[Cite as State v. Stechschulte,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2013-L-027 - vs - :

AMANDA K. STECHSCHULTE, :

Defendant-Appellee, :

(KELLY J. GODWIN, :

Appellant). :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10CR000250.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Mark A. Ziccarelli, Ziccarelli & Martello, 8754 Mentor Avenue, Mentor, OH 44060 (For Defendant-Appellee).

Paul R. Malchesky, Cannon, Aveni & Malchesky Co., L.P.A., 41 East Erie Street, Painesville, OH 44077 (For Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} Appellant, Kelly J. Godwin (“Godwin”), the victim in this matter, appeals

from the February 12, 2013 judgment of the Lake County Court of Common Pleas, denying her motion to modify restitution sanctions. For the reasons that follow, we

affirm.

{¶2} This case stems from a head-on collision involving the vehicles of

defendant-appellee, Amanda K. Stechschulte (“Stechschulte”) and Godwin. As a result

of the collision, Godwin was life-flighted to the hospital. She sustained serious injuries

and incurred numerous medical expenses. Godwin received compensation from her

insurance company for her injuries.

{¶3} After an investigation, on April 28, 2010, Stechschulte was secretly

indicted by the Lake County Grand Jury on three counts: count one, aggravated

vehicular assault, a felony of the third degree, in violation of R.C. 2903.08(A)(1)(a);

count two, vehicular assault, a felony of the fourth degree, in violation of R.C.

2903.08(A)(2)(b); and count three, operating a vehicle under the influence of alcohol, a

drug of abuse, or a combination of them, a misdemeanor of the first degree, in violation

of R.C. 4511.19(A)(1)(a). The following day, Stechschulte filed a waiver of her right to

be present at the arraignment and the trial court entered a not guilty plea on her behalf.

{¶4} The matter was subsequently set for a jury trial. However, on September

23, 2010, Stechschulte waived her right to have her case tried by a jury. Thus, a bench

trial was held on October 1, 2010. The court found Stechschulte guilty as charged on

count two, vehicular assault. However, the court found her not guilty on counts one and

three. The matter was referred to the Adult Probation Department for a pre-sentence

investigation and report, and a victim impact statement. Sentencing was deferred.

{¶5} Later that month, on October 29, 2010, the trial court sentenced

Stechschulte to two years of community control; 90 days in jail; ordered her to perform

2 200 hours of community service; suspended her driver’s license for two years; and

informed her regarding post-release control. With respect to restitution, the court

ordered Stechschulte to pay $13,899.08 to Godwin.1 The amount represented financial

economic losses and medical expenses submitted by Godwin prior to the sentencing

hearing.

{¶6} Thereafter, instead of requesting the prosecutor to file a motion to modify

the payment terms, Godwin herself filed a motion to modify restitution sanctions on July

29, 2011. She requested that the court modify its October 29, 2010 sentencing entry

and order Stechschulte to pay additional restitution in the amount of $34,126.07, for

additional medical bills incurred since that judgment. On August 5, 2011, plaintiff-

appellee, state of Ohio, filed a response to Godwin’s motion to modify restitution

sanctions. Ten days later, Stechschulte filed a response, disputing the amount of the

additional restitution.

{¶7} On June 14, 2012, Godwin filed a supplement to her motion to modify

restitution sanctions, requesting that the court modify its October 29, 2010 sentencing

entry and order Stechschulte to pay additional restitution in the total amount of

$51,531.71, instead of the prior request of $34,126.07. Godwin attached to her motion

copies of outstanding medical bills not paid by her insurance. The trial court held a

hearing the following day, but did not rule on Godwin’s motion at that time. Eight

months later, on February 12, 2013, the trial court denied Godwin’s motion, holding now

that it had no authority to modify the amount of restitution that was ordered at the time

1. As Stechschulte paid restitution in full, the trial court released her from community control sanctions and supervision on October 29, 2012 and ordered that she be restored to the civil rights of citizenship previously removed under R.C. 2961.01.

3 of sentencing. Godwin filed a timely appeal and asserts the following assignment of

error for our review:

{¶8} “The trial court erred as a matter of law to Appellant’s prejudice in denying

restitution in this matter.”

{¶9} In her sole assignment of error, Godwin alleges that the trial court’s

sentencing entry left an undetermined final dollar amount to be paid in restitution. As

such, Godwin maintains that the sentencing entry was not final and appealable, unlike

the denial of her motion to modify restitution sanctions. She asserts that the case

should be reversed and remanded for further determination regarding final restitution.

For the following reasons, we disagree.

{¶10} The main arguments presented by Godwin center around the trial court’s

handling of restitution and whether the sentencing entry constituted a final appealable

order.

{¶11} Regarding restitution, appellate courts review such orders for abuse of

discretion. State v. Silbaugh, 11th Dist. Portage No. 2008-P-0059,

. With respect to this standard, we recall the term “abuse of discretion” is one of art,

connoting judgment exercised by a court which neither comports with reason, nor the

record. State v. Ferranto,

(1925). An abuse of discretion

may be found when the trial court “applies the wrong legal standard, misapplies the

correct legal standard, or relies on clearly erroneous findings of fact.” Thomas v.

Cleveland,

,

(8th Dist. 2008).

{¶12} Regarding final appealable orders, “[i]t is well-settled that civil and criminal

proceedings require a final appealable order before there can be a basis for an appeal;

4 ‘i.e., an order which amounts to a disposition of the cause and which affects a

substantial right in an action which in effect determines the action and prevents a

judgment.’ (Citations omitted.) State v. Shinkle (1986),

, 55 * * *. In

a criminal case, ‘a final judgment or order amounting to a disposition of the cause

usually means the imposition of a sentence.’ Shinkle at 55, citing State v. Eberhardt

(1978),

* * * and State v. Janney (1977),

* * *.”

State v. Pasqualone,

(11th Dist. 2000). (Parallel citations

omitted.)

{¶13} We stress that restitution must be determined at sentencing in order to

constitute a final order. See In re Zakov,

(11th Dist. 1995)

(holding than an entry which does not include the amount of restitution is not a final

order.) In this case, the judgment and sentence imposed upon Stechschulte on October

29, 2010, ordered her, inter alia, to pay $13,899.08 to Godwin in restitution. Thus, the

court’s entry ordered a specific amount of restitution, which Stechschulte paid in full.

{¶14} At the sentencing hearing, however, the court confused the restitution

issue by stating that it was ordering restitution “at this time” in the amount of

$13,899.08, thereby alluding to the fact that it was not a final amount. The court made a

similar pronouncement with respect to restitution in its sentencing entry. Nevertheless,

based on the facts presented, we determine the October 29, 2010 sentencing entry

constituted a disposition of the cause amounting to a final appealable order.

.

{¶15} We note that no objection was made regarding restitution. In fact,

Stechschulte paid the amount in full. Also, no appeal was taken from the sentencing

5 entry. Rather, Godwin, a third party to this action, later filed the instant appeal with this

court after the trial court denied her motion to modify restitution sanctions.

{¶16} However, we stress that a third party does not have standing to move the

court in a criminal case with respect to restitution. See, e.g., State v. Schmidt,

,

; State v. Moore, 4th Dist. Highland No. 03CA18, 2004-

Ohio-3977, ¶10 (holding that under R.C. 2929.18(A), “‘the victim or survivor may

request that the prosecutor in the case file a motion, or the offender may file a motion,

for modification of the payment terms of any restitution ordered.’ However, the limited

power the statute confers upon the court * * * to modify its restitution orders does not

provide for such modification upon the request of third parties.”)

{¶17} “[T]he rights granted to a victim by both the Ohio Constitution and statute

require that a victim be kept informed by being given notice, information, and a

‘meaningful role’ in the criminal justice system. However, this meaningful role does not

make a victim a party to a criminal action. See State v. Williams, 7th Dist. No. 09 MA

11,

(holding that a victim is not a party in a criminal prosecution) and

State v. McMannis, 10th Dist. No. 01AP-413,

. Additionally, the Ohio

State Constitution specifically provides that all prosecutions shall be conducted by and

in the name of the State of Ohio. Ohio Constitution, Article IV, Section 20. Thus, the

appropriate parties in a criminal proceeding are the State and the defendant. Victims

are not parties.

. ‘It is not the victim’s interests that are being

represented in a criminal case, but rather those of the people of the State of Ohio.’ Id.

at ¶31. * * * This is further supported by the Rules of Criminal Procedure which defines

the ‘State’ as ‘state, a county, city, village, township, other political subdivision, or any

6 other entity of this state that may prosecute a criminal action.’ Crim.R. 2(H). This

definition does not identify a victim as one who may prosecute a claim.” State v.

Godfrey, 3d Dist. Wyandot Nos. 16-12-06 and 16-12-07,

.

{¶18} Godwin, as the victim, was not a party to this case. Thus, Godwin did not

have standing to file the motion to modify and the court properly determined that it did

not have jurisdiction to modify the amount of restitution on February 12, 2013.

{¶19} A trial court derives its authority to order restitution from R.C. 2929.18

which authorizes restitution as a financial community control sanction. Specifically, R.C.

2929.18(A)(1) states:

{¶20} “(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. If the court

imposes restitution, the court shall order that the restitution be made to the victim in

open court, to the adult probation department that serves the county on behalf of the

victim, to the clerk of courts, or to another agency designated by the court. If the court

imposes restitution, at sentencing, the court shall determine the amount of restitution to

be made by the offender. If the court imposes restitution, 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, provided that the amount the court orders as

restitution shall not exceed the amount of the economic loss suffered by the victim as a

direct and proximate result of the commission of the offense. If the court decides to

impose restitution, the court shall hold a hearing on restitution if the offender, victim, or

survivor disputes the amount. All restitution payments shall be credited against any

7 recovery of economic loss in a civil action brought by the victim or any survivor of the

victim against the offender.

{¶21} “If the court imposes restitution, the court may order that the offender pay

a surcharge of not more than five per cent of the amount of the restitution otherwise

ordered to the entity responsible for collecting and processing restitution payments.

{¶22} “The victim or survivor may request that the prosecutor in the case file a

motion, or the offender may file a motion, for modification of the payment terms of any

restitution ordered. If the court grants the motion, it may modify the payment terms as it

determines appropriate.”

{¶23} Thus, R.C. 2929.18(A)(1) clearly provides that restitution must be

determined at sentencing and a victim may request that the prosecutor file a motion for

modification of only “the payment terms” of the restitution already ordered. As stated,

Godwin herself filed a motion to modify restitution sanctions which is not permitted

under the terms of the statute. The trial court initially and improperly indicated it had

authority to modify the amount of restitution at a future date. However, after the filing of

the sentencing entry and Stechschulte’s completion of community control sanctions and

her payment of restitution in full, the court later correctly ruled that it had no jurisdiction

to modify the amount of restitution based on Godwin’s newly submitted figures. See

State v. Purnell,

,

(1st Dist. 2006) and

State v. Corbitt, 5th Dist. Richland No. 2011-CA-107,

(holding that

trial courts have no subject matter jurisdiction to modify a valid final order of restitution.)

{¶24} Upon consideration, this court finds no merit to Godwin’s assertions on

appeal. Thus, contrary to Godwin’s position, a remand is not appropriate in this case.

8 {¶25} For the foregoing reasons, appellant’s sole assignment of error is not well-

taken. The judgment of the Lake County Court of Common Pleas is affirmed. It is

ordered that appellant is assessed costs herein taxed.

DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

9