Cleveland v. Fuller

[Cite as Cleveland v. Fuller, 2023-Ohio-1669.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, :

No. 111790

v. :

JEROME FULLER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 18, 2023

Criminal Appeal from the Cleveland Municipal Court

Case No. 2021-TRC-023154

Appearances:

Mark Griffin, Cleveland Director of Law, and Matt

Bezbatchenko, Assistant City Prosecutor, for appellee.

Christina M. Joliat, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Jerome Fuller (“Fuller”), appeals from the trial

court’s order of restitution following a guilty plea. He raises the following

assignment of error for review:

The court erred in awarding restitution in the amount of $7,300 for

appellant’s conviction under Cleveland Codified Ordinance 433.01.

After careful review of the record and relevant case law, we affirm the

trial court’s judgment.

I. Procedural and Factual History

On December 6, 2021, a complaint was filed against Fuller in Cleveland

M.C. No. 21-TRC-023154, charging him with operating a vehicle while under the

influence of alcohol or drugs (“OVI”) in violation of Cleveland Codified Ordinances

(“C.C.O.”) 433.01; driving under suspension in violation of C.C.O. 435.07(a); failure

to stop after accident in violation of C.C.O. 435.17; failure to control in violation of

C.C.O. 431.34(a); and display of plates not legally registered in violation of C.C.O.

435.09(f). The complaint stemmed from allegations that Fuller crashed his vehicle

while driving with a suspended license and under the influence of alcohol. The

incident resulted in structural damage to the home owned by the victim, Darren

Clayton (“Clayton”).

On April 19, 2022, Fuller accepted the terms of a negotiated plea

agreement and pleaded guilty to operating his vehicle while under the influence of

alcohol or drugs in violation of C.C.O. 433.01. As a condition of the plea agreement,

Fuller was required to pay restitution in an amount to be determined at the time of

sentencing. Following a Crim.R. 11 colloquy the trial court accepted Fuller’s plea

and found him guilty of violating C.C.O. 433.01, a misdemeanor of the first degree.

Prior to sentencing, the trial court received documentation from

Clayton reflecting that it would cost $7,300 to repair the damage caused to his

property.

A sentencing hearing was held on June 14, 2022. Regarding restitution,

defense counsel argued the court was required to comply with the express language

of C.C.O. 433.01(h)(7), that limits restitution for any economic loss that is the

proximate cause of an OVI offense to “an amount not exceeding five thousand

dollars ($5,000.00).” In contrast, the city argued that Clayton was entitled to

$7,300 pursuant to Marsy’s Law, which requires “full and timely restitution,” and

supersedes statutory caps on damages.

Following briefing of the issue by the parties, the trial court ordered

Fuller to pay Clayton restitution in the amount of $7,300. The trial court further

imposed a $500 fine, a 180-day jail term with all but three days suspended, and a

one-year period of active probation. Fuller was also ordered to complete a driver’s

intervention program.

Fuller now appeals from the trial court’s restitution order.

II. Law and Analysis

In the sole assignment of error, Fuller argues the trial court erred in

awarding restitution in the amount of $7,300. Fuller contends that the award

exceeds the amount of restitution authorized by the ordinance he violated.

A. Applicable Sentencing Statutes

We review misdemeanor restitution orders for an abuse of discretion.

Strongsville v. Kane, 8th Dist. Cuyahoga No. 97765, 2012-Ohio-3372, ¶ 8. An abuse

of discretion “‘implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’” State v. Montgomery, 169 Ohio St.3d 84, 2022-Ohio-2211, 202

N.E.3d 616, ¶ 135, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). An abuse of discretion occurs when “a court exercise[es] it’s

judgment, in an unwarranted way[.]” Johnson v. Abdullah, 166 Ohio St.3d 427,

2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. However, “a court does not have discretion

to misapply the law.” Id. at ¶ 38 (courts apply a de novo standard when reviewing

an issue of law).

R.C. 2929.28(A)(1) provides a statutory mechanism for ordering

restitution in misdemeanor cases. Both R.C. 2929.28(A)(1) and the reciprocal

statute governing felonies, 2929.18(A)(1), limit the amount of restitution to “the

amount of the economic loss suffered by the victim as a direct and proximate result

of the commission of the offense.” “The victim, victim’s representative, victim’s

attorney, if applicable, the prosecutor or the prosecutor’s designee, and the offender

may provide information relevant to the determination of the amount of

restitution.” R.C. 2929.28(A)(1).

“Economic loss” is defined in R.C. 2929.01(L) as “any economic

detriment suffered by a victim as a direct and proximate result of the commission of

an offense,” specifically including “property loss.”

The victim has the burden of proving the amount of restitution by the

preponderance of the evidence. R.C. 2929.28(A)(1). Moreover, the amount of the

restitution imposed “‘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. Johnson, 2018-Ohio-3670, 119 N.E.3d 914, ¶ 55 (8th Dist.),

quoting State v. Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist.1999).

The evidence in the record must be enough to substantiate the relationship of the

offender’s criminal conduct to the amount of the victim’s loss. State v. Norton, 8th

Dist. Cuyahoga No. 102017, 2015-Ohio-2516, ¶ 44.

B. Marsy’s Law

In November 2017, the voters of this state passed an amendment to

the victim’s rights provision of the Ohio Constitution. Effective February 5, 2018,

Article I, Section 10a of the Ohio Constitution, commonly referred to as Marsy’s Law,

expanded the rights afforded to crime victims. Relevant to this appeal, Marsy’s Law

provides victim’s the right “to full and timely restitution from the person who

committed the criminal offense or delinquent act against the victim[.]” Ohio

Constitution, Article I, Section 10a(A)(7).

Marsy’s Law defines “victim” as “a person against whom the criminal

offense or delinquent act is committed or who is directly and proximately harmed

by the commission of the offense or act.” Ohio Constitution, Article I, Section

10a(D). In this case, it is undisputed that Clayton was directly and proximately

harmed by Fuller’s OVI offense. He is therefore constituted a “victim” who is

entitled to full and timely restitution.

Notably, Ohio’s version of Marsy’s Law states, “All provisions of this

section shall be self-executing and severable, and shall supersede all conflicting state

laws.” Id. at Section 10a(E). The Ohio Supreme Court has recently clarified that “no

portion of Marsy’s Law ‘conflicts’ with the restitution statutes such that they are

‘supersede[d],’ Article I, Section 10a(E).” State v. Yerkey, Slip Opinion No. 2022-

Ohio-4298, ¶ 12. “Consequently, the statutes governing ‘restitution,’” including R.C.

2929.28(A)(1), “are still used to determine which losses qualify for restitution.” Id.

In reaching this conclusion, the court noted that “since the adoption of Marsy’s Law,

both this court and other courts in Ohio have continued to determine the amount of

restitution based on the economic loss suffered by the victim as a direct and

proximate result of the commission of the offense.” Id. at ¶ 13, citing Centerville v.

Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 19; Cleveland v.

Rudolph, 8th Dist. Cuyahoga No. 111128, 2022-Ohio-2363, ¶ 16-17; State v. Dent,

11th Dist. Lake No. 2020-L-110, 2021-Ohio-2551, ¶ 29-30; State v. Crawford, 3d

Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 23; State v. Young, 6th Dist. Lucas No.

L-19-1189, 2020-Ohio-4943, ¶ 12-13; State v. Yerkey, 2020-Ohio-4822, 159 N.E.3d

1232, ¶ 26 (7th Dist.); State v. Goff, 2020-Ohio-1474, 153 N.E.3d 899, ¶ 3 (1st Dist.).

With the foregoing principles in mind, we address Fuller’s contention

that the trial court misapplied Marsy’s Law by imposing an order of restitution that

was inconsistent with the express language of the ordinance governing his

conviction.

C. Scope of Restitution Available to the Victim

As previously discussed, Fuller was convicted of operating a motor

vehicle while under the influence in violation of C.C.O. 433.01. The ordinance sets

forth the applicable penalties for a violation of C.C.O. 433.01 and contains an explicit

provision concerning the availability of restitution. The ordinance states, in relevant

part:

In all cases in which an offender is sentenced under * * * this section,

the offender shall provide the court with proof of financial

responsibility as defined in RC 4509.01. If the offender fails to provide

that proof of financial responsibility, the court, in addition to any other

penalties provided by law, may order restitution pursuant to RC

2929.18 or 2929.28 in an amount not exceeding five thousand dollars

($5,000.00) for any economic loss arising from an accident or collision

that was the direct and proximate result of the offender’s operation of

the vehicle before, during, or after committing the offense for which the

offender is sentenced * * * this section.

C.C.O. 433.01(h)(3)(B)(7). Thus, pursuant to the express terms of the ordinance,

restitution is generally only available where the defendant fails to provide proof of

financial responsibility. The ordinance further provides that if an award of

restitution is appropriate, the court may only order restitution in an amount not

exceeding $5,000.

On appeal, Fuller does not dispute that Marsy’s Law permits a victim

to assert his or her constitutional right to full and timely restitution. Nevertheless,

Fuller asserts that “Marsy’s Law was not intended to change laws” and, therefore,

does not alter or otherwise supersede the limiting language of C.C.O.

433.01(h)(3)(B)(7). Thus, Fuller submits that, at the very most, he was only required

“to pay the restitution in full and timely up to the $5,000 figure.”

After careful consideration, we find no merit to Fuller’s position. The

limitations placed on the applicability and breadth of restitution under C.C.O.

433.01(h)(3)(B)(7) unambiguously conflict with Marsy’s Law, which contains no

restrictive language and permits a victim to recover the full amount of economic loss

so long as the award is established by the preponderance of the evidence under R.C.

2929.28(A)(1) or 2929.18(A)(1). If C.C.O. 433.01(h)(3)(B)(7) were to apply as

written, Clayton would not be made whole for the economic loss caused by Fuller’s

criminal conduct. It is well settled that “where constitutional provisions and the

legislative enactment are ‘so clearly in conflict that they cannot both stand the

statutory provision must fail.’” State v. Oliver, 12th Dist. Clermont No. CA2020-07-

041, 2021-Ohio-2543, ¶ 71, quoting State ex rel. Price v. Huwe, 105 Ohio St. 304,

306, 137 N.E. 167 (1922). Accordingly, we find Marsy’s Law supersedes C.C.O.

433.01(h)(3)(B)(7) to the extent the ordinance caps the availability of restitution to

a victim.

We further find the trial court’s award of restitution was supported by

competent and credible evidence. It is well settled that the evidence that supports a

court’s restitution order “can take the form of either documentary evidence or

testimony.” State v. Moore, 5th Dist. Guernsey No. 22 CA 000007, 2022-Ohio-

4261, ¶ 12, citing State v. Jones, 10th Dist. Franklin No. 14AP-80, 2014-Ohio-3740.

In this case, there is no dispute that the substantial damage to Clayton’s property

was proximately caused by Fuller’s violation of C.C.O. 433.01. As summarized by

the prosecution, Mr. Clayton’s “front porch was completely destroyed by Mr. Fuller

driving drunk.” (Tr. 10.) The court also heard from Clayton, who described his

economic loss as follows:

[T]hat night I woke up and the front of [Fuller’s] car and motor was

under my porch with the pillar holding the second floor on top of his

motor. * * * I had to get some property contractor to open up the

second floor porch in the middle of the winter so I [could] get a

masonry to come out and * * * support the second floor[.] It literally

exploded the whole brick steps, pillars, and everything.

(Tr. 15.) Finally, the prosecution submitted ample documentation in support of its

request for restitution, including photographs of the property damage, paid

invoices, and a contractor’s written proposal to complete the necessary repairs for

$7,300.

Counsel for defendant did not contest the legitimacy of the submitted

documents or the costs required to repair Clayton’s property. Instead, defense

counsel relied on his interpretation of C.C.O. 433.01(h)(3)(B)(7) and his position

that restitution could not exceed $5,000. As previously discussed, counsel’s

argument is not consistent with the rights afforded under Marsy’s Law. With that

stated, we recognize that counsel further urged the court to consider Fuller’s

inability to pay, stating:

Well judge, again we’re not disputing the amount listed in the receipts.

What we would ask the court to take into consideration is Mr. Fuller’s

ability to pay. And again, restitution is at the court’s discretion. It’s not

required in any of these — for these charges specifically.

Mr. Fuller does not have an income right now. He does not have a job.

He’s receiving food stamps. He’s been unemployed for the last two

months. He last worked at the Intercontinental Hotel through a temp

agency as a dishwasher. So he has no source of income. He’s not gonna

be able to pay this amount of $7,300 any time soon nor within a

reasonable period of time.

Um, I would also add that this does not forestall the victim from

pursuing civil charges to recover damages to his house and to his patio.

Um, this amount of $7,300 is higher traditionally than what this court

normally gives in restitution. I have not seen any judge order any

amount close to $7,300, um, as far as restitution.

(Tr. 7-8.) Fuller reiterates this argument on appeal, stating that even if Marsy’s Law

permitted the court to impose restitution in an amount exceeding $5,000, the court

abused its discretion by failing to consider his ability to pay pursuant to R.C.

2929.28(B).1

Consistent with the precedent of this court, we find no merit to Fuller’s

reliance on R.C. 2929.28(B). This court has previously addressed, and rejected, an

analogous argument in Rudolph, 8th Dist. Cuyahoga No. 111128, 2022-Ohio-2363,

stating, in relevant part:

Whether a defendant is unable to pay the amount of restitution is

irrelevant under Marsy’s Law. In [Oliver, 2021-Ohio-2543, 176 N.E.3d

1054, (12th Dist.)], the Twelfth District considered the conflict between

1 R.C. 2929.28(B) provides:

(B) If the court determines a hearing is necessary, the court may hold a

hearing to determine whether the offender is able to pay the financial

sanction imposed pursuant to this section or court costs or is likely in the

future to be able to pay the sanction or costs.

If the court determines that the offender is indigent and unable to pay the

financial sanction or court costs, the court shall consider imposing and may

impose a term of community service under division (A) of section 2929.27 of

the Revised Code in lieu of imposing a financial sanction or court costs. If the

court does not determine that the offender is indigent, the court may impose

a term of community service under division (A) of section 2929.27 of the

Revised Code in lieu of or in addition to imposing a financial sanction under

this section and in addition to imposing court costs. The court may order

community service for a minor misdemeanor pursuant to division (D) of

section 2929.27 of the Revised Code in lieu of or in addition to imposing a

financial sanction under this section and in addition to imposing court costs.

If a person fails to pay a financial sanction or court costs, the court may order

community service in lieu of the financial sanction or court costs.

an offender’s rights as set forth in R.C. 2929.19(B)(5),2 which requires

a trial court to consider an offender’s ability to pay before ordering

restitution, and the trial court’s legal duty to provide victims with full

and timely restitution in accordance with Marsy’s Law. In finding that

the provisions of Marsy’s Law supersede the defendant’s rights under

R.C. 2929.19(B)(5), the Oliver court explained:

Marsy’s Law provides that in instances where the provisions of Marsy’s

Law conflict with previously enacted statutes, the constitutional

provision “shall supersede” the conflicting state law. Article I, Section

10a(E), Ohio Constitution. This is consistent with the well-settled law

in Ohio that where constitutional provisions and the legislative

enactment are “so clearly in conflict that they cannot both stand the

statutory provision must fall.” * * * Such a conflict exists here, and in

accordance with Ohio law, we conclude Marsy’s Law supersedes R.C.

2929.19(B)(5) to the extent the statute allows the trial court to reduce

or otherwise modify the restitution amount owed to a victim.

Oliver at ¶ 71, quoting State ex rel. Price v. Huwe, 105 Ohio St. 304,

306, 137 N.E. 167 (1922).

* * * Pursuant to Oliver and Article I, Section 10a(E) of the Ohio

Constitution, Rudolph’s inability to pay restitution is not a valid basis

on which the court could decline an order of restitution.

Id. at ¶ 18-19.

The foregoing discussion in Rudolph remains the prevailing authority

of this district. As previously stated, the Ohio Supreme Court clarified in Yerkey

that the amount of restitution available to a victim is limited to the economic loss

suffered by the victim as a direct and proximate result of the commission of the

offense. Id., Slip Opinion No. 2022-Ohio-4298, at ¶ 13, 19. The Yerkey Court

focused extensively on the basic concepts of direct and proximate cause, and

concluded that “the statutes governing ‘restitution’ are still used to determine which

2 R.C. 2929.28(B) contains similar language.

losses qualify for restitution.” Id. at ¶ 12. However, the court did not expressly

address or otherwise overrule this court’s observation of the inherent conflict

between Marsy’s Law and the statutory provisions that require a trial court to

consider an offender’s ability to pay before ordering restitution. In fact, both

Rudolph and Oliver were cited in support of the majority decision of Yerkey without

reservation. Id. at ¶ 13. Thus, we reiterate that “[w]hether a defendant is unable to

pay the amount of restitution is irrelevant under Marsy’s Law.” Rudolph, 8th Dist.

Cuyahoga No. 111128, 2022-Ohio-2363, at ¶ 18.

Based on the foregoing, we find the trial court’s order of restitution is

supported by the preponderance of the evidence and bears a reasonable relationship

to the actual loss suffered by Clayton. Pursuant to the express mandates of Marsy’s

Law, the trial court was entitled to award restitution in an amount exceeding

$5,000. Accordingly, the trial court did not abuse its discretion by order Fuller to

pay restitution to Clayton in the amount of $7,300. The sole assignment of error is

overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

municipal court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and

MARY EILEEN KILBANE, J., CONCUR