[Cite as State v. Walters, 2012-Ohio-4056.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97792
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PHILLIP S. WALTERS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-553462
BEFORE: Cooney, J., Celebrezze, P.J., and Jones, J.
RELEASED AND JOURNALIZED: September 6, 2012
[Cite as State v. Walters, 2012-Ohio-4056.]
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Marcus A. Henry
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Walters, 2012-Ohio-4056.]
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Phillip S. Walters (“Walters”), appeals the trial court’s
order of restitution. Finding merit to his appeal, we reverse and remand to vacate the
restitution order.
{¶2} In November 2011, after a bench trial, Walters was convicted of burglary, a
felony of the third degree. He was sentenced to 30 days in jail, 180 days of house arrest,
community work service, and restitution in the form of costs associated with counseling for
the victim.
{¶3} Walters now appeals, arguing in his sole assignment of error that the trial court
erred when it issued a restitution order without competent, credible evidence that the victim
suffered a loss. The State concedes and seeks a hearing to allow the presentation of such
evidence.
{¶4} On appeal, we review a lower court’s order of restitution for an abuse of
discretion. State v. Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271 (8th Dist.1995); see also
State v. Berman, 8th Dist. No. 79542, 2002-Ohio-1277. An abuse of discretion “‘implies that
the court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151,
404 N.E.2d 144 (1980).
{¶5} However, Walters did not object at his sentencing hearing to the order of
restitution. Thus, he waived all but plain error. State v. Jarrett, 8th Dist. No. 90404,
2008-Ohio-4868, ¶ 13, citing Marbury. Crim.R. 52(B) provides that “plain error or defects
affecting substantial rights may be noticed although they were not brought to the attention of
the court.” However, in order to prevail under a plain error analysis, the appellant bears the
burden of demonstrating that the outcome of the proceedings clearly would have been
different but for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph two of the syllabus.
{¶6} R.C. 2929.18(A) allows a sentencing court, as part of a sentence, to impose
“restitution by the offender to the victim of the offender’s crime * * * in an amount based on
the victim’s economic loss.” R.C. 2929.01(M) defines “economic loss” as “any economic
detriment suffered by the victim as a result of the commission of a felony and includes any * *
* medical cost * * * incurred as a result of the commission of the felony.”
{¶7} Prior to ordering restitution, however, a sentencing court must engage in a “due
process ascertainment that the amount of restitution bears a reasonable relationship to the loss
suffered.” State v. Borders, 12th Dist. No. CA2004-12-101, 2005-Ohio-4339, quoting
Marbury, 104 Ohio App.3d 181, 661 N.E.2d 271. “The amount of restitution must be
supported by competent, credible evidence from which the court can discern the amount of
restitution to a reasonable degree of certainty.” State v. Gears, 135 Ohio App.3d 297, 300,
733 N.E.2d 683 (6th Dist.1999).
{¶8} In the instant case, the trial court ordered Walters to pay restitution to the victim
to cover the costs of counseling. Walters argues, however, and the State agrees, that no
competent or credible evidence was submitted from which the court could discern the specific
amount of restitution to a reasonable degree of certainty. The victim admitted that she had
not received any counseling at the time of the sentencing hearing, nor was any evidence
presented regarding the duration or anticipated cost of such sessions.
{¶9} The trial court does not need to conduct a hearing to ascertain the
reasonableness of the restitution if there is enough evidence in the record to substantiate the
relationship of the offender’s criminal conduct with the amount of the victim’s loss. State v.
Brumback, 109 Ohio App.3d 65, 83, 671 N.E.2d 1064 (9th Dist.1996). Clearly, in the instant
case, there was no evidence presented regarding any economic loss.
{¶10} The State concedes that the trial court abused its discretion in ordering
restitution in the form of payment for the victim’s counseling and requests this court remand
to the trial court for a hearing to be held on the issue. However, the State conceded at
argument that the victim had not received any counseling before sentencing. Thus, we find
that the trial court erred in ordering restitution to the victim without any competent or credible
evidence that any economic loss had occurred.
{¶11} Accordingly, Walter’s sole assignment of error is sustained.
¶12} Judgment reversed and case remanded to vacate the restitution order.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
LARRY A. JONES, SR., J., CONCUR