The Akron Legal News

Man who swindled several retailers loses his appeal

ANNIE YAMSON
Special to the Legal News
Published: July 21, 2014

A panel of judges in the 6th District Court of Appeals recently ruled that the Wood County Court of Common Pleas complied with all statutory procedural safeguards in convicting and sentencing Paul Tunison on charges of engaging in a pattern of corrupt activity.

Tunison’s indictment in November 2012 identified 13 incidents of theft perpetrated by Tunison and his four coconspirators.

According to the information alleged in the indictment, the group “participated in various methods of thievery including ‘no-reciept returns,’ ‘past all points of purchase’ and stealing checks.”

Tunison and his cohorts targeted large retailers throughout Northwest Ohio.

Tunison entered a guilty plea to an amended charge of attempted engaging in a pattern of corrupt activity, a third-degree felony.

The Wood County court ordered the preparation of a presentence investigation report and the matter was continued twice at Tunison’s request before it reached the sentencing hearing, where the court imposed a 24-month period of incarceration.

Tunison was also ordered to pay restitution jointly and severally with his codefendants in the amount of $14,362 to the various retailers from whom he had stolen.

In his appeal to the 6th District, Tunison challenged the propriety of the court’s community control notification.

In it’s judgment entry, the trial court stated, “Appellant is notified that failure to pay court costs may result in the imposition of community service in lieu of payment of said costs.”

According to Tunison, the trial court’s statement was an “offer” which it was unauthorized to make.

“Appellant argues ‘the court was without authority to inform (him) that he could complete community service work in lieu of payment of court costs,” wrote Judge James Jenson on behalf of the court of appeals. “We disagree with appellant’s characterization that any such ‘offer’ was made.”

Judge Jenson cited R.C. 2947.23(A)(1)(a), which requires a court to include the cost of prosecution in a sentence.

It also mandates, “If a judge imposes a community control sanction or other nonresidential sanction, the judge shall notify the defendant that if the defendant fails to pay that judgment, the court may order the defendant to perform community service.”

“Thus, the statute does not provide a choice of paying court costs or performing community service,” Judge Jenson wrote. “Rather it requires notification that a consequence for failing to pay costs may include the imposition of community service.”

After reviewing the record, the appellate panel concluded that the Wood County court never offered Tunison the choice of one or the other.

Additionally, because Tunison was sentenced to prison, the trial court was not required to notify him of the possibility of community service should he fail to pay court costs.

Tunison also argued that the trial court never informed him that, upon acceptance of his guilty plea, it could have chosen to proceed straight to sentencing.

Tunison thought that a presentence report was required and claimed that, had he known the court could opt to go straight to sentencing, he would have requested that it do so.

“The record reflects that the trial court did not, in fact, proceed directly to sentencing but rather referred the matter for a presentence investigation,” wrote Judge Jenson. “Where a trial court does not proceed immediately to sentencing upon accepting a guilty plea, the defendant is not prejudiced by the court’s failure to warn that it could have done so.”

Tunison contended that there was no reason for a presentence investigation and that it caused an “unnecessary delay.”

The appellate panel, however, noted that Tunison requested two continuances before sentencing, causing a 56-day delay in the proceedings.

“In sum, we see no evidence of ‘unnecessary delay’ by the trial court,” Judge Jenson concluded.

The judgment of the Wood County court was ultimately affirmed with Presiding Judge Stephen Yarbrough and Judge Arlene Singer concurring.

The case is cited State v. Tunison, 2014-Ohio-2692.

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