[Cite as State v. Mendez, 2014-Ohio-2601.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 13 MA 86 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

YVETTE MENDEZ ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 11 CR 578 

JUDGMENT: Affirmed in Part. Vacated in Part. 

 Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. James E. Lanzo 

4126 Youngstown-Poland Rd. 

Youngstown, Ohio 44514 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: June 13, 2014
[Cite as State v. Mendez, 2014-Ohio-2601.]

WAITE, J. 

{¶1} Appellant Yvette Mendez pleaded guilty to felony theft and possession 

of criminal tools. As part of the sentence, the trial court ordered Appellant to pay 

restitution to the victim in the amount of $53,000. On appeal, Appellant argues that 

the court could only order restitution up to the amount of the theft charge, which 

would have been $4,999 under the law in effect at the time of the crime. The Ohio 

Supreme Court rejected this theory in State v. Lalain, 136 Ohio St.3d 248, 2013-

Ohio-3093. Under Lalain, the total amount of victim's economic loss may be ordered 

as restitution. Appellant also argues that the court should have held a restitution 

hearing under R.C. 2929.18(A)(1) because she disputed the amount of restitution at 

sentencing. Appellant is correct. The record reflects that she disputed the amount at 

sentencing and thought restitution may only be in the range of $1,500-$1,700. 

Finally, Appellant argues that the court should have considered her inability to pay 

such a fine, since her indigency was a matter of record. This assignment of error is 

moot because the matter will be remanded for hearing on the amount of restitution. 

Appellant's first and third assignments of error are overruled, the second is sustained 

and the case is remanded for further proceedings. 

Case History

{¶2} On April 26, 2011, Appellant was arrested at Peskin Sign Company in 

Boardman, Ohio. She and two others were found cutting and removing large steel 

columns from the premises and loading them on a truck. On June 23, 2011, 

Appellant was indicted on one count of fifth degree felony theft, R.C. 2913.02(A)(1), 

and one count of possession of criminal tools, R.C. 2923.24(A). On July 6, 2011, the 
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court determined that Appellant was indigent and counsel was appointed. On 

November 8, 2011, a change of plea hearing was held and Appellant entered a 

written guilty plea to the charges. A sentencing hearing was held on January 10, 

2012. At the hearing, the victim, Mr. Gerald Peskin, testified that he suffered a loss 

of $53,000 from the crime. Appellant's attorney objected to the amount and stated “I 

thought that the agreement that was brought to us * * * was between $1,500 and 

$1,700. * * * Again, we thought that the restitution was going to be a lot less.” 

(1/10/12 Tr., pp. 4-5.) Appellant's attorney also objected to the amount of restitution 

because her client was indigent. The trial court sentenced Appellant to five years of 

community control sanctions, and $53,000 in restitution. The judgment entry of 

conviction and sentence was filed January 11, 2012. 

{¶3} Appellant filed a delayed appeal on June 4, 2013. We accepted the 

delayed appeal on June 17, 2013. 

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING 

RESTITUTION IN AN AMOUNT EXCEEDING THE MAXIMUM 

AMOUNT THAT IS AN ELEMENT OF THE THEFT OFFENSE FOR 

WHICH THE DEFENDANT WAS CONVICTED. 

{¶4} Appellant argues that the trial court could not order restitution in an 

amount that exceeded the amount designated as an element of the theft offense. In 

this case, the offense at the time the crime was committed was a fifth degree felony 

theft, which meant a theft in the amount of at least $500 but less than $5,000. 
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Former R.C. 2913.02(B)(2). Appellant argues that restitution cannot exceed the 

monetary limit of the degree of the theft offense as defined by statute. 

{¶5} A trial court's decision to impose financial sanctions as part of a 

sentence is reviewed for an abuse of discretion. State v. Downie, 7th Dist. No. 07 

MA 214, 2009-Ohio-4643, ¶30. An abuse of discretion is more than an error of 

judgment; “it implies that the court's attitude is unreasonable, arbitrary or 

unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 

It is an abuse of discretion for a trial court to order restitution in an amount that does 

not bear a reasonable relationship to the actual loss suffered. State v. Schandel, 7th 

Dist. No. 07CA848, 2008-Ohio-6359, ¶154. 

{¶6} R.C. 2929.18(A)(1) requires the trial court to calculate the amount of 

restitution based on the economic loss to the victim as a result of the crime. 

Appellant cites State v. Ratliff, 194 Ohio App.3d 202, 2011-Ohio-2313, 955 N.E.2d 

425 (2d Dist.), for the proposition that, unless the plea agreement states otherwise, 

the order of restitution for a theft offense cannot exceed the amount listed in the 

element of the offense that establishes the degree of the theft. Since Appellant was 

also convicted of possession of criminal tools, it is not clear that restitution is solely 

related to the theft offense and could have been ordered regardless of the degree of 

the theft. Assuming arguendo that the restitution order was based solely on the theft 

conviction, Appellant's argument is still incorrect. 

{¶7} Ratliff was overturned on July 17, 2013, in State v. Lalain, supra, which 

held that: “A trial court has discretion to order restitution in an appropriate case and 
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may base the amount it orders on a recommendation of the victim, the offender, a 

presentence investigation report, estimates or receipts indicating the cost of repairing 

or replacing property, and other information, but the amount ordered cannot be 

greater than the amount of economic loss suffered as a direct and proximate result of 

the commission of the offense.” Id. at paragraph one of the syllabus. Lalain further 

held that: “The statute contains no statement about incorporating restitution into plea 

agreements, so that is not a statutory mandate. Rather, the statute vests the trial 

court with discretion to impose restitution and to base it on listed statutory factors and 

other information[.] * * * In addition, we recognize that the amount of restitution is not 

correlated to the degree of the theft offense.” Id. at ¶23-24. Based on the holdings in 

Lalain, Appellant's first assignment of error is without merit. 

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING 

RESTITUTION WITHOUT HOLDING A HEARING. 

{¶8} Appellant argues that she was entitled to a separate hearing on 

restitution because her attorney questioned the amount of restitution at sentencing. 

R.C. 2929.18(A)(1) states: “If the court decides to impose restitution, the court shall 

hold a hearing on restitution if the offender, victim, or survivor disputes the amount.” 

The statutory requirement to hold a hearing, if there is an objection to the amount of 

restitution, is mandatory. Lalain at ¶22; Downie at ¶30. At the sentencing hearing, 

Appellant's counsel disputed the amount of restitution, stating that she “thought that 

the agreement that was brought to us * * * was between $1,500 and $1,700. * * * 
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Again, we thought that the restitution was going to be a lot less.” (1/10/12 Tr., pp. 4-

5.) This was a specific objection to the amount of restitution, and the court should 

have ordered a hearing on this issue. Appellant's assignment of error has merit and 

the case is remanded so that a restitution hearing can be ordered. 

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED 

PLAIN ERROR BY ORDERING APPELLANT TO PAY RESTITUTION 

WITHOUT CONSIDERING HER PRESENT AND FUTURE ABILITY TO 

PAY, AS REQUIRED BY R.C. 2929.19(B)(6). 

{¶9} Appellant argues that the trial court failed to take into account her 

indigence and inability to pay when it ordered $53,000 in restitution as part of her 

sentence. R.C. 2929.19(B)(5) states: “Before imposing a financial sanction under 

section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised 

Code, the court shall consider the offender's present and future ability to pay the 

amount of the sanction or fine.” 

{¶10} This assignment of error is moot because the matter is remanded for a 

restitution hearing and Appellant can raise the argument at that time. We do note 

that there is no indication from the record that the trial court ignored or was unaware 

of her indigency. In fact, the judge was obviously aware that she was indigent when 

he appointed counsel for Appellant in the initial stages of the case. An initial 

determination of indigency does not prevent a trial judge from imposing restitution as 

part of the sentence. As we have stated a number of times: “[A] determination that a 
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criminal defendant is indigent for purposes of receiving appointed counsel does not 

prohibit the trial court from imposing a financial sanction pursuant to R.C. 2929.18. 

This is because the ability to pay a fine over a period of time is not equivalent to the 

ability to pay legal counsel a retainer fee at the onset of criminal proceedings.” State 

v. Weyand, 7th Dist. No. 07-CO-40, 2008-Ohio-6360, ¶16; accord, State v. Gabriel, 

7th Dist. No. 09 MA 108, 2010-Ohio-3151, ¶20. 

{¶11} “The test for imposing restitution is not indigency in general, but it is 

whether the offender is able to pay the financial sanction or is likely to be able to pay 

it in the future. See R.C. 2929.18(E). Thus, before imposing a financial sanction 

such as restitution, the court shall consider the offender's present and future ability to 

pay the amount of the sanction. R.C. 2929.19(B)(6), citing R.C. 2929.18.” Id. at ¶33. 

“[A]n offender who does not raise his ability to pay a financial sanction at the time the 

sanction is imposed waives any argument concerning his ability to pay on direct 

appeal.” State v. Potts, 7th Dist. No. 07 HA 4, 2008-Ohio-643, ¶7. Because the 

sanction of restitution will be revisited by the trial court on remand, Appellant will have 

the opportunity to raise, or waive, any of these arguments at that time. Appellant's 

third assignment of error is overruled. 

Conclusion

{¶12} Appellant is challenging three aspects of the trial court's decision 

ordering her to pay $53,000 in restitution as part of her sentence for felony theft and 

possession of criminal tools. She is incorrect that the maximum restitution order can 

only be as high as the maximum amount of the element of the theft charge that 
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determines the degree of the crime. The Ohio Supreme Court overturned the case 

Appellant relies on for this argument. Appellant is correct, however, that she was 

entitled to a hearing on restitution because she objected to the amount. Her last 

argument regarding whether the trial court considered her ability to pay restitution is 

moot because the case is remanded for a restitution hearing. Appellant's first and 

third assignments of error are overruled, the second is sustained, and the portion of 

the sentencing entry regarding restitution is vacated. The trial court must conduct a 

hearing to determine the amount of restitution. Judgment affirmed in part, vacated in 

part, and remanded for further proceedings. 

Donofrio, J., concurs. 

Vukovich, J., concurs.