[Cite as State v. Choate, 2015-Ohio-4972.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

DAVID S. CHOATE, JR. 

 Appellant 

C.A. No. 27612 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 13 05 1322(A) 

DECISION AND JOURNAL ENTRY 

Dated: December 2, 2015 

 

HENSAL, Presiding Judge. 

{¶1} David Choate appeals from his convictions in the Summit County Court of 

Common Pleas. For the reasons set forth below, we affirm in part, reverse in part, and remand 

the matter for further proceedings. 

I. 

{¶2} On April 2, 2013, Joseph Kowalski arrived at Advance Excavation, the company 

he owned, and discovered that a red Dodge Ram dump truck, a white Ford F-250, and several 

tools had been taken during the night. The police eventually arrested numerous people in 

connection with the theft, including Mr. Choate. Many of Mr. Choate’s co-defendants pleaded 

guilty and testified against him at trial. The jury convicted Mr. Choate of breaking and entering 

and three counts of grand theft, and the trial court sentenced him to an aggregate prison term of 

54 months. 
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{¶3} Mr. Choate has appealed, raising seven assignments of error for our review. For 

ease of discussion, we discuss his assignments of error out of order. 

II. 

ASSIGNMENT OF ERROR VI 

THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT 

FOR THREE COUNTS OF GRAND THEFT AND BREAKING AND 

ENTERING. 

{¶4} Mr. Choate asserts in his sixth assignment of error that his convictions are not 

supported by sufficient evidence. Whether a conviction is supported by sufficient evidence is a 

question of law, which this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 

(1997). In making this determination, we must view the evidence in the light most favorable to 

the prosecution: 

An appellate court’s function when reviewing the sufficiency of the evidence to 

support a criminal conviction is to examine the evidence admitted at trial to 

determine whether such evidence, if believed, would convince the average mind 

of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is 

whether, after viewing the evidence in a light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the crime 

proven beyond a reasonable doubt. 

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. 

{¶5} The jury found Mr. Choate guilty of violating Revised Code Section 

2911.13(A)/(B) by committing breaking and entering and of violating Section 2913.02(A)(1) by 

committing grand theft. Section 2911.13 provides, 

(A) No person by force, stealth, or deception, shall trespass in an unoccupied 

structure, with purpose to commit therein any theft offense, as defined in 

section 2913.01 of the Revised Code, or any felony. 

(B) No person shall trespass on the land or premises of another, with purpose 

to commit a felony. 
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Section 2913.02(A)(1) provides that, “[n]o person, with purpose to deprive the owner of property 

or services, shall knowingly obtain or exert control over either the property or services * * * 

[w]ithout the consent of the owner or person authorized to give consent.” “If the value of the 

property or services stolen is seven thousand five hundred dollars or more and is less than one 

hundred fifty thousand dollars, a violation of this section is grand theft, a felony of the fourth 

degree.” R.C. 2913.02(B)(2). 

{¶6} Kevin Ervin testified that he knew Mr. Choate because the mother of Mr. Ervin’s 

child was Mr. Choate’s sister. On April 2, 2013, Mr. Choate was staying with his sister and Mr. 

Ervin. Mr. Choate left that evening and returned around 5:30 to 6:00 a.m. the next morning. Mr. 

Choate asked Mr. Ervin if he could store some things in his basement, which Mr. Ervin allowed 

because he thought Mr. Choate had gotten some property back from his ex-girlfriend. Mr. Ervin 

went back to bed and did not see what Mr. Choate brought in until that evening. At some point 

later, Mr. Ervin saw “weed eaters, saws, * * * tools, construction equipment, that kind of stuff” 

in his basement. Thereupon, Mr. Ervin told Mr. Choate to remove the items. 

{¶7} Heather Satterfield testified that she met Mr. Choate on the night of the theft and 

had not seen him since that night other than in passing at a bar. According to Ms. Satterfield, on 

the night of the theft, she received a call from a man named “Andy,” a friend of her exboyfriend, who asked her to give him and Mr. Choate a ride. Ms. Satterfield drove to a home she 

believed belonged to Mr. Choate’s sister. Jason King was with her. At the house, she picked up 

Mr. Choate, “Henry or Andy,” and Wendy Cummings and drove them and Mr. King to 

Macedonia. The group stopped at a BP before Ms. Satterfield “dropped the[ three men] off 

down the road.” Eventually, she received a message from Mr. King telling her to meet the men 

back at the BP. When she arrived back at the BP station with Ms. Cummings, she saw the men 
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with two dump trucks: “[a] white one and a red one.” She saw tools in the back of one of the 

trucks. According to Ms. Satterfield, she entered the BP to purchase a Mountain Dew for Mr. 

Choate and then they all left. Mr. Choate drove one of the trucks, “Andy” and Ms. Cummings 

were in the other, and Mr. King rode with Ms. Satterfield. They drove back to the home of Mr. 

Choate’s sister arriving at approximately 6:30 a.m., and unloaded the tools. 

{¶8} Harry “Andy” Croft testified that he met with Mr. Choate on April 2, 2013, and 

the two “discussed some stuff that could be easily obtained through stealing, * * * and, basically, 

just went and stole the stuff.” He elaborated that he, Mr. Choate, and Mr. King were dropped off 

in Macedonia, and that the trio walked to a building. They opened the garage door of the 

building to reveal shelves of tools, and they proceeded to load the tools into the back of the red 

dump truck. Mr. Croft drove the red dump truck out of the building but stopped because he 

could not get the lights on the truck to turn on. Mr. Choate, driving another truck pulled up next 

to him, and Mr. Choate helped him turn on the headlights. After the group returned to Mr. 

Choate’s sister’s home, they unloaded the tools. Mr. Croft took some of the tools for himself and 

sold them. 

{¶9} Mr. Kowalski testified that he received a call from his son on the morning of 

April 2, 2013. His son told him that he was at their business, that the garage was open, and that 

numerous items had been taken. Mr. Kowalski drove to meet his son and saw that a red dump 

truck and a white utility truck were gone, as well as many of the more valuable tools. Mr. 

Kowalski saw that two other buildings had been broken into besides the garage, including the 

office building. A fourth building on the premises, which was leased to another company, had 

not been broken into. Mr. Kowalski testified that whomever broke into the buildings seemed 

familiar with the business because they found the cash kept in the office without needing to 
5 

 

rummage through the drawers and also left behind tools that outwardly appeared fine but actually 

needed to be serviced. However, “all the good ones” were taken. Mr. Kowalski verified that a 

document entered into evidence was an accurate list of all of the tools that had been stolen. Mr. 

Kowalski testified that Advance Excavation had paid $56,000 for the tools. He also testified 

that, the day before the theft, Mr. Choate, who was a former employee, called to ask for his job 

back. Mr. Kowalski told Mr. Choate that he did not have a job for him. 

{¶10} Detective Brian Vince of the Macedonia Police Department testified that he 

investigated the break-in at Advance Excavation. During the course of his investigation, he 

learned that Mr. Choate had asked to be rehired by Advance Excavation the day before the 

break-in. A few days later, Mr. Choate was taken into custody and a saw belonging to Advance 

Excavation was found in the car that Mr. Choate had been occupying. The police also located 

both trucks that had been taken from Advance Excavation. The white Ford utility truck was 

found in a building a couple of miles from Mr. Ervin’s home. The red Dodge dump truck was 

found behind a bar in Barberton. Detective Vince testified that Christopher Inman got the dump 

truck from Mr. Choate. When Mr. Imman got into a “private property accident,” however, he 

parked it behind the bar and fled. 

{¶11} Detective Vince interviewed Mr. Choate about the incident while Mr. Choate was 

in custody, and a video of the interview was entered into evidence. Mr. Choate told Detective 

Vince that he could find the missing tools for him if he was let out of custody. Detective Vince 

declined to let Mr. Choate out of custody. When pressed by Detective Vince, Mr. Choate 

indicated that he had committed the break-in because he wanted to start his own business. 

{¶12} Mr. Choate’s only argument in support of this assignment of error is that his 

convictions were not supported by sufficient evidence because “almost all witnesses against 
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[him] testified as part of a plea agreement to reduce their sentences.” However, this challenges 

the manifest weight of the evidence, not the sufficiency of the evidence. See State v. Brown, 9th 

Dist. Summit No. 25287, 2011–Ohio–1041, ¶ 14, citing State v. Porter, 9th Dist. Summit No. 

24996, 2010–Ohio–3980, ¶ 9 (“[A] sufficiency challenge tests the State’s production of 

evidence, not the persuasiveness of the evidence produced.”). Viewing the evidence at trial in 

the light most favorable to the State, there was sufficient evidence to support his convictions for 

one count of breaking and entering and three counts of grand theft. 

{¶13} Accordingly, his sixth assignment of error is overruled. 

ASSIGNMENT OF ERROR VII 

THE VERDICTS OF GUILTY FOR THREE COUNTS OF GRAND THEFT 

AND BREAKING AND ENTERING WERE AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 

{¶14} In Mr. Choate’s seventh assignment of error, he asserts that his convictions are 

against the manifest weight of the evidence. “While the test for sufficiency requires a 

determination of whether the state has met its burden of production at trial, a manifest weight 

challenge questions whether the state has met its burden of persuasion.” State v. Glunt, 9th Dist. 

Medina No. 13CA0050-M, 2014-Ohio-3533, ¶ 18, quoting State v. Carr, 9th Dist. Summit No. 

26661, 2014-Ohio-806, ¶ 28. To determine whether a conviction is against the manifest weight 

of the evidence, this Court 

must review the entire record, weigh the evidence and all reasonable inferences, 

consider the credibility of witnesses and determine whether, in resolving conflicts 

in evidence, the trier of fact clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed and a new trial 

ordered. 

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the 

greater amount of credible evidence produced in a trial to support one side over the other side. 
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Thompkins, 78 Ohio St.3d at 387. The appellate court should only exercise its power to reverse a 

judgment as against the manifest weight of the evidence in exceptional cases. Otten at 340. 

{¶15} Mr. Choate advances no argument in support of this assignment of error. Instead, 

he merely discusses the standard of review and concludes, “in the present case[,] the jury lost its 

way when it convicted Mr. Choate of three counts of theft and breaking and entering.” It is not 

this Court’s duty create Mr. Choate’s argument for him. See State v. Brownlee, 9th Dist. Summit 

No. 27255, 2015-Ohio-2616, ¶ 35. 

{¶16} Furthermore, even considering the argument raised in Mr. Choate’s sixth 

assignment of error, we cannot conclude, after a thorough review of the entire record, that the 

jury lost its way when it found Mr. Choate guilty of breaking and entering and three counts of 

grand theft. While a number of Mr. Choate’ co-defendants did receive reduced sentences in 

exchange for their testimony, the jury was well aware of this information and were able to 

consider it when weighing the testimony. See State v. Jackson, 9th Dist. Summit No. 26757, 

2013-Ohio-5557, ¶ 16, 21 (noting that a co-defendant’s plea deal is a factor for the jury to weigh 

when considering the credibility of the co-defendant’s testimony). Furthermore, a video 

recording of a police interview of Mr. Choate was entered into evidence, and, during that 

interview, Mr. Choate told the officer that the reason he had taken the tools was because he 

wanted to start his own business. 

{¶17} Accordingly, Mr. Choate’s seventh assignment of error is overruled. 

ASSIGNMENT OF ERROR I 

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY RULING 

THAT GRAND THEFT, GRAND THEFT AND GRAND THEFT WERE NOT 

ALLIED OFFENSES OF SIMILAR IMPORT ALTHOUGH THE ALLEGED 

THEFTS ALL OCCURRED AT THE SAME PLACE, AT THE SAME TIME, 

INVOLVING THE SAME INDIVIDUALS AGAINST THE SAME VICTIM. 
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{¶18} Mr. Choate argues in his first assignment of error that his three grand theft 

offenses are allied offenses of similar import and should merge. Revised Code Section 2941.25 

codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United 

States Constitution and Article I, Section 10 of the Ohio Constitution, which prohibits multiple 

punishments for the same offense. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. 

It provides: 

(A) [If] the same conduct by defendant can be construed to constitute two or more 

allied offenses of similar import, the indictment or information may contain 

counts for all such offenses, but the defendant may be convicted of only one. 

(B) [If] the defendant’s conduct constitutes two or more offenses of dissimilar 

import, or where his conduct results in two or more offenses of the same or 

similar kind committed separately or with a separate animus as to each, the 

indictment or information may contain counts for all such offenses, and the 

defendant may be convicted of all of them. 

R.C. 2941.25. 

{¶19} The Ohio Supreme Court has recently clarified the test courts must apply when 

determining whether offenses are allied offenses of similar import. In State v. Ruff, 143 Ohio 

St.3d 114, 2015–Ohio–995, it held that “courts must evaluate three separate factors—the 

conduct, the animus, and the import.” Id. at paragraph one of the syllabus. “[A] defendant 

whose conduct supports multiple offenses may be convicted of all the offenses if any one of the 

following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct 

shows that the offenses were committed separately, or (3) the conduct shows that the offenses 

were committed with separate animus.” Id. at paragraph three of the syllabus. “When deciding 

whether to merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review 

the entire record, including arguments and information presented at the sentencing hearing, to 

determine whether the offenses were committed separately or with a separate animus.” State v. 
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Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, syllabus. It is a defendant’s burden to 

demonstrate that he or she is entitled to have two offenses merge. Id. at ¶ 18. To do so, the 

defendant must show that the State relied upon the same conduct to support both offenses. State 

v. Logan, 60 Ohio St.2d 126, 128 (1979). 

{¶20} Mr. Choate was convicted of three counts of grand theft. The indictment specifies 

that the first grand theft charge was related to the taking of the tools, the second charge was for 

the taking of the white 2005 Ford F-250 utility truck, and the third count was for stealing the red 

2007 Dodge dump truck. The evidence at trial established that Mr. Choate drove the Ford utility 

truck away from Advance Excavation while Mr. Croft drove the Dodge dump truck, which was 

loaded with tools that Mr. Choate and the others had taken from the Advance Excavation 

building. The trial court declined to merge Mr. Choate’s grand-theft convictions because it 

determined that they had been committed with separate conduct and separate animi. 

Specifically, it determined that separate conduct formed the basis for each of the thefts. 

{¶21} Although Mr. Choate did not personally drive the red Dodge dump truck away 

from Advance Excavation, he was complicit in its theft. The evidence at trial supported the 

conclusion that Mr. Choate had organized the break in and thefts at Advance Excavation, that he 

had helped recruit people for the task, that he had assisted in loading the dump truck with tools, 

and that he helped the driver of the dump truck, after the driver had driven a short distance, to 

activate the headlights on the truck. See R.C. 2923.03(A) (“No person, acting with the kind of 

culpability required for the commission of an offense, shall * * * (1) Solicit or procure another to 

commit the offense * * * [or] (2) Aid or abet another in committing the offense.”). Each of these 

acts is conduct separate from the act of him stealing the Ford utility truck. See Ruff at paragraph 

three of the syllabus. See also State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus 
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(“When determining whether two offenses are allied offenses of similar import subject to merger 

under R.C. 2941.25, the conduct of the accused must be considered.”). Similarly, the act of 

loading the tools into the truck is separate and distinct conduct from the planning, the recruiting, 

and the assisting with the lights, and it is separate from his act of driving the white Ford utility 

truck away. Further, at some point, Mr. Choate ended up with and attempted to hide at least 

some of the tools which were carried from the scene in the dump truck. 

{¶22} Even assuming that for the sake of argument that the conduct of Mr. Choate could 

have formed the basis for all of his convictions, Mr. Choate has not demonstrated that all of his 

convictions were based on the same conduct. As noted above, Mr. Choate bore the burden of 

demonstrating that the State relied upon the same conduct to support both offenses. See 

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, at ¶ 18. Based upon the evidence at trial and 

the arguments raised in the trial court and on appeal, we cannot conclude Mr. Choate has carried 

that burden here. 

{¶23} Accordingly, Mr. Choate’s first assignment of error is overruled. 

ASSIGNMENT OF ERROR II 

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT 

ABUSED ITS DISCRETION AND SENTENCED APPELLANT TO THREE 

CONSECUTIVE MAXIMUM SENTENCES FOR GRAND THEFT, DESPITE 

THE FACT THAT THE THEFTS OCCURRED AT THE SAME TIME AND 

INVOLVED THE SAME VICTIM. 

{¶24} Mr. Choate argues in his second assignment of error that the trial court abused its 

discretion when it sentenced him to an aggregate prison term of 54 months. According to Mr. 

Choate, this sentence fails to follow the principles and purposes of felony sentencing. 
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{¶25} This Court reviews sentences pursuant to the two-step approach set forth in State 

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. See State v. Thomas, 9th Dist. Summit No. 

27435, 2015-Ohio-2379, ¶ 20. 

First, [we] must examine the sentencing court’s compliance with all applicable 

rules and statutes in imposing the sentence to determine whether the sentence is 

clearly and convincingly contrary to law. If this first prong is satisfied, the trial 

court’s decision in imposing the term of imprisonment is reviewed under the 

abuse-of-discretion standard. 

Id., quoting Kalish at ¶ 26. An abuse of discretion implies that the court’s attitude was 

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 

(1983). 

{¶26} Mr. Choate concedes that each of his grand theft sentences is within the 

permissible range but argues that, by ordering the sentences to run consecutively, the trial court 

failed to consider the principles and purposes of felony sentencing. “The overriding purposes of 

felony sentencing are to protect the public from future crime by the offender and others and to 

punish the offender using the minimum sanctions that the court determines accomplish those 

purposes without imposing an unnecessary burden on state or local government resources.” R.C. 

2929.11(A). Mr. Choate argues that a 54-month prison term was not the minimum appropriate 

sanction for achieving those purposes. 

{¶27} However, “‘Ohio’s felony-sentencing scheme is clearly designed to focus the 

judge’s attention on one offense at a time.’” State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio5014, ¶ 6, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 8. See also Saxon at 

paragraph two of the syllabus (“The sentencing-package doctrine has no applicability to Ohio 

sentencing laws: the sentencing court may not employ the doctrine when sentencing a defendant 

and appellate courts may not utilize the doctrine when reviewing a sentence or sentences.”). In 
12 

 

other words, R.C. 2929.11 clearly is aimed at the sentence for each individual offense, not the 

sentences in aggregate, and Mr. Choate has not argued that a sentence of 18 months 

imprisonment for any of the individual grand theft charges is an abuse of discretion under the 

circumstances. See App.R. 16(A)(7). Instead, he is essentially arguing about the trial court’s 

decision to run the prison terms consecutively with each other. 

{¶28} Revised Code Section 2929.14(C)(4) governs the imposition of consecutive 

sentences. Section 2929.14(C)(4) provides: 

If multiple prison terms are imposed on an offender for convictions of multiple 

offenses, the court may require the offender to serve the prison terms 

consecutively if the court finds that the consecutive service is necessary to protect 

the public from future crime or to punish the offender and that consecutive 

sentences are not disproportionate to the seriousness of the offender’s conduct and 

to the danger the offender poses to the public, and if the court also finds any of the 

following: 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed pursuant 

to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or more 

courses of conduct, and the harm caused by two or more of the multiple offenses 

so committed was so great or unusual that no single prison term for any of the 

offenses committed as part of any of the courses of conduct adequately reflects 

the seriousness of the offender’s conduct. 

(c) The offender’s history of criminal conduct demonstrates that consecutive 

sentences are necessary to protect the public from future crime by the offender. 

Mr. Choate does not suggest that the trial court did not make the necessary findings pursuant to 

Section 2929.14(C)(4). Instead, he argues that, because Mr. Choate’s crimes were nonviolent 

and only targeted an acquaintance, he was not a threat to the public at large. The trial court, 

however, recounted Mr. Choate’s rather lengthy criminal history at the sentencing hearing, 

noting his previous theft-related offenses, his inability to complete community control in 

previous cases, and that he had committed crimes while other cases were pending against him. 
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Under the circumstances, we cannot conclude the trial court abused its discretion when it 

determined that Mr. Choate posed a threat to the public and that consecutive sentences were 

necessary to protect the public and not disproportionate to the threat posed. 

{¶29} Accordingly, we overrule Mr. Choate’s second assignment of error. 

ASSIGNMENT OF ERROR III 

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT 

REFUSED TO GIVE APPELLANT CREDIT TOWARD HIS SENTENCE FOR 

THE TIME HE SPENT IN THE MACEDONIA AND SUMMIT COUNTY 

JAIL. 

{¶30} Mr. Choate argues in his third assignment of error that the trial court erred when it 

determined he was not entitled to any jail-time credit in this case. Mr. Choate argues that he was 

entitled to jail-time credit for the time spent in the Summit County jail while the trial was 

pending and for time spent in the Macedonia jail. 

{¶31} Revised Code Section 2929.19(B)(2)(g)(i) requires a sentencing court to 

[d]etermine, notify the offender of, and include in the sentencing entry the number 

of days that the offender has been confined for any reason arising out of the 

offense for which the offender is being sentenced and by which the department of 

rehabilitation and correction must reduce the stated prison term under section 

2967.191 of the Revised Code. 

However, “[t]he court’s calculation shall not include the number of days, if any, that the offender 

previously served in the custody of the department of rehabilitation and correction arising out of 

the offense for which the prisoner was convicted and sentenced.” Id. In other words, “‘there is 

no jail-time credit for time served on unrelated offenses * * *.’” State v. Smith, 11th Dist. 

Geauga No. 2014-G-3185, 2014-Ohio-5076, ¶ 16, quoting State v. Struble, 11th Dist. Lake No. 

2005-L-115, 2006-Ohio-3417, ¶ 11. 

{¶32} There is no dispute that, at the time the trial in this case took place, Mr. Choate 

was serving a prison term for an unrelated offense; Mr. Choate’s trial counsel acknowledged this 
14 

 

fact during the sentencing hearing. Thus, the trial court did not err when it determined Mr. 

Choate was not entitled to jail-time credit for the time he served during the pendency of this trial. 

{¶33} Mr. Choate, however, also argues that he was entitled to jail-time credit for the 

time he spent in Macedonia jail immediately following his arrest in this case. While an offender 

would typically receive jail-time credit for this period of confinement pursuant Section 2967.191, 

there is information in the record indicating that, when Mr. Choate committed the thefts in this 

case, he was on bond awaiting trial in the Wayne County case. Although his arrest was related to 

this case, it would also likely have violated his bond in that case, meaning that he could well 

have received jail-time credit in his Wayne County case as a result of that confinement. The 

appellate record, however, simply does not contain sufficient information for us to conclude that 

an error occurred. This issue was never discussed at the sentencing hearing, and it does not 

appear a presentence investigation report was ever prepared. Thus, we cannot conclude, based 

upon the appellate record, that Mr. Choate has demonstrated that the trial court erred when it did 

not give him jail-time credit. But see R.C. 2929.19(B)(2)(G)(iii) (“The sentencing court retains 

continuing jurisdiction to correct any error not previously raised at sentencing in making a 

determination under division (B)(2)(g)(i) of this section.”). 

{¶34} Accordingly, Mr. Choate’s third assignment of error is overruled. 

ASSIGNMENT OF ERROR IV 

THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE MAXIMUM 

SENTENCES ON APPELLANT AND REFUSING TO GIVE APPELLANT 

CREDIT FOR TIME SERVED IN THE SUMMIT COUNTY JAIL BECAUSE 

HE EXERCISED HIS RIGHT TO TRIAL INSTEAD OF PLEADING GUILTY. 

{¶35} In Mr. Choate’s fourth assignment of error, he argues that the trial court sentenced 

him more harshly because he exercised his right to trial. “[A] defendant is guaranteed the right 

to a trial and should never be punished for exercising that right or for refusing to enter into a plea 
15 

 

agreement[.]” State v. O’Dell, 45 Ohio St.3d 140 (1989), paragraph two of syllabus. “While a 

defendant is free to engage in plea negotiations with the State, a trial court must refrain from 

creating the appearance that the failure to plead will result in a more severe sanction.” State v. 

Turner, 9th Dist. Summit No. 27210, 2014-Ohio-4460, ¶ 22. “If a court makes statements from 

which it can be inferred that the sentence was increased due to a defendant’s decision to proceed 

to trial, then that sentence must be vacated unless the record contains unequivocal evidence that 

the decision to proceed to trial was not considered when sentencing the defendant.” Id. 

{¶36} Mr. Choate argues that, because the trial court commented before the trial that it 

was aware that Mr. Choate believed the offenses should merge, the trial court’s failure to merge 

the offenses, along with its “refus[al] to credit [him] [with] the jail credit in which he was legally 

entitled[,] * * * demonstrated that [his] sentence was punishment for exercising his constitutional 

right to a trial by jury.” As we explained above, however, the trial court correctly determined 

that Mr. Choate’s offenses did not merge and that he was not entitled to the jail time credit he 

requested. The court’s decisions on those matters, therefore, do not demonstrate that it had an 

improper motive when it imposed Mr. Choate’s sentence. Mr. Choate’s fourth assignment of 

error is overruled. 

ASSIGNMENT OF ERROR V 

THE TRIAL COURT ERRED BY ORDERING RESTITUTION WITHOUT 

CONDUCTING A HEARING ON THE DISPUTED AMOUNT AS REQUIRED 

BY R.C. 2929.18(A)(1). 

{¶37} Mr. Choate argues in his fifth assignment of error that the trial court erred in 

imposing restitution without holding a hearing to determine the disputed amount. Revised Code 

Section 2929.18 permits a sentencing court to impose financial sanctions as part of an offender’s 

sentence for a felony. Section 2929.18 provides, in pertinent part, 
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(A) * * * Financial sanctions that may be imposed pursuant to this section 

include, but are not limited to, the following: 

(1) Restitution by the offender to the victim of the offender’s crime or any 

survivor of the victim, in an amount based on the victim’s economic loss. If the 

court imposes restitution, the court shall order that the restitution be made to the 

victim in open court, to the adult probation department that serves the county on 

behalf of the victim, to the clerk of courts, or to another agency designated by the 

court. If the court imposes restitution, at sentencing, the court shall determine the 

amount of restitution to be made by the offender. If the court imposes restitution, 

the court may base the amount of restitution it orders on an amount recommended 

by the victim, the offender, a presentence investigation report, estimates or 

receipts indicating the cost of repairing or replacing property, and other 

information, provided that the amount the court orders as restitution shall not 

exceed the amount of the economic loss suffered by the victim as a direct and 

proximate result of the commission of the offense. If the court decides to impose 

restitution, the court shall hold a hearing on restitution if the offender, victim, or 

survivor disputes the amount. All restitution payments shall be credited against 

any recovery of economic loss in a civil action brought by the victim or any 

survivor of the victim against the offender. 

Id. 

{¶38} “An award of restitution is limited to the actual loss caused by the defendant’s 

criminal conduct for which he or she was convicted, and there must be competent credible 

evidence in the record from which the court may ascertain the amount of restitution to a 

reasonable degree of certainty.” State v. Henderson, 9th Dist. Summit No. 26682, 2013-Ohio2798, ¶ 7. “If the offender disputes the amount of restitution, the trial court is required to hold a 

hearing on restitution.” Id., citing R.C. 2929.18(A)(1). 

{¶39} At the sentencing hearing, the prosecutor told the court, “The tools came out to 

around 56,000 some odd dollars but a lot of that was paid by insurance. The amount outstanding 

not paid by insurance $19,915.” Mr. Choate’s attorney subsequently stated, 

Regarding the restitution, it’s my understanding – it’s not as clear, I don’t think, 

as the prosecutor said, there was a large amount of money paid, not only by 

Nationwide Insurance Company, but by a secondary insurance company, as well. 

* * * There’s also the issue of Mr. Choate’s last paycheck, which was kept by the 

Kowalskis, purportedly by Mr. Kowalski in a letter, and I have a letter from Mr. 
17 

 

Kowalski saying, ‘We’re holding your last paycheck because of the money you 

owe us for the damages you have caused through the course of your 

employment.” 

After hearing from the prosecutor and Mr. Choate’s counsel, the trial court sentenced him and 

ordered that he pay $19,915 in restitution. Mr. Choate’s counsel objected to the imposition of 

the restitution. 

{¶40} We recognize that Mr. Choate’s counsel never requested an evidentiary hearing 

on the issue of restitution, but we cannot say that Mr. Choate did not make it clear that he 

disputed the amount of requested restitution. Thus, the trial court was required to hold a hearing. 

See Henderson at ¶ 7; R.C. 2929.18(A)(1). Seemingly recognizing this, the State urges us to 

conclude that the statements of the prosecutor and Mr. Choate’s counsel satisfy the “evidentiary 

hearing” required by Section 2929.18(A)(1). To reach that conclusion, however, we would also 

have to conclude that the portion of Section 2929.18(A)(1) requiring an “evidentiary hearing” is 

meaningless as a trial court already has wide discretion in considering information before it at 

sentencing. See State v. Asefi, 9th Dist. Summit No. 26931, 2014-Ohio-2510, ¶8 (“R.C. 2929.19 

sets out a procedure less formal than an evidentiary hearing for interested parties to submit 

arguments and information to the trial court.”). If the trial court could just consider the 

statements of attorneys, there would be no need for an evidentiary hearing. 

{¶41} Furthermore, it seems unlikely that an “evidentiary hearing” would require less 

than the opportunity to cross-examine witnesses about the amount of restitution. See, e.g., State 

v. Wohlgemuth, 66 Ohio App.3d 195, 200 (8th Dist. 1990) (finding reversible error when “[t]he 

court failed to hold a hearing at which evidence would be presented of the damages and costs 

and the effort and ability to pay.”). See also Cleveland Metro. Bar Assoc. v. Toohig, 133 Ohio 

St.3d 548, 2012-Ohio-5202, ¶ 8 (“Toohig received the full benefit of an adversarial evidentiary 
18 

 

hearing at which he had the opportunity to, and in fact did, cross-examine relator’s witnesses, 

present witnesses of his own, and offer exhibits.”); State v. Johnston, 2d Dist. Montgomery No. 

26016, 2015-Ohio-450, ¶ 24 (noting that an evidentiary hearing is held when testimony is fully 

presented and parties are permitted to engage in cross-examination). That did not happen in this 

case as no testimony or evidence was actually presented, just the prosecutor’s statements about 

information that had apparently been passed to her by the victims. Under the circumstances, we 

cannot conclude that the trial court satisfied the hearing requirement of Section 2929.18(A)(1). 

{¶42} Accordingly, Mr. Choate’s fifth assignment of error is sustained. 

III. 

{¶43} Mr. Choate’s fifth assignment of error is sustained, and his remaining assignments 

of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed 

in part and reversed in part, and the matter is remanded for further proceedings consistent with 

this opinion. 

Judgment affirmed in part, 

reversed in part, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 
19 

 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed equally to both parties. 

 

 JENNIFER HENSAL 

 FOR THE COURT 

SCHAFER, J. 

CONCURS. 

CARR, J. 

CONCURRING IN PART, AND DISSENTING IN PART. 

{¶44} I respectfully dissent in part from the majority’s resolution of Mr. Choate’s first 

assignment of error. The evidence demonstrates that Mr. Choate's convictions stem from the 

same conduct. Mr. Choate's goal was to steal tools in order to start his own excavating business. 

To effectuate this goal, he loaded the stolen tools into two different trucks and he and Mr. Croft 

drove away from the buildings. After unloading the tools, the two men abandoned one of the 

trucks and gave another truck away. Clearly, the trucks were used solely as a means to transport 

the stolen tools, resulting in a separate animus. Because the theft of the tools was committed 

with a separate animus from the theft of the two trucks, for purposes of sentencing, I would not 

merge the offense of the grand theft of the tools, but I would merge the two grand theft offenses 

relating to the trucks with each other. 

{¶45} I concur with the remainder of the majority’s opinion. 

APPEARANCES: 
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JAMES W. ARMSTRONG, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellee.