State v. Weiss

[Cite as State v. Weiss, 

.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                            No. 113962
                 v.                              :

ERIC WEISS,                                      :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: January 30, 2025


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-01-416198-ZA


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory J. Ochocki, Assistant Prosecuting
                 Attorney, for appellee.

                 Cullen Sweeney, Cuyahoga County Public Defender, and
                 Michael V. Wilhelm, Assistant Public Defender, for
                 appellant.


DEENA R. CALABRESE, J.:

                Defendant-appellant Eric Weiss appeals the trial court’s denial of his

motion to modify restitution order. For the reasons that follow, we affirm.
                              I. Procedural History

            In 2001, in Cuyahoga C.P. No. CR-01-416198-ZA, the State of Ohio

indicted Weiss on one count of theft and two counts of taking the identity of another.

Weiss pleaded guilty in 2003 to a single count of theft, and the trial court sentenced

him to three years of community-control sanctions and restitution. At the time of

Weiss’s sentencing, R.C. 2929.18 permitted a sentencing court to order that an

offender reimburse a third party — such as an insurance company — for amounts

paid to or on behalf of the victim for economic loss resulting from the offense. State

v. Kreischer, 

, ¶ 15; State v. Aguirre, 

. The

court’s journal entry filed May 6, 2003, ordered restitution in the amount of

$34,242.90 to be paid “to Key Bank or to the appropriate insurance company as

determined by probation department.”         Weiss did not appeal his sentence or

otherwise challenge the restitution order.

            In 2004, the General Assembly “amended R.C. 2929.18 to delete all

references to restitution for third parties.” 

. In 2019, some 15 years

after the 2004 amendment, Weiss filed a motion to vacate restitution order. Relying

on the amended version of R.C. 2929.18, he contended the trial court improperly

ordered restitution to a third-party insurance company. The State, citing Aguirre,

opposed the motion, arguing that while Weiss correctly quoted the current
restitution statute, he did not provide any authority to suggest that the amended

statute could be applied retroactively to his 2003 sentencing.

             The trial court denied the 2019 motion to vacate restitution order by

entry dated March 4, 2020. No appeal followed.

             Some four years later, Weiss filed the motion to modify restitution

order that is the subject of this appeal. In his April 4, 2024 motion and April 9, 2024

amended motion,1 Weiss conceded that his 2019 motion “was rightly denied because

[he] was citing inapplicable law.” In his 2024 motion, Weiss instead asked the trial

court to modify the restitution order “because Key Bank was made whole following

his theft.” Weiss’s motion did not include exhibits or request an evidentiary hearing.

The State opposed the motion, arguing that Weiss presented no evidence that an

insurer had reimbursed Key Bank for its financial loss, and further contending that

the statements of counsel are not evidence.

             The trial court denied the motion by entry dated May 6, 2024, and

Weiss timely appealed. In his sole assignment of error, Weiss states:

      The Trial Court abused its discretion in denying Mr. Weiss’s motion to
      vacate where restitution is currently owed to a party that has already
      been compensated.




      1 The amended motion merely removed an errant proposed order relating to a

different criminal case. In any event, Weiss’s amended motion superseded his original
motion. Teamsters Local Union No. 293 v. Cent. Leasing Co., Inc., 

, *6 (8th Dist. Apr. 3, 1980).
                                    II. Analysis

              The parties agree we should review the trial court’s denial of Weiss’s

motion under an abuse-of-discretion standard. See State v. Nitsche, 2016-Ohio-

3170 (8th Dist.); State v. Stechschulte, 

 (11th Dist.) (applying

abuse-of-discretion standard in reviewing trial court’s ruling on motion to modify

restitution). An abuse of discretion occurs when a court exercises its judgment “in

an unwarranted way, in regard to a matter over which it has discretionary authority.”

Johnson v. Abdullah, 

. “An abuse of discretion ‘implies not

merely error of judgment, but perversity of will, passion, prejudice, partiality, or

moral delinquency.’” Schleich v. Penn Cent. Corp., 

 (8th Dist.),

quoting TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers

& Surveyors, 

. An abuse of discretion also “‘implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.’” Schleich at ¶ 9,

quoting Blakemore v. Blakemore, 

 (1983); see also Gadson v.

Scott, 

 (8th Dist.). As the Ohio Supreme Court wrote in State v.

Morris, 

:

      A review under the abuse-of-discretion standard is a deferential review.
      It is not sufficient for an appellate court to determine that a trial court
      abused its discretion simply because the appellate court might not have
      reached the same conclusion or is, itself, less persuaded by the trial
      court’s reasoning process than by the countervailing arguments.

Id. at ¶ 14. Our review of the record under applicable law reveals no abuse of

discretion.
             The Ohio Supreme Court has held that the code provision in effect in

2003, which allowed for restitution to third parties like insurance carriers, is valid.

State v. Kreischer, 

, ¶ 15. See also State v. Bartholomew, 2008-

Ohio-4080, ¶ 13; State v. Aguirre, 

. Weiss has abandoned his

statutory argument. In his brief, he concedes that Ohio law authorized the 2003

restitution order but relies instead on “fundamental ideas of fairness.” Weiss argues

that despite the law that applied when he was sentenced, the court should consider

the policies underlying the subsequent amendment. He states in his brief:

      The purpose of restitution when Mr. Weiss was sentenced is different
      than the purpose authorized by amendment in June of 2004.
      Following that amendment, and absent any changes in the intervening
      years, the focus is now on actual victims, rather than corporations that
      are instantly reimbursed. And the insurance companies reimbursing
      the banks are not victims at all.

Weiss cites the concurring and dissenting opinion in Kreischer, in which Justice

Pfeifer applauded the General Assembly’s amendment to the restitution statute,

remarking “that restitution is not intended to be a windfall for insurance

companies.” 

.

             Weiss makes no principled argument, however, that the amended

statute should apply retroactively and thereby disturb the restitution component of

his sentence. Kreischer, Bartholomew, and Aguirre make it clear that courts may

not disregard which version of the restitution statute was in place at the time of a

defendant’s sentencing, i.e., where “at the time of its ruling, the trial court had
discretion to include reimbursement to third parties for amounts paid on behalf of

a victim.” 

. As noted, Weiss has conceded that point.

              In Aguirre, the Ohio Supreme Court resolved the following certified

conflict: “Whether an offender’s record of conviction may be sealed when the

offender still owes court-ordered restitution to a third-party insurance company.”

Id. at ¶ 15. Aguirre, like Weiss, had been sentenced prior to the amendment to the

restitution statute, at a time when courts were permitted to award restitution to

third parties such as insurers. Id. at ¶ 1. The Aguirre Court acknowledged the

General Assembly’s amendment to the statute, indicating that ‘“the legislature’s

intent to disallow payment to victims’ insurance companies is clear.’” Id. at ¶ 1,

quoting State v. Johnson, 

 (1st Dist.). Despite highlighting the

amendment to the statute, however, the Court explicitly confined its analysis to the

law as it existed when Aguirre was sentenced — prior to the amendment’s effective

date of June 1, 2004. 

.

             The Aguirre Court held that for the purposes of record sealing, the

three-year waiting period under R.C. 2953.32(A)(1) would begin to run only after

Aguirre made full restitution to her employer’s insurance companies. The Court

further wrote that “[c]ontrary to the implications of certain statements of the trial

court at the hearing in this case, the person or entity to whom restitution is owed is

immaterial, unless the person or entity was not statutorily eligible for restitution at

the time of the order.” (Emphasis added.) Aguirre, 

.
              Aguirre, the Court stated, had failed to satisfy “court-ordered

restitution to the third-party insurance companies,” a sentence imposed in 2002

when “courts were permitted to order restitution to third parties.” Id. at ¶ 21. The

Court therefore held that Aguirre, having not obtained the requisite final discharge,

was ineligible to have her conviction sealed. Id.

              In addition, citing our decision in State v. McKenney, 

 (8th Dist. May 31, 2001), the Aguirre Court rejected the “argument that

because the victim had been made whole, the purpose of restitution had been

satisfied.” 

. In McKenney, we held that the defendant’s “argument

that the purpose of the restitution order has been met because the victim has already

been made whole, is misplaced” because it “suggests that the purpose of restitution

is to benefit the victim. However, restitution is an integral part of an offender’s

sentence, not only as punishment, but for rehabilitation as well.” 

;

see 

. In light of the purposes of restitution emphasized by us in

McKenney and the Ohio Supreme Court in Aguirre, and given that nowhere does

Weiss argue that he satisfied his restitution obligations — a component of

punishment for his crimes — his assignment of error lacks merit.

              Even more fundamentally, Weiss offered no evidence that the victim

in this case, Key Bank, has been made whole or that he should be credited with any

specific payment amounts. Weiss did not request an evidentiary hearing and

provided the trial court with no evidence of any payments made to Key Bank by

anyone. A review of Weiss’s motions reveals no exhibits, such as authenticated
insurance records or affidavits of any kind, substantiating his claim that Key Bank

has been reimbursed in full or in part by an insurance carrier or otherwise. The State

is correct that “a representation by counsel does not constitute evidence.” State v.

Wood, 

 (2d Dist. 2001); State ex rel. Shubert v. Breaux,

; Hersh v. Cuyahoga Cty. Bd. of Revision, 

 (8th Dist.); Corporate Exchange Bldgs. IV & V, Ltd. Partnership v. Franklin

Cty. Bd. of Revision, 

 (1998); Hardy v. Delaware Cty. Bd. of

Revision, 

, ¶ 13.

              The lack of evidence that the victim has been compensated, in whole

or in part, is fatal to Weiss’s argument under an abuse-of-discretion standard. The

trial court did not err in denying the motion to modify restitution.

              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

common pleas 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.



DEENA R. CALABRESE, JUDGE

MICHELLE J. SHEEHAN, P.J., and
EILEEN T. GALLAGHER, J., CONCUR