State v. Welch, 105158

2017 Ohio 7887

STATE OF OHIO PLAINTIFF-APPELLEE v. GISELE WELCH DEFENDANT-APPELLANT

No. 105158

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

September 28, 2017

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-16-605237-A

BEFORE: Jones, J., Laster Mays, P.J., and Celebrezze, J.

ATTORNEYS FOR APPELLANT

Joseph C. Patituce

Carli R. Citraro

Catherine Meehan

Patituce & Associates

26777 Lorain Road, Suite 1

North Olmsted, Ohio 44070

ATTORNEYS FOR APPELLEE

Michael C. O'Malley

Cuyahoga County Prosecutor

BY: Hannah Smith

Christopher D. Schroeder

Assistant County Prosecutors

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

LARRY A. JONES, SR., J.:

{¶1} Defendant-appellant Gisele Welch ("Welch") challenges the trial court's decision to order her to pay restitution in the amount of $20,482. For the reasons that follow, we affirm.

{¶2} In April 2016, Welch was charged with one count of grand theft, a fourth-degree felony, and four counts of tampering with records, third-degree felonies. The charges stemmed from Welch's role as payee of social security benefits she received for the benefit of her developmentally disabled minor niece, Y.W. The indictment alleged that the value of the stolen property or services was more than $5,000 and less than $100,000.

{¶3} In June 2016, she pleaded guilty to one charge — Count 1, grand theft, amended from a fourth-degree felony to a fifth-degree felony. On the date scheduled for sentencing, however, the plea was vacated, and the matter was set for trial.

{¶4} In October 2016, Welch again pleaded guilty to an amended Count 1, a fifth-degree grand theft charge. The assistant prosecuting attorney stated at the hearing that the state was going to be seeking $21,682 in restitution from Welch, "just like we were doing * * * before." Both defense counsel and Welch indicated that that was their understanding of the plea agreement. At the conclusion of the plea hearing, the assistant prosecuting stated the following:

Your Honor, just so the record is clear, Count 1 is a felony of the 4th degree, grand theft. We were amending it down to — just so it can be a felony of the 5th degree, by lowering the value being $1,000 to $7,500, justso the record is clear even though we are seeking the actual amount of $21,682.

{¶5} The trial court then asked defense counsel if he "approved" the amendment knowing that the state was "seeking the greater amount," to which counsel responded "yes."

{¶6} At the sentencing hearing, the assistant prosecuting attorney stated that the restitution amount the state was seeking had been slightly lowered to $20,482. Defense counsel stated that he and Welch disputed the restitution amount and contended that issue in the case was more about the social security funds being commingled by Welch, rather than stolen. He contended that the accurate amount of the theft that occurred was "closer to $4,700." The court held a hearing on the issue of restitution, and at the conclusion of the hearing, ordered Welch to pay restitution to the Social Security Administration in the amount of $20,482. The more detailed facts of the case, which were elicited at the restitution hearing, are as follows.

{¶7} As mentioned, Y.W. is developmentally delayed and was a minor at all relevant times. Her mother, D.W., is also developmentally delayed, and as a result of their circumstances, they were receiving services from the Welcome House, a social services agency, to help with day-to-day activities. One of the workers from the Welcome House believed that the daughter and mother were eligible for social security benefits, so the worker inquired about it with the Social Security Administration. The worker learned that Welch had been receiving benefits on behalf of Y.W., who is her niece, for approximately five years. The Welcome House worker referred the matter toJeff Starr ("Starr"), an investigator with the Board of Developmental Disabilities, who began an investigation.

{¶8} Starr testified that he spoke with D.W. numerous times during his investigation, and learned that during the approximate five-year period that Welch had been receiving funds on Y.W.'s behalf, Welch had given D.W. and Y.W. a flat screen television and had taken them out to eat two or three times a year. Starr concluded that Welch had misappropriated the Social Security funds.

{¶9} D.W., Y.W.'s mother, also testified. According to D.W., she and Y.W. would see Welch once or twice a year. Other than bringing them Christmas gifts, taking them out to eat once or twice, paying for Y.W. to get her hair braided a couple of times, and once buying back-to-school clothes for Y.W., Welch did not support or give money to D.W. for Y.W.'s care. D.W. admitted that Welch's sister, another of Y.W.'s aunts, brought gifts for Y.W. and took her clothes shopping from time to time. D.W. testified that, until the investigation began in this case, she was unaware that Welch was receiving money from the Social Security Administration for Y.W.'s care.

{¶10} An investigator from the Social Security Administration, Laura DeGiglio ("DeGiglio"), testified that Welch received a total of $33,252 from the administration on Y.W.'s behalf. As part of her investigation, DeGiglio visited D.W. and Y.W. at their residence on two occasions to talk to them and look around at what possessions they had. DeGiglio also interviewed Welch and reviewed receipts that Welch provided to her as proof of purchases made on Y.W.'s behalf, as well as the "representative payee reports" that Welch submitted to the Social Security Administration detailing the money sheallegedly spent on Y.W.

{¶11} In regard to the receipts Welch provided, DeGiglio tested that, based on her visits to the home, she did not find them to be a credible representation of merchandise Welch purchased on behalf of Y.W. In regard to the representative payee reports, the amount Welch claimed she had spent on Y.W. always ended with an even amount and, based on her investigation in this case, she found that "odd."¹

{¶12} Based on her investigation, DeGiglio concluded that Welch should be credited with approximately $1,200 for items she purchased for, and gave to, Y.W. DeGiglio further testified that after Welch learned of the investigation, she voluntarily returned approximately $11,000 to the Social Security Administration. After crediting Welch for the approximate $1,200 she believed she did spend on Y.W., and the approximate $11,000 Welch returned to the administration, DeGiglio concluded that Welch misappropriated $20,482 from the Social Security Administration.

{¶13} Welch presented the testimony of David Zuber ("Zuber"), a certified public accountant who conducted an accounting of the funds disbursed to Welch on behalf of Y.W. Zuber testified that, relevant to this case, Welch had two banking accounts: one was a "Key for Kids" account at Key Bank, and the other was an account at a credit union.

{¶14} Zuber found that all of the disbursements Welch received from the Social Security administration were deposited in the Key for Kids account, and then withdrawn.Some of the withdrawn money was then deposited in the credit union account.

{¶15} Zuber testified that he attempted to reconcile the disbursements with the documentation provided about purchases for Y.W.; he found a deficit, totaling $4,755. Some of the receipts had Welch's sister's name on them, so Zuber interviewed the sister, and learned that she would spend money on behalf of Y.W. and then seek reimbursement from Welch. Zuber admitted that he had no knowledge of whether the purchased items reflected on the receipts were actually given to, or used for the benefit of, Y.W.

{¶16} On this testimony, the trial court found that the social security benefits were "clearly mishandled." The court further found that the receipts Welch presented "actually prove nothing, just that [Welch] bought some things, not that anything was actually given to the child. It could [have been] for the benefit of any person."

{¶17} Welch now appeals and sets forth the following assignments of error:

I. The trial court improperly ordered restitution in excess of the victim's economic loss.

II. The trial court improperly ordered restitution in an amount not supported by legally sufficient evidence.

III. The trial court improperly ordered restitution in an amount beyond the maximum property value indicated by the theft subsection of which appellant was convicted.

IV. The cumulative error materially prejudiced appellant.

{¶18} The assignments of error are interrelated and therefore will be addressed together.

{¶19} Generally, a decision to award restitution lies within the sound discretion ofthe trial court and will not be reversed on appeal absent an abuse of discretion. In re M.A., 2016-Ohio-1161, 61 N.E.3d 630, ¶ 12 (11th Dist.). "There must be competent and credible evidence in the record from which the court may ascertain the amount of restitution to a reasonable degree of certainty." State v. Seele, 6th Dist. Sandusky No. S-13-025, 2014-Ohio-1455, ¶ 9. A trial court abuses its discretion by ordering restitution in an amount that does not bear a reasonable relationship to the actual loss suffered. State v. Portentoso, 173 Ohio App.3d 297, 2007-Ohio-5490, 878 N.E.2d 76, ¶ 8 (3d Dist.); State v. Bulstrom, 2013-Ohio-3582, 997 N.E.2d 162, ¶ 19 (4th Dist.).

{¶20} In her first two assignments of error, Welch contends that because the trial court did not give her credit for any of the spending evidenced by the receipts she presented other than the $1,200 DeGiglio credited to her, it "improperly exceeded the victim's actual economic loss." In doing so, Welch argues that the trial court gave too much weight to the testimony of the mother and the two investigators. We disagree.

{¶21} Under R.C. 2929.18, a victim has the right to restitution for economic loss suffered as a direct and proximate result of...