State v. Johnson

[Cite as State v. Johnson, 2021-Ohio-1869.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY

STATE OF OHIO,
CASE NO. 8-20-42
PLAINTIFF-APPELLANT/
CROSS-APPELLEE,

v.

JAMES A. JOHNSON, III, OPINION

DEFENDANT-APPELLEE/
CROSS-APPELLANT.

Appeal from Logan County Common Pleas Court
Trial Court No. CR 18 01 0020

Judgment Reversed in Part; Affirmed in Part and Cause Remanded

Date of Decision: June 1, 2021

APPEARANCES:

Eric C. Stewart for Appellant/Cross-Appellee

William T. Cramer for Appellee/Cross-Appellant
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WILLAMOWSKI, P.J.

{¶1} The plaintiff-appellant, cross-appellee State of Ohio appeals the

judgment of the Logan County Court of Common Pleas, alleging that the trial court

erred by failing to order the defendant-appellee, cross-appellant James A. Johnson

(“Johnson”) to pay restitution. In response, Johnson asserts that his sentence was

unreasonably delayed and should, therefore, be reversed. For the reasons set forth

below, the judgment of the trial court is reversed in part and affirmed in part.

Facts and Procedural History

{¶2} On October 10, 2017, Johnson was driving southbound on U.S. Route

68. Doc. 26. At the same time, David Deskins (“Deskins”) was driving a school

bus northbound on the same roadway. Doc. 26. At 1:50 P.M., Johnson’s vehicle

swerved across the center line in the roadway and struck the school bus. Doc. 26.

In this collision, Deskins and an adult passenger on the school bus, Brooke Perry

(“Perry”), suffered injuries. Doc. 26. Johnson was also taken to the hospital for

treatment where subsequent testing revealed that he had “Amphetamine/

Methamphetamine in his urine in [an] amount over 500 ng/ml.” Doc. 26.

{¶3} On August 3, 2018, Johnson pled guilty to one count of aggravated

vehicular assault in violation of R.C. 2903.08(A)(1)(a), 2903.08(B)(1)(a), a felony

of the second degree. Doc. 90. The trial court then found Johnson guilty of the

charge of aggravated vehicular assault. Doc. 90. At Johnson’s sentencing hearing

on September 10, 2018, the trial court determined that an eight-year prison sentence

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was appropriate in this case.1 Doc. 96. On September 11, 2018, the trial court issued

a judgment entry (“September 11, 2018 Entry”) that memorialized several

determinations that the trial court had made at the sentencing hearing. Doc. 96.

However, this September 11, 2018 Entry also stated that the trial court was

“retain[ing] jurisdiction over restitution in this matter along with the findings of the

Defendant’s ability to pay.” Doc. 96.

{¶4} On September 17, 2018, Johnson filed an appeal from the September

11, 2018 Entry, even though the trial court had not yet made a determination on the

issue of restitution. Doc. 105. On July 18, 2019, after considering an Anders Brief

that had been filed, this Court determined that this case presented arguable issues

for appeal. Doc. 121. We then directed the trial court to appoint new appellate

counsel for Johnson. Doc. 121. On April 6, 2020, this Court dismissed Johnson’s

appeal for lack of a final appealable order since the September 11, 2018 Entry had

not disposed of the issue of restitution. Doc. 124. We then remanded this case to

the trial court. Doc. 124.

{¶5} On July 28, 2020, the trial court held a hearing on the issue of

restitution. Doc. 149, Tr. 1. The record indicates that the Ohio Victims of Crime

Compensation Program (“OVCCP”) paid $8,876.57 to Perry pursuant to a decision

made by the Ohio Attorney General’s Office on January 10, 2019. Tr. 9-10. The

1
The trial court also determined that this eight-year prison sentence should be served consecutively to a
prison sentence imposed by the Champaign County Court of Common Pleas. Doc. 96. Thus, Johnson’s
aggregate prison term was twelve years. Doc. 96, 136.

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State argued that the trial court had the authority to order Johnson to pay restitution

to OVCCP. Tr. 12. On August 3, 2020, the trial court issued a judgment entry of

sentencing. Doc. 136. The trial court declined to impose restitution, finding that

the imposition of restitution would impermissibly “increase the restitution from the

original sentencing.” Tr. 20-21.

State’s Assignment of Error

{¶6} The State filed its notice of appeal on August 11, 2020. Doc. 142. On

appeal, the State raises the following assignment of error:

The trial court erred in not making a finding of restitution.

The State argues not only that the trial court could have ordered Johnson to pay

restitution to OVCCP after the July 28, 2020 hearing but also that the trial court was

required to order such restitution pursuant to Article I, Section 10a of the Ohio

Constitution (“Marsy’s Law”).

Legal Standard

{¶7} “R.C. 2929.18(A) allows a trial court to impose various ‘financial

sanctions’ against a defendant who committed a felony, including ‘[r]estitution by

the offender to the victim.’” State v. Allen, 159 Ohio St.3d 75, 2019-Ohio-4757,

147 N.E.3d 618, ¶ 3. R.C. 2929.18(A) reads, in its relevant part, as follows:

(A) * * * Financial sanctions that may be imposed pursuant to this
section include, but are not limited to, the following:

(1) Restitution by the offender to the victim of the offender’s
crime or any survivor of the victim, in an amount based on the

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victim’s economic loss. If the court imposes restitution, the court
shall order that the restitution be made to the victim in open
court, to the adult probation department that serves the county
on behalf of the victim, to the clerk of courts, or to another agency
designated by the court. If the court imposes restitution, at
sentencing, the court shall determine the amount of restitution to
be made by the offender. * * *

(Emphasis added.) R.C. 2929.18(A)(1). Thus, under R.C. 2929.18(A)(1), a trial

court has “the discretion to order that restitution be paid to certain third parties,

namely, an adult probation department, the clerk of courts, or another agency

designated by the court.” State v. Bartholomew, 119 Ohio St.3d 359, 2008-Ohio-

4080, 894 N.E.2d 307, ¶ 17.

{¶8} The Ohio Supreme Court has held that “R.C. 2929.18(A)(1) authorizes

a trial court to order that a criminal defendant pay restitution to the [Ohio Attorney

General’s Victims of Crime] reparations fund for payments made by the fund to a

victim of crime for economic loss caused by the offender.” Bartholomew at ¶ 17.

See R.C. 2743.191(A)(1)(a). In reaching this conclusion, the Supreme Court noted

that R.C. 2743.72(E) expressly states that “[t]he reparations fund is an eligible

recipient for payment of restitution.” Id. at ¶ 12. See State v. Perkins, 190 Ohio

App.3d 328, 2010-Ohio-5058, 941 N.E.2d 1227, fn. 3 (3d Dist.) (stating that the

OVCCP is “a reparations fund of the Ohio Attorney General * * *”).

Legal Analysis

{¶9} The State advances two main arguments on appeal. First, the State

asserts that the trial court was required to order Johnson to pay restitution to OVCCP

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because victims now have a constitutional right to restitution under Marsy’s Law.

This provision reads, in its relevant part, as follows:

(A) To secure for victims justice and due process throughout the
criminal and juvenile justice systems, a victim shall have the
following rights, which shall be protected in a manner no less
vigorous than the rights afforded to the accused:

***

(7) to full and timely restitution from the person who committed the
criminal offense or delinquent act against the victim;

Article I, Section 10a(A) of the Ohio Constitution. Marsy’s Law then defines the

word “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.” Article I, Section 10a(D) of the Ohio Constitution.

{¶10} In this case, OVCCP does not qualify as a victim under the definition

provided in Marsy’s Law. OVCCP was not “a person against whom the criminal

offense * * * [was] committed” and was not “directly and proximately harmed by

the commission of the offense * * *.” Article I, Section 10a(D) of the Ohio

Constitution. The State admitted as much at the July 28, 2020 hearing on this matter

when the prosecutor said: “So the Attorney General’s Office paid to the victim out-

of-pocket expenses, which was $8,876.57. So we’re not asking for restitution for

the victim herself but for the Attorney General’s Office.” (Emphasis added.) Tr. 6.

{¶11} Since OVCCP does not qualify as a victim under the definition set

forth in Marsy’s Law, the constitutional provisions invoked by the State on appeal

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are not applicable to the issue before us. See also City of Centerville v. Knab, 162

Ohio St.3d 163, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 31 (examining the meaning

of the word “person” as it relates to the definition of the word “victim” in Marsy’s

Law). While a trial court may generally order restitution to OVCCP pursuant to

R.C. 2929.18(A)(1), Marsy’s Law does not require the trial court to order restitution

to OVCCP in this case. See Bartholomew, supra, at ¶ 17; R.C. 2743.72(E). Thus,

we conclude that the State’s first argument is without merit.

{¶12} Second, the State argues that the trial court was incorrect in concluding

that it could not order restitution at the July 28, 2020 sentencing hearing. In this

case, the trial court indicated, in the September 11, 2018 Entry, that it was going to

determine the issue of restitution at a later date. Doc. 96. See State v. Daniels, 1st

Dist. Hamilton No. C-140242, 2014-Ohio-5160, ¶ 7; In re J.G., 3d Dist. Logan No.

8-20-59, 2021-Ohio-1624, ¶ 36; State v. Burgess, 5th Dist. Stark No. 2012 CA

00119, 2013-Ohio-234, ¶ 14 (holding that “it is not improper for a trial court to

render a supplemental restitution order after retaining jurisdiction to do so at

sentencing * * *”).

{¶13} Before the trial court had rendered a decision on the issue of

restitution, Johnson filed an appeal from the September 11, 2018 Entry. Doc. 105.

At that time, the September 11, 2018 Entry was incomplete as it “left [the issue of

restitution] unresolved and contemplated further action to be taken by the trial

court.” State v. Kline, 3d Dist. Henry No. 7-10-09, 2010-Ohio-6378, ¶ 6. As such,

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this Court determined that “[t]he judgment entry from which Johnson appeal[ed]

d[id] not set forth a complete sentence and [was] thus not a final appealable order.”

Doc. 124. We then dismissed this prior appeal and remanded this case so that the

trial court could make a determination on the pending issue of restitution and issue

a final judgment. Doc. 124. See Kline at ¶ 7.

{¶14} On July 28, 2020, the trial court held a restitution hearing. Tr. 4, 6.

At this hearing, the State argued that the trial court could impose restitution. Tr. 7,

11-12. However, the trial court stated the following:

But I’m still kind of stuck on the issue of if we order restitution in
the amount of $8,876.57 at this point that we are increasing the
restitution from the original sentencing. My understanding is that
the Court cannot do that. What we cannot do is we cannot increase
restitution.

(Emphasis added.) Tr. 13-14. The trial court then reached the following conclusion:

The Court finds that * * * the State of Ohio Attorney General’s
Office did not make its findings of fact and decision until January
10, of 2019; and, therefore, it did not have any evidence of any
amount of restitution until months after the original sentencing
hearing had been conducted and completed. So for that reason, *
* * at this point in time, to order the defendant to pay restitution
would be to increase the restitution from the original sentencing,
and the Court is not permitted to do that.

So, the Court will journalize a final sentencing entry in this case
that restates and reaffirms all of the elements of the September
11, 2018 sentence. It will address restitution, but * * * it will state
that because the State did not have any evidence of restitution at
the time of the sentencing entry, to order restitution at this point
in time would be to increase restitution. The Court cannot do that
and, therefore, it does not order any restitution to be paid. * * *

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So that will be the decision of the Court. The Court will hereby
find that the * * * defendant cannot be ordered to pay restitution
at this point in time because there was no evidence of any amount
of restitution at the time of his sentencing and that to order him
to pay the restitution at this time would be to improperly increase
the amount of restitution over his sentencing.

Tr. 20-21. Thus, the trial court did not impose restitution after the July 28, 2020

hearing, at least in part, because the trial court believed that it could not order

Johnson to pay restitution to OVCCP. Tr. 20-21. See Doc. 136.

{¶15} In this case, the trial court believed it could not impose restitution

because such an order would “increase the restitution from the original sentencing.”

Tr. 20-21. But this conclusion is incorrect for two reasons: (1) the September 11,

2018 Entry did not contain a determination on the issue of restitution and (2) the

September 11, 2018 Entry was not, therefore, a final order.

{¶16} As to the first reason, the trial court treated the absence of a

determination on the issue of restitution in the September 11, 2018 Entry as a

determination to impose zero dollars of restitution, meaning that any subsequent

restitution order would represent a de facto increase in the amount of restitution. Tr.

20-21. But the September 11, 2018 Entry expressly deferred a determination on the

issue of restitution for a later date. Doc. 96. In this case, the express decision to

defer a determination on the issue of restitution meant that no determination on this

issue had been rendered. As such, at the July 28, 2020 hearing, the trial court lacked

the ability to increase, decrease, or otherwise modify a prior determination on the

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issue of restitution because no such prior determination existed. Thus, the trial court

failed to consider the issue of restitution as a pending matter that was left unresolved

by the September 11, 2018 Entry.

{¶17} As to the second reason, by acting as though the issue of restitution

had been previously determined in the September 11, 2018 Entry, the trial court

acted as though the September 11, 2018 Entry was a final order. However, this

Court dismissed Johnson’s prior appeal because the September 11, 2018 Entry had

not decided the issue of restitution and was, for this reason, not a final appealable

order. Doc. 96, 124. See In re Holmes, 70 Ohio App.2d 75, 77, 434 N.E.2d 747,

749 (1st Dist.). If the September 11, 2018 Entry had determined the issue of

restitution, we would not have remanded this case to the trial court. See In re J.G.,

supra, at ¶ 39. But because the September 11, 2018 Entry contained an incomplete

sentence, we remanded this case so that the trial court could take the necessary steps

to complete Johnson’s sentence. In other words, we remanded this case precisely

because the trial court could consider whether or not to impose restitution in the

absence of a determination on the issue of restitution. See State v. Casteel, 5th Dist.

Tuscarawas No. 11AP110043, 2012-Ohio-2295, ¶ 12.

{¶18} Further, in its decision on restitution, the trial court cited to several

cases that stand for the proposition that “a trial court does not have continuing

jurisdiction * * * to increase, decrease, or otherwise modify the amount of restitution

after sentencing.” State v. Downey, 12th Dist. Clermont No. CA2016-02-006, 2016-

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Ohio-5778, ¶ 17. See Doc. 136, citing Downey at ¶ 17; State v. Stechschulte, 11th

Dist. Lake No. 2013-L-027, 2014-Ohio-4291, ¶ 23. In Downey and Stechschulte,

the trial courts had issued a final determination on restitution in a sentencing entry

that constituted a valid final judgment. Downey at ¶ 2-3; Stechschulte at ¶ 13-14.

In these cases, the trial court did not have the authority to modify a final judgment

entry of sentencing after its issuance. Downey at ¶ 18; Stechschulte at ¶ 23.

{¶19} The cases cited by the trial court are distinguishable from the case

before this Court. As we have noted, the September 11, 2018 Entry did not

determine the issue of restitution; did not, as a result, contain a complete sentence;

and was not, therefore, a final appealable order. State v. Kuhn, 3d Dist. Defiance

No. 4-05-23, 2006-Ohio-1145, ¶ 8; State v. Thompson, 4th Dist. Ross No.

10CA3177, 2011-Ohio-1564, ¶ 8; In re Zakov, 107 Ohio App.3d 716, 718, 669

N.E.2d 344, 345 (11th Dist. 1995) (holding that the failure to include a

determination on restitution “render[ed] th[e] entry interlocutory”).

{¶20} Since the September 11, 2018 Entry left the issue of restitution

unresolved and was not a final appealable order, the trial court could have ordered

Johnson to pay restitution to OVCCP at the July 28, 2020 hearing without

impermissibly “increas[ing] the restitution from the original sentencing.” Tr. 20-

21. See Downey at ¶ 17. However, we note that, in declining to impose restitution,

the trial court did consider some other factors. See Doc. 136. The trial court

observed that the State waited “21.5 months” to present evidence of the amount of

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restitution. Doc. 136. We also note that Johnson filed what was, in his words, a

“premature” appeal from the September 11, 2018 Entry that may have delayed this

process. Appellee’s Brief, 7. Nonetheless, the fact remains that the trial court’s

decision in this matter rested, at least in part, on the belief that it could not impose

restitution. For this reason, we conclude that the State’s second argument has merit.

{¶21} As such, we reverse the trial court’s decision on the issue of restitution

and remand this case for the trial court to consider this matter with the knowledge

that it has the discretion to impose restitution. See In re J.G., supra, at ¶ 45 (applying

an abuse of discretion standard to restitution orders on appeal). But see State v.

Presutto-Saghafi, 9th Dist. Lorain Nos. 18CA011411, 18CA011412, 2019-Ohio-

5373, ¶ 9 (noting that several appellate districts now apply the standard set forth in

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, to

restitution orders on appeal).

{¶22} In conclusion, the trial court, in this case, was not required to impose

restitution but could have imposed restitution at the July 28, 2020 hearing. The

State’s first argument—that Marsy’s Law required the trial court to impose

restitution—is without merit. But because the trial court operated on the assumption

that it could not impose restitution at the July 28, 2020 hearing, we find the second

argument raised by the State of Ohio to have merit. As such, the State of Ohio’s

assignment of error is sustained.

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Johnson’s Cross-Assignment of Error

{¶23} On August 24, 2020, Johnson filed his notice of cross-appeal. Doc.

145. On appeal, he raises the following assignment of error:

The trial court erred in imposing sentence after the sentencing
hearing was unreasonably delayed.

Johnson asserts that the imposition of his sentence was unreasonably delayed and

that his sentence should, therefore, be reversed.

Legal Standard

{¶24} Crim.R 32(A) states that a “[s]entence shall be imposed without

unnecessary delay.” Crim.R. 32(A). The Ohio Supreme Court has held “that the

time of pronouncing sentence is within the discretion of the trial court and a delay

for a reasonable time does not invalidate the sentence.” Neal v. Maxwell, 175 Ohio

St. 201, 201, 24 O.O.2d 281, 192 N.E.2d 782, 784 (1963). Based on the Supreme

Court’s pronouncement in Neal, “appellate courts have held that a delay in

sentencing must be reasonable in order to be valid * * *.” State v. Miller, 3d Dist.

Henry No. 7-11-21, 2012-Ohio-2132, ¶ 7. See State v. Hruby, 6th Dist. Ottawa No.

OT-10-036, 2011-Ohio-3848, ¶ 10; State v. Brown, 152 Ohio App.3d 8, 2003-Ohio-

1218, 786 N.E.2d 492, ¶ 20 (7th Dist.); State v. Johnson, 12th Dist. Madison No.

CA2002-07-016, 2003-Ohio-6261, ¶ 13. As such, “[a]n unreasonable delay

between a plea and a sentencing, which cannot be attributed to the defendant, will

invalidate that sentence.” (Emphasis added.) State v. Martinez, 6th Dist. Wood No.

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WD-09-068, 2010-Ohio-2007, ¶ 6, citing Brown at ¶ 31. See State v. Owens, 181

Ohio App.3d 725, 2009-Ohio-1508, 910 N.E.2d 1059, ¶ 27 (7th Dist.); State v.

Hawkins, 8th Dist. Cuyahoga No. 94294, 2011-Ohio-74, ¶ 4.

{¶25} In determining whether a delay was unreasonable, appellate courts are

to consider the facts of each case. State v. Barklay, 2d Dist. Greene No. 95 CA 70,

1996 WL 111804, *2 (Mar. 15, 1996). Courts have examined the reasons for the

delay in this analysis. State v. Ventura, 2016-Ohio-5151, 61 N.E.3d 189, ¶ 27 (1st

Dist.); Barklay at *2; Brown at ¶ 29; Johnson at ¶ 16. Further, “the remedy for an

unreasonable delay in sentencing is not a resentencing hearing * * *.” Owens at ¶

33. See Martinez at ¶ 6. Rather, “[t]he case law on this subject indicates that * * *

the sentence must be reversed * * *.” Brown at ¶ 30.

Legal Analysis

{¶26} Johnson argues that the period of time that elapsed in between the

issuance of the September 11, 2018 judgment entry of sentencing and the August 3,

2020 judgment entry of sentencing constituted an unreasonable delay. Doc. 105,

149. Thus, he asserts that his sentence should be reversed. For two reasons, we

find this argument to be without merit under the facts of this case.

{¶27} First, the trial court held a sentencing hearing the month following

Johnson’s guilty plea. Doc. 90. 96. In his brief, Johnson cites to four cases in

support of his argument. See Appellee’s Brief, 8-9, citing Brown, supra; Owens,

supra, at ¶ 31; City of Willoughby v. Lukehart, 39 Ohio App.3d 74, 529 N.E.2d 206,

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207 (11th Dist. 1987); Johnson, supra, at ¶ 15. In these cases, the trial courts “took

no steps to effect a valid sentence * * *” within a reasonable time after the plea or

verdict. (Emphasis added.) Brown, supra, at ¶ 31. See Owens, supra, at ¶ 31

(stating that “neither the trial court nor the state made any attempt to effect a valid

sentence upon the defendant”); Lukehart at 207; Johnson, supra, at ¶ 15 (concluding

that “the state did nothing” after the defendant failed to appear for his sentencing

hearing).

{¶28} The four cases cited by Johnson are distinguishable from the case

before this Court. In this case, the trial court did take steps to effectuate a valid

sentence within a reasonable period of time after Johnson’s plea of guilty, holding

a sentencing hearing on September 10, 2018. Doc. 96. The allegedly unreasonable

delay in this situation was not caused by the trial court’s failure or refusal to act

within a reasonable time after accepting Johnson’s plea of guilty. See State v.

Spears, 9th Dist. Summit No. 24953, 2010-Ohio-1965, ¶ 19 (“recogniz[ing a] * * *

distinction between a trial court refusing to sentence an offender and a trial court

improperly sentencing an offender”).

{¶29} Second, the delay between the September 11, 2018 Entry and the

August 3, 2020 judgment entry is largely attributable to the prior appeal that

Johnson initiated on September 17, 2018. Doc. 96, 105. In his brief, Johnson admits

that this prior appeal was “premature” since the September 11, 2018 Entry was not

a final appealable order. Appellee’s Brief, 7. The appeal that Johnson initiated

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lasted until April 6, 2020. Doc. 121, 124. The trial court waited until the conclusion

of Johnson’s prior appeal to take further action in this case. This delay is not

attributable to the State. See Brown, supra, at ¶ 23 (finding an unreasonable delay

to be attributable to the State). Rather, Johnson chose to avail himself of the

appellate process. Thus, there was not a delay in this case that “cannot be attributed

to the defendant * * *.” Martinez, supra, at ¶ 6. See State v. Culgan, 9th Dist.

Medina No. 09CA0060-M, 2010-Ohio-2992, ¶ 37 (upholding a sentence because

the contested delay “was a result of the need for [the defendant] * * * to utilize the

appellate process”). See also State v. Taylor, 4th Dist. Highland No. 10CA7, 2011-

Ohio-1391, ¶ 20.

{¶30} In conclusion, this case presents a situation in which the trial court

took steps to sentence Johnson shortly after accepting his guilty plea. Johnson then

chose to avail himself of the appellate process. The resulting delay is largely

attributable to Johnson’s decision to file this “premature” prior appeal. Appellee’s

Brief, 7. Thus, the facts of this case do not present a situation in which there was

an unreasonable delay in Johnson’s sentencing that “cannot be attributed” to his

actions. Martinez, supra, at ¶ 6. As such, Johnson’s cross-assignment of error is

overruled.

Conclusion

{¶31} Having found error prejudicial to the plaintiff-appellant, cross-

appellee in the particulars assigned and argued in the second argument in the State

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of Ohio’s assignment of error, the judgment of the Logan County Court of Common

Pleas is reversed as to the issue of whether the trial court could have imposed

restitution at the July 28, 2020 hearing.

{¶32} Having found no error prejudicial to the defendant-appellee, cross-

appellant in the particulars assigned and argued, the judgment of the Logan County

Court of Common Pleas is affirmed as to the issues raised in Johnson’s cross-

assignment of error.

Judgment Affirmed in Part
Reversed in Part
And Cause Remanded

MILLER and SHAW, J.J., concur.

/hls

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