Opinion
Number 8-04-24.
March 14, 2005.
Criminal Appeal from Common Pleas Court.
Judgment affirmed in part and reversed in part and cause remanded.
Marc S. Triplett, Attorney at Law, Reg. #0021222, 332 South Main Street, Bellefontaine, OH 43311, for Appellant.
Gerald L. Heaton, Prosecuting Attorney, Reg. #0022094, Eric C. Stewart, Reg. #0071094, 117 E. Columbus Ave., Suite 200, Bellefontaine, OH 43311, for Appellee.
OPINION
{¶ 1} Appellant, Macie A. Crump ("Crump"), appeals the sentence imposed by the Common Pleas Court of Logan County on June 14, 2004.
{¶ 2} On November 20, 2002, Crump waived prosecution by indictment and proceeded by way of a bill of information charging him with three counts of theft from the elderly in violation of R.C. 2913.02, felonies of the fourth degree; one count of misuse of credit cards in violation of R.C. 2913.21(B)(2), a felony of the third degree; and one count of passing bad checks in violation of R.C. 2913.11(A), a misdemeanor of the first degree. Crump was placed on the pre-trial diversion program and all matters were stayed in the case pending his completion of the program.
{¶ 3} The State filed a motion with the court on January 9, 2004 to reactivate the prosecution due to Crump's failure to comply with the terms and conditions of the pre-trial diversion program. On April 12, 2004, Crump pled guilty to one count of theft from the elderly in exchange for the prosecutor's agreement to move for dismissal of the remaining counts and to not oppose a sentence of community control.
{¶ 4} A sentencing hearing was held on June 1, 2004. At the hearing, Crump's counsel urged the court to impose a community control sanction in lieu of a prison term and gave an explanation for Crump's failure to complete the diversion program. The prosecutor corrected counsel's explanation for Crump's failure to successfully complete the diversion program. The court sentenced Crump to six months in prison and ordered him to pay restitution in the amount of $17,634.85 to Betty Crump, and $615.00 to First Check Cash Advance. It is from this order that Crump now appeals asserting the following two assignments of error.
The prosecutor breached the terms of the plea bargain that he entered into with the appellant.
The trial court's imposition of a term of imprisonment was contrary to law.
{¶ 5} In his first assignment of error, Crump argues that the prosecution breached the terms of the plea bargain when the prosecutor commented on Crump's failure to complete the diversion program at the sentencing hearing. Crump argues that the prosecutor's comment resulted in the trial court imposing a prison term upon Crump. Crump characterized the plea agreement between him and the prosecution as follows: "The State agrees to dismiss the remaining counts in the indictment in exchange for my guilty plea to one count of Theft as a felony of the fourth degree. The State also agrees that it will not oppose a community control sentence in this case." April 12, 2004, Petition to Enter a Plea of Guilty or No Contest, ¶ 11.
{¶ 6} Counsel for Crump stated the following to the court at the sentencing hearing:
Your Honor, this is the first felony — this first felony four case is the first conviction for Mr. Crump. He's never served a prison sentence previously. The case began with a diversion referral by the State, which failed primarily because — as a result of Mr. Crump's circumstances.
June 1, 2004 Sentencing Proceedings, Tr. 3. Counsel later stated:
I note that the State has indicated it is not opposed to community control, mainly for the reason that I outlined initially regarding the length of time needed to work out restitution, and we ask that the Court accept this defect and joint recommendation that there be community control in this case.
Tr. 4.
{¶ 7} In response to the statements made to the court by counsel for Crump, the prosecutor stated:
One, I have a concern with regard to the indication as to why Mr. Crump was removed from diversion. He was removed from diversion because he lied to the diversion officer on several occasions, primary one of which was when he said that he had sought employment and presented an employment employer contact sheet to the diversion officer that was totally made up.
When the diversion officer contacted the ten employers on the sheet, not one of them had seen Mr. Crump. I correct that. One of them had. He had picked up an employment application and said the only reason he was picking it up was to stay out of jail. That's the reason that he is off of diversion. Tr. 4-5. The prosecution did not comment further regarding Crump's involvement in the diversion program or with regard to a recommendation for Crump's sentence.
{¶ 8} Crump argues that while the prosecutor did not expressly oppose a community control sentence, his factual argument regarding Crump's failure to complete the diversion program was the equivalent of opposing such a sentence. Crump also argues that the trial court cited to the prosecutor's argument when it imposed the sentence of a prison term stating: "[y]our prior failure of diversion indicates you're not going to be a good candidate for community control." Tr. 8.
{¶ 9} When a guilty plea "rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York (1971), 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427. If the prosecution fails to abide by the terms of the plea agreement, the defendant may be entitled to specific performance of the agreement or to withdraw his guilty plea.
{¶ 10} In determining whether the prosecution breached the plea agreement by informing the court of the reason for which Crump was dismissed from the diversion program, we are provided guidance by the Fifth Circuit's opinion in United States v. Block (C.A.5, 1981), 660 F.2d 1086. In that case, appellant argued that the Government violated its promise not to take a position on the sentence by informing the court of appellant's failure to file corporate income tax returns after appellant had relayed to the court that such returns were filed and done so timely. Id. In holding that the Government had not violated the plea agreement, the court explained:
Avery and Crusco both affirm that an agreement to stand mute or to take no position on the sentence restricts the Government's right to make certain types of statements to the court. However, neither case stands for the broad proposition that by making such agreements the Government forfeits all right to participate in either the presentence investigation or the sentence hearing. Instead the cases simply hold that an agreement to stand mute or take no position prohibits the Government from attempting to influence the sentence by presenting the court with conjecture, opinion, or disparaging information already in the court's possession. Efforts by the Government to provide relevant factual information or to correct misstatements are not tantamount to taking a position on the sentence and will not violate the plea agreement.
United States v. Avery (C.A.5, 1979), 589 F.2d 906, 908 (holding that a promise to stand mute and make no recommendation "means at the least that the prosecutor will say nothing to the judge that would influence the sentencing decision.").
United States v. Crusco (C.A.3, 1976), 536 F.2d 21 (holding that Government's promise not to take a position at the hearing as to the sentence precluded the Government from attempting to influence the severity of the sentence by challenging a statement made by defense counsel and pointing out to the court disparaging facts regarding defendant that were in the record before the court).
* * *
As part of a plea agreement, the Government is free to negotiate away any right it may have to recommend a sentence. However, the Government does not have a right to make an agreement to stand mute in the face of factual inaccuracies or to withhold relevant factual information from the court. Such an agreement not only violates a prosecutor's duty to the court but would result in sentences based upon incomplete facts or factual inaccuracies, a notion that is simply abhorrent to our legal system.
Id. at 1091-1092.
{¶ 11} Turning to the facts of the instant case, the prosecutor agreed not to oppose the sentence of community control. As the discussion above indicates, the agreement not to oppose community control does not bar the prosecutor from providing the court with relevant factual information or from correcting misstatements from the defendant or his counsel. Id. at 1092. At the sentencing hearing, counsel for Crump stated to the court that Crump failed the diversion program primarily as a result of Crump's circumstances. Counsel further explained that Crump had health problems that were primarily the result of diabetes and included the possible amputation of his leg. Counsel implied that these circumstances were the reason for Crump's failure in the diversion program. However, Crump's health problems were not the cause of his dismissal from the diversion program. As the prosecutor pointed out to the court, Crump was dismissed from the program for lying to the diversion officer on several occasions with regard to his efforts to obtain employment. By informing the court that Crump's repeated lying was the reason for his dismissal from the program, the prosecutor was simply correcting the misstatements of Crump's counsel and was not taking a position on the sentence. Therefore, the prosecutor did not breach the plea agreement and Crump's first assignment of error is overruled.
{¶ 12} In his second assignment of error, Crump argues that the trial court was precluded from making the findings under R.C. 2929.12 and R.C. 2929.13(B)(1) by the Sixth and Fourteenth Amendments to the United States Constitution. Additionally, Crump argues that even if the trial court had the authority to make the findings, the court misapplied the statutory factor that Crump was in a position of trust.
{¶ 13} Crump begins by arguing that the trial court could not impose a sentence of imprisonment upon him where the facts necessary for the imposition of the sentence had not been admitted by Crump and had not been found by a jury beyond a reasonable doubt. Crump bases this argument on the United States Supreme Court's recent decision of Blakely v. Washington (2004), 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403. In Blakely, the Court applied the rule of Apprendi v. New Jersey (2000), 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435, that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The Court noted that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2537, citing Ring v. Arizona (2002), 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556.
{¶ 14} R.C. 2929.13 provides sentencing guidance to the trial court by degree of felony. Crump pled guilty to a felony of the fourth degree which has a statutory sentencing range of six to eighteen months, with a presumption in favor of community control sanctions. R.C. 2929.13 (B)(1) provides that in sentencing an offender for a felony of the fourth degree, the sentencing court should determine whether any of the nine factors enumerated in the section apply. The trial court determined that one of these factors applied in Crump's case: that Crump held a position of trust with his grandmother and the offense was related to that position. R.C. 2929.13(B)(1)(d). R.C. 2929.13(B)(2)(a) further provides that:
If the court makes a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this section and if the court, after considering the factors set forth in section 2929.12 of the Revised Code, finds that a prison term is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code and finds that the offender is not amenable to an available community control sanction, the court shall impose a prison term upon the offender.
{¶ 15} Crump argues that the requirement that the trial court make findings with regard to a factor listed in R.C. 2929.13(B)(1), that a prison term is consistent with the purposes and principles of sentencing, and that Crump is not amenable to a community control sanction violates the holding of Blakely. Crump argues that the statutory maximum sentence for felonies of the fourth degree is a sentence of community control sanctions since the trial court is required to make additional factual findings to increase the penalty beyond a sentence of community control sanctions.
{¶ 16} In State v. Trubee, 3d Dist. No. 9-03-65, 2005-Ohio-552, at ¶ 23, this Court held that the Blakely decision had the impact of "limit[ing] a defendant's potential sentence within the statutory range created by R.C. 2929.14(A)." This Court stated that R.C. 2929.14(A) sets a sentencing range for each degree of a felony and that R.C. 2929.14(B) requires the court to make a specific finding before sentencing the defendant above the lowest term in the range. Id. at ¶ 26. In considering the Blakely decision, the Apprendi decision and its progeny, as well as the recent Supreme Court case of United States v. Booker (2004), 125 S.Ct. 738, this Court reasoned:
In reality, all R.C. 2929.14(B) does is mandate a minimum sentence unless the trial court determines that the offender deserves a higher prison sentence within the range permissible for that crime. It then limits the ways the court can determine that the higher punishment is necessary. In this way, R.C. 2929.14 creates an indefinite sentencing scheme, but limits judicial discretion within that scheme. It does not, however, allow judicial discretion to interfere with the province of power reserved to the jury. Put another way, it does not allow the judge to usurp the jury's power by engaging in any factual determinations that set the available range of sentences apart from the range already provided in the statute.
Id. at ¶ 36.
{¶ 17} Like R.C. 2929.14, R.C. 2929.13 also provides sentencing guidance to the trial court by degree of felony. The presumption for sentencing a defendant convicted of a felony of the fourth degree is community control sanctions. R.C. 2929.13(B)(2)(a) provides that if the court makes the determination that a factor listed in subsection (B)(1) applies in the particular case, the court should impose a prison term instead of community control sanctions. Therefore, R.C. 2929.14 creates an indefinite sentencing scheme and R.C. 2929.13 limits judicial discretion within that scheme. Therefore, we conclude that the "statutory maximum" under R.C. 2929.14 is still the highest prison term permitted by section (A) and that the additional considerations of R.C. 2929.13 do not change the "statutory maximum" under the Blakely-Apprendi definition.
{¶ 18} In the case sub judice, Crump waived an indictment and pled guilty to count one of the bill of information, which provided:
Between the dates of August 1, 2001, and March 5, 2002, at the County of Logan aforesaid, Macie Crump did, with purpose to deprive the owner of property or services, knowingly obtain or exert control over either property or services beyond the scope of the express or implied consent of the owner or person authorized to give consent, to wit; kept money that was given to him by his grandmother to pay for the following utility bills and did not pay for the bills: DPL, Vectren, and Culligan, in violation of Ohio Revised Code Section 2913.02, Theft from an elderly person, a felony of the fourth degree in that the victim of the offense is an elderly person and the value of the property or services stolen is five hundred dollars or more.
{¶ 19} Having agreed to the facts and prosecution on the charge, Crump agreed to the facts necessary for his conviction of a fourth degree felony.
{¶ 20} In addition, Crump agreed to the R.C. 2929.13(B)(1)(d) statutory factor of being in a position of trust and using such trust in committing the theft. Not only did the bill of information provide that Crump had committed theft against his elderly grandmother, but Crump also indicated that he occupied a position of trust with his grandmother at the sentencing hearing when he stated: "But I'm very sorry for what I did, and, actually I — I took my grandmother's trust because she did trust me, and that's what I misused and that I feel very badly for that." June 1, 2004 Sentencing Proceedings, Tr. 6. While Crump argues that the trial court improperly defined the term "position of trust" by not limiting the application only to public officials and servants, this Court, as well as courts in other districts, has determined that the term includes both public and non-public positions. See State v. Cooper, Marion App. No. 9-2000-49, 2000-Ohio-1803 (holding that the president of a health insurance company holds a position of trust with his clients); State v. Johnson, Crawford App. Nos. 3-2000-15, 3-2000-16, 2000-Ohio-1934 (holding a college student holds a position of trust with the university he attends); State v. Hall (2000), 137 Ohio App.3d 666, 739 N.E.2d 846 (holding a parent holds position of trust with her child).
{¶ 21} Therefore, Crump admitted the facts necessary for the trial court's determination of his guilt of a fourth degree felony charge and sentencing under R.C. 2929.13(B)(1) and 2929.14. In determining that Crump was not amenable to community control sanctions, the trial court properly considered the record of the case which provided that Crump had not successfully completed the diversion program or paid any restitution to his grandmother. The trial court also properly considered Crump's prior misdemeanor convictions. See Trubee, 2005-Ohio-552, at ¶ 45. Thus, the trial court's imposition of a term of six months imprisonment was proper in this case. Accordingly, Crump's second assignment of error is overruled.
{¶ 22} In addition, while not raised by Crump as an assignment of error, our review of the record reveals that the amount of restitution ordered by the trial court does not correspond with the economic loss to Betty Crump reflected in count one of the bill of information. Generally, an appellant waives an error by failing to object or bring the error to the attention of the court. Crim.R. 52(B). A reviewing court will not notice such error unless it is plain error. Id. Under the plain error analysis, the court determines whether there is an error, whether it is plain error and whether the defendant was prejudiced. United States v. Olano (1992), 507 U.S. 725, 733-734, 113 S.Ct. 1770, 123 L.Ed.2d 508. In this plain error analysis, the court determines prejudice by determining whether the error created a manifest injustice or seriously affected the "fairness, integrity or public reputation of [the] judicial proceedings. Id. at 344; State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus.
{¶ 23} In this case, the bill of information contained five counts, including three counts of theft, one count of misuse of credit cards, and one count of passing bad checks. The counts listed various creditors. The creditors included in count one, the count to which Crump pled guilty, are The Dayton Power and Light Company ("DPL"), Vectren and Culligan. However, the trial court ordered Crump to pay restitution to Betty Crump in the amount of $17,634.85 and to First Check Cash Advance in the amount of $615.00. It is apparent from the record that the order of restitution may reflect economic loss other than that attributable to count one of the bill of information.
{¶ 24} A trial court must limit its award of restitution to the actual economic loss caused by the crime for which the offender was convicted. State v. Williams, 3d Dist. No. 8-03-25, 2004-Ohio-2801, at ¶ 23, citing State v. Hafer, 144 Ohio App.3d 345, 348, 2001-Ohio-2412, 760 N.E.2d 56. As a matter of law, absent his express agreement to do so, an offender cannot be ordered to pay restitution for economic loss arising from a crime of which he was not convicted and to which he did not plead guilty. Williams, 2004-Ohio-2801, at ¶ 23.
{¶ 25} In the case sub judice, the trial court ordered Crump to pay restitution in an amount that was not reflected in count one of the bill of information. Since Crump only pled guilty to count one the trial court was limited in imposing restitution only for the amounts owed by Betty Crump to those creditors contained in count one. Therefore, upon the record before us the trial court erred in determining the amount of restitution owed by Crump and the matter must be remanded for resentencing on the issue of restitution.
{¶ 26} Having found error prejudicial to the appellant, the judgment of the Common Pleas Court of Logan County is reversed with respect to the order of restitution, and affirmed in all other respects. The matter is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part and cause remanded. Cupp, P.J., and Rogers, J., concur.