Opinion

State v. Owens

2024 Ohio 3383

Court: Ohio Court of Appeals
Filed: Sep 3, 2024
Status: Published
On the bench: King
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

[Cite as State v. Owens, 2024-Ohio-3383.]

COURT OF APPEALS

DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:

Hon. W. Scott Gwin, P.J.

Plaintiff-Appellee Hon. John W. Wise, J.

Hon. Andrew J. King, J.

-vs-

Case No. 23 CAA 09 0088

ROBERT OWENS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of

Common Pleas, Case No. 22 CRI 070420

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 3, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAN DRISCOLL APRIL F. CAMPBELL

CLARK COUNTY Campbell Law, LLC

PROSECUTING ATTORNEY 545 Metro Place South, Suite 100

Dublin, Ohio 43017

ROBERT C. LOGSDON

Assistant Prosecuting Attorney

50 East Columbia Street, Suite 449

Springfield, Ohio 45502

Delaware County, Case No. 23 CAA 09 0088 2

King, J.

{¶1} Defendant-appellant Robert Owens appeals the judgment entered by the

Delaware County Common Pleas Court convicting him upon his pleas of guilty to five

counts of theft (R.C. 2913.02(A)(3)) and one count of grand theft (R.C. 2913.02(A)(3)),

and sentencing him to a term of community control for a period not to exceed 2.5 years.

Plaintiff-appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} Owens worked as an attorney in Delaware, Ohio. With regards to six of his

clients, Owens either failed to issue a refund to clients for whom he failed to perform work,

or failed to refund the portion of a retainer which was not exhausted when the work was

completed. Owens was indicted by the Delaware County Grand Jury on five counts of

theft and one count of grand theft.

{¶3} Owens filed a motion for treatment in lieu of conviction (hereinafter “ILC”)

based on mental health issues he experienced at the time he committed the offenses.

Before the trial court ruled on the ILC motion, Owens entered pleas of guilty to all charges,

and was convicted upon his pleas.

{¶4} As to five of the six victims, Owens agreed to the amount of restitution to be

ordered by the trial court. As to the count of grand theft, Owens disputed the amount of

restitution owed to the victim, K.N. The trial court held a restitution hearing solely as to

the amount owed K.N. K.N. alleged the amount owed was $103,996.65. After the

hearing, the trial court found K.N.’s testimony to be credible, and found by a

preponderance of the evidence Owens owed K.N. restitution in the amount of $103,

996.65.

Delaware County, Case No. 23 CAA 09 0088 3

{¶5} The case proceeded to sentencing. At the sentencing hearing, the trial

court denied Owens’s request for ILC. The trial court sentenced Owens to a term of

community control not to exceed 2.5 years, and ordered Owens pay restitution to the

victims totaling $121,896.95.

{¶6} Owens assigns the following errors to the trial court’s September 11, 2023

judgment of conviction and sentence:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING

OWENS TO PAY THE VICTIM $103,996.95 BECAUSE THAT AMOUNT

OF LOSS WAS NOT SUPPORTED BY COMPETENT, CREDIBLE

EVIDENCE.

II. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT

GRANTING OWENS’ REQUEST FOR INTERVENTION IN LIEU OF

CONVICTION.

III. OWENS’ PLEA AND SENTENCE SHOULD BE VACATED. THE

TRIAL COURT ACCEPTED OWENS’ GUILTY PLEA BEFORE DENYING

HIS REQUEST FOR INTERVENTION IN LIEU OF CONVICTION. THUS,

HIS PLEA DID NOT COMPLY WITH CRIM. R. 11 AND HIS SENTENCE

WAS CONTRARY TO LAW.

{¶7} In his first assignment of error, Owens argues the judgment ordering him to

pay restitution to K.N. in the amount of $103,996.95 was not supported by the evidence

Delaware County, Case No. 23 CAA 09 0088 4

presented at the restitution hearing. He specifically argues the State produced no

evidence concerning the amount of work he performed for K.N., the amount owed was

subject to a flat fee agreement, the State did not present evidence concerning unbilled

work, the amount was not supported by documentary evidence, and K.N. previously

swore in a bankruptcy proceeding no one owed him money.

{¶8} We review restitution orders under an abuse of discretion standard. State

v. Cook, 2017-Ohio-1503, ¶ 8 (5th Dist.); State v. Andrews, 2016-Ohio-7389, ¶ 40 (5th

Dist.). “Abuse of discretion” means an attitude that is unreasonable, arbitrary or

unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985). Most

instances of abuse of discretion will result in decisions that are simply unreasonable,

rather than decisions that are unconscionable or arbitrary. AAAA Enterprises, Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161(1990). An

unreasonable decision is one backed by no sound reasoning process which would

support that decision. Id. “It is not enough that the reviewing court, were it deciding the

issue de novo, would not have found that reasoning process to be persuasive, perhaps

in view of countervailing reasoning processes that would support a contrary result.” Id.

{¶9} “The amount of the restitution must be supported by competent, credible

evidence from which the court can discern the amount of the restitution to a reasonable

degree of certainty.” State v. Gears, 135 Ohio App.3d 297, 300 (6th Dist. 1999).

“Generally, the right to order restitution is limited to the actual damage or loss caused by

the offense of which the defendant is convicted. Implicit in this principle is that the amount

claimed must be established to a reasonable degree of certainty before restitution can be

ordered.” State v. Williams, 34 Ohio App.3d 33, 34 (2nd Dist. 1986).

Delaware County, Case No. 23 CAA 09 0088 5

{¶10} R.C. 2929.18(A)(1) permits a trial court to impose restitution “by the offender

to the victim of the offender's criminal offense or the victim's estate in an amount based

on the victim's economic loss,” and the amount “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.” “Economic loss” is defined in R.C. 2929.01(L) as follows:

any economic detriment suffered by a victim as a direct and

proximate result of the commission of an offense and includes any loss of

income due to lost time at work because of any injury caused to the victim,

and any property loss, medical cost, or funeral expense incurred as a result

of the commission of the offense. “Economic loss” does not include non-

economic loss or any punitive or exemplary damages.

{¶11} The trial court made the following findings following the restitution hearing:

In a series of payments in 2018-2020, theft victim [K.N.] paid

$150,824.45 to the defendant for legal services. The defendant prepared

invoices that he sent to [K.N.] for those services, and the total amount billed

by the defendant on those invoices was $45,827.50.

The parties agree that the defendant did in fact provide legal services

to [K.N.]. They agree, too, that the defendant provided a $1,000 refund to

[K.N.] in March 2020.

Delaware County, Case No. 23 CAA 09 0088 6

The defendant contends that he and [K.N.] reached an agreement to

resolve any fee dispute between them and that no money is currently owed

by the defendant for overpayments that [K.N.] may have given to the

defendant for legal services. The State disagrees with the Defendant’s

view, as does [K.N.]. According to the State, [K.N.] is still owed $103,996.95

for payments that he made to the defendant that exceeded the sum of (a)

the $45,827.50 in legal services that the defendant provided to [K.N.], as

documented in invoices sent by the defendant to [K.N.], and (b) the $1,000

refund given by the defendant to [K.N.] in March 2020.

I find [K.N.]’s testimony credible, and I conclude by a preponderance

of the evidence that the economic loss for which [K.N.] should be

compensated is currently $103,996.95.

{¶12} Judgment Entry, 8/4/2023.

{¶13} The State presented the testimony of a forensic accountant from the Ohio

Attorney General’s office, who testified she reviewed not only the documentation provided

by the victims, but also Owens’s IOLTA account information and his law office accounts.

From the documentation provided to her, she concluded the amount owed by Owens to

K.N. was $103,996.65.

{¶14} Owens testified he and K.N. came to a flat fee agreement to settle the final

price of his representation to K.N. in the amount of $97,750. Owens testified he initially

entered into an hourly fee agreement with K.N., but because of a dispute over fees, he

drafted the flat fee agreement in February 2020 to settle the fee dispute between the

Delaware County, Case No. 23 CAA 09 0088 7

parties. Owens testified the total amount charged pursuant to the original hourly fee

agreement would have “far exceeded” $97,500, and the flat fee agreement provided K.N.

with a discount. K.N. testified he did not sign the agreement, which Owens introduced

into evidence with a signature purporting to be K.N.’s signature.

{¶15} Although the trial court did not expressly find the flat fee agreement was not

a valid agreement between the parties, such a finding is implicit in the trial court’s finding

K.N. was a credible witness and its rejection of Owens’s claim the fee owed was $97,750.

The weight to be given to the evidence and the credibility of the witnesses are issues for

the trier of fact. State v. DeHass, 10 Ohio St.2d 230, (1967). The trier of fact “has the best

opportunity to view the demeanor, attitude, and credibility of each witness, something that

does not translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418

(1997).

{¶16} Assuming arguendo K.N. signed the flat fee agreement, we find the trial

court could still have rejected the agreement as evidence of the fee owed by K.N. because

it was not a proper flat fee agreement.

{¶17} The Ohio Supreme Court Board of Professional Responsibility issued an

advisory opinion discussing the requirements the Rules of Professional Conduct impose

on any flat fee agreement. Advisory Opinion, 2016-1. Foremost in its analysis is

Prof.Cond.R. 1.5(a); it provides that lawyer shall not “make an agreement for, charge, or

collect an illegal or clearly excessive fee.” Of key importance here is that the defendant

admitted stealing from his client. This admission strongly supports a conclusion that even

if valid the fee agreement was illegal.

Delaware County, Case No. 23 CAA 09 0088 8

{¶18} In addition to the admission of guilt, the evidence adduced at the hearing

shows this fee agreement was illegal and prohibited by rule. Owens admitted initially he

entered into an hourly fee agreement with K.N., and the flat fee agreement was entered

into after his representation of K.N. in an attempt to resolve a fee dispute between the

parties. He testified $97,750 represented a “discount” of the fees owed by K.N. Owens

entered a plea of guilty to the charge of grand theft with regard to his representation of

K.N., which is inconsistent with his testimony at the restitution hearing he provided

services in excess the amount he claimed the parties agreed on as a fee. The evidence

presented by the State indicated Owens billed K.N. $45,827.50, an amount less than half

of the “discounted” amount set forth in the flat fee agreement Owens claimed settled fees

between the parties. However, Owens presented no evidence of unbilled work to explain

the inconsistency between the amount billed and his claim he did more than $97,750

worth of hourly work for K.N.

{¶19} A flat fee agreement entered in advance of representation is valid if it

comports with the Rules of Professional Conduct. Advisory Opinion, 2016-1. Here, the

purported flat fee agreement was not entered in advance of Owens’s representation of

K.N., but by Owens’s own admission was entered into after representation. Considering

the incongruities in Owens testimony regarding the flat fee agreement and the fact the

purported agreement was entered after, rather than in advance of representation, we find

the trial court did not err in rejecting the agreement as evidence of the fee agreement

between the parties.

{¶20} Owens argues K.N. failed to include the refund owed by Owens in his

bankruptcy proceeding. K.N. testified at the time he signed the bankruptcy documents,

Delaware County, Case No. 23 CAA 09 0088 9

he was under the impression whatever money was left over in his account would be paid

back by Owens. As discussed earlier in this opinion, the trial court expressly found K.N.’s

testimony to be credible.

{¶21} We find the trial court’s judgment ordering Owens to pay K.N. $103,996.95

is supported by the evidence presented at the restitution hearing.

{¶22} The first assignment of error is overruled.

II.

{¶23} In his second assignment of error, Owens argues the trial court abused its

discretion in denying his request for ILC. He argues the trial court impermissibly required

more than what is required by statute to grant ILC.

{¶24} R.C. 2951.041(A)(1) provides in pertinent part:

If an offender is charged with a criminal offense, including but not

limited to a violation of section 2913.02, 2913.03, 2913.11, 2913.21,

2913.31, or 2919.21 of the Revised Code, and the court has reason to

believe that drug or alcohol usage by the offender was a factor leading to

the criminal offense with which the offender is charged or that, at the time

of committing that offense, the offender had a mental illness, was a person

with an intellectual disability, or was a victim of a violation of section 2905.32

or 2907.21 of the Revised Code and that the mental illness, status as a

person with an intellectual disability, or fact that the offender was a victim of

a violation of section 2905.32 or 2907.21 of the Revised Code was a factor

leading to the offender's criminal behavior, the court may accept, prior to

Delaware County, Case No. 23 CAA 09 0088 10

the entry of a guilty plea, the offender's request for intervention in lieu of

conviction.

{¶25} R.C. 2951.041(B) sets forth the eligibility requirements for ILC. However, “

‘even when a defendant satisfies all of the statutory requirements, a trial court has

discretion to determine whether the particular defendant is a good candidate for

[intervention].’" State v. Leisten, 2006–Ohio–2362, ¶ 7 (2nd Dist.), quoting State v.

Schmidt, 2002–Ohio–3923, ¶ 9 (2nd Dist.). While eligibility determinations under R.C.

2951.041 are matters of law subject to de novo review, a trial court's decision whether to

grant treatment in lieu of conviction rests within its sound discretion, and we, therefore,

apply an abuse of discretion standard of review. State v. Parker, 2009–Ohio–1835, ¶ 11

(3rd Dist.).

{¶26} The trial court denied Owens’s request for ILC, stating its reasoning at the

sentencing hearing:

After thinking about all these things, I conclude that an intervention

outcome is not warranted in this case. I do think that Mr. Owens’s position

of trust with his clients and his leadership role in the community means that

an intervention outcome would demean the seriousness of the conduct. I

certainly don’t doubt the mental health diagnoses that these experts have

provided, and I certainly know and acknowledge that a mental health

diagnosis can justify in an appropriate case an intervention outcome, so I

Delaware County, Case No. 23 CAA 09 0088 11

certainly accept those matters that the defense has put forward, but, again,

I’m simply not comfortable on these facts imposing an intervention outcome.

{¶27} Sent. Tr. 27-28.

{¶28} Owens cites this Court to State v. Fullenkamp, 2001-Ohio-1648 (2nd Dist.).

In that case, the trial court denied the defendant’s ILC request, finding the defendant’s

alcohol dependency was not serious enough to grant ILC. The court of appeals held the

statute only requires drug or alcohol usage be a factor leading to the criminal behavior,

and does not require the defendant to be alcohol-dependent; therefore, the trial court

arbitrarily narrowed the eligibility criterion of the statute by rejecting the defendant’s ILC

request on the basis that she was not alcohol-dependent. Id.

{¶29} In the instant case, we find the trial court did not graft a more stringent

requirement than that imposed by statute, and the instant case is therefore

distinguishable from Fullenkamp. Pursuant to R.C. 2951.041(B)(6), an offender is eligible

for ILC if “[t]he offender's drug usage, alcohol usage, mental illness, or intellectual

disability, or the fact that the offender was a victim of a violation of section 2905.32 or

2907.21 of the Revised Code, whichever is applicable, was a factor leading to the criminal

offense with which the offender is charged, intervention in lieu of conviction would not

demean the seriousness of the offense, and intervention would substantially reduce the

likelihood of any future criminal activity.” Although the trial court didn’t expressly find

Owens was ineligible pursuant to this subsection, the trial court found ILC would demean

the seriousness of the offenses due to Owens’s position of trust in relationship to the

victims of the offenses and his role in the community, a factor the trial court is specifically

Delaware County, Case No. 23 CAA 09 0088 12

permitted to consider pursuant to statute. We find the trial court did not abuse its

discretion in denying ILC in the instant case.

{¶30} The second assignment of error is overruled.

III.

{¶31} In his third assignment of error, Owens argues his plea was not voluntary

because the trial court did not rule on his motion for ILC until after he entered his plea of

guilty.

{¶32} R.C. 2951.041(A)(1) provides in pertinent part: