State v. Coy

[Cite as State v. Coy, 2023-Ohio-1956.]

COURT OF APPEALS

DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES:

: Hon. Patricia A. Delaney, P.J.

Plaintiff - Appellee : Hon. Craig R. Baldwin, J.

: Hon. Andrew J. King, J.

-vs- :

:

SHARMA COY, : Case No. 22 CAA 10 0069

:

Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County

Court of Common Pleas, Case No.

22 CR I 01 0061

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 13, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL WILLIAM T. CRAMER

Delaware County 470 Olde Worthington Road, Suite 200

Prosecuting Attorney Worthington, Ohio 43082

By: PAYTON ELIZABETH THOMPSON

Delaware County

Assistant Prosecuting Attorney

145 N. Union Street, 3rd Floor

Delaware, Ohio 43015

Delaware County, Case No. 22 CAA 10 0069 2

Baldwin, J.

{¶1} The appellant appeals her sentence and the amount of restitution ordered

by the trial court. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} The appellant, a home health aide worker who was assigned by her

employers to provide assistance to various elderly individuals in their homes, was indicted

on January 27, 2022 on three counts of theft from a protected class in violation of R.C.

2913.02(A)(1) and R.C. 2913.02(B)(3). Count one involved elderly victim C.O.1 and

property valued at $7,500.00 or more but less than $37,500.00, and was a felony of the

third degree. Count two involved elderly victim B.D. and property valued at $1,000.00 or

more but less than $7,500.00. Count three involved elderly victim W.W. and property

valued at $1,000.00 or more but less than $7,500.00. Counts two and three were fourth

degree felonies.

{¶3} The appellant was arraigned on March 11, 2022, and pleaded not guilty to

all charges.

{¶4} On May 18, 2022, the appellant entered into a written plea agreement that

was memorialized in a Written Text of Criminal Rule 11(F) Agreement. The Agreement

provided that the appellant would plead guilty to the charges set forth in the indictment

and pay restitution as established at a hearing. The appellee agreed to recommend a pre-

sentence investigation. The Agreement, signed by the assistant prosecuting attorney,

appellant’s trial counsel, and the appellant, contained a “Defendant’s acknowledgment”

1

Victim C.O. was inadvertently misidentified in Count One of the Indictment as “C.C.”

Delaware County, Case No. 22 CAA 10 0069 3

paragraph that stated “I understand that this Agreement is a binding contract between me

and the State of Ohio. I have reviewed this Agreement with my lawyer, understand what

it says, and agree to it.”

{¶5} The Change of Plea Hearing proceeded on May 18, 2022, at which time the

trial court engaged in the requisite Crim R. 11 colloquy, including but not limited to the

maximum possible prison terms for all three charges. The appellant acknowledged the

Written Agreement, and pleaded guilty to all three charges. In addition, the Withdrawal

of Former Pleas of Not Guilty and Written Pleas of Guilty to the Indictment and Judgment

Entry on Guilty Plea was signed by the parties and approved by the trial court. The trial

court ordered a pre-sentence investigation, and scheduled the matter for a restitution

hearing.

{¶6} A Restitution and Sentencing Hearing was conducted on August 29, 2022

and September 23, 2022. Victim W.W. testified that he hired the appellant’s employer to

provide a home health aide to help with his wife’s Parkinson’s related health issues. The

appellant came to his home multiple times per week. He testified that he was contacted

by law enforcement officials regarding possible theft by the appellant and asked if he and

his wife were missing any items. W.W. testified that he and his wife then examined their

belongings, and determined that items of jewelry were missing, including a diamond and

gold ring for which he paid $7,000,00, and other rings. He testified further that based upon

information received from law enforcement, he was able to go the pawn shop where the

appellant had pawned his wife’s rings and purchase back a diamond and gold ring and a

high school class ring for $600.00. W.W. testified further that his grandson made him a

Delaware County, Case No. 22 CAA 10 0069 4

silver ring for which he paid $200.00. Finally, W.W. testified that other small items were

missing from the home, including a box of coins.

{¶7} Victim B.D. testified that she hired the appellant’s employer to provide a

home health aide to help her and her husband. The appellant came to her home multiple

times per week. B.D. noticed that items were missing from her home. Upon further

investigation, B.D. determined that a number her rings were missing, including a pinkie

ring she intended to gift to her granddaughter, and her white gold wedding ring. All four

of her husband’s rings were missing, and her 14-carat gold necklaces were missing. B.D.

testified that one of her missing rings was a 10-carat gold ring with diamonds around it

and an emerald in the center that her husband gave her for her 30th wedding anniversary.

Because the jewelry her husband gave her were gifts she did not know how much he paid

for any of the items, and at the time of the hearing he suffered from dementia so severe

that he could not provide that information. B.D. testified that she went to Helzberg

Diamonds jewelry store to determine what she would have to pay to replace the items

that had been taken, and determined that the approximate value of the missing items was

$6,000.00.

{¶8} Victim C.O. suffers from dementia, and was therefore unable to testify at

the restitution hearing. Accordingly, her daughter and Power of Attorney, A.O.N., testified

regarding the property stolen from C.O. A.O.N. testified that her mother had twenty

jewelry boxes, and that she was familiar with the majority of her mother’s jewelry. In

addition, her father kept approximately fifty boxes of receipts for various items, including

jewelry, and had prepared an inventory in 2006 of C.O.’s jewelry which contained

photographs of some of the pieces. Based upon this information, A.O.N. prepared a list

Delaware County, Case No. 22 CAA 10 0069 5

of items that had been removed from her parents’ home and ultimately pawned. A.O.N.

testified that she was able to find receipts for many of the stolen items, and spoke with a

jeweler and obtained appraisals for the pieces for which she was unable to find receipts.

Some of the photographs showed items with price tags still attached. Based upon this

information, A.O.N. prepared a list that was marked as State’s Exhibit 1, which included

a spreadsheet of items with values as well as receipts and photographs, and copies of

pertinent LEADS online records of pawn shop transactions made by the appellant, that

established the total value of items stolen from C.O. to be $23,911.44.

{¶9} The trial court noted the seriousness of the crimes committed by the

appellant, that the injury to the victims was exacerbated by their physical condition, and

that the appellant used her occupation as a caregiver to the elderly to steal from them.

The trial court found that it would demean the seriousness of the appellant’s conduct to

impose community control, and imposed a prison sentence upon the appellant as follows:

24 months on Count One, a third-degree felony; 12 months on Count Two, a fourth-

degree felony; and, 12 months on Count Three, a fourth-degree felony. The trial court

further ordered the sentences to be served consecutively. The appellant did not object to

the imposition of prison sentences for Counts Two and Three at the plea hearing or at the

time of sentencing. Finally, the trial court ordered the appellant to pay restitution to W.W.

in the amount of $7,800.00, to B.D. in the amount of $6,000.00, and to C.O. in the amount

of $23,911.44.

{¶10} The appellant filed a timely appeal in which she sets forth the following

assignments of error:

Delaware County, Case No. 22 CAA 10 0069 6

{¶11} “I. THE TRIAL COURT ERRED BY FAILING TO MAKE THE FINDINGS

NECESSARY TO IMPOSE PRISON TERMS ON FOURTH-DEGREE FELONIES.”

{¶12} “II. THE AMOUNT OF RESTITUTION AWARDED BY THE TRIAL COURT

WAS AN ABUSE OF DISCRETION.”

{¶13} The appellant argues that the trial court erred in imposing sentence. We

disagree.

STANDARD OF REVIEW

{¶14} Felony sentences are reviewed under R.C. 2953.08(G). State v. Goings,

6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, 2014 WL 2480615, ¶ 20. An appellate

court may increase, modify, or vacate and remand a judgment only if it clearly and

convincingly finds either “(a) the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14,

or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant” or

“(b) the sentence is otherwise contrary to law.” State v. Yeager, 6th Dist. Sandusky No.

S-15-025, 2016-Ohio-4759, 2016 WL 3573887, ¶ 7.

ANALYSIS

ASSIGNMENT OF ERROR NUMBER I

{¶15} The appellant argues that she should have received community control for

Counts Two and Three because they were fourth degree felonies and, further, that the

trial court erred when it failed to make findings necessary for the imposition of prison

pursuant to R.C. 2929.13(B). We disagree.

{¶16} R.C. 2929.13(B)(1)(a) provides:

Delaware County, Case No. 22 CAA 10 0069 7

Except as provided in division (B)(1)(b) of this section, if an offender

is convicted of or pleads guilty to a felony of the fourth or fifth degree that is

not an offense of violence or that is a qualifying assault offense, the court

shall sentence the offender to a community control sanction or combination

of community control sanctions if all of the following apply:

(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) The offender previously has not been convicted of or pleaded

guilty to a misdemeanor offense of violence that the offender committed

within two years prior to the offense for which sentence is being imposed.

(Underlining added.)

{¶17} R.C. 2929.13(B)(1)(a) does not apply in this case to require that the

appellant receive community control for her guilty pleas to the fourth-degree felonies

contained in Counts Two and Three because the most serious charge against her at the

time of sentencing was not a fourth- or fifth-degree felony, but rather, a felony of the third

degree, to which she also pleaded guilty.

{¶18} Furthermore, the trial court was not required to make findings under R.C.

2929.13(B). See, generally, State v. Henslee, 5th Dist. Muskingum No. CT2017-0009,

2017-Ohio-5786, at ¶17. The Henslee case was recently cited by the court in State v.

Rudolph, 8th Dist. Cuyahoga No. 111732, 2023-Ohio-1040. The defendant in Rudolph

Delaware County, Case No. 22 CAA 10 0069 8

argued that the trial court erred in sentencing him to prison rather than community control.

The Rudolph court disagreed, stating:

In this case, however, Rudolph did not object to the trial court's

advisements regarding a possible prison sentence at the change-of-plea

hearing and did not object to the trial court's imposition of a prison sentence

rather than placing him under community-control sanctions at the

sentencing hearing. Because Rudolph did not object to his prison sentence

at the sentencing hearing, he has forfeited all but plain error. See, e.g., State

v. Buckway, 8th Dist. Cuyahoga No. 100591, 2014-Ohio-3715, ¶ 3 (where

defendant failed to object to the trial court imposing a term of imprisonment

rather than community-control sanctions at sentencing under R.C.

2929.13(B)(1), he forfeited all but plain error); State v. Ali, 10th Dist. Franklin

Nos. 18AP-935, 18AP-936 and 18AP-938, 2019-Ohio-3864, ¶ 23 (where

defendant did not object at the sentencing hearing to the trial court's

imposition of a prison term rather than community-control sanctions for his

crime of receiving stolen property, he forfeited all but plain error); State v.

Henslee, 5th Dist. Muskingum No. CT2017-0009, 2017-Ohio-5786, ¶ 12

(where defendant failed to object, at his sentencing hearing, that the trial

court had failed to make findings under R.C. 2929.13(B)(1)(b) before

imposing a prison sentence for fourth- and fifth-degree felonies, he forfeited

all but plain error); State v. Ganguly, 2015-Ohio-845, 29 N.E.3d 375, ¶ 38-

40 (10th Dist.) (where defendant did not object to the imposition of a prison

term at the sentencing hearing, appellate review was limited to plain error).

Delaware County, Case No. 22 CAA 10 0069 9

Appellate courts have discretion to correct plain error. State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. Plain

error is an obvious error or defect in the trial court proceedings that affects

a substantial right. Id.; see also Crim.R. 52(B) (“Plain errors or defects

affecting substantial rights may be noticed although they were not brought

to the attention of the court.”). Plain error requires a showing that there was

an error, i.e., a “ ‘deviation from a legal rule,’ ” that the error was plain or

obvious and that, but for the error, the outcome of the proceeding would

have been otherwise, i.e., “a reasonable probability that the error resulted

in prejudice.” Rogers at ¶ 22-23, quoting State v. Barnes, 94 Ohio St.3d 21,

27, 759 N.E.2d 1240 (2002); see also State v. Buttery, 162 Ohio St.3d 10,

2020-Ohio-2998, 164 N.E.3d 294, ¶ 7, citing State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. Notice of plain error “is to

be taken with the utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. The party

asserting plain error “bears the burden of proof to demonstrate plain error

on the record.” Rogers at ¶ 22, citing Quarterman at ¶ 16.

Rudolph has not shown that the trial court committed error — much

less plain error — here.

Id. at ¶29-31.

{¶19} In this case the appellant did not object to the trial court's advisements

regarding a possible prison sentence for the fourth-degree felonies at the change-of-plea

Delaware County, Case No. 22 CAA 10 0069 10

hearing, nor did she object to the trial court's imposition of a prison sentence rather than

community-control sanctions for Counts Two and Three at the sentencing hearing. There

has been no showing that there was a reasonable probability that an alleged error resulted

in prejudice, and thus no showing of plain error. The imposition of prison time for Counts

Two and Three was within the parameters of the statute, particularly since the most

serious charge against the appellant at the time of her sentencing was a felony of the

third degree.

{¶20} Specific findings were not required to impose prison terms for Counts Two

and Three, and the trial court did not err in sentencing the appellant to prison for the two

fourth degree felonies. Accordingly, the appellant’s assignment of error number one is

overruled.

ASSIGNMENT OF ERROR NUMBER II

{¶21} The appellant argues that the trial court abused its discretion went it

awarded restitution in the total amount of $37,771.41. We disagree.

{¶22} R.C. 2929.18(A)(1) confers upon the trial court the power to impose

restitution upon an offender for the economic loss suffered by the victim of a crime. The

court “… must engage in a ‘due process ascertainment that the amount of restitution

bears a reasonable relationship to the loss suffered.’ State v. Marbury, 104 Ohio App.3d

at 181, 661 N.E.2d at 271-272. 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, 733 N.E.2d 683, 685–86 ( 6th Dist. 1999).

Delaware County, Case No. 22 CAA 10 0069 11

{¶23} In this case, the trial court heard the testimony of two of the victims, and

because one of the victims suffered from dementia her daughter, who was familiar with

the nature and extent of the victim’s possessions. In addition, documentary evidence was

presented in the form of photographs of victim C.O.’s missing jewelry, receipts, and

appraisals, as well as the LEADS online record of the appellant’s significant pawn shop

transactions. The appellant was able to cross examine the witnesses and otherwise

engage in the “due process ascertainment” of the victims’ loss. The trial court was in the

best position to determine the veracity of the witnesses, and to evaluate the evidence

presented.

{¶24} We find that there was competent and credible evidence demonstrating that

the restitution ordered corresponded to the economic loss suffered as a proximate result

of appellant's theft. Accordingly, appellant’s assignment of error number two is overruled.

Delaware County, Case No. 22 CAA 10 0069 12

CONCLUSION

{¶25} Based upon the foregoing, appellant’s Assignments of Error Numbers I and

II are overruled, and the judgment of the Delaware County Court of Common Pleas is

hereby affirmed.

By: Baldwin, J.

Delaney, P.J. and

King, J. concur.