[Cite as State v. Penty,
2024-Ohio-5397.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-338
v. : (M.C. No. 22 CRB 17495)
Matthew J. Penty, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 14, 2024
On brief: Frost Brown Todd LLC, Stephen Smith, Jr.,
Zackary L. Stillings, and Bradford L. Higdon, for appellee.
On brief: Mitchell A. Williams, Public Defender, and
Robert D. Essex, for appellant.
APPEAL from the Franklin County Municipal Court
EDELSTEIN, J.
{¶ 1} Defendant-appellant, Matthew J. Penty, appeals from the May 8, 2023
judgment of the Franklin County Municipal Court, imposing a restitution order of
$3,297.30 on his misdemeanor criminal damaging conviction. Mr. Penty contends the trial
court erred in failing to consider his ability to pay before ordering restitution. But because
the statute governing misdemeanor restitution, R.C. 2929.28, does not require a trial court
to consider a defendant’s ability to pay prior to ordering restitution, we affirm the judgment
below.
I. FACTS AND PROCEDURAL OVERVIEW
{¶ 2} On April 6, 2023, Mr. Penty entered a counseled guilty plea to one count of
criminal damaging, in violation of Dublin Code 131.04(A)(1)(a), a misdemeanor of the
No. 23AP-338 2
second degree. This offense stemmed from Mr. Penty striking the trunk of A.Y.’s vehicle
with his skateboard in October 2022, which resulted in damage to the vehicle.
{¶ 3} Prior to sentencing, the parties contested the amount of restitution owed to
A.Y. Thus, before proceeding to sentencing at the May 8, 2023 hearing, the City of Dublin
(“city”), presented evidence and testimony to prove the amount of restitution owed to A.Y.
Officer Daniel Craft testified about his investigation of the incident and the city presented
the photographs depicting elongated dents to the trunk of A.Y.’s vehicle, consistent with
A.Y.’s claim that Mr. Penty picked up his skateboard and struck his vehicle with it. (See
May 8, 2023 Tr. at 7-11, 13-17; Ex. 1; Ex. 2; Ex. 3; Ex. 4.)
{¶ 4} Regarding the amount of restitution sought, A.Y. testified he had not filed an
insurance claim for the property damage to his car because he anticipated that submitting
a claim would cause his insurance premium to increase. (See May 8, 2023 Tr. at 17-18, 21,
23-24.) A.Y. also presented two estimates for repairs to his vehicle (in the amounts of
$2,686.30 and $2,299.43) and an estimate for a rental car (in the amount of $804.44) while
the repairs were ongoing. (See May 8, 2023 Tr. at 18-22; Ex. 5; Ex. 6; Ex. 7.)
{¶ 5} After the city concluded its presentation, Mr. Penty testified about his current
financial situation, relevant to his ability to pay any financial sanctions the trial court might
impose at sentencing. (See May 8, 2023 Tr. at 28-31.) In closing remarks, his trial counsel
argued that because A.Y. admitted he had not encountered any out-of-pocket costs in
connection with this incident to date, estimates of A.Y.’s potential loss failed to sufficiently
show the economic loss alleged, as defined in R.C. 2929.01(L). (See May 8, 2023 Tr. at 35-
36.) Mr. Penty’s trial counsel also expressed concerns about A.Y. being unjustly enriched
by a restitution award based on these estimates in the event he later decided to submit the
property damage claim to his insurance company. (See May 8, 2023 Tr. at 36.)
Additionally, Mr. Penty’s trial counsel argued against the imposition of financial sanctions
and costs due to Mr. Penty’s inability to pay them. (See May 8, 2023 Tr. at 36-37.)
{¶ 6} After hearing arguments from counsel, the trial court found the city’s
evidence proved A.Y. was entitled to restitution in the amount of $3,297.30 (calculated by
averaging the two repair estimates and adding the rental car estimate to that amount) for
“the damage [he] incurred as a result of [Mr. Penty’s] actions.” (May 8, 2023 Tr. at 39.)
After ordering a restitution award in that amount, the trial court imposed a 90-day jail
No. 23AP-338 3
sentence, suspending the entire jail sentence for 2 years of non-reporting probation
conditioned only on Mr. Penty’s payment of restitution to A.Y. (See May 8, 2023 Tr. at 40-
41.) The trial court suspended all fines and costs because it “wanted [Mr. Penty] to focus
on the restitution piece of this,” waived the probation fee, and noted probation would
terminate upon satisfaction of the restitution order. (May 8, 2023 Tr. at 41.)
{¶ 7} Regarding Mr. Penty’s inability to pay restitution, the trial court noted that
although it was sensitive to this issue, in a non-reporting probation situation, “that only
arises if you are failing to pay those restitution obligations.” (May 8, 2023 Tr. at 41.) The
trial court went on to explain, without objection, that although it could consider inability to
pay a fine prior to sentencing, it could not address Mr. Penty’s inability to pay restitution
until “you’re failing to make those restitution payments in a community control [probation]
setting.”1 (May 8, 2023 Tr. at 41-42.)
{¶ 8} The trial court memorialized Mr. Penty’s conviction and sentence in a
judgment entry issued May 8, 2023. Mr. Penty now appeals from that judgment, and
asserts the following assignment of error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION BY
REFUSING TO ADDRESS [MR. PENTY]’S ABILITY TO PAY
RESTITUTION.
II. ANALYSIS
{¶ 9} Mr. Penty’s sole assignment of error concerns the propriety of the trial court’s
imposition of restitution in relation to his ability to pay it. Initially, we note it is undisputed
that A.Y. is a victim for purposes of Marsy’s Law. See Ohio Constitution, Article I, Section
10a(D) (defining “victim”). There is likewise no challenge on appeal to the amount of the
restitution ordered or A.Y.’s entitlement to it. Instead, Mr. Penty only takes issue with the
trial court’s failure to consider his inability to pay restitution when it imposed restitution in
the amount of $3,297.30 at sentencing.
{¶ 10} Mr. Penty argues the trial court was obligated to consider his “present and
future ability to pay the amount” of restitution under R.C. 2929.19(B)(5). (Appellant’s Brief
1 Shortly after this appeal was initiated, a statement of violations for revocation of community control hearing
was filed against Mr. Penty in this case based on Mr. Penty’s failure to pay restitution to A.Y. (See June 23,
2023 Statement of Violation(s).) But, on May 8, 2023, the trial court stayed its order of restitution pending
resolution of this appeal.
No. 23AP-338 4
at 4.) That provision provides: “[b]efore imposing a financial sanction under section
2929.18 of the Revised Code … the court shall consider the offender’s present and
future ability to pay the amount of the sanction.” (Emphasis added.) Restitution is a
financial sanction contemplated in R.C. 2929.18.
{¶ 11} Mr. Penty’s argument is not well-taken, however, because R.C. 2929.18
governs financial sanctions for felony offenses—not misdemeanors. Because restitution in
this case was ordered in connection with Mr. Penty’s misdemeanor conviction, R.C.
2929.19(B)(5) has no application here. Rather, R.C. 2929.28 governs financial sanctions
for misdemeanor offenses.
{¶ 12} Regarding the imposition of financial sanctions for a misdemeanor offense,
R.C. 2929.28(A) provides that, in addition to imposing court costs under R.C. 2947.23, a
sentencing court may sentence a defendant convicted of a misdemeanor offense “to any
financial sanction or combination of financial sanctions authorized under this section,”
which includes restitution and fines. R.C. 2929.28(B) further states:
If the court determines a hearing [on the imposition of financial
sanctions] is necessary, the court may hold a hearing to determine
whether the offender is able to pay the financial sanction imposed
pursuant to this section or court costs or is likely in the future to be
able to pay the sanction or costs.
If the court determines that the offender is indigent and unable to pay
the financial sanction or court costs, the court shall consider imposing
and may impose a term of community service under division (A) of
section 2929.27 of the Revised Code in lieu of imposing a financial
sanction or court costs.
(Emphasis added.)
{¶ 13} We read the plain language of R.C. 2929.28(B) and its use of “may” to confer
upon a sentencing court the discretion to consider the defendant’s ability to pay when
ordering misdemeanor restitution. See State v. Messer, 3d Dist. No. 1-23-25, 2023-Ohio-
4355, ¶ 18. “The statutory use of the word ‘may’ is generally construed to make the
provision in which it is contained optional, permissive, or discretionary … at least where
there is nothing in the language or in the sense or policy of the provision to require an
unusual interpretation.” Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107
(1971).
No. 23AP-338 5
{¶ 14} This is particularly true here where a contrary interpretation—one that
requires the trial court to consider the defendant’s ability to pay when imposing
restitution—would likely cause R.C. 2929.28(B) to run afoul of the constitutional provision
of Marsy’s Law giving victims of crime the right “to full and timely restitution from the
person who committed the criminal offense or delinquent act against” them.2 Article I,
Section 10a(A)(7), Ohio Constitution. See, e.g., Cleveland v. Rudolph, 8th Dist. No. 111128,
2022-Ohio-2363, ¶ 18 (holding that a defendant’s present and future ability “to pay the
amount of restitution is irrelevant under Marsy’s Law”); Ohio v. Oliver, 12th Dist. No. CA
2020-07-041,
2021-Ohio-2543, ¶ 64-72 (holding that Marsy’s Law superseded statutory
provisions that limit restitution based on consideration of the defendant’s pecuniary
circumstances); Cleveland v. Fuller, 8th Dist. No. 111790,
2023-Ohio-1669, ¶ 23; State v.
Thorp, 8th Dist. No. 112263,
2023-Ohio-3629, ¶ 24-26. Indeed, by its own terms, the
Marsy’s Law amendment is “self-executing” and “shall supersede all conflicting state laws.”
Article I, Section 10a(E), Ohio Constitution.
{¶ 15} In arguing his sole assignment of error, Mr. Penty does not consider or
address the provision of Marsy’s Law that confers upon victims of crime a constitutional
right to “full and timely restitution.” Nor does he engage with any case law that postdates
the effective date of Marsy’s Law or the statutory provision applicable to restitution
imposed for a misdemeanor conviction, R.C. 2929.28. For these reasons, we find Mr.
Penty’s arguments—which erroneously rely on R.C. 2929.19(B)(5) (pertaining to financial
sanctions imposed for felony convictions) and fail to address Marsy’s Law (providing
victims of crime with a constitutional right to full and timely restitution)—unavailing.
2 And, as this court recently noted in State v. Scott, 10th Dist. No. 22AP-475, 2024-Ohio-2274, ¶ 41, fn. 3,
“recent changes to Ohio’s victim’s rights laws confirm a sentencing court can no longer reduce or decline to
award restitution … based on a defendant’s present and future ability to pay the ‘full’ amount of a victim’s
economic losses due to the criminal offense.”
Id. “Effective April 6, 2023, H.B. No. 343 updated provisions of
the Ohio Revised Code concerning the rights of crime victims to better reflect the changes made to Article I,
Section 10a of the Ohio Constitution by the Marsy’s Law amendment.”
Id., citing 2022 Sub.H.B. No. 343,
available at https://www.legislature.ohio.gov/legislation/134/hb343 (accessed Nov. 13, 2024). Among other
things, H.B. No. 343 addressed a victim’s constitutional right to restitution by creating R.C. 2929.281. In
relevant part, R.C. 2929.281(A) requires a sentencing court to “order full restitution for any expenses related
to a victim’s economic loss due to the criminal offense.” Further, H.B. 343 amended R.C. 2929.28 to require
a sentencing court to “sentence the offender to make restitution pursuant to this section and section 2929.281
of the Revised Code” if the defendant “is being sentenced for a criminal offense as defined in section 2930.01
of the Revised Code.” Although we recognize these changes to Ohio’s victim’s rights laws took effect after Mr.
Penty was charged, on the same day he pled guilty, and before he was sentenced, we do not need to determine
whether H.B. 343 retroactively applies in order to resolve this case.
No. 23AP-338 6
Thus, we cannot conclude the trial court erred in imposing the restitution order without
regard to Mr. Penty’s ability to pay it.
{¶ 16} As we have recognized, “the difficulty still lies in a victim’s ability to
successfully enforce that right—i.e., collect,” restitution in full and in a timely manner from
an indigent defendant who lacks a present and future ability to pay it. See State v. Scott,
10th Dist. No. 22AP-475, 2024-Ohio-2274, ¶ 48, citing State v. Napper, 4th Dist. No.
06CA2885,
2006-Ohio-6614, ¶ 16 (observing that, in the absence of other visible means of
support, indigent defendant’s prison sentence of 51 years to life rendered it highly unlikely
he would have a “future ability” to pay restitution). But, “a trial court’s role at sentencing
regarding the imposition of restitution has no bearing on the issue of enforcement.”
Id.
Rather, a trial court’s obligation at sentencing, unless stipulated to by the parties, is to
determine the amount of restitution owed to the victim. To do this, a court must: (1)
determine whether the person or entity seeking restitution qualifies as a “victim” under
Marsy’s Law, e.g., Centerville v. Knab,
162 Ohio St.3d 623,
2020-Ohio-5219; (2) evaluate
whether a preponderance of the evidence shows the economic loss alleged, as defined in
R.C. 2929.01(L), was suffered as a direct and proximate result of the criminal offense, see
State v. Perez, 10th Dist. No. 19AP-134,
2019-Ohio-5323, ¶ 10; and (3) order restitution in
the amount of the economic loss suffered by a qualified victim as a direct and proximate
result of the offense, e.g., State v. Yerkey,
171 Ohio St.3d 367,
2022-Ohio-4298.3
{¶ 17} For these reasons, we overrule Mr. Penty’s sole assignment of error.
III. CONCLUSION
{¶ 18} Having overruled Mr. Penty’s sole assignment of error, we affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
DORRIAN and JAMISON, JJ., concur.
3 We do have concerns about the propriety of relying on a victim’s purely speculative belief that his car
insurance premium might increase if he were to file a claim for damage caused in connection with a criminal
offense as evidence supporting the amount of economic loss alleged. But because this is not challenged on
appeal, we do not address it.
