State v. Lunsford, Unpublished Decision (3-24-2003)
State v. Lunsford, Unpublished Decision (3-24-2003)
Opinion of the Court
{¶ 2} June 30, 2001 was quite an eventful day for appellant. Indeed, that day, appellant stole a car, stole a purse containing a wallet with credit cards, using force on the victim to flee the scene with her purse, successfully used the credit cards in five different stores, unsuccessfully tried to use the credit cards in two other stores, stole $60 worth of lottery tickets, and finally resisted arrest while being apprehended by the police. As a result, appellant was charged with one count of robbery, one count of grand theft of a motor vehicle, five counts of misuse of a credit card, one count of petty theft, and one count of resisting arrest. Appellant pled guilty to all nine counts.
{¶ 3} The trial court accepted the guilty plea, and sentenced appellant to five years in prison for the robbery charge and one year in prison for the grand theft charge, both sentences to be served consecutively. The trial court also sentenced appellant to six six-month jail terms for the misuse of credit card charges and the petty theft charge, and to one 90-day jail term for the resisting arrest charge, all to be served concurrently with the prison terms. The trial court also ordered appellant "to pay all restitution and costs of prosecution, counsel costs and any fees permitted pursuant to [R.C.]
{¶ 4} In his first assignment of error, appellant argues that the trial court erred by imposing consecutive prison sentences. Appellant contends that the trial court failed to make the required statutory findings and to state adequate reasons to support its determination.
{¶ 5} Pursuant to R.C.
{¶ 6} "(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to [R.C.]
{¶ 7} "(b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct.
{¶ 8} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 9} R.C.
{¶ 10} In its sentencing entry, the trial court found that consecutive sentences were required because appellant had committed the multiple offenses while under a post-release control sanction. This finding meets the requirements of R.C.
{¶ 11} A review of the sentencing hearing also establishes that the trial court stated sufficient reasons to support its decision to impose consecutive sentences. During the hearing, the trial court again noted how appellant committed multiple offenses while under a court sanction. The trial court also noted how appellant dragged the owner of the stolen purse with his car as the victim was trying to get her purse back. The trial court found that as a result of the robbery, the victim suffered serious psychological and economic harm. The trial court commented how victims of robbery "generally don't get over it. They're forever walking around * * * somewhat paranoid about when they're gonna get robbed again." While discussing the seriousness and recidivism factors, the trial court again found that appellant was under court sanction when he committed the offenses, that he had a history of criminal convictions dating back to 1990, which included a previous prison sentence, that he had a pattern of drug or alcohol abuse, and that he had failed in the past to respond favorably to probation or parole. We find the trial court's decision to impose consecutive sentences is supported by the record and is not contrary to law. Appellant's first assignment of error is overruled.
{¶ 12} In his second assignment of error, appellant argues that it was error for the trial court to impose restitution, fees, and counsel costs without first considering his current and future ability to pay.
{¶ 13} We first start with the trial court's decision to order restitution. Although it is not clearly apparent from the record, we assume that the ordered restitution was for appellant's misdemeanor theft offenses (misuse of a credit card and petty theft).
{¶ 14} R.C.
{¶ 15} Nevertheless, we find that the trial court improperly ordered restitution. It is well-established that the right to order restitution is limited to the actual loss or damage caused by the offense for which the defendant is convicted, and that the amount claimed must be established to a reasonable degree of certainty before restitution can be ordered. State v. Campbell (1993),
{¶ 16} A trial court may impose financial sanctions upon felony offenders. R.C.
{¶ 17} In the case at bar, while there is no mention of appellant's ability to pay fines in the final judgment entry or in the transcript of the sentencing hearing, the trial court did indicate in its judgment entry that it had considered the PSI submitted in this case. Although the PSI is not part of the public record, it is part of the appellate record for our review. R.C.
{¶ 18} R.C.
{¶ 19} We therefore reverse the judgment of the trial court as to the restitution and affirm the judgment in all other respects. The matter is remanded to the trial court for a determination, following an evidentiary hearing, of the amount of restitution to be ordered.
WALSH, P.J., and VALEN, J., concur.
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