[Cite as State v. Kyle,
2021-Ohio-3346.]
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110167
v. :
SHERMAN KYLE, III, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED; REMANDED
RELEASED AND JOURNALIZED: September 23, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-643121-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony Santiago, Assistant Prosecuting
Attorney, for appellee.
Dean A. Colovas, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Sherman Kyle (“Kyle”) appeals his sentence.
For the reasons set forth below, we reverse the trial court’s order of restitution and
remand this case for further proceedings consistent with this opinion.1
1
We do note that appellant initially submitted a second assignment of error
challenging the constitutionality of the “Reagan Tokes” sentencing law as a violation of
I. Factual and Procedural Background
On September 9, 2019, a grand jury indicted Kyle on charges of
felonious assault with a repeat offender specification, abduction and domestic
violence. These charges all stem from an assault Kyle committed against his then-
wife Shavanda Kyle. During that assault, Kyle threatened to kill her and struck her
repeatedly with the butt of a kitchen knife. On October 15, 2020, Kyle pleaded guilty
to felonious assault, abduction and domestic violence.
The trial court held a sentencing hearing on November 17, 2020. At
that hearing, the trial court sentenced Kyle to five years on the felonious assault
charge, 36 months on the abduction charge and time served on the domestic
violence charge. Additionally, the trial court ordered restitution in the amount of
$80,000.
The trial court determined the amount of restitution as follows:
THE COURT: … What are your medical bills to date?
THE VICTIM: I can get that to you if you need me to. They’re pretty
lengthy. The State victim of a crime has paid some of them. Medical
Mutual won’t cover all of them so I’m just hanging with the bills.
THE COURT: What’s the current outstanding balance?
THE VICTIM: I think it’s — I want to [s]ay about 80.
THE COURT: $80,000?
THE VICTIM: (Nodding in the affirmative).
…
the doctrine of the separation of powers. On February 19, 2021 appellant filed a notice
with this court of the withdrawal of his second assignment of error.
So you were uninsured at the time of this incident. So the victim is
saying she’s got $80,000 in medical bills. I’ll order restitution in the
amount of $80,000. If it’s less than that, if you care to file a motion,
I’ll consider it, but live testimony from the victim in the courtroom is
she’s got the medical bills. He had a $55,000 year job.
[DEFENSE COUNSEL]: Your Honor, we would object to that order
because we haven’t seen any bills whatsoever.
THE COURT: All right. Thanks.
[DEFENSE COUNSEL]: But as far as, your Honor, if you order them,
we haven’t seen any evidence.
The trial court accepted the victim’s estimate of the outstanding
balance over Kyle’s objection. The transcript does not include any indication that
the victim testified under oath. Kyle appeals and assigned two errors for our review:
ASSIGNMENT OF ERROR NO. 1. WHETHER THE TRIAL COURT
COMMITTED PLAIN ERROR AND/OR ABUSED ITS DISCRETION
IN DENYING DEFENDANT-APPELLANT HIS RIGHT TO DUE
PROCESSS BY ORDERING DEFENDANT-APPELLANT TO PAY
$80,000 IN RESTITUTION WITHOUT SCHEDULING THE MATTER
FOR HEARING AND WITH LITTLE TO NO SUPPORTING
EVIDENCE TO SUBSTANTIATE THE ORDER.
ASSIGNMENT OF ERROR NO. 2. WHETHER THE APPLICATION
OF “REAGAN TOKES” FOR PURPOSES OF ISSUING AN
INDEFINITE PRISON SENTENCE UPON DEFENDANT-APPELLANT WAS AN UNCONSTITUTIONAL VIOLATION OF THE
DOCTRINE OF SEPARATION OF POWERS.
On February 19, 2021, Kyle withdrew his second assignment of error.
Standard of Review
“We review the trial court’s imposition of fines and restitution under
the abuse of discretion standard.” State v. Sekic, 8th Dist. Cuyahoga No. 95633,
2011-Ohio-3978, ¶ 30. The amount of restitution cannot be based on speculation.
State v. McClain, 5th Dist. Licking No. 2010 CA 00039,
2010-Ohio-6413, ¶ 43-44.
Instead, the trial court must “hear evidence on, and determine, the appropriate
amount owed” at an evidentiary hearing. State v. Preztak,
181 Ohio App.3d 106,
2009-Ohio-621,
907 N.E.2d 1254, ¶ 36-37 (8th Dist.); State v. Foster,
185 Ohio
App.3d 117,
2009-Ohio-6213,
923 N.E.2d 227, ¶ 50 (8th Dist.).
“At the restitution hearing, the victim or survivor has the burden to
prove by a preponderance of the evidence the amount of restitution sought from the
offender.” Cleveland v. Rushton, 8th Dist. Cuyahoga No. 108579, 2020-Ohio-1281,
¶ 37.
II. Law and Analysis
In this case, the trial court accepted the victim’s verbal estimate that
the outstanding balance was “about 80.” Defendant objected and the court ordered
the amount indicating that the trial court would consider reducing the restitution
amount based on subsequent motion practice. This fact pattern is almost identical
to Sekic:
In the current case, the trial court imposed restitution at the sentencing
hearing in the amount of $14,540. In arriving at that amount, the state
represented to the court that the victim owes $7,740 on outstanding
hospital bills and will incur $6,800 in future costs to fix the scar on his
forehead. No evidence was presented. [Defendant] disputed the
amount of restitution at sentencing. Rather than holding a hearing, the
court imposed a definite sum of restitution subject to the defendants
filing opposition briefs.
Sekic at ¶ 31.
Precisely like the present case, the trial court in Sekic relied on the
victim’s statement and estimate rather than the numbers established by the actual
bills. Furthermore, subsequent briefing cannot satisfy the hearing requirement in
the statute. Sekic, 2011-Ohio-3978, at ¶ 31. (“R.C. 2929.18 does not authorize the
trial court to summarily impose restitution over an objection and then offer a
briefing schedule to oppose the amount of restitution.”)
Accordingly, we find that the trial court abused its discretion by
setting a restitution amount based on the estimate of the victim rather than holding
an evidentiary hearing to resolve the objection of the defendant to the amount
estimated by Kyle.
We sustain appellant’s first assignment of error and remand this case
to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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
common pleas court to carry this judgment into execution. Case is remanded to the
trial court for further proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
EILEEN T. GALLAGHER, J., CONCUR
