[Cite as State v. Willard,
2021-Ohio-2552.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2020-T-0040
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
JEFFREY ALLEN WILLARD,
Trial Court No. 2019 CR 001106
Defendant-Appellant.
OPINION
Decided: July 26, 2021
Judgment: Affirmed in part, modified in part, and affirmed as modified.
Dennis Watkins, Trumbull County Prosecutor; Ashleigh Musick and Ryan J. Sanders,
Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
Warren, OH 44481 (For Plaintiff-Appellee).
Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481
(For Defendant-Appellant).
MARY JANE TRAPP, P.J.
{¶1} Appellant, Jeffrey Allen Willard (“Mr. Willard”), appeals his judgment of
conviction from the Trumbull County Court of Common Pleas following his guilty pleas to
having weapons while under disability, grand theft, grand theft of a motor vehicle, failure
to comply with order or signal of police officer, escape, and obstructing official business.
{¶2} Mr. Willard presents two assignments of error, which we address in reverse
order.
{¶3} In his second assignment of error, Mr. Willard contends he did not enter his
guilty pleas knowingly, intelligently, or voluntarily because the trial court did not comply
with Crim.R. 11(C)(2)(a). Specifically, he contends the trial court failed to inform him of
potential consecutive prison terms and restitution.
{¶4} In his first assignment of error, Mr. Willard contends the trial court abused
its discretion in ordering him to pay restitution in the amount of $4,500 for police officer
overtime because there is nothing in the record indicating the amount bears a reasonable
relationship to the loss the police department actually suffered.
{¶5} In response to this court’s sua sponte order for supplemental briefing, Mr.
Willard contends under his first assignment of error that the trial court’s restitution order
for officer overtime was contrary to law because the Liberty Township Police Department
was not a “victim” for the purposes of R.C. 2929.18(A)(1). The state concedes error on
the latter issue.
{¶6} After a careful review of the record and pertinent law, we find as follows:
{¶7} (1) The trial court complied with Crim.R. 11(C)(2)(a) with respect to Mr.
Willard’s maximum prison terms. While the trial court did not inform Mr. Willard about
discretionary, consecutive prison terms, the trial court complied with the precedent
applying Crim.R. 11(C)(2)(a) that indicates this is not required.
{¶8} (2) The trial court did not comply with Crim.R. 11(C)(2)(a) by failing to inform
Mr. Willard about potential restitution to the Liberty Township Police Department as part
of his sentence. However, Mr. Willard has not shown resulting prejudice, i.e., that he
would not have pleaded guilty otherwise.
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{¶9} (3) We clearly and convincingly find that the trial court’s order of restitution
for officer overtime is contrary to law because the Liberty Township Police Department
was not a “victim” that suffered an “economic loss” pursuant to R.C. 2929.18(A)(1).
{¶10} Thus, we affirm the trial court’s judgment in part, modify in part, and affirm
as modified.
Substantive and Procedural History
{¶11} In February 2020, the Trumbull County Grand Jury indicted Mr. Willard on
the following six felony counts: having weapons while under disability, a felony of the
third degree, in violation of R.C. 2923.13(A)(1) and (B) (count 1); grand theft, a felony of
the third degree, in violation of R.C. 2913.02(A)(1) and (B)(4) (count 2); grant theft of a
motor vehicle, a felony of the fourth degree, in violation of R.C. 2913.02(A)(2) and (B)(5)
(count 3); failure to comply with order or signal of police officer, a felony of the third
degree, in violation of R.C. 2921.331(B), (C)(1), and (C)(5)(a)(ii) (count 4); escape, a
felony of the third degree, in violation of R.C. 2921.34(A)(1) and (C)(2)(b) (count 5); and
obstructing official business, a felony of the fifth degree, in violation of R.C. 2921.31(A)
and (B) (count 6).
{¶12} Mr. Willard pleaded not guilty to the charges. He subsequently withdrew
his former pleas of not guilty and entered written and oral pleas of guilty to all six charges.
{¶13} The parties jointly recommended concurrent prison terms of 24 months on
count 1 (having weapons while under disability); 24 months on count 2 (grand theft); 18
months on count 3 (grand theft of a motor vehicle); 24 months on count 5 (escape); 24
months on count 6 (obstructing official business); and a mandatory consecutive prison
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term of 12 months on count 4 (failure to comply with order or signal of police officer), for
an aggregate recommended prison term of 36 months.
{¶14} Among other notices, the plea agreement stated as follows:
{¶15} “I understand that court costs, restitution and other financial sanctions
including day fine, standard fine, and reimbursement for the cost of community sanctions
may be imposed.
{¶16} “I understand that if I am charged with multiple counts, the Court could
impose consecutive sentences.”
Plea Hearing
{¶17} The trial court held a plea hearing and engaged in a colloquy with Mr.
Willard. Mr. Willard indicated that he had read the plea agreement, had reviewed it with
his attorney, and had no questions about it. He also confirmed his understanding that the
sentence was not binding on the court and that the court could impose whatever sentence
it deemed appropriate within the guidelines.
{¶18} The trial court advised Mr. Willard of the potential penalties associated with
each of the six charges, including the ranges of potential prison terms, the maximum
fines, and whether prison was mandatory. With respect to count 4 (failure to comply with
order or signal of police officer), the trial court advised Mr. Willard that any prison term
imposed was required to be served consecutive to any other prison term. Mr. Willard
indicated that he understood the trial court’s advisements and entered guilty pleas to all
six charges.
{¶19} As a factual basis, the state indicated as follows:
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{¶20} “[O]n or about the date referenced in the indictment, in Trumbull County,
State of Ohio, officers with the Liberty Township Police Department got dispatched to a
bar in their jurisdiction for a drunk and disorderly person. When they arrived they came
into contact with the Defendant who was, in fact, drunk and disorderly. They attempted
to take him into custody for that offense. He struggled with them. He struggled with the
arrest.
{¶21} “[U]ltimately they were able to take him into custody. They placed him in
the back of one of the Liberty Township cruisers. While they finished their paperwork, the
Defendant climbed through the window from the back seat to the front seat and he was
able to take off in the police cruiser.
{¶22} “The police cruiser contained a shotgun that was the property of the Liberty
Township Police Department and the Defendant was under disability for Possession of
Firearms.
{¶23} “[D]uring that time, the police attempted to stop this Defendant from leaving
the scene, as he was in custody, and he refused to do so, driving off with the vehicle,
ultimately crashing into another motor vehicle.
{¶24} “To prove these allegations the State would have brought forth the
testimony of the arresting officers and witnesses at the scene.”
{¶25} The trial court determined that Mr. Willard made knowing, intelligent, and
voluntary guilty pleas; had been informed of his constitutional rights; and understood the
nature of the charges, the effect of changing his pleas, and the possible penalties.
Accordingly, the court accepted Mr. Willard’s guilty pleas and found him guilty.
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{¶26} Mr. Willard waived a presentence investigation, and the matter proceeded
immediately to sentencing.
Sentencing
{¶27} During the sentencing portion of the hearing, the trial court asked the state
whether there were any issues of restitution. The state responded that the Liberty
Township Police Department had submitted a victim response form requesting restitution
of $10,000 as a result of alleged damage to the police cruiser and $4,500 in officer
overtime as a result of the incident. The state indicated it was unaware until after the start
of the hearing that the form had been provided and did not know if defense counsel had
seen it. Defense counsel indicated that he had not.
{¶28} Following defense counsel’s review of the form, the following exchange
occurred:
{¶29} “[DEFENSE COUNSEL]: Your Honor, the only thing I can see, there was
insurance on this vehicle, and they checked that it is, so I don’t know that they’re out
$10,000. It’s purely overtime.
{¶30} “[THE TRIAL COURT]: Are you able to verify that?
{¶31} “[THE STATE]: Well, Your Honor, it does say that there was insurance for
the vehicle, so I would assume that they were made whole. Now, I have not received
anything from the insurance company. … With regard to the overtime, it’s not unheard
of for police departments to ask for that, though it’s rare. The overtime amount is $4,500.
{¶32} “[DEFENSE COUNSEL]: That’s the first time I heard over time.
{¶33} “[THE TRIAL COURT]: You would agree with the defense that the
insurance covers the car?
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{¶34} “[THE STATE]: It’s marked here, yes.
{¶35} “[THE TRIAL COURT]: So the issue then is the $4,500 overtime to find this
Defendant after he stole the police car?
{¶36} “[THE STATE]: Correct.
{¶37} “[THE TRIAL COURT]: Anything else on the issue of restitution?
{¶38} “[THE STATE]: No.
{¶39} “[THE TRIAL COURT]: Counselor, is there anything you would like to say
on behalf of Mr. Willard?
{¶40} “[DEFENSE COUNSEL]: Your Honor, we would just ask the Court to go
along with the agreement for the time between the State and the Defense.”
{¶41} The trial court sentenced Mr. Willard to prison terms of 36 months on count
1 (having weapons while under disability); 24 months on count 2 (grand theft); 18 months
on count 3 (grand theft of a motor vehicle); 36 months on count 4 (failure to comply with
order or signal of police officer); 24 months on count 5 (escape); and 12 months on count
6 (obstructing official business).1 The trial court ordered the prison terms in counts 1, 2,
and 3 to be served concurrent to each other; the prison terms in counts 5 and 6 to be
served concurrent to each other but consecutive to the prison terms in counts 1, 2, and
3; and the prison term in count 4 to be served consecutive to all other counts, for an
aggregate prison term of 96 months.
1. The hearing transcript indicates that the trial court imposed a prison term of 24 months on count 6, while
the subsequent judgment entry states 12 months. Mr. Willard has not challenged this discrepancy on
appeal.
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{¶42} The trial court stated that it had “reviewed the appropriate documentation”
and ordered Mr. Willard to pay restitution to the Liberty Township Police Department in
the sum of $4,500 “for overtime as necessary to apprehend” Mr. Willard.
{¶43} The hearing transcript indicates that following the trial court’s
pronouncement of sentence, Mr. Willard voiced his displeasure with the length of his
aggregate prison sentence by using expletives and remarking, “That’s not what I agreed
to.”
{¶44} The trial court subsequently issued judgment entries memorializing Mr.
Willard’s guilty pleas and sentences.
{¶45} Mr. Willard appealed and now raises the following two assignments of error:
{¶46} “[1.] The trial court abused its discretion when it ordered restitution for
expenses incurred by the police department for officer overtime.
{¶47} “[2.] The trial court erred when [it] found that appellant’s change of plea was
made knowingly, intelligently and voluntarily.”
{¶48} Based on our consideration of the record and briefs, this court, sua sponte,
ordered the parties to file supplemental briefs in relation to Mr. Willard’s first assignment
of error to address whether the Liberty Township Police Department constitutes a “victim”
for purposes of R.C. 2929.18(A)(1). Both parties filed supplemental briefs and agreed
that the Liberty Township Police Department does not constitute a “victim” under R.C.
2929.18(A)(1) and, therefore, that the trial court’s restitution order was erroneous.
{¶49} We review Mr. Willard’s assignments of error in reverse order.
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Guilty Pleas
{¶50} In his second assignment of error, Mr. Willard contends he did not enter his
guilty pleas knowingly, intelligently, or voluntarily because the trial court failed to comply
with Crim.R. 11(C)(2)(a) during the plea colloquy.
Standard of Review
{¶51} This court reviews de novo whether the trial court accepted a plea in
compliance with Crim.R. 11. State v. Dundics, 2016-Ohio-1368,
62 N.E.3d 1013, ¶ 10
(11th Dist.).
Crim.R. 11(C)(2)
{¶52} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527,
660 N.E.2d 450 (1996).
Crim.R. 11 was adopted to give detailed instructions to trial courts on the procedures to
follow before accepting pleas of guilty. State v. Barker,
129 Ohio St.3d 472, 2011-Ohio-
4130,
953 N.E.2d 826, ¶ 9.
{¶53} Crim.R. 11(C)(2), provides, in relevant part, as follows:
{¶54} “In felony cases the court … shall not accept a plea of guilty … without
first addressing the defendant personally and doing all of the following:
{¶55} “(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved, and if
applicable, that the defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
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{¶56} “(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty …, and that the court, upon acceptance of
the plea, may proceed with judgment and sentence.
{¶57} “(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining witnesses in the
defendant’s favor, and to require the state to prove the defendant’s guilt beyond a
reasonable doubt at a trial at which the defendant cannot be compelled to testify against
himself or herself.” (Emphasis added.) Crim.R. 11(C)(2)(a) through (c).
{¶58} The Supreme Court of Ohio most recently addressed appellate review of a
trial court’s compliance with Crim.R. 11 in State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-
2765,
164 N.E.3d 286.
{¶59} According to the court, the focus in reviewing pleas is not “on whether the
trial judge has ‘[incanted] the precise verbiage’ of the rule, … but on whether the
dialogue between the court and the defendant demonstrates that the defendant
understood the consequences of his plea.” (Emphasis added.) Id. at ¶ 12, quoting State
v. Stewart, 51 Ohio St.2d 86, 92,
364 N.E.2d 1163 (1977).
{¶60} The court also stated that its prior caselaw had “muddled” the required
analysis “by suggesting different tiers of compliance with the rule.” Id. at ¶ 17. For
instance, “[t]he court has, in some instances, said that “‘partial’ compliance is sufficient
absent a showing of prejudice from the failure to ‘substantially’ comply.” Id., quoting State
v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748,
893 N.E.2d 462, ¶ 32. Further, “the court
has indicated that when a trial court has ‘substantially’ complied, the defendant must show
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prejudice from the failure to ‘strictly’ or ‘literally’ adhere to the rule.” Id., quoting State v.
Nero,
56 Ohio St.3d 106, 107-108,
564 N.E.2d 474 (1990), and
Stewart at 93.
{¶61} According to the court, “those formulations have served only to unduly
complicate what should be a fairly straightforward inquiry. Properly understood, the
questions to be answered are simply: (1) has the trial court complied with the relevant
provision of the rule? (2) if the court has not complied fully with the rule, is the purported
failure of a type that excuses a defendant from the burden of demonstrating prejudice?
and (3) if a showing of prejudice is required, has the defendant met that burden?” Id.
{¶62} With the above principles in mind, we apply the three-part Dangler test.
Consecutive Prison Terms
{¶63} Mr. Willard contends that the trial court did not comply with Crim.R.
11(C)(2)(a) by failing to inform him of the possibility of consecutive prison terms for counts
1-3, 5, and 6. We disagree.
{¶64} In State v. Johnson, 40 Ohio St.3d 130,
532 N.E.2d 1295 (1988), the
Supreme Court of Ohio determined that a trial court complies with Crim. R. 11(C)(2)(a)
by informing a defendant of the maximum sentence for each of the individual crimes with
which he is charged.
Id. at 134. The court held that “[f]ailure to inform a defendant who
pleads guilty to more than one offense that the court may order him to serve any
sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R.
11(C)(2), and does not render the plea involuntary.”
Id. at syllabus.
{¶65} A plurality of the court recently questioned the applicability of Johnson under
the current version of Crim.R. 11(C)(2)(a), which requires the trial court to ensure the
defendant understands the nature of the “charges” rather than the “charge.” State v.
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Bishop, 156 Ohio St.3d 156,
2018-Ohio-5132,
124 N.E.3d 766, ¶ 15 (“Crim.R. 11(C)(2)(a)
has been amended since Johnson so that a single plea can now apply to multiple charges,
see
83 Ohio St.3d xciii, cix (effective July 1, 1998)”). However, the court did not overrule
its holding in Johnson. See id. at ¶ 47 (Kennedy, J., dissenting) (“[W]e have never held
that our holding in Johnson has been abrogated by the amended rule”).
{¶66} In Bishop, the court addressed the certified question of “[w]hether a criminal
defendant on [postrelease control] for a prior felony must be advised, during his plea
hearing in a new felony case, of the trial court’s ability under R.C. 2929.141 to terminate
his existing [postrelease control] and to impose a consecutive prison sentence for the
[postrelease-control] violation.” Id. at ¶ 1.
{¶67} In answering the certified question in the affirmative, the court distinguished
Johnson, stating as follows:
{¶68} “[W]hat happened to the defendant in Johnson is a far cry from what
happened to Bishop. Johnson was told of his potential sentences for each individual
offense; the trial court just failed to tell Johnson the sentences for each offense could run
consecutively. Here, the trial court told Bishop that he could receive a maximum sentence
of 12 months for his fifth-degree-felony conviction. But the trial court did not tell Bishop
that he was also subject to a separate consecutive 12-month sentence for his
postrelease-control violation.” Id. at ¶ 16.
{¶69} This court and others have recognized the court’s distinction in Bishop and
have continued to apply Johnson. See, e.g., State v. Shepard, 11th Dist. Ashtabula No.
2019-A-0024, 2019-Ohio-3995, ¶ 44, fn. 1; State v. Roberts, 9th Dist. Medina No.
19CA0004-M,
2019-Ohio-4393, ¶ 6-7; State v. Ellis, 5th Dist. Coshocton Nos.
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2019CA0014 and 2019CA0015, 2020-Ohio-1130, ¶ 9-12; State v. Nelson, 8th Dist.
Cuyahoga Nos. 109072, 109073, and 109260,
2020-Ohio-6993, ¶ 45-51.
{¶70} Courts have also distinguished Johnson in the context of a “mandatory”
consecutive prison term imposed pursuant to R.C. 2921.331(D). See, e.g., State v.
Bailey, 9th Dist. Summit Nos. 28003, 28004, and 28005, 2016-Ohio-4937, ¶ 13; State v.
Norman, 8th Dist. Cuyahoga, No. 91302,
2009-Ohio-4044, ¶ 7; State v. Pitts,
159 Ohio
App.3d 852,
2005-Ohio-1389,
825 N.E.2d 695, ¶ 22 (6th Dist.).
{¶71} R.C. 2921.331(D) provides that if an offender is sentenced to prison for a
felony offense of failure to comply with an order or signal of a police officer pursuant to
division (C)(4) or (5), the offender “shall serve the prison term consecutively to any other
prison term or mandatory prison term imposed upon the offender.” Courts have held that
the trial court must inform the defendant of the consecutive nature of the sentences, as it
is part of the maximum penalty. See Bailey at ¶ 13, quoting Norman at ¶ 7 (“When a
statute requires that sentences be served consecutively, the consecutive nature ‘directly
affects the length of the sentence, thus becoming a crucial component of what constitutes
the “maximum” sentence’”).
{¶72} Here, the trial court properly explained the maximum individual prison terms
for each of the six charges to which Mr. Willard pleaded guilty. In addition, as Mr. Willard
acknowledges, the trial court expressly informed him of a mandatory consecutive prison
term as a result of his guilty plea to count 4, where he was charged with failure to comply
with order or signal of police officer, a felony of the third degree, in violation of R.C.
2921.331(B), (C)(1), and (C)(5)(a)(ii).
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{¶73} Accordingly, since the trial court’s discussion of Mr. Willard’s prison terms
was consistent with the applicable precedent, we conclude that the trial court complied
with Crim.R. 11(C)(2)(a).
Restitution
{¶74} Mr. Willard next contends that the trial court did not comply with Crim.R.
11(C)(2)(a) by failing to inform him that he may be ordered to pay restitution as part of his
possible sentence. We agree.
{¶75} There appears to be no case law discussing whether restitution constitutes
part of the “maximum penalty involved” under Crim.R. 11(C)(2)(a).
{¶76} In State v. Wilson, 8th Dist. Cuyahoga No. 102645, 2015-Ohio-5143, the
Eighth District Court of Appeals appeared to presume that it does but determined that the
defendant did not demonstrate prejudicial error. See id. at ¶ 11.
{¶77} In State v. Jones, 11th Dist. Lake No. 2012-L-072, 2013-Ohio-2616, this
court suggested that restitution constitutes part of the maximum penalty involved by
stating, in dicta, that “the best approach for all concerned is that, if a matter of restitution
is not apparent from the nature of the plea and charges, there should be some
understanding of the restitution parameters at the time of the plea. Otherwise, whether a
plea was truly knowing or voluntary would be subject to question.” (Emphasis sic.) Id. at
¶ 17.
{¶78} The existing statutory authority supports a conclusion that restitution is part
of the “maximum penalty involved” under Crim.R. 11(C)(2)(a).
{¶79} R.C. 2929.18(A)(1) provides that “the court imposing a sentence upon an
offender for a felony may sentence the offender to any financial sanction or combination
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of financial sanctions authorized under this section …,” including, “[r]estitution by the
offender to the victim of the offender’s crime …, in an amount based on the victim’s
economic loss.” (Emphasis added.)
{¶80} The Supreme Court of Ohio has recognized that a restitution order imposed
for a felony is part of an offender’s sentence. State v. Danison, 105 Ohio St.3d 127, 2005-
Ohio-781,
823 N.E.2d 444, syllabus. “‘Sentence’ means the sanction or combination of
sanctions imposed by the sentencing court on an offender who is convicted of or pleads
guilty to an offense.” (Emphasis added.) R.C. 2929.01(EE). “‘Sanction’ means any
penalty imposed upon an offender who is convicted of or pleads guilty to an offense, as
punishment for the offense,” and it expressly includes “any sanction imposed pursuant to
any provision of sections 2929.14 to 2929.18 … of the Revised Code.” (Emphasis
added.) R.C. 2929.01(DD).
{¶81} Thus, since an order of restitution is a “penalty” and a component of the
defendant’s sentence, we conclude that it constitutes part of the “maximum penalty
involved” under Crim.R. 11(C)(2)(a).
{¶82} The transcript demonstrates that the trial court did not make any reference
to restitution during the plea hearing. The state contends that the trial court “substantially
complied” with the rule because Mr. Willard’s written plea agreement indicated that
restitution may be imposed and because the trial court confirmed Mr. Willard’s
understanding of the written plea agreement during the plea colloquy.
{¶83} We note that in State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200,
897
N.E.2d 621, the Supreme Court of Ohio held that a written plea form could be considered
as part of the totality of the circumstances in determining whether a trial court substantially
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complied with the nonconstitutional requirements in Crim.R. 11(C)(a) and (b). See id. at
¶ 15-16.
{¶84} Veney may not be consistent with Dangler, where the court indicated that
the relevant focus is on the “dialogue between the court and the defendant” and whether
it “demonstrates that the defendant understood the consequences of his plea.”
(Emphasis added.) See id. at ¶ 12. The Dangler court also criticized its past use of
“different tiers of compliance with the rule,” including the concept of substantial
compliance. See id. at ¶ 17. Under Dangler, the extent of trial court’s compliance is now
relevant in determining whether a prejudice analysis is required. See id. at ¶ 15 (“[A] trial
court’s complete failure to comply with a portion of Crim.R. 11(C) eliminates the
defendant’s burden to show prejudice”). (Emphasis sic.)
{¶85} Further, while Mr. Willard’s plea agreement stated that “restitution … may
be imposed,” it contained no specificity to the present case. In fact, the transcript
demonstrates that the state was not aware of the Liberty Township Police Department’s
request for restitution until after the plea/sentencing hearing began. Defense counsel
was not informed of the police department’s request until the sentencing portion of the
hearing, which occurred after the trial court accepted Mr. Willard’s guilty pleas. Therefore,
Mr. Willard could not have understood that he could be ordered to pay restitution to the
Liberty Township Police Department prior to the trial court’s acceptance of his guilty pleas.
{¶86} Accordingly, we conclude that the trial court did not comply with Crim.R.
11(C)(2)(a) by failing to inform Mr. Willard that he may be ordered to pay restitution the
Liberty Township Police Department.
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Prejudice Exceptions
{¶87} We next determine whether the trial court’s error is “of a type that excuses
a defendant from the burden of demonstrating prejudice.” Dangler at ¶ 17. We conclude
that it is not.
{¶88} According to the Dangler court, “[w]hen a criminal defendant seeks to have
his conviction reversed on appeal, the traditional rule is that he must establish that an
error occurred in the trial-court proceedings and that he was prejudiced by that error.” Id.
at ¶ 13. This traditional rule is subject to two “limited” exceptions. See id. at ¶ 14-15.
{¶89} First, “[w]hen a trial court fails to explain the constitutional rights that a
defendant waives by pleading guilty or no contest, [a reviewing court] presume[s] that the
plea was entered involuntarily and unknowingly, and no showing of prejudice is required.”
Id. at ¶ 14.
{¶90} Second, “a trial court’s complete failure to comply with a portion of Crim.R.
11(C) eliminates the defendant’s burden to show prejudice.” (Emphasis sic.) Dangler at
¶ 15. The court explained that in State v. Sarkozy,
117 Ohio St.3d 86,
2008-Ohio-509,
881 N.E.2d 1224, it held that “the trial court completely failed to comply with Crim.R.
11(C)(2)(a)’s requirement that it explain the maximum penalty when the court made no
mention of postrelease control in the plea colloquy, despite the fact the defendant was
subject to a mandatory five years of postrelease control.”
Id.
{¶91} The court reiterated that “[a]side from these two exceptions, the traditional
rule continues to apply: a defendant is not entitled to have his plea vacated unless he
demonstrates he was prejudiced by a failure of the trial court to comply with the provisions
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of Crim.R. 11(C).” Id. at ¶ 16. “The test for prejudice is ‘whether the plea would have
otherwise been made.’” Id., quoting Nero at 108.
{¶92} In Dangler, the trial court informed the defendant that he would be required
to register as a Tier III sex offender for the rest of his life but did not fully explain the
obligations and restrictions that accompanied his status as a sex offender. Id. at ¶ 1. The
Supreme Court of Ohio determined that neither of its exceptions to the prejudice
requirements applied. Id. at ¶ 23.
{¶93} First, the “maximum-penalty advisement is not a constitutional
requirement.” Id. Second, the trial court did not “completely fail” to comply with the
“maximum-penalty-advisement requirement” in Crim.R. 11(C)(2)(a) because it advised
the defendant that he would be subject to the registration requirements of the statutory
scheme. See id. at ¶ 22. Thus, the court concluded that the defendant could prevail “only
by establishing that he would not have pleaded no contest but for the trial court’s failure
to explain the sex-offender classification scheme more thoroughly.” Id. at ¶ 23.
{¶94} Here, Mr. Willard challenges the trial court’s compliance with Crim.R.
11(C)(2)(a), which involves nonconstitutional rights. See Dangler at ¶ 23. Therefore, the
first exception does not apply.
{¶95} We acknowledge that the trial court made no mention of restitution during
the plea colloquy. However, in the context of a non-prison sanction, we construe the
second exception as applicable when the trial court makes no mention of a mandatory
component of a defendant’s sentence. See Sarkozy at ¶ 22 (mandatory postrelease
control); State v. Rogers, 2020-Ohio-4102,
157 N.E.3d 142, ¶ 23 (12th Dist.) (mandatory
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fine); State v. Brown, 2020-Ohio-4474,
158 N.E.3d 972, ¶ 32 (8th Dist.) (mandatory sex
offender requirements).
{¶96} As the dissenting judge in Rogers aptly noted, construing Dangler broadly
would result in a defendant being excepted from the prejudice requirement upon a trial
court’s failure to mention any component of the defendant’s potential sentence, even if
that component was not actually imposed, was inconsequential, or was demonstratively
known. See Rogers at ¶ 36, fn. 4 (Piper, J., dissenting). It would also require reversal of
pleas that would not have been reversed prior to Dangler, which would be contrary to the
simplicity that the Dangler court intended. See id. at ¶ 36 (Piper, J., dissenting).
{¶97} R.C. 2929.18(A)(1) provides that the trial court may impose restitution,
which indicates a restitution order is discretionary, not mandatory. Therefore, we
conclude the trial court’s error is not “of a type that excuses” Mr. Willard “from the burden
of demonstrating prejudice.” Dangler at ¶ 17.
Prejudice Analysis
{¶98} “The test for prejudice is ‘whether the plea would have otherwise been
made.’” Dangler at ¶ 16, quoting
Nero at 108. Prejudice must be established “‘on the
face of the record.’” Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City Hosp.,
139 Ohio St.3d 238,
2014-Ohio-1913,
11 N.E.3d 243, ¶ 26.
{¶99} Mr. Willard has not asserted the existence of prejudice, and we find none
on the face of the record.
{¶100} Courts have held where a trial court fails to advise a defendant of some
facet of a maximum penalty but otherwise complies with Crim.R. 11(C)(2)(a), the
defendant cannot show prejudice if the trial court does not actually impose the component
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of the maximum sentence that it did not discuss. See State v. Liles, 3d Dist. Allen No. 1-
18-69, 2019-Ohio-3029, ¶ 23; State v. Simmons, 8th Dist. Cuyahoga Nos. 99513 and
100552,
2013-Ohio-5026, ¶ 7. For example, in Simmons, the Eighth District found no
resulting prejudice from the trial court’s failure to advise the defendant of possible fines
and court costs where it did not actually impose them and otherwise advised the
defendant of the maximum penalty he faced. Id. at ¶ 7.2
{¶101} The trial court properly advised Mr. Willard regarding the maximum penalty
involved other than restitution, and it did not actually impose restitution for vehicle
damage. Therefore, Mr. Willard cannot demonstrate prejudice resulting from the trial
court’s failure to inform him about potential restitution for vehicle damage.
{¶102} In addition, there is nothing in the record indicating that Mr. Willard would
not have entered his guilty pleas had the trial court informed him of potential restitution
for officer overtime.
{¶103} For instance, after defense counsel reviewed the police department’s
restitution request during the sentencing hearing, he disputed the portion relating to
vehicle damage. Neither defense counsel nor Mr. Willard disputed the portion relating to
officer overtime. Mr. Willard also did not move to withdraw his guilty pleas either before
or after sentencing. Based Mr. Willard’s comments following the trial court’s
announcement of sentence, the record indicates that Mr. Willard was primarily concerned
with the length of his aggregate prison sentence, not the restitution order.
2. We acknowledge some appellate districts have determined that any issues relating to unimposed
components of a penalty are “moot.” See, e.g., Rogers at ¶ 10, fn. 1 (involving fines and driver’s license
suspension); State v. Bostic, 8th Dist. Cuyahoga No. 84842,
2005-Ohio-2184, ¶ 24 (involving postrelease
control). However, we find a prejudice analysis to be more appropriate.
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{¶104} Accordingly, Mr. Willard has not established that he was prejudiced by the
trial court’s error.
{¶105} Mr. Willard’s second assignment is without merit.
Restitution Order
{¶106} In his first assignment of error, Mr. Willard challenges the trial court’s
restitution order in the amount of $4,500 for police officer overtime.
Standard of Review
{¶107} This court reviews restitution orders pursuant to R.C. 2953.08(G)(2). State
v. Ciresi, 2020-Ohio-5305,
162 N.E.3d 846, ¶ 5 (11th Dist.). That provision states:
{¶108} “The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶109} “The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate court may take any
action authorized by this division if it clearly and convincingly finds either of the following:
{¶110} “(a) That 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;
{¶111} “(b) That the sentence is otherwise contrary to law.”
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{¶112} Here, none of the sections referenced in R.C. 2953.08(G)(2)(a) apply.
Thus, our review is limited to determining whether we clearly and convincingly find that
the restitution order is otherwise contrary to law. Ciresi at ¶ 10.
Supplemental Briefing
{¶113} In his appellate brief, Mr. Willard’s argument focuses on whether the amount
of $4,500 for officer overtime bears a reasonable relationship to the loss the Liberty
Township Police Department suffered.
{¶114} As indicated, this court, sua sponte, ordered the parties to file supplemental
briefs addressing whether the Liberty Township Police Department constitutes a “victim”
for purposes of R.C. 2929.18(A)(1). In their supplemental briefs, both Mr. Willard and the
state agree that the Liberty Township Police Department does not constitute a “victim”
under R.C. 2929.18(A)(1) and, therefore, that the trial court’s restitution order was
erroneous. Despite the state’s concession of error, we briefly discuss the issue.
Law and Analysis
{¶115} R.C. 2929.18(A)(1) provides, in relevant part, that “the court imposing a
sentence upon an offender for a felony may sentence the offender to any financial
sanction or combination of financial sanctions authorized under this section,” including
“[r]estitution by the offender to the victim of the offender’s crime … in an amount based
on the victim’s economic loss.”
{¶116} The statute does not define the term “victim.” This court has defined a
“victim of a crime” as “the person or entity that was the ‘object’ of the crime.” State v.
Pietrangelo, 11th Dist. Lake No. 2003-L-125, 2005-Ohio-1686, ¶ 15, quoting State v.
Samuels, 4th Dist. Washington No. 03CA8,
2003-Ohio-6106, ¶ 5.
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{¶117} In Pietrangelo, we determined that “a government entity voluntarily
advancing its own funds to pursue a drug buy through an informant is not one of the
scenarios contemplated by R.C. 2929.18(A)(1).” Id. We recognized that “[i]n certain
circumstances, a government entity may be considered a victim of a crime under R.C.
2929.18(A)(1): For example, when government funds are embezzled or when
government property is vandalized.”
Id. We also acknowledged the state’s “legitimate
interest and entitlement, in certain cases, to defray the spiraling costs of criminal
investigation on behalf of the taxpayer.” Id. at ¶ 17. However, we agreed with the majority
of federal and states court that had concluded “‘the government is not a victim entitled to
restitution where public moneys are expended in pursuit of solving crimes, as these
expenditures represent normal operating costs.’” Id., quoting State v. Sequiera,
93 Haw.
34, 43,
995 P.2d 335 (2000). Based on the absence of “an express statement from the
legislature authorizing trial courts to sentence criminal defendants to pay restitution to law
enforcement agencies for this purpose,” we declined to “take it upon ourselves to judicially
rewrite the statute.”
Id.
{¶118} In In re M.A., 2016-Ohio-1161,
61 N.E.3d 630 (11th Dist.), we determined
police and fire departments did not qualify as “victims” pursuant to R.C. 2152.20(A)(3),
which governs restitution following a delinquency adjudication, where the departments
responded to a “nonspecific” bomb threat made to the schools within a district. Id. at ¶ 1.
We explained that the bomb threat was not made against these departments and was not
the type of crime “where actual harm was done to the Departments themselves, through
damage or theft. They merely performed services in aiding the public and/or investigating
crime, which is well within their ordinary duties.” Id. at ¶ 21. While the record indicated
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the police department had “expended some funds due to overtime work,” the state cited
no case law indicating that “overtime funds expended are not part of normal operating
costs.” Id. at ¶ 22. Further, even if additional overtime funds were considered an
economic loss, the police department was not a “victim” as the statute has been
interpreted. Id.; see also State v. Jones, 7th Dist. Jefferson Nos. 08 JE 20 and 08 JE 29,
2010-Ohio-2704, ¶ 47 (“[T]he government is not a victim under the restitution statute
merely because it expended funds in some manner as a result of the defendant’s
offense”).
{¶119} In this case, even assuming the Liberty Township Police Department
incurred $4,500 in overtime costs as a result of Mr. Willard’s offenses, we conclude, based
on the foregoing authority, that such expenses were part of the department’s normal
operating costs. Therefore, the department was not a “victim” that suffered an “economic
loss” pursuant to R.C. 2929.18(A)(1).
{¶120} Accordingly, we clearly and convincingly find that the trial court’s restitution
order is contrary to law. The trial court’s judgment is modified to remove the restitution
order and is affirmed as modified.
{¶121} Mr. Willard’s first assignment of error has merit.
{¶122} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is affirmed in part, modified in part, and affirmed as modified.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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