[Cite as State v. Sexton,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-110037 TRIAL NO. B-0908134 Plaintiff-Appellee, : O P I N I O N. vs. :

SCOTT SEXTON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: October 14, 2011

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Gregory A. Cohen, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

D INKELACKER , Presiding Judge.

{¶1} Defendant-appellant Scott Sexton pleaded guilty to one count of

aggravated assault under R.C. 2903.12(A). The trial court sentenced him to 157 days’

incarceration followed by three years of community control. The court also ordered

him to pay restitution for lost wages to the victim, Joshua Lang. This appeal

followed.

{¶2} In his sole assignment of error, Sexton contends that the trial court

erred in ordering restitution without proper substantiation. He argues that the

$3,600 of restitution that the court ordered was not supported by competent,

credible evidence. We find no merit in this argument.

{¶3} R.C. 2929.18(A)(1) allows the trial court to order restitution based on

the victim’s economic loss. State v. Didion,

,

,

; State v. Policaro, 10th Dist. No. 06AP-913,

.

The court may “base the amount of restitution it orders on an amount recommended

by the victim, the offender, a presentence investigation report, estimates or receipts

indicating the cost of repairing or replacing property, and other information.” R.C.

2929.18(A)(1). But competent, credible evidence must support a restitution order so

that the court can discern the amount to a reasonable degree of certainty. State v.

Webb,

,

,

; State v. Purnell,

,

,

.

{¶4} The victim impact statement stated that Lang had been working as a

host at a restaurant earning $225 per week. He was unable to work for four months

after Sexton had punched him and shattered his jaw. Since he lost 16 weeks of work,

the total of lost wages came to $3,600. The victim later confirmed that amount at a

hearing on the issue of restitution.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} The victim’s testimony was competent, credible evidence that

substantiated his loss and supported a restitution award of $3,600. That amount

bears a reasonable relationship to the loss suffered. See State v. Hebb, 5th Dist. No.

2010-CA-038,

; State v. Williams (1986),

,

. Sexton argues that the award should have been substantiated

with tax statements or pay stubs, but the statute does not require that specific type of

evidence. Consequently, we overrule Sexton’s assignment of error.

{¶6} But we find issues in the record that we raise sua sponte. R.C.

2929.18(A)(1) provides that “[i]f the court imposes restitution, at sentencing, the

court shall determine the amount of restitution to be made by the offender.” This

court has held that under the plain language of the statute, the trial court must

determine the amount of restitution at sentencing if it orders restitution at that time.

State v. Wilson, 1st Dist. No. C-061000,

;

.

{¶7} The trial court stated at the hearing that it would order restitution in

the amount of $3,600, which we would have affirmed had the court actually ordered

it. But the final judgment entry in this case stated that “[t]he defendant is to make

restitution for lost wages to the victim, Joshua Lang.” It did not specify an amount.

A court speaks only through its journal. State v. Jordan,

, 2004-

Ohio-6085,

, ¶6;

.

{¶8} This court has also held that where the court’s order imposed

restitution as part of the sentence but did not determine the amount of the

restitution, the order did not fully determine the action. Therefore, it was not a final

appealable order within the meaning of R.C. 2505.02(B). In re Holmes (1980),

,

. Accord State v. Fite, 4th Dist. No. 10CA888,

. But in Holmes, and in cases that have relied on it, the trial court

had never held a hearing or heard any kind of evidence on the issue of the amount of

restitution. See State v. Thompson, 4th Dist. No. 10CA3177,

;

3 OHIO FIRST DISTRICT COURT OF APPEALS

State v. Wyant, 4th Dist. No. 10CA3337,

, ¶9-13; State v.

Plassenthal, 2nd Dist. No. 22464,

; State v. Phillips, 8th Dist.

No. 90124,

, ¶5

{¶9} In State v. Threatt,

,

,

, the Ohio Supreme Court rejected the argument that the failure to specify the

amount of court costs the defendant had to pay rendered the court’s judgment

interlocutory. It stated, “A judgment that leaves issues unresolved and contemplates

that further action must be taken is not a final appealable order. * * * However,

when the remaining issue ‘is mechanical and unlikely to produce a second appeal

because only a ministerial task similar to assessing costs remains,’ then the order is

final and appealable.” Id. at ¶20, quoting State ex rel. White v. Cuyahoga Metro.

Hous. Auth.,

,

,

. (Emphasis

omitted.)

{¶10} Certainly, determining restitution differs significantly from assessing

costs, which simply requires the calculation of those costs and the creation of a bill.

; Wyant, supra, at ¶12-13. Calculating restitution “entails a

substantive legal decision or judgment and is not merely a mechanical part of a

judgment.”

, quoting State v. Miller,

,

,

.

{¶11} The facts of this case fall somewhere between those in Holmes and

Threatt. The court had already made the substantive legal decision of determining

that restitution in the amount of $3,600 for lost wages was appropriate, but it had

omitted that amount from the judgment entry. Nevertheless, the entry did not

merely order Sexton to pay restitution as did the entries in Holmes and similar cases.

It specified that Sexton was ordered to pay restitution to Lang for lost wages.

{¶12} Thus, we determine that the facts in this case are more like those in

Threatt, even though Threatt is not directly on point. All that remains to be done in

4 OHIO FIRST DISTRICT COURT OF APPEALS

this case is to correct the omission of the amount of $3,600 from the judgment entry,

which is, in essence, correcting a clerical error. See Crim.R. 36. The judgment in this

case does not leave issues unresolved and does not contemplate that further action

must be taken. Consequently, we hold that it is a final, appealable order within the

meaning of R.C. 2505.02.

{¶13} We hold that the trial court erred in failing to include in its judgment

entry the specific amount of $3,600 in restitution. We remand the case to the trial

court to rectify that error. We affirm the trial court’s judgment in all other respects.

Affirmed in part, reversed in part, and cause remanded.

H ILDEBRANDT and S UNDERMANN , JJ., concur.

Please Note: The court has recorded its own entry this date.

5