[Cite as State v. Corbitt,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellant : Julie A. Edwards, J. : -vs- : Case No. 2011-CA-107 : : TODD A. CORBITT, II : OPINION

Defendant-Appellee

CHARACTER OF PROCEEDING: Criminal Appeal from Richland County Court of Common Pleas Case No. 2011-CR-122H

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: August 21, 2012

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JAMES J. MAYER, JR. TODD A. CORBITT, II Prosecuting Attorney 3389 S.R. 39 Richland County, Ohio Shelby, Ohio 44875

BY: JOHN C. NIEFT Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902 [Cite as State v. Corbitt,

.]

Edwards, J.

{¶1} Plaintiff-appellant, State of Ohio, appeals from the October 13, 2011,

Judgment Entry of the Richland County Court of Common Pleas. Defendant-appellee is

Todd Corbitt, II.

STATEMENT OF THE FACTS AND CASE

{¶2} On February 11, 2011, the Richland County Grand Jury indicted appellee

on one count of breaking and entering in violation of R.C. 2911.13(A), a felony of the

fifth degree, and one count of theft in violation of R.C. 2913.02(A)(1), a misdemeanor of

the first degree. At his arraignment on March 15, 2011, appellee entered a plea of not

guilty to the charges.

{¶3} On May 25, 2011, appellee withdrew his former not guilty plea and

pleaded guilty to the charge of breaking and entering. The remaining count was

dismissed. Pursuant to a Sentencing Entry filed on August 5, 2011, appellee was

sentenced to six (6) months in prison and ordered to pay restitution in the amount of

$3,083.03 to the victim. Appellee’s sentence was suspended and appellee was placed

on community control for a period of one and a half years.

{¶4} Thereafter, on August 19, 2011, appellee filed a motion, pursuant to R.C.

2929.18, to modify the amount of restitution. Appellee, in his motion, argued that the

current restitution order “is in excess of the victim’s economic lost…”

{¶5} A hearing on such motion was held on October 3, 2011. At the hearing,

the victim testified that his damages from the breaking and entering into the victim’s

barn totaled $3,083.02. Photographs of damage to the barn and a repair estimate were

admitted as exhibits. Appellee testified that, during the breaking and entering, he had Richland County App. Case No. 2011-CA-107 3

not done any damage to any door on the property, but admitted that he had damaged

siding on the barn. Appellee also testified that he had an accomplice, who was a minor,

who was familiar with the victim’s barn.

{¶6} The trial court, as memorialized in a Judgment Entry filed on October 13,

2011, upheld the award of restitution in the amount of $3,083.03. However, the trial

court, in its Judgment Entry, stated, in relevant part, as follows:

{¶7} “However, because Defendant testified that he was aided in committing

the crime by a juvenile accomplice, and because the court has concerns as to whether

the victims, James and John Schenk would actually use the money awarded to repair

the barn, the Court found that Defendant Corbitt should be responsible for one-half of

the restitution owing to the victms [sic]. The Court noted that under Ohio Law, the

victims may sue the parents of the alleged juvenile accomplice for any malicious or

initially tortuous [sic] act committed by their child.” The trial court ordered that appellee

pay $1,541.51 to the Clerk of Courts who was to disburse the same to the victim.

{¶8} Appellant now appeals from the trial court’s October 13, 2011, Judgment

Entry1, raising the following assignment of error on appeal:

{¶9} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DECREASED

THE ORIGINALLY ORDERED RESTITUTION AMOUNT.”

I

{¶10} Appellant, in its sole assignment of error, argues that the trial court abused

its discretion when it decreased the originally ordered restitution amount. We agree.

{¶11} In State v. Purnell,

,

, the defendant

entered a no contest plea and, as part of his sentence, was ordered to pay restitution to 1 Appellant was granted leave by this Court to appeal. Richland County App. Case No. 2011-CA-107 4

the victim in an amount not exceeding $7,500.00. Two months after sentencing, the trial

court conducted a second hearing on restitution and entered a new restitution order in

the amount of $38,232.74. The defendant then appealed, arguing that the trial court had

no jurisdiction to reconsider and increase the amount of restitution after sentencing.

{¶12} In reversing the judgment of the trial court, the court, in Purnell, stated, in

relevant part, as follows:

{¶13} “‘[A] sentence is the sanction or combination of sanctions imposed by the

sentencing court on an offender who pleads guilty to or is convicted of an offense. R.C.

2929.01(FF). The sentence imposed on an offender for a felony may include financial

sanctions, including restitution in an amount based on the victim's economic loss. R.C.

2929.18(A)(1).’ State v. Danison,

,

,

,

at ¶ 6; see, also, R.C. 2929.11(A). Because it is part of the sentence, an order of

restitution is a final order. See State v. Danison, at ¶ 8.

{¶14} “Restitution is a financial community-control sanction authorized by R.C.

2929.18(A)(1), which provides for “[r]estitution by the offender to the victim of the

offender's crime or any survivor of the victim, in an amount based on the victim's

economic loss.” The statute identifies the manner in which the trial court may award

restitution. When, as here, the amount of restitution is disputed, the trial court shall hold

a hearing. But ‘[i]f the court imposes restitution, at sentencing, the court shall determine

the amount of restitution to be made by the offender.’ (Emphasis added.)

{¶15} “Therefore, the plain language of R.C. 2929.18(A)(1) establishes that if the

trial court orders restitution at sentencing, it must determine the amount of restitution at

that time. There is no statutory authority for the trial court to exercise continuing Richland County App. Case No. 2011-CA-107 5

jurisdiction to modify the amount of a financial sanction. It can, however, modify the

“payment terms of any restitution,”

or enter a less restrictive sanction, see R.C.

2929.15(C), or suspend the financial sanction as provided in R.C. 2929.18(G).2 The trial

court retains authority to impose a more restrictive financial sanction only if the

defendant violates the conditions of his community control. See R.C. 2929.15(B).

{¶16} “In matters of criminal sentencing, the trial court does not have inherent

power to act, but has only such power as is conferred by statute or rule. See State ex

rel. Mason v. Griffin,

,

,

, at ¶ 15;

see, also, State v. Moore, 4th Dist. No. 03CA18,

,

, at

¶10. Because the trial court in this case had no statutory authority to increase the

restitution amount after imposing sentence in October 2005, its January 2006 entry is a

legal nullity.

{¶17} “It is also well established that a court cannot reconsider a valid final

judgment in a criminal case. See State ex rel. Hansen v. Reed (1992),

,

, citing Brook Park v. Necak (1986),

, 30

OBR 218,

; see, also, State v. Meister (1991),

,

. Crim.R. 32(C) provides that a judgment becomes final when the trial

court reduces it to writing and the clerk enters it on the journal. See, also, State v.

Danison at ¶ 8. Although the trial court in this case was well intentioned and sought to

compensate the victim for his belatedly demonstrated economic loss, it had no power by

statute or rule to reconsider or to modify the amount of restitution after it journalized

Purnell's sentence on October 25, 2005. See State v. Meister,

,

2 R.C. 2929.18(G) allows a court to suspend a fine if an offender has completed all other sanctions to the court’s satisfaction including payment of restitution. Richland County App. Case No. 2011-CA-107 6

.” Id at paragraphs 7-11. See also State v. Sekic, 8th Dist. No. 95679,

at paragraph 47.

{¶18} We find, based on the foregoing, that the trial court had no jurisdiction to

modify the amount of restitution after it journalized appellee’s sentence.

{¶19} Moreover, assuming, arguendo, that the trial court had jurisdiction, we find

that the trial court abused its discretion in decreasing the amount of restitution that it

ordered appellee to pay. While the trial court, in its October 13, 2011, Judgment Entry

indicated that it was cutting the amount of restitution that it ordered appellee to pay in

half because appellee testified that he was aided and abetted in committing the crime

by a juvenile accomplice, no co-defendant has been charged in this matter. In addition,

even had there been a co-defendant, where co-defendants act in concert in committing

the same offense that causes economic harm to the victim, holding one of the

defendant's responsible for the full amount of restitution is permissible and consistent

with established principles of tort liability. See State v. Dawson, 2nd Dist No. 21768,

at paragraph 13.

{¶20} Finally, we concur with appellant that the trial court improperly considered

whether the victim would use the restitution to make repairs on the barn. R.C.

2929.18(A) states, in relevant part, as follows: “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 victim's economic loss….” As noted by appellant, such section

“does not concern itself with considerations of how the restitution will be used, but only Richland County App. Case No. 2011-CA-107 7

to the amount of economic loss suffered by the victim from the defendant’s criminal

acts.”

{¶21} Appellant’s sole assignment of error is, therefore, sustained.

{¶22} Accordingly, the judgment of the Richland County Court of Common Pleas

is reversed and this matter is remanded for further proceedings.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/d0605 [Cite as State v. Corbitt,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : TODD A. CORBITT, II : : Defendant-Appellee : CASE NO. 2011-CA-107

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is reversed and this matter is

remanded to the trial court for further proceedings. Costs assessed to defendant, Todd.

A. Corbitt, II.

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JUDGES