[Cite as State v. Burgess,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2012 CA 00119 FRANCESCA BURGESS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2012 CR 00064

JUDGMENT: Dismissed and Remanded

DATE OF JUDGMENT ENTRY: January 28, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO JEFFRY V. SERRA PROSECUTING ATTORNEY THE FERRUCCIO LAW FIRM KATHLEEN TATARSKY 220 Market Avenue South ASSISTANT PROSECUTOR 400 Huntington Plaza 110 Central Plaza South, Suite 510 Canton, Ohio 44702 Canton, Ohio 44702 Stark County, Case No. 2012 CA 00119 2

Wise, J.

{¶1} Appellant Francesca Burgess appeals from her conviction and sentence,

in the Court of Common Pleas, Stark County, for theft and evidence tampering. The

relevant facts leading to this appeal are as follows.

{¶2} Appellant was formerly a manager and bookkeeper for Stark Mold and

Pattern, Inc., a small manufacturer in Canton, Ohio. In October 2010, the company

president, Paul Dougherty, became aware of discrepancies in the company’s

accounting. After further investigation by law enforcement officials, appellant was

indicted by the Stark County Grand Jury on criminal charges stemming from her theft of

company funds as a continuing course of conduct between May 2003 and October

2010.

{¶3} On March 2, 2012, appellant pled no contest to one count of grand theft

(R.C. 2913.02(A)(1) and/or (A)(2) and/or (A)(3)), a felony of the fourth degree, and one

count of tampering with records (R.C. 2913.42(A)(1)(B)(3)(c)), also a felony of the fourth

degree. Thereafter, the trial court found appellant guilty of both offenses. See Judgment

Entry, March 13, 2012.

{¶4} On April 4, 2012, appellant returned to court for sentencing. On April 12,

2012, the trial court sentenced her to four days in jail, with three years of community

control. One of the conditions of community control was restitution in an amount to be

determined, with the provision that appellant “shall receive credit for $9,400 already paid

to [the] victim.” Sentencing Entry, April 12, 2012, at 6. A restitution hearing was therein

ordered for May 16, 2012.

Stark County, Case No. 2012 CA 00119 3

{¶5} The court thereafter duly held a hearing to determine the amount of

restitution to be paid by appellant. On May 24, 2012, the trial court issued a judgment

entry addressing restitution as follows:

{¶6} “This matter comes before the Court for a determination of restitution.

After hearing the evidence in the within matter, the Court orders restitution in the

amount of Seventy-two Thousand Five Hundred Thirty-five and no/100 Dollars

($72,535.00). From this the Court would deduct any amounts that have been pre-paid

by the defendant as part of the criminal case. The Court, therefore, orders that

restitution will be set at Seventy-two Thousand Five Hundred Thirty-five and no/100

Dollars ($72,535.00) minus any amount that has been re-paid during the pendency of

the Court matter.”

{¶7} Judgment Entry, May 24, 2012.

{¶8} On June 21, 2012, appellant filed a notice of appeal of the order of

restitution of May 24, 2012. She herein raises the following two Assignments of Error:

{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE

APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF ‘$72,535.00 MINUS ANY

AMOUNT THAT HAS BEEN RE-PAID [SIC] DURING THE PENDENCY OF THE

COURT MATTER’ AS SET FORTH IN THE TRIAL COURT'S JUDGMENT ENTRY

DATED MAY 24, 2012.

{¶10} “II. THE TRIAL COURT ERRED BY FAILING TO ESTABLISH THE

AMOUNT OF RESTITUTION TO A DEGREE OF CERTAINTY, WHICH REFLECTS A

REASONABLE RELATIONSHIP TO THE ACTUAL LOSS SUFFERED.” Stark County, Case No. 2012 CA 00119 4

I., II.

{¶11} In her two Assignments of Error, appellant contends the trial court erred or

abused its discretion in ordering appellant to pay certain restitution.

{¶12} As an initial matter, as suggested in the State’s response brief, we

address the issue of whether the judgment entry of restitution of May 24, 2012

constitutes a final appealable order.

{¶13} The Ohio Supreme Court has recognized that “the determination of

restitution entails a substantive legal decision or judgment and is not merely a

mechanical part of a judgment.” State v. Miller,

,

,

. Certainly, as the Ohio Supreme Court held at the syllabus in

State v. Danison,

,

,

, “[a]n order of

restitution imposed by the sentencing court on an offender for a felony is part of the

sentence and, as such, is a final and appealable order.” We note, however, that

Danison involved a single sentencing entry imposing community control sanctions and

setting an amount certain for restitution, rather than an initial sentencing entry with a

follow-up specific restitution order, as occurred in the case sub judice. In addition,

subsequent to Danison, the Ohio Supreme Court issued its ruling in State v. Baker

(2008), 119 Ohio St .3d 197, 201,

, 2008–Ohio–3330, which requires

that the plea (if applicable), means of conviction, and sentence all be set forth in one

judgment entry. Baker was subsequently modified and clarified in State v. Lester,

,

, 2011–Ohio–5204, wherein the Ohio Supreme Court

held, at paragraph one of the syllabus: “A judgment of conviction is a final order subject

to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the Stark County, Case No. 2012 CA 00119 5

sentence, (3) the judge's signature, and (4) the time stamp indicating the entry upon the

journal by the clerk.”

{¶14} A review of the present record patently reveals that the trial court’s one-

paragraph judgment entry of restitution filed May 24, 2012 does not include the

Baker/Lester criteria. In accordance with our recent decision in State v. Casteel,

Tuscarawas App.No. 11AP110043,

, we hereby hold that while it is not

improper for a trial court to render a supplemental restitution order after retaining

jurisdiction to do so at sentencing, such restitution order must comply with the

requirements of Baker and Lester in order to be recognized as a final appealable order.

See, also, State v. Howse, Lorain App.No. 11CA010009,

.

{¶15} Accordingly, we are compelled to dismiss the within appeal and remand

the matter to the trial court for the issuance of a final conviction, sentencing, and

restitution entry in compliance with Baker and Lester. We therefore will not presently

reach the merits of appellant’s two assigned errors.

{¶16} For the reasons stated in the foregoing, the appeal of the decision of the

Court of Common Pleas, Stark County, Ohio, is hereby dismissed, and the matter is

remanded for a final sentencing entry.

By: Wise, J. Delaney, P. J., and Gwin, J., concur.

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JUDGES JWW/d 0104 Stark County, Case No. 2012 CA 00119 6

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : FRANCESCA BURGESS : : Defendant-Appellant : Case No. 2012 CA 00119

For the reasons stated in our accompanying Memorandum-Opinion, the appeal

of the judgment of the Court of Common Pleas of Stark County, Ohio, is dismissed.

This matter is remanded for a final sentencing entry.

Costs assessed to appellant.

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JUDGES