.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
BRIAN ROSSITER : Case No. 2016CA0001
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 15CR0111
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 26, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON W. GIVEN DAVID A. SAMS
318 Chestnut Street P.O. Box 40
Coshocton, OH 43812 West Jefferson, OH 43162
Coshocton County, Case No. 2016CA0001 2
Farmer, P.J.
{¶1} On January 11, 2016, appellant, Brian Rossiter, pled guilty pursuant to a
plea agreement to two counts of receiving stolen property in violation of R.C. 2913.51
and one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32.
One of the stolen items was a concrete pulverizer belonging to Shelly & Sands, Inc. By
judgment entry filed January 13, 2016, the trial court sentenced appellant to an
aggregate term of three years in prison, and ordered him to pay restitution to Shelly &
Sands in the amount of $64,395.00.
{¶2} Appellant filed a pro se appeal and argued the following assignments of
error:
PRO SE I
{¶3} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED
RESTITUTION OF $64,395.00 BY FAILING TO: (A) ENSURE THE RECORD
POSSESSED COMPETENT, CREDIBLE EVIDENCE FROM WHICH THE COURT
COULD DISCERN THE AMOUNT OF RESTITUTION TO A REASONABLE DEGREE
OF CERTAINTY BEFORE ORDERING RESTITUTION; (B) FAILING TO INQUIRE
INTO THE ABILITY OF THE APPELLANT TO PAY THE $64,395.00 DOLLARS IN
RESTITUTION AND FAILED TO CONSIDER THE APPELLANT'S PRESENT OR
FUTURE ABILITY TO PAY WITHIN THE RECORD; (C) THE TRIAL COURT FAILED
TO INFORM THE APPELLANT OF RESTITUTION PRIOR TO APPELLANT
PLEADING GUILTY AND WAIVING HIS CONST. RIGHTS. TRIAL COURT VIOLATED
APPELLANT'S 6TH AND 14TH U.S. CONST. RIGHTS AND HIS ARTICLE I, SEC. 10
OF THE OHIO CONST."
Coshocton County, Case No. 2016CA0001 3
PRO SE II
{¶4} "DEFENSE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO THE RESTITUTION ORDER BY TRIAL COURT. COUNSEL
POSSESSED EVIDENCE THAT SHOWED NO RESTITUTION WAS DUE IN THIS
CASE. COUNSEL'S INEFFECTIVENESS PREJUDICED THE APPELLANT &
VIOLATED DUE PROCESS & EQUAL PROTECTION OF LAW, A VIOLATON OF
APPELLANT'S 5TH, 6TH, & 14TH U.S. CONST. AMENDS AND HIS ARTICLE I, SEC.
10 OF THE OHIO CONST."
{¶5} Thereafter, appellant was appointed counsel who submitted the following
assignment of error:
COUNSEL I
{¶6} "DEFENDANT-APPELLANT WAS DENIED EFFECTIVE COUNSEL
WHEN RESTITUTION FOR WHICH THERE WAS NO BASIS WAS ORDERED
WITHOUT A HEARING REQUEST OR OBJECTION."
PRO SE I
{¶7} Appellant claims the trial court erred in ordering him to pay restitution
without determining the reasonableness of the amount and his ability to pay, and
without informing him of restitution prior to his plea. We disagree.
{¶8} Appellant was indicted on five counts, and pled guilty to three counts
pursuant to a plea agreement. During the change of plea and dispositional hearing held
on January 11, 2016, the following exchange occurred (T. at 14-15):
Coshocton County, Case No. 2016CA0001 4
MR. MERANDA [Defense Counsel]: Thank you, Your Honor. Just
real briefly. My client is 42 years old. He has made mistakes in his life.
Currently serving out an eight-year prison sentence. I would ask the court
to impose consecutive three years on these cases here today. It is my
understanding he has five days' jail credit. We take no objection to the
restitution that's going to be asked for by the state, if any.
With regards to the first two counts, Your Honor, I would ask the
court to take into consideration that he is going to be serving out a hefty
prison sentence with today's sentence and his current eight year sentence
that he is serving, to waive any fines and court costs here today. Thank
you.
THE COURT: Thank you. Mr. Rossiter, let me ask you, do you
have any statement or information that you wish to offer on your own
behalf in mitigation of punishment? Is there anything about sentencing
that you want to say?
THE DEFENDANT: No, sir.
THE COURT: Mr. Hall, anything on behalf of the State of Ohio?
MR. HALL [Prosecutor]: The state agreed to take no position, Your
Honor.
THE COURT: What's the restitution amount?
MR. HALL: $64,395.
THE COURT: Payable to who?
MR. HALL: Shelly & Sands.
Coshocton County, Case No. 2016CA0001 5
THE COURT: Brian Rossiter is hereby ordered to pay as and for
restitution in this matter $64,395 to the Shelley & Sands Company. That's
as and for the concrete pulverizer in Count 4 of the indictment.
{¶9} The trial court deferred payment until after appellant is released from
prison. T. at 19; Judgment Entry Plea of Guilty and Sentencing filed January 13, 2016.
{¶10} We find no further analysis is necessary. Appellant and his trial counsel
waived any right to object to the restitution order.
{¶11} Assignment of Error I is denied.
PRO SE II, COUNSEL I
{¶12} Appellant claims his trial counsel was ineffective for failing to object to the
restitution order. We disagree.
{¶13} As noted in Assignment of Error I, the record demonstrates all the
participants were aware of and waived any error with the order of restitution.
{¶14} Assignment of Error II is denied.
Coshocton County, Case No. 2016CA0001 6
{¶15} The judgment of the Court of Common Pleas of Coshocton County, Ohio
is hereby affirmed.
By Farmer, P.J.
Hoffman, J. and
Wise, J. concur.
SGF/sg 118
