[Cite as State v. Burns,

.] [Please see original opinion at

.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95465

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DANIEL BURNS

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-531793

BEFORE: S. Gallagher, J., Kilbane, A.J., and Celebrezze, J. RELEASED AND JOURNALIZED: August 19, 2011

ATTORNEYS FOR APPELLANT

Stephen D. Hartman Kerger & Hartman, LLC 33 S. Michigan Street Suite 100 Toledo, OH 43604

Karin Coble 4334 W. Central Avenue Suite 226 Toledo, OH 43615

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Mary Court Weston Kristen L. Sobieski Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 ON RECONSIDERATION1

SEAN C. GALLAGHER, J.:

{¶ 1} Appellant Daniel Burns (“Burns”) appeals his conviction following a

jury trial in Cuyahoga County Common Pleas Court Case No. CR-531793 of one

count of engaging in a pattern of corrupt activity, four counts of tampering with

records, and one count of theft in office. The trial court sentenced Burns to a

six-year term of incarceration and ordered him to pay a $100,000 fine and

$123,192.74 in restitution. For the following reasons, we affirm in part the

decision of the trial court, reverse in part, and remand for further proceedings

consistent with this opinion.

{¶ 2} Burns was the chief operating officer at the Cleveland Municipal

School District (“CMSD”). Burns placed orders for three Ryobi duplicator

machines from his co-defendant, John Briggle’s (“Briggle”) company. In order to

initiate the purchase, Burns created and processed a resolution to purchase. This

resolution was circulated per CMSD policy to various decision-making persons

within the organization. Once approved by all the necessary parties, the resolution

1 The original announcement of decision, State v. Burns, Cuyahoga App. No. 95465,

, released June 23, 2011, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see, also, S.Ct.Prac.R. II, Section 2(A)(1). was returned to Burns so a purchase order could be prepared and sent to Briggle’s

company, Superior Offset Supplies, Inc. (“SOS”). This was done three times for

the purchase of six duplicator machines total, two at a time. CMSD issued a check

for $49,500 to SOS for each of the three invoices. Two checks for consulting

services were paid to SOS, one in the amount of $5,900. None of the duplicators or

consulting services were ever delivered.

{¶ 3} After each check was issued, Burns had his secretary pick it up. Burns

then hand-delivered the checks to Briggle. Briggle testified that he would cash the

checks and split the proceeds with Burns. All of those events occurred between

December 17, 2007 and about June 2008.

{¶ 4} In November 2008, a CMSD employee questioned the five

transactions. The unusual aspect of the transactions was the fact that the three

checks for the duplicators were each just under the $50,000 bid limit, which would

have required a more formal process, and the purchases of the duplicators were

accomplished in separate installments. The employee thought that most purchases

of this nature should occur at one time to get the best pricing on the individual

units. Last, the checks were hand-delivered, and the address of SOS was a

residential house in Toledo, Ohio, not a commercial address.

{¶ 5} Briggle testified that he and Burns had an arrangement to create quotes

and invoices for the duplicator machines without any intention to deliver them. The same arrangement was in place for the two checks for consulting services. Briggle

testified that they would split the proceeds. Burns would push through the

paperwork on CMSD’s end, and Briggle would create the purchase documents and

cash the checks. The state did not present direct evidence of a money trail from

Briggle to Burns.

{¶ 6} Briggle pleaded guilty to various charges and testified against Burns as

part of the plea deal. Burns was convicted by a jury of one count of engaging in a

pattern of corrupt activity in violation of R.C. 2923.32(A)(1), four counts of

tampering with records in violation of R.C. 2913.42(A), and one count of theft in

office in violation of R.C. 2921.41(A)(1). The trial court sentenced Burns to six

years of incarceration on the theft in office count, running all other sentences

concurrent, and imposed fines and restitution. Burns filed this timely appeal,

raising six assignments of error, which are as follow:

“I. The trial court violated Burns’ right to Due Process by failing to instruct the jury on the elements of theft, or the element of ‘deception,’ underlying the Theft in Office charge, and by not dismissing the Theft in Office count when the jury failed to find all the elements of theft, by deception or otherwise.”

“II. The trial court violated Burns’ right to due process by taking judicial notice of the ‘government record’ element of the tampering with records counts, and erred by denying his Crim.R. 29 motion for acquittal. In addition, the convictions were against the manifest weight of evidence.”

“III. The trial court abused its discretion when ordering restitution and imposing fines.” “IV. There was no proof of an ‘enterprise’ separate and apart from the alleged criminal activity, to support a conviction for engaging in a pattern of corrupt activity. The conviction, therefore, was unsupported by the evidence and against the manifest weight of evidence.”

“V. Because the tampering with records and theft in office counts must be reversed, the conviction for engaging in a pattern of corrupt activity must also be reversed.”

“VI. The defendant was prejudiced by his trial counsel’s deficient performance, and was thereby deprived of his 6th Amendment right to counsel.”

{¶ 7} We will address these assignments of error by combining any overlapping

arguments.

Jury Instructions

{¶ 8} Burns’s first assignment of error and the first part of the second assignment

of error challenge the propriety of the trial court’s jury instructions. Burns argues that the

trial court improperly instructed the jury on the elements of a theft in office charge by

omitting the specific elements of “theft” or “theft by deception.” The relevant portion of

his second assignment of error challenges the jury instruction relating to the trial court

taking judicial notice of the fact that CMSD is a governmental entity — a fact elevating

the tampering with records from a misdemeanor to a felony level offense. These

assignments of error are without merit.

{¶ 9} A defendant may not assign as error the giving or omitting any

instructions unless she objects before the jury retires and further objects by “stating specifically the matter objected to and the grounds of the objection.” Crim.R.

30(A). The record reflects that Burns never objected to the jury instructions at trial

and therefore has waived all but plain error on appeal. “Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of the court.” Crim.R. 52(B).

{¶ 10} Under Ohio law, the state must prove every element of the charged

offense beyond a reasonable doubt. Jury instructions that shift the state’s burden,

or relieve it altogether, violate a defendant’s due process rights. State v. Adams,

,

,

, ¶ 97. It has been long held

that “an erroneous jury instruction does not constitute a plain error or defect under

Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have

been otherwise. Additionally, the plain error rule is to be applied with utmost

caution and invoked only under exceptional circumstances, in order to prevent a

manifest miscarriage of justice.” (Internal citations and quotations omitted.) State

v. Cooperrider (1983),

,

. A trial court’s

failure to charge the jury on every specific element of the offense does not per se

constitute plain error. State v. Adams (1980),

,

. “The reviewing court must examine the record in order to determine whether

that failure may have resulted in a manifest miscarriage of justice.”

at

paragraph three of the syllabus. 1. Theft in office jury instruction

{¶ 11} In the current case, Burns was charged with theft in office, which is

defined as follows: “No public official or party official shall commit any theft

offense, as defined in division (K) of section 2913.01 of the Revised Code, when

either of the following applies: (1) The offender uses the offender’s office in aid

of committing the offense or permits or assents to its use in aid of committing the

offense; [or] (2) [t]he property or service involved is owned by this state, * * *.”

R.C. 2921.41(A). A theft in office charge relies on a predicate “theft offense,”

defined as any violation of several sections of the Revised Code, which include for

our purposes both R.C. 2913.02 (Theft and Fraud) and R.C. 2913.42 (Tampering

with Records). R.C. 2913.01(K).

{¶ 12} We first note that Burns’s conviction on the four counts of tampering

with evidence could have served as the predicate theft offense for the theft in office

charge. The state is not limited to proving a “theft” occurred. The state never

specified the predicate theft offense in the indictment, nor argued that the charges of

tampering with records served as such. Furthermore, the trial court’s jury

instruction stated that a “theft offense is [defined as] knowingly obtain[ing] or

exerting control over property or services with purpose to deprive the owner of

such property or services[,]” the first three elements of theft as defined in R.C. 2913.02(A). We will therefore address this assignment of error as argued by

Burns; that is, by assuming the predicate offense is theft.

{¶ 13} Burns argues the trial court’s instruction improperly omitted all the

elements of theft, which include the three elements contained in the court’s above

instruction in addition to one of the following: that the theft was committed without

or beyond the consent of the owner, or by deception, threat, or intimidation. R.C.

2913.02(A)(3)-(5).

{¶ 14} The state’s case established that Burns and Briggle received money

they were not entitled to by invoicing for equipment and services that were not

delivered to CMSD. Implicitly, Burns either received money that exceeded the

consent of CMSD, since the goods and services were never received and CMSD’s

consent was limited to paying for that which it received, or committed the theft by

deceiving CMSD into believing that equipment was actually purchased. Under

either characterization, the entire theft plan was set up to obtain something by

deception. Burns submitted Briggle’s false invoices, all of which were under the

bid limit, to CMSD in order to deceive CMSD into paying for equipment never

received and services never rendered. The omission of the specific instruction that

the jury needed to find deception for the theft in office charge did not deprive Burns

of a fair trial or result in a manifest miscarriage of justice in this case. The theft

was predicated upon deception, unlike situations where the thief merely surreptitiously takes something. The jury, finding Burns guilty of theft, inherently

found that Burns deceived CMSD. No other theory was advanced at trial for the

jury’s consideration. We therefore cannot conclude that the trial court’s omission

of the additional elements of theft in the jury instruction rises to the level of plain

error in this case. Burns’s first assignment of error is overruled.

2. Tampering with records jury instruction

{¶ 15} Burns next argues that if a trial court takes judicial notice of a fact in a

criminal case, the court must instruct that such action creates a rebuttable

presumption in favor of the fact established, compared to being irrefutably

established.

{¶ 16} Trial courts are permitted to take judicial notice of adjudicative facts.

Evid.R. 201(A). “A judicially noticed fact must be one not subject to reasonable

dispute in that it is either (1) generally known within the territorial jurisdiction of

the trial court or (2) capable of accurate and ready determination by resort to

sources whose accuracy cannot be reasonably be questioned.” Evid.R. 201(B).

Parties are entitled to be heard as to the propriety of taking judicial notice and the

tenor of the matter noticed upon timely request to an opportunity. Evid.R. 201(E).

In addition, in a criminal case, the court must instruct the jury that it may, but is

not required to, accept the fact judicially noticed. Evid.R. 201(G); State v. Baker

(Sept. 23, 1982), Montgomery App. No. 7753. The defendant may present evidence to the trier of fact that directly contradicts the judicially noticed fact.

The jury is entitled to resolve the issue in favor of either party, and the judge must

instruct accordingly.

{¶ 17} In this case, the trial court took judicial notice of the fact that CMSD is

a governmental entity. Tampering with records is elevated to a felony of the third

degree if the records belong to a governmental entity. R.C. 2913.42(B)(4). The

trial court did not instruct the jury on the rebuttable presumption created by taking

judicial notice.2 Burns, however, did not object to this omission and therefore has

waived all but plain error. Crim.R. 30(A).

{¶ 18} In this case, we agree with Burns. The trial court should have

instructed the jury on the rebuttable presumption created by taking judicial notice of

the fact that CMSD is a governmental entity. However, this minor omission would

not have altered the outcome of the trial in this case, and Burns does not argue

otherwise. The Ohio Revised Code consistently establishes that CMSD is a

governmental entity. For example, R.C. 9.23 defines “governmental entity” as a

political subdivision of the state. R.C. 2744.01(F) “declares public school districts

2 Contrary to Burns’s argument that the trial court, in instructing the jury, stated “it must be ‘governmental records’ that were tampered with in order to find Burns guilty of the felony charges, the court stated: ‘In this case it’s the school system. It’s the public school system.’” The line Burns attributes to the court actually came from the prosecutor during closing arguments. Although not dispositive of this assignment of error, our review of the record reveals that the trial court was silent as to the effect of the judicially noticed fact. to be political subdivisions, and R.C. 2744.01(C)(2)(c) states that the provision of a

system of public education is a governmental function.” Daniel v. Cleveland Mun.

School Dist., Cuyahoga App. No. 83541,

, ¶ 11, (finding that

CMSD is a political subdivision for the purposes of the political subdivision

immunity statute).

{¶ 19} Furthermore, the jury found Burns guilty of theft in office pursuant to

R.C. 2921.41, which requires a determination that either the property involved was

owned by a political subdivision or that Burns was a public official working for a

political subdivision. See R.C. 2921.41(A) and 2921.01(A). Under either, the

jury must have determined that CMSD is a political subdivision in order to find

Burns guilty of theft in office. Burns does not challenge the validity of the theft in

office conviction based on the failure of the state to prove that CMSD is a political

subdivision.

{¶ 20} Even if the jury was properly instructed on the judicial notice issue,

Ohio statutes and case law conclusively establish that CMSD is a governmental

entity and the jury already made the determination independent of the tampering

with governmental records jury charge. No manifest miscarriage of justice stems

from the trial court’s inadvertent omission.

{¶ 21} For the foregoing reasons, Burns’s first assignment of error and part of

his second assignment of error on the jury instructions are overruled. Sufficiency of the Evidence

{¶ 22} Burns’s second assignment of error in part challenges the weight of the

evidence supporting the tampering with records counts, and the fourth and fifth

assignments of error challenge the sufficiency of the evidence supporting the count

of engaging in a pattern of corrupt activity.

{¶ 23} Although Burns premised his fourth assignment of error and the

second part of his second assignment of error on a manifest weight of the evidence

standard, Burns essentially challenges the sufficiency of the evidence. Burns’s

theory is that the state failed to introduce any evidence that he tampered with the

specific invoices or that the “enterprise” engaged in activity separate from the

corrupt activity as required. Burns raised both arguments in a Crim.R. 29 motion

at the close of the state’s case. We therefore will review this part of his second

assignment of error under the sufficiency of the evidence standard. We find merit

to this portion of his second assignment of error, but find no merit to his fourth and

fifth assignments of error.

{¶ 24} In reviewing a claim of insufficient evidence, “‘the relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.’” State v. Leonard,

,

,

, ¶ 77, quoting State v. Jenks (1991),

,

, paragraph two of the syllabus. The weight to be given

the evidence and the credibility of the witnesses are primarily for the trier of fact.

State v. Tenace,

,

,

, ¶ 37.

1. Tampering with records

{¶ 25} Burns was convicted of tampering with evidence. The statute

prohibits one from knowingly defrauding or facilitating a fraud by tampering with a

record. R.C. 2913.42(A). Tampering is defined as falsifying, destroying,

removing, concealing, altering, defacing, or mutilating any writing, computer

software, data, or record.

An offender can also be convicted for tampering

with evidence by “uttering” a tampered record. R.C. 2913.42(A)(2). A person

“utters” if she issues, publishes, transfers, uses, delivers, displays, or circulates a

tampered record. R.C. 2913.01(H). If the writing, data, computer software, or

record is kept by or belongs to a governmental entity, the tampering with records

charge is elevated to a felony of the third degree. R.C. 2913.42(B)(4).

{¶ 26} In this case, the jury found Burns guilty of tampering with records; the

records being identified as four invoices from SOS. At trial, the evidence

established that Briggle created false invoices that were delivered to Burns, who in

turn delivered the false invoices to the appropriate parties at CMSD. There was a

separate count for tampering with the resolution authorizing a purchase order that

was dismissed prior to trial. Burns argues that Briggle testified to creating the invoices and therefore Burns did not himself tamper with the invoices. The

evidence would arguably satisfy an uttering charge pursuant to R.C. 2913.42(A)(2)

or even complicity pursuant to R.C. 2923.03. The state did not include an uttering

charge in the indictment or pursue complicity at trial. The indictment only listed the

elements of R.C. 2913.42(A)(1), tampering, and the trial court only instructed the

jury on the R.C. 2913.42(A)(1) elements.3 Thus, in order to sustain the conviction

on tampering with records in this case, the state needs to establish that Burns

falsified, destroyed, removed, concealed, altered, defaced, or mutilated each of the

four invoices.

{¶ 27} Briggle testified to creating the invoices based on the information

Burns provided in the resolutions. The state argues that since Burns created the

resolutions that led to the creation of the invoices, he therefore tampered with the

invoices. We find this argument without merit. The state could have charged

Burns with tampering with the resolutions by providing false information for the

3 A jury may be instructed on complicity when the defendant is charged for the principal offense. State v. Herring,

,

,

. Any due process concerns are satisfied because “R.C. 2923.03(F) adequately notifies defendants that the jury may be instructed on complicity, even when the charge is drawn in terms of the principal offense.”

Under this rationale, we acknowledge that an indictment and bill of particulars need not specifically include a complicity charge. See State v. White, Summit App. Nos. 23955 and 23959,

. In this case, however, the state did not advance the theory of complicity to commit tampering with records at trial, much less instruct the jury on such. Absent any arguments to the contrary, we must limit our consideration of this assignment of error to the principal offense of tampering with records. purpose to defraud CMSD. Burns, however, did not create the invoices. At best,

he aided and abetted or conspired with Briggle in that undertaking. See R.C.

2923.03.

{¶ 28} It can also be argued that Burns tampered with the records if we

expand our consideration of the record to include more than just the single

document. However, the indictment specifically refers to “invoices.” The

tampering with record statute relied on by the state requires proof beyond a

reasonable doubt that Burns falsified, destroyed, removed, concealed, altered,

defaced, or mutilated the four invoices listed in the indictment. R.C.

2913.42(A)(1). Even when reviewing the evidence in a light most favorable to the

prosecution, we find that no evidence established that Burns tampered with the

invoices himself. Briggle testified that he created the invoices and that Burns would

deliver them. This part of Burns’s second assignment of error is sustained. We are

compelled by the plain meaning of R.C. 2913.42(A)(1) to reverse Burns’s

conviction and vacate his sentence on the four counts of tampering with evidence.

2. Engaging in a pattern of corrupt activity

{¶ 29} In Burns’s fourth assignment of error, he argues that the state failed to

establish the “enterprise” element of the count of engaging in a pattern of corrupt

activity because an enterprise must be separate from the pattern of corrupt activity.

In other words, Burns argues that the state failed to establish the “distinctness element” of the pattern of corrupt activity charge. We find this argument without

merit.

{¶ 30} The jury found Burns guilty of engaging in a pattern of corrupt

activity. The relevant statute states in pertinent part: “No person employed by, or

associated with, any enterprise shall conduct or participate in, directly or indirectly,

the affairs of the enterprise through a pattern of corrupt activity or the collection of

an unlawful debt.” R.C. 2923.32(A)(1). “Pattern of corrupt activity” is further

defined as “two or more incidents of corrupt activity, whether or not there has been

a prior conviction, that are related to the affairs of the same enterprise, are not

isolated, and are not so closely related to each other and connected in time and place

that they constitute a single event.” R.C. 2923.31(E). Finally, R.C. 2923.31(C)

defines an enterprise to include “any individual, sole proprietorship, partnership,

limited partnership, corporation, trust, union, government agency, or other legal

entity, or any organization, association, or group of persons associated in fact

although not a legal entity. ‘Enterprise’ includes illicit as well as licit enterprises.”

{¶ 31} Burns relies on this court’s decision in Herakovic v. Catholic Diocese

of Cleveland, Cuyahoga App. No. 85467,

, for the proposition that

to prove an association-in-fact enterprise, the state must establish the enterprise’s

separate existence, or distinctness, from the corrupt activity. Such reliance is

misplaced. “Enterprise” is also defined as a corporation, sole proprietorship, or other legal entity. In Herakovic, the issue was whether an association in fact

existed. The court specifically noted that another appellate court employed a

broader definition of “enterprise” when that court relied on the fact that a defendant

received drugs through the drug trade from another country as the evidence that an

enterprise existed. The Herakovic court noted that in that other case, the defendant

also “used his business, a bar, as the location for partaking in the drug transactions.

Enterprise is defined in R.C. 2923.71(C) as including a ‘sole proprietorship.’ This

fact establishe[d] the distinctness element from the corrupt activity element and

would be a more appropriate basis for finding the existence of an enterprise.” Id.

at ¶ 30.

{¶ 32} In this case, SOS was the enterprise. SOS lawfully engaged in

business activity outside the activities associated with the pattern of corrupt activity.

The state did not attempt to prove an association-in-fact enterprise, and we find the

statement from Herakovic persuasive. The fact that SOS is a legal entity pursuing

other lawful activities establishes the distinctness element separate and apart from

the corrupt activity. Therefore, there was sufficient evidence establishing an

enterprise, and Burns’s fourth assignment of error is overruled. 3. The predicate offenses for engaging in a pattern of corrupt activity

{¶ 33} In his fifth assignment of error, Burns argues that because the two

predicate offenses, tampering with records and theft in office, must be reversed, it

must follow that the conviction for the engaging in a pattern of corrupt activity also

must be reversed. We note that we have already overruled Burns’s first assignment

of error pertaining to the theft in office count. We will address this assignment of

error only as it relates to the counts of tampering with records. Burns’s fifth

assignment of error is without merit.

{¶ 34} The jury found Burns guilty of engaging in a pattern of corrupt activity

in violation of R.C. 2923.32, as we defined in detail in the preceding section. In

addition, the statute provides that an offender must commit “two or more incidents

of corrupt activity, whether or not there has been a prior conviction.” R.C.

2923.31(E). In State v. Lightner, Hardin App. No. 6-08-15,

, the

court held that “[a]lthough the predicate acts in R.C. 2923.31 need not be supported

by convictions, their occurrence must at least be proven beyond a reasonable doubt.

In addition, the state must set forth the requisite predicate acts in the indictment

that it intends on using as the foundation for a R.C. 2923.32 offense. State v. Muniz,

Cuyahoga App. No. 93825,

, ¶ 19. Corrupt activity is broadly

defined as “engaging in, attempting to engage in, conspiring to engage in, or

soliciting, coercing, or intimidating another person to engage * * *” in any number of enumerated offenses, including theft and tampering with government records.

(Emphasis added.) R.C. 2923.31(I)(2)(c).

{¶ 35} In other words, the state need not obtain a conviction for the predicate

offenses in order obtain a conviction for engaging in a pattern of corrupt activity.

It is sufficient to prove beyond a reasonable doubt the elements of the predicate

offense. More important, the state need not prove that Burns actually engaged in

the predicate offenses. Burns’s guilt can be based on conspiring to engage in the

predicate offenses, as specifically noted in the indictment and jury instructions.

R.C. 2923.31(I)(2)(c). 4 Our disposition of the tampering with records counts

therefore does not compel us to reverse the conviction of engaging in corrupt

activity. There is sufficient evidence based on Briggle’s testimony that he created

the invoices from the information provided by Burns and Burns’s action in

delivering the false invoices to CMSD to prove beyond a reasonable doubt that

Burns conspired to tamper with records. Burns’s fifth assignment of error is

overruled.

4 Burns argues in his supplement to his motion for reconsideration, that R.C. 2923.31(I)(2)(c) and 2923.01 conflict because R.C. 2923.01 does not criminalize conspiracy to tamper with records. R.C. 2923.31(I)(2)(c) criminalizes conspiracy to tamper with records by including such as an activity that can constitute a pattern of corrupt activity. We see no conflict. The legislature created two distinct crimes in conspiracy and engaging in a pattern of corrupt activities. Each has its own elements and, therefore, cannot be said to conflict. Restitution and Fines

{¶ 36} Burns third assignment of error challenges the trial court’s decision to

impose fines and restitution without determining his ability to pay and without

holding a hearing to establish the amount of restitution.

{¶ 37} We review the trial court’s imposition of fines and restitution under the

abuse of discretion standard. The term abuse of discretion means “an

unreasonable, arbitrary, or unconscionable action.” State ex rel. Doe v. Smith,

,

,

. It is “a discretion exercised

to an end or purpose not justified by, and clearly against reason and evidence. The

term has been defined as a view or action that no conscientious judge, acting

intelligently, could honestly have taken.” (Citations and quotations omitted.)

State v. Hancock,

,

,

.

{¶ 38} At the sentencing hearing, the trial court imposed restitution in the

amount of $23,192.74 for the cost of the state audit and $100,000 for the insurance

deductible paid by CMSD. The trial court also imposed a $100,000 fine. Before

addressing the merits of the assignment of error, we first note that the original

sentencing entry dated July 14, 2010, incorrectly memorialized the trial court’s

announced decision. The original sentencing entry stated the restitution totaled

$223,192.74, rather than the $123,192.74 announced. Thus, the nunc pro tunc

entry entered on July 29, 2010, was the proper remedy to correct the clerical mistake regarding the restitution. State v. Miller,

,

,

.

{¶ 39} Courts may order restitution to compensate the victims under certain

conditions. R.C. 2929.18(A)(1). If the court imposes restitution at sentencing, it

must do so in open court at that time and also hold a hearing on restitution if the

offender disputes the amount.

In the current case, the trial court imposed

restitution at the sentencing hearing. Burns disputed the amount of restitution prior

to sentencing. Rather than holding a hearing, the court imposed restitution subject

to the state providing the necessary foundation. The trial court specifically noted

that Burns could challenge the amount after the state filed the evidentiary support,

but it nonetheless entered the sentencing entry as a “provisional” order dated July

14, 2010, with the total amount of restitution included. The trial court ratified the

“provisional” order on July 30, 2010, after the state filed the required support. In

the later order, the trial court stated the restitution would be “final in ten days from

the date of this order unless defendant requests a hearing within that time.”

{¶ 40} However, Burns filed the within appeal on July 27, 2010, divesting the

trial court of jurisdiction to resolve the restitution issue. The July 14, 2010 order

contained all the required elements to constitute a final appealable order. Most

important for this discussion, it contained a definite amount of restitution. See

State v. Brewer, Cuyahoga App. No. 94144,

. There is no statutory authority allowing the court to exercise continuing jurisdiction to modify

the amount of restitution after sentencing. Id. at ¶15. We find the trial court erred

by imposing restitution without conducting a hearing to ascertain the amount of loss

suffered by the victim.

{¶ 41} We now turn to the imposition-of-fines issue. Courts may impose

fines upon the offender provided that the court considers the offender’s present and

future ability to pay the amount of restitution. R.C. 2929.19(B)(6). The failure to

object to the amount of the fine at a time when the trial court could correct that

error constitutes a waiver of all but plain error. State v. Baker, Cuyahoga App. No.

93574,

, ¶ 11. “In other words, when a defendant does not object

at the sentencing hearing to the amount of the fine and does not request an

opportunity to demonstrate to the court that he does not have the resources to pay

the fine, he waives any objection to the fine on appeal.”

{¶ 42} This court has previously held that “[p]rior to imposing restitution, a

trial court shall consider the offender’s present and future ability to pay the amount

of the sanction or fine. R.C. 2929.19(B)(6). There must be some evidence in the

record the trial court considered defendant’s present and future ability to pay the

sanction. While a court is neither required to hold a hearing to make this

determination nor indicate in its judgment entry that it considered a criminal

defendant’s ability to pay, there must be some evidence in the record to show that the court did consider this question.” (Internal citations and quotations omitted.)

State v. Cosme, Cuyahoga App. No. 90075,

.

{¶ 43} Burns did not object to the amount of the fine. His only objection was

to the amount of restitution. We agree with the state that there was ample evidence

from the sentencing hearing and the trial itself to establish Burns’s ability to pay the

fine. Burns made over $300,000 a year from working for CMSD and his pension,

and owned a home and multiple cars. Furthermore one of Burns’s defenses at trial

was that he made enough money and carried little debt so there was no reason to

steal. The trial court may rely on trial testimony in considering the defendant’s

ability to pay fines.

The trial court, however, did not indicate at the

sentencing hearing whether it considered Burns’s present or future ability to pay the

fine.

{¶ 44} For the foregoing reasons, Burns’s third assignment of error is

sustained. We remand the case for the limited purpose of holding a hearing on the

amount restitution and to resolve whether the court considered Burns’s present and

future ability to pay the financial sanctions. Ineffective Assistance of Counsel

{¶ 45} Burns’s sixth assignment of error raises an ineffective assistance of

counsel, claiming his trial counsel did not object to the improper jury instruction on

the theft in office charge and by not objecting to the imposition of restitution and

fines. Our disposition of Burns’s third assignment of error renders the latter

argument moot.

{¶ 46} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show that (1) counsel’s performance was deficient and (2) the

deficient performance prejudiced the defendant so as to deprive him of a fair trial.

State v. Trimble,

,

,

, citing

Strickland v. Washington (1984),

,

,

. Judicial scrutiny of defense counsel’s performance must be highly

deferential. Strickland,

. In Ohio, there is a presumption that a

properly licensed attorney is competent. State v. Calhoun,

,

,

. The defendant has the burden of proving his

counsel rendered ineffective assistance. State v. Perez,

,

,

.

{¶ 47} As we previously stated, the state’s entire case established that Burns

and Briggle received money that they were not entitled to receive by setting up the

purchase of equipment and services that were not delivered to CMSD. Implicit in that fact pattern is that either Burns received money that exceeded the consent of

CMSD or Burns committed the theft by deceiving CMSD into believing that

equipment was actually purchased. Most important, the jury found Burns guilty of

tampering with records, which includes an element that Burns knowingly defrauded

CMSD by deception. Both offenses were based on the same pattern of behavior.

Since the jury found that Burns deceived CMSD for the purposes of the tampering

with records charges, the trial court’s failure to specifically state that the jury

needed to find deception for the theft in office charge did not deprive Burns of a

fair trial. Burns’s sixth assignment of error is overruled.

Conclusion

{¶ 48} For the foregoing reasons, Burns’s second assignment of error is

sustained in part and his third assignment of error is sustained. All others are

overruled.

{¶ 49} We affirm the decision of the trial court in part, reverse in part, and

remand for further proceeding consistent with this opinion.

It is ordered that appellant and appellee share the 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.

SEAN C. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR