legally registered in violation of C.C.O. 435.09(f). The complaint stemmed from allegations that Fuller crashed his vehicle while driving with a suspended license and under the influence of alcohol. The incident resulted in structural damage to the home owned by the victim, Darren Clayton ("Clayton").

{¶ 4} On April 19, 2022, Fuller accepted the terms of a negotiated plea agreement and pleaded guilty to operating his vehicle while under the influence of alcohol or drugs in violation of C.C.O. 433.01. As a condition of the plea agreement, Fuller was required to pay restitution in an amount to be determined at the time of sentencing. Following a Crim.R. 11 colloquy the trial court accepted Fuller's plea and found him guilty of violating C.C.O. 433.01, a misdemeanor of the first degree.

{¶5} Prior to sentencing, the trial court received documentation from Clayton reflecting that it would cost $7,300 to repair the damage caused to his property.

{¶ 6} A sentencing hearing was held on June 14, 2022. Regarding restitution, defense counsel argued the court was required to comply with the express language of C.C.O. 433.01(h)(7), that limits restitution for any economic loss that is the proximate cause of an OVI offense to "an amount not exceeding five thousand dollars ($5,000.00)." In contrast, the city argued that Clayton was entitled to $7,300 pursuant to Marsy's Law, which requires "full and timely restitution," and supersedes statutory caps on damages.

{¶ 7} Following briefing of the issue by the parties, the trial court ordered Fuller to pay Clayton restitution in the amount of $7,300. The trial court further imposed a $500 fine, a 180-day jail term with all but three days suspended, and a one-year period of active probation. Fuller was also ordered to complete a driver's intervention program.

{¶ 8} Fuller now appeals from the trial court's restitution order.

II. Law and Analysis

{¶ 9} In the sole assignment of error, Fuller argues the trial court erred in

awarding restitution in the amount of $7,300. Fuller contends that the award exceeds the amount of restitution authorized by the ordinance he violated.

A. Applicable Sentencing Statutes

{¶ 10} We review misdemeanor restitution orders for an abuse of discretion. Strongsville v. Kane, 8th Dist. Cuyahoga No. 97765, 2012-Ohio-3372, ¶ 8. An abuse of discretion "'implies that the court's attitude is unreasonable, arbitrary or unconscionable.'" State v. Montgomery, 169 Ohio St.3d 84, 2022-Ohio-2211, 202 N.E.3d 616, ¶ 135, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion occurs when "a court exercise[es] it's judgment, in an unwarranted way[.]" Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. However, "a court does not have discretion to misapply the law." Id. at ¶ 38 (courts apply a de novo standard when reviewing an issue of law).

{¶ 11}R.C. 2929.28(A)(1) provides a statutory mechanism for ordering restitution in misdemeanor cases. Both R.C. 2929.28(A)(1) and the reciprocal statute governing felonies, 2929.18(A)(1), limit the amount of restitution to "the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense." "The victim, victim's representative, victim's attorney, if applicable, the prosecutor or the prosecutor's designee, and the offender may provide information relevant to the determination of the amount of restitution." R.C. 2929.28(A)(1).

{¶12} "Economic loss" is defined in R.C. 2929.01(L) as "any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense," specifically including "property loss."

{¶13} The victim has the burden of proving the amount of restitution by the preponderance of the evidence. R.C. 2929.28(A)(1). Moreover, the amount of the restitution imposed "'must be supported by competent, credible evidence from which the court can discern the amount of the restitution to a reasonable degree of certainty.'" State v. Johnson, 2018-Ohio-3670, 119 N.E.3d 914, ¶ 55 (8th Dist.), quoting State v. Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist.1999). The evidence in the record must be enough to substantiate the relationship of the offender's criminal conduct to the amount of the victim's loss. State v. Norton, 8th Dist. Cuyahoga No. 102017, 2015-Ohio-2516, ¶ 44.

B. Marsy's Law

{¶ 14} In November 2017, the voters of this state passed an amendment to the victim's rights provision of the Ohio Constitution. Effective February 5, 2018, Article I, Section 10a of the Ohio Constitution, commonly referred to as Marsy's Law, expanded the rights afforded to crime victims. Relevant to this appeal, Marsy's Law provides victim's the right "to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim[.]" Ohio Constitution, Article I, Section 10a(A)(7).

{¶15} Marsy's Law defines "victim" as "a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act." Ohio Constitution, Article I, Section 10a(D). In this case, it is undisputed that Clayton was directly and proximately harmed by Fuller's OVI offense. He is therefore constituted a "victim" who is entitled to full and timely restitution.

{¶16} Notably, Ohio's version of Marsy's Law states, "All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws." Id. at Section 10a(E). The Ohio Supreme Court has recently clarified that "no portion of Marsy's Law 'conflicts' with the restitution statutes such that they are 'supersede[d],' Article I, Section 10a(E)." State v. Yerkey, Slip Opinion No. 2022-Ohio-4298, ¶ 12. "Consequently, the statutes governing 'restitution,'" including R.C. 2929.28(A)(1), "are still used to determine which losses qualify for restitution." Id. In reaching this conclusion, the court noted that "since the adoption of Marsy's Law, both this court and other courts in Ohio have continued to determine the amount of restitution based on the economic loss suffered by the victim as a direct and proximate result of the commission of the offense." Id. at ¶ 13, citing Centerville v. Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 19; Cleveland v. Rudolph, 8th Dist. Cuyahoga No. 111128, 2022-Ohio-2363, ¶ 16-17; State v. Dent, 11th Dist. Lake No. 2020-L-110, 2021-Ohio-2551, ¶ 29-30; State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 23; State v. Young, 6th Dist. Lucas No. L-19-1189, 2020-Ohio-4943, ¶ 12-13; State v. Yerkey, 2020-Ohio-4822, 159 N.E.3d 1232, ¶ 26 (7th Dist.); State v. Goff, 2020-Ohio-1474, 153 N.E.3d 899, ¶ 3 (1st Dist.).

{¶ 17} With the foregoing principles in mind, we address Fuller's contention that the trial court misapplied Marsy's Law by imposing an order of restitution that was inconsistent with the express language of the ordinance governing his conviction.

C. Scope of Restitution Available to the Victim

{¶ 18} As previously discussed, Fuller was convicted of operating a motor

vehicle while under the influence in violation of C.C.O. 433.01. The ordinance sets forth the applicable penalties for a violation of C.C.O. 433.01 and contains an explicit provision concerning the availability of restitution. The ordinance states, in relevant part:

In all cases in which an offender is sentenced under * * * this section, the offender shall provide the court with proof of financial responsibility as defined in RC 4509.01. If the offender fails to provide that proof of financial responsibility, the court, in addition to any other penalties provided by law, may order restitution pursuant to RC 2929.18 or 2929.28 in an amount not exceeding five thousand dollars ($5,000.00) for any economic loss arising from an accident or collision that was the direct and proximate result of the offender's operation of the vehicle before, during, or after committing the offense for which the offender is sentenced * * * this section.

C.C.O. 433.01(h)(3)(B)(7). Thus, pursuant to the express terms of the ordinance, restitution is generally only available where the defendant fails to provide proof of financial responsibility. The ordinance further provides that if an award of restitution is appropriate, the court may...