[Cite as State v. Presutto-Saghafi,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. Nos. 18CA011411 18CA011412 Appellee

v. APPEAL FROM JUDGMENT JALEH PRESUTTO-SAGHAFI and ENTERED IN THE PHILLIP PRESUTTO, JR. COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellants CASE Nos. 16CR093913 16CR093914

DECISION AND JOURNAL ENTRY

Dated: December 30, 2019

TEODOSIO, Presiding Judge.

{¶1} Appellants, Jaleh Presutto-Saghafi and Phillip Presutto Jr. (“the Presuttos”),

appeal from the judgment of the Lorain County Court of Common Pleas. This Court affirms.

I.

{¶2} The Amherst School District (“the District”) participates in a program to serve

students with special needs, whereby students spend half the day in school and half the day

receiving specialized services outside of school. The parents of these students pay third party

service providers out of pocket, submit invoices to the District, and, in turn, receive

reimbursement. The Presuttos have a child who was enrolled in the program from July of 2011

to June of 2014. Inconsistencies between the amounts paid by the Presuttos and the amounts

reimbursed by the District led to an investigation and, ultimately, criminal charges being filed

against the Presuttos. 2

{¶3} The Presuttos pled guilty to unauthorized use of property and forgery, and the trial

court ordered a pre-sentence investigation report (“PSI”). The court later held two restitution

hearings. At sentencing, the court sentenced the Presuttos to two years of community control

and ordered them to pay restitution in the amount of $36,002.75 to the District along with court

costs and supervision fees.

{¶4} The Presuttos now appeal from the trial court’s judgment, ordering them to pay

restitution in the amount of $36,002.75, and raise one assignment of error for this Court’s

review.

II.

ASSIGNMENT OF ERROR

THE STATE FAILED TO PROVE THE RESTITUTION FIGURE BY A PREPONDERANCE OF THE EVIDENCE.

{¶5} In their sole assignment of error, the Presuttos argue that the State failed to prove

the restitution amount by a preponderance of the evidence and, thus, the trial court erred and

abused its discretion in ordering a restitution amount that bore no reasonable relationship to the

actual losses suffered. We disagree.

{¶6} This Court has historically reviewed restitution orders under an abuse of

discretion standard. See, e.g., State v. Esterle, 9th Dist. Medina No. 06CA0003-M, 2007-Ohio-

1350, ¶ 5; State v. Myers, 9th Dist. Wayne No. 06CA0003,

. “The term

‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

(1983). When applying an abuse of discretion standard, a reviewing court is precluded

from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med.

Bd.,

(1993). 3

{¶7} In March of 2016, however, the Supreme Court of Ohio held that “an appellate

court may vacate or modify a felony sentence on appeal only if it determines by clear and

convincing evidence” that: (1) “the record does not support the trial court’s findings under

relevant statutes[,]” or (2) “the sentence is otherwise contrary to law.” State v. Marcum,

,

. Clear and convincing evidence is that “which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford,

(1954), paragraph three of the syllabus.

{¶8} The term “sentence” is defined as “the sanction or combination of sanctions

imposed by the sentencing court on an offender who is convicted of or pleads guilty to an

offense.” R.C. 2929.01(EE). A “sanction” is “any penalty imposed upon an offender who is

convicted of or pleads guilty to an offense, as punishment for the offense * * * includ[ing] any

sanction imposed pursuant to * * * [R.C.] 2929.18 * * *.” R.C. 2929.01(DD). R.C.

2929.18(A)(1) authorizes a sentencing court to order financial sanctions, including restitution, to

the victim. Thus, an order of restitution is “indisputably part of the sentence.” State v. Danison,

,

, ¶ 8.

{¶9} Since the Supreme Court’s decision in Marcum, many—but not all—Ohio

appellate courts have recognized a shift in the standard being used to review restitution orders on

appeal. While an abuse of discretion standard had generally been used in the past, restitution

orders were now being reviewed by most courts under the Marcum standard of review. See State

v. McNeil, 12th Dist. Warren No. CA2018-09-115,

; State v. Patton, 4th

Dist. Highland No. 18CA9,

, ¶ 21-23; State v. Anderson, 10th Dist. Franklin No.

18AP-103,

; State v. Brown, 2d Dist. Montgomery Nos. 26945, 26947,

26948, 27249, 27250, 27251, 27419, 27420, and 27421,

; State v. 4

Thornton, 1st Dist. Hamilton No. C-160501,

; but see State v. Sheets, 5th

Dist. Licking No. 17 CA 44,

(rejecting the Marcum standard of review

for restitution orders, and instead continuing to apply an abuse of discretion standard); State v.

Nitsche, 8th Dist. Cuyahoga No. 103174,

(continuing to apply an

abuse of discretion standard and stating Marcum is limited to “sentencing-term” challenges, but

noting the result under either standard would be the same).

{¶10} The Presuttos urge this Court to review the matter under an abuse of discretion

standard, while the State argues that the Marcum standard of review applies. Admittedly, this

Court has used both standards in its post-Marcum era of cases. See State v. Benko, 9th Dist.

Lorain Nos. 18CA011388 and 18CA011389,

(reviewing restitution under

an abuse of discretion standard); State v. Beverly, 9th Dist. Summit No. 28627,

(reviewing restitution under an abuse of discretion standard); State v. Bennett, 9th Dist.

Summit No. 28849,

(reviewing restitution under the Marcum standard);

State v. Stevens, 9th Dist. Medina Nos. 16CA0033-M and 16CA0034-M,

(reviewing restitution under an abuse of discretion standard); State v. Vertucci, 9th Dist. Summit

No. 28205,

(reviewing restitution under an abuse of discretion standard).

We agree with the State’s alternative argument that, under the facts of this particular case, the

trial court’s restitution order would be affirmed under either standard of review. See, e.g., State

v. Leyman, 9th Dist. Medina No. 14CA0037-M,

(noting the parties’

dispute over the applicable standard of review, but declining to address that issue as the outcome

would be the same under either standard); State v. Watson, 9th Dist. Summit No. 25915, 2012-

Ohio-1624, ¶ 19 (declining to resolve which standard of review to use because the result under

either standard would be the same). 5

{¶11} Restitution may be based on “an amount recommended by the victim, the

offender, a [PSI], estimates or receipts indicating the cost of repairing or replacing property, and

other information” as long as the amount does not exceed the economic loss suffered by the

victim as a result of the commission of the offense. R.C. 2929.18(A)(1). There must be

competent, credible evidence in the record from which the court may ascertain the amount of

restitution to a reasonable degree of certainty, and the amount ordered must bear a reasonable

relationship to the loss suffered by the victim. State v. Henderson, 9th Dist. Summit No. 26682,

.

{¶12} The trial court in this matter calculated its restitution amount based on the

evidence presented by both parties at the restitution hearings held on July 16, 2018, and July 23,

2018. The State presented testimony from both the District’s Director of Student Services

(“S.W.”) and Detective Zachary Horning of the Amherst Police Department. The State also

introduced many documents into evidence, including a spreadsheet created by Detective

Horning, which listed and organized amounts from various documents such as: individual

invoices submitted by the Presuttos; reimbursement checks paid by the District; bills from the

Cleveland Clinic, and; the Presuttos’ payments to the Cleveland Clinic and to third party tutors.

Voluminous documents corresponding to the individual amounts listed in the spreadsheet, as

well as the settlement agreement from the Presuttos’ first lawsuit against the District were also

introduced by the State. The Presuttos introduced into evidence a letter from their attorneys to

the District regarding settlement figures for part of 2011 and an attached settlement agreement

from the Presuttos’ second lawsuit filed against the District. They further introduced a statement

noting that the Presuttos paid a bill for $1,576.00, and two emails between Ms. Presutto-Saghafi

and a representative of KidLink Neurobehavioral Center. 6

{¶13} The trial court explained in open court and in great detail during sentencing how,

based on the evidence presented, it reached the restitution amount to be imposed. It began with

$73,000.00, which was the total amount paid or reimbursed by the District to the Presuttos from

2011 through 2014, and subtracted $11,348.00, which was a settlement amount from a civil

action the court found to be billed by the Presuttos’ attorneys and properly sent to, and accepted

by, the District. The court further subtracted $12,279.75, the total amount the court found as

being billed by the Cleveland Clinic, and $13,369.50, the amount the Presuttos paid to the tutors.

Based on these calculations, the court ordered restitution in the amount of $36,002.75.

{¶14} The Presuttos argue that the amount of restitution ordered by the court bore no

reasonable relationship to the actual loss suffered by the District and was not supported by the

evidence. They contend that the State simply “[threw] vague numbers against a wall [to] hope

they stick[,]” directing us to S.W.’s testimony in which she “agreed” she had “just thrown

numbers out there.” However, our review of the transcript reveals that defense counsel presented

S.W. with a somewhat compound question during cross-examination, to wit: “And you have

testified on direct, you’ve just thrown numbers out there. I think you - - again, [counsel for the

co-defendant] pointed out that those - - several of those amounts were already accounted for;

isn’t that fair to say? They were part of the settlement?” S.W.’s response to that multi-layered

and arguably unclear question was simply, “Correct.” Nevertheless, in light of the additional

testimony from Detective Horning as to the source of the amounts listed in his spreadsheet as

well as the receipts, bills, checks, and other documentary evidence introduced, we cannot agree

that S.W.’s response of “Correct” to defense counsel’s compound question established that the

numbers in the spreadsheet were either inaccurate or “just thrown * * * out there.” The record 7

instead contains competent, credible evidence establishing where the detective obtained the

amounts listed in his spreadsheet.

{¶15} The Presuttos further argue that Detective Horning only confirmed certain

payments which were made by check and were thus traceable through bank records, but he failed

to investigate additional payments that were supposedly made to some tutors in cash. They note

that the Detective’s spreadsheet includes blank areas where information was either unavailable or

unverifiable, which they argue indicates defects or deficiencies in the detective’s investigation,

not a failure on their part to make payments. As such, the Presuttos are not challenging the

reliability of the documentation actually contained in the record, but are instead claiming that

more records are in existence somewhere and were never discovered through the fault of the

State. Yet, the Presuttos never presented any of these speculative documents to the trial court to

set off additional amounts from the total amount of restitution owed. See Vertucci, 2017-Ohio-

2838, ¶ 29. Moreover, certain documents that the Presuttos did, in fact, submit to the District for

payment listed some tutors only by first name and last initial, had various dates and times listed,

and indicated “paid” at the bottom; yet, no signature or contact information for the tutors were

listed. With no way to contact these unknown individuals who were supposedly paid in cash,

Detective Horning testified that the police department put out a press release suggesting that

additional tutors may exist and asking them to come forward, yet no one responded. The

Presuttos pled guilty to unauthorized use of property and forgery in this matter, and we fail to see

how their decision to allegedly pay certain mysterious tutors in cash and not keep proper records

of those payments would create competent, credible evidence before the trial court that those

payments were, in fact, actually made. 8

{¶16} The record before us contains competent, credible evidence from which the trial

court could ascertain a restitution amount of $36,002.75 to a reasonable degree of certainty, and

the amount bears a reasonable relationship to the loss suffered by the victim. See Henderson at ¶

7. Contrary to the Presuttos’ argument that the District sought a “windfall” in this matter,

nothing in the record indicates that the amount of restitution exceeded the economic loss suffered

by the District. See R.C. 2929.18(A)(1). The Presuttos have not demonstrated how the trial

court’s judgment was unreasonable, arbitrary, or unconscionable. See

. They

have also not demonstrated by clear and convincing evidence that either the court’s findings are

not supported by the record or the restitution amount is otherwise contrary to law. See

. Thus, under either standard of review advanced by the parties, the Presuttos’ arguments

must fail.

{¶17} Accordingly, the Presuttos’ sole assignment of error is overruled.

III.

{¶18} The Presuttos’ sole assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27. 9

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

THOMAS A. TEODOSIO FOR THE COURT

HENSAL, J. CALLAHAN, J. CONCUR.

APPEARANCES:

JOSEPH C. PATITUCE and MEGAN M. PATITUCE, Attorneys at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.