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Trial court's imposition of restitution was an abuse of discretion, judges find
JESSICA SHAMBAUGH
Special to the Legal News
Published: April 20, 2015
A man cannot be ordered to pay restitution for an offense he was not convicted of, according to a recent opinion from the 3rd District Court of Appeals.
The three-judge appellate panel sustained Michael Radebaugh’s argument on appeal and remanded his case to the Marion County Court of Common Pleas for further proceedings.
The facts of the case state that Radebaugh was charged with possession of heroin, attempted tampering with evidence, tampering with evidence, theft and forgery in July 2013.
He ultimately filed a motion for intervention in lieu of conviction and agreed to plead guilty to possession of heroin, attempted tampering with evidence and theft.
Following a hearing on the matter, the trial court granted Radebaugh’s motion and his guilty pleas were ordered held in abeyance pending his successful completion of the intervention.
The trial court also ordered that he pay restitution to Commercial Savings Bank.
In March 2014, Radebaugh’s probation officer filed a notification of violation.
The trial court found that Radebaugh had violated its orders and sentenced him pursuant to his guilty pleas.
It also ordered that he pay $7,834 in restitution to CSB and $5,035 to Walmart, both of the entities found to have cashed Radebaugh’s forged checks.
On appeal, Radebaugh argued that he was unlawfully ordered to pay restitution to third parties.
The appellate court found that the relevant section of law had previously permitted courts to order that restitution be paid to third parties. However, the statute was later amended and that language was removed.
The judges further noted that in ordering that restitution be paid to CSB and Walmart, the trial court sua sponte determined that they were the victims of the crime because they cashed the forged checks.
“The relevant charge in the indictment in this case did not identify who the owner of the property was for the theft charge,” Judge John Willamowski wrote.
The judges found that in fact, Radebaugh’s interactions with Walmart and CSB were the basis for his forgery charge, of which he was not convicted.
“The forgery charge was dismissed as part of the plea agreement and the plea agreement did not provide that Radebaugh would be responsible for paying restitution for charges dismissed,” Willamowski continued.
“Generally, the amount of restitution is limited to the offenses for which a defendant is convicted. Thus, Radebaugh cannot be ordered to pay restitution for any damages arising from the forger.”
As for the theft offense, the judges determined that the state did not present any evidence indicating who the victims were of that offense. It also included no evidence that CSB or Walmart suffered any economic harm.
“Without some evidence to prove what the actual amount of economic loss was, the trial court abused its discretion in ordering restitution as was done in this case,” Willamowski concluded.
Presiding Judge Richard Rogers and Judge Vernon Preston joined Willamowski to reverse the lower court’s ruling and remand Radebaugh’s case.
The case is cited State v. Radebaugh, 2015-Ohio-1186.
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