[Cite as State v. Moore , 2022-Ohio-409.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO Plaintiff-Appellee

v. LESLEY M. MOORE Defendant-Appellant : : : : : : : : : : Appellate Case No. 2021-CA-26

Trial Court Case Nos. 2020-CR-710B & 2021-CR-85A (Criminal Appeal from Common Pleas Court )

. . . . . . . . . . . O P I N I O N Rendered on the 11th day of February, 2022.

. . . . . . . . . . . IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecutin g Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbi a Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee BRIANA C. BREAULT, Atty. Reg. No. 0099773, 130 West Second Stre et, Suite 2150, P.O. Box 10126, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . .-2- DONOVAN, J. {¶ 1} Lesley M. Moore appeals from her conviction, following pleas of guilty, to three counts of theft. We will a ffirm the judgments of the tri al court. {¶ 2} On December 21, 2020, Moore was indicted in Clark C.P. No. 2020 -CR710B, on one count of theft, in violation of R.C. 2913.02(A)(3) , a felony of the fifth degree. Her co-defendant in that case was Cameron Moore (“Cameron”). M oore pled not guilty. The bill of particulars stated that Moore had made a deposit in to Cameron’s bank account at a Springfield bank; in doing so, she represented that the am ount of the deposit was $3000, but only one dollar was in the deposit envelope. The bi ll of particulars further stated that the “fraudulent money was spent via the co-defendan t’s debit card before the fraud was detected by the bank.” {¶ 3} On February 9, 2021, Moore was also indicted in Clark C.P. No. 2021-CR85A on two counts of theft in violation of R.C. 2913.02(A)(1), felonies of the fifth degree, and two counts of identity fraud in violation of R.C. 2913.49(E ), felonies of the fourth degree. Her co-defendant in that case was Ayona Lane. Moore p led not guilty. {¶ 4} On March 10, 2021, Moore withdrew her guilty pleas in both case s. Pursuant to a plea agreement, she pled guilty to the one count of theft in Case No. 2020- CR-710B and to the two counts of theft in Case No. 2021-CR-85A. The remaining

counts were dismissed. {¶ 5} At sentencing on April 8, 2021, Moore requested community contr ol. Her attorney asserted the following bases for a community control s entence: We believe it may even fall under mandatory community control specifically and that these are the first felonies that Miss Mo ore has in her-3- history. She does have some misdemeanor theft charges and iden tity fraud. However, she’s never had any issues completing any sanc tions by the Court. She’s never had any community control violations. There’s nothing to indicate from [her prior] cases that she would be a - - not amen[ ]able to community con trol in this situation. Again, she’s had no prior felonies or no acts of violence. The re was an assault on her record, but that was approximately ten years ago, so I don’t believe that would pull her out at this time, Your Honor. Also, there is quite a bit of restitution here and at the time Miss Moore was not employed. She is employed now and that would give her the ability to, as part of her community control, pay back that res titution to the

victims in this case. Defense counsel also noted that Moore had been assessed at McKi nley Hall “for substance abuse addiction,” that she had been placed into an in tensive outpatient program three times a week, and that recovery from her addictio n “would also greatly prevent reoccurrences of incidents in the future.” {¶ 6} With respect to the circumstances surrounding the offenses, the court noted that, in each instance, Moore and a codefendant were “actually at the bank,” one of them made a “false deposit” and then “proceeded to use a debit card at a variety of places over the weekend before employees of a bank return on Monday.” The court stated: * * * So it always appears it’s you and a codefendant, and then you’re using an account of a third person, which appears to be involve d in this fraud as well by letting you use their account. And then if th ey get-4- questioned, they just deny any knowledge of the activities, but all three of you recover a portion of the money or the items that you purcha se. That’s how all the police reports read and that’s confirmed by your statement to the probation office that you heard on the street you could put an ATM deposit ticket into the bank without actually putting an y money in it; at least on the books then that would make it appear that the a ccount had money in it, the amount that was written out, but there really was no money in it. And then you indicated that the person whose account is used is also in on it and they just deny any knowledge of the activities, th at you were all supposed to get a portion of the money. And this happened repe atedly, it appears * * *. {¶ 7} The court inquired as to how Moore intended to repay $18,000. She responded that she would “[w]ork and pay the restitution. I ha ve no choice. That’s a lot to pay back.” The court stated that it was “not overly optimist ic” about Moore’s ability to pay the money back. {¶ 8} The trial court found that Moore had committed the offenses a s part of an organized criminal activity under R.C. 2929.13(B)(1). The court agreed with defense counsel that Moore did not have an extensive prior record but n oted that she did have two prior misdemeanor theft convictions. The charged offenses were felonies, which the court characterized as “basically stealing money from a bank.” The court then found that consecutive sentences were necessary to protect the public from future crime and to punish the defendant, that such sentences were not disproportio nate to the seriousness-5- of her conduct and to the danger she posed to the public, and t hat these multiple offenses were committed as a part of a course of conduct. Finally, the court found that the harm caused (theft of $18,000) was so great that no single prison te rm for any of the offenses committed would adequately reflect the seriousness of Moore’s c onduct. {¶ 9} The court imposed a prison term of ten months in Case No. 2020- CR-710B, and prison terms of 10 months each for the offenses in Case No. 2021-CR-85A, to be served consecutively, for an aggregate term of 30 months. The court ordered Moore to pay restitution in Case No. 2020-CR-710B in the amount of $5,92 7.59, and in Case No. 2021-CR-85A in the amount of $12,925. The court’s judgment ent ries also included its finding that it had discretion to impose prison terms because M oore had committed the offenses in the two cases as part of an organized criminal acti vity, citing R.C. 2929.113(B)(1)(b)(viii) and the ac tions committed in these two cases. {¶ 10} Moore asserts two assignments of error on appeal. Her first as signment of error states: THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE RECORD DOES NOT SUPPORT THE

APPELLANT’S SENTENCE AND THE APPELLANT’S SENTENCE IS CONTRARY TO LAW. {¶ 11} Moore asserts that, based upon R.C. 2929.13(B)(1)(a), the trial court was required by statute to impose a sentence of community control s anctions. She asserts that the trial court attempted to use “facts that must be submi tted to a jury” to increase the penalty beyond the prescribed statutory minimum, citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Moore a sserts that the fact that-6- the legislature gives the trial court discretion in imposing a prison sentence to an otherwise qualified individual does not eliminate the constitut ional requirement that facts upon which increased penalties are imposed must be “submitted t o a jury or at least put on record by the State.” {¶ 12} Moore also asserts that the trial court erred in concluding tha t she had committed the offense as part of an organized criminal activity , because this finding was not supported by the record. She argues that she was entitled to the presumption of community control under R.C. 2929.13(B)(1)(a) for the following reasons: she had no felony record; the most serious charge against her at the time of sentencing was a felony of the fifth degree; there was no indication in the record of a lack of community control available; and she had not previously been convicted of or plea ded guilty to a misdemeanor or felony of violence in over ten years. She also asserts that her “substance abuse disorder,” for which she had begun receiving t reatment through an intensive outpatient program, weighed against a prison sentence . She points out that the State did not oppose her request for community control sanc tions or “put on any evidence in aggravation that would lead the trial court to its conclusion that [she] engaged in organized criminal activity.” Moore contends that the facts to which she pled guilty, as

stated in the indictment and bill of particulars, satisfied the elements of theft, but did not establish that she engaged in organized criminal activity. Fin ally, she contends that a lesser term of incarceration or community control sanctions wou ld have adequately met the overriding purposes of felony sentencing, i.e., punishment and rehabilitation. {¶ 13} In response, the State argues that the trial court had discreti on to impose a prison sentence because it found that Moore’s “multiple theft o ffenses were committed as-7- part of an organized criminal activity” pursuant to R.C. 2929.1 3(B)(1)(b)(viii). Moreover, the State asserts both that the record supports the trial court ’s finding of organized criminal activity and that R.C. 2953.08(A)(2) bars appellate re view. {¶ 14} The State further contends that Apprendi does not bar the trial court from determining whether there was organized criminal activity, citi ng State v. Castle , 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974. The State asserts that t he trial court reasonably relied on information in the presentence investigati on report (PSI) in making its finding of organized criminal activity. {¶ 15} Finally, the State asserts that, even if the trial court’s find ing of organized criminal activity was improper, community control was not manda ted by R.C. 2929.13 in this case, because the presumption of community control in R.C. 2929.13 only applies when a defendant pleads guilty to only one nonviolent felony of the fourth or fifth degree. Because Moore pleaded guilty to three felonies of the fifth deg ree in this case, the State contends that she was not entitled to the presumption of commun ity control. {¶ 16} In reply, Moore asserts that the State “misstates the law under R.C. 2929.13(B)(1)(a) and R.C. 2929.13(B)(1)(b)” and that “leave [of court] is not required to appeal a sentence that is contrary to law under R.C. 2953.08(A) (4).” Moore cites State v. Taylor , 2d Dist. Clark No. 2013-CA-59, 2014-Ohio-2821, and she assert s that based on this Court’s interpretation of R.C. 2929.13(B)(1)(a), the tr ial court was required to sentence Moore to community control under R.C. 2929.13(B)(1)(a) . Moore asserts that she met each condition listed in R.C. 2929.13(B)(1)(a). Finall y, Moore reiterates her argument that a jury must make findings that effectively increa se the statutory maximum sentence for a defendant, and thus a jury was required to deter mine whether she had-8- engaged in organized criminal activity. {¶ 17} R.C. 2953.08 provides: (A) In addition to any other right to appeal and except as prov ided in division (D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upo n the defendant on one of the following grounds:

* * * (2) The sentence consisted of or included a prison term and the offense for which it was imposed is a felony of the fourth or fifth degree * * *. If the court specifies that it found one or more of the factors in div ision (B)(1)(b) of section 2929.13 of the Revised Code to apply relative to the defendant, the defendant is not entitled under this division to appeal as a matter of right the sentence imposed upon the offender.

* * * (4) The sentence is contrary to law. {¶ 18} This Court has held: When reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under tha t statute, an appellate court may increase, reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing, only if it cle arly and convincingly finds either: (1) the record does not support the sentencing court's findings under certain enumerated statutes, including R .C.-9- 2929.13(B); or (2) the sentence is otherwise contrary to law. Id. at ¶ 9, citing R.C. 2953.08(G)(2). State v. Trent , 2d Dist. Clark No. 2020-CA-61, 2021-Ohio-3698, ¶ 8. {¶ 19} R.C. 2929.13 provides: (B)(1)(a) Except as provided in division (B)(1)(b) of this sect ion, if an offender is convicted of or pleads guilty to a felony of the fo urth or fifth degree that is not an offense of violence or that is a qualifyi ng assault offense, the court shall sentence the offender to a community c ontrol sanction or combination of community control sanctions if all o f the following apply: (i) The offender previously has not been convicted of or pleade d guilty to a felony offense. (ii) The most serious charge against the offender at the time o f sentencing is a felony of the fourth or fifth degree. (iii) The offender previously has not been convicted of or plea ded guilty to a misdemeanor offense of violence that the offender committed w ithin two years prior to the offense for which sentence is being imposed. {¶ 20} We agree with the 6th District that “the community control pres umption contained in [R.C. 2929.13(B)(1)(a)] applies only where the def endant pleads guilty to a singular nonviolent felony of the fourth of fifth degree.” See State v. Boswell, 6th Dist. Erie E-18-053, 2019-Ohio-2949, ¶ 20, 22, quoting State v. Bentley, 11th Dist. Ashtabula No. 2017-A-0017, 2017-Ohio-8943, ¶ 19. However, as our analysis demonstrates, Moore’s assertion that her sentence was contrary to law also fa ils on the merits.-10- {¶ 21} R.C. 2929.13(B)(1)(b) provides: “The court has discretion to im pose a prison term upon an offender who is convicted of or pleads guil ty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply: * * * (viii) The offender committed the offense for hire or as part of an organized criminal activity.” {¶ 22} In Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, we observed: Courts use various language in describing the requirements and interplay of R.C. 2929.13(B)(1)(a) and (b). Some courts have re ferred to R.C. 2929.13(B)(1)(a)'s requirement that community control be i mposed if all of the qualifying conditions are met and none of the except ions set forth in R.C. 2929.13(B)(1)(b) applies as a “presumption” of communit y control, whereas others refer to community control as “mandatory,” subje ct to certain conditions and exceptions. The bottom line is that the statutory requirement to impose community control for qualifying fourth a nd fifth degree non-violent offenses is subject to certain fact-finding by the trial

court.

Id . at ¶ 12. {¶ 23} We have also stated: In essence, R.C. 2929.13(B)(1)(a) mandates community control fo r fourth and fifth-degree felony offenses when certain requiremen ts are met. A sentencing court has no discretion to impose a prison term wh en a defendant is sentenced under division (B)(1)(a). Under division (B)(1)(b), however, a trial court regains discretion to impose a prison te rm on a-11- defendant who otherwise would fit within the scope of division (B)(1)(a) but for the presence of one or more additional facts. * * * (Footnote omitted.) State v. Taylor , 2014-Ohio-2821, 15 N.E.3d 900, ¶ 7 (2d Dist.). {¶ 24} We have further noted: The term “organized criminal activity” (R.C. 2929.13(B)(1)(b)(i x)) is not defined in R.C. Chapter 2929. Ohio courts have applied a c ase-bycase analysis to determine whether an offense is part of an org anized criminal activity, keeping in mind that the absence of a defini tion of “organized criminal activity” is to be construed against the St ate, not the defendant. State v. Lyles, 8th Dist. Cuyahoga No. 97524, 2012-Ohio3362, ¶ 13 and R.C. 2901.04(A). “There is not a bright line te st for ‘organized criminal activity,’ nor does it have a singular appl ication.” State v. Orms, 10th Dist. Franklin No. 14AP-750, 2015-Ohio-2870, ¶ 24. State v. Gaus , 2d Dist. Champaign No. 2015-CA-28., 2016-Ohio-4886, ¶ 24. {¶ 25} As noted by the Fourth District: In determining whether there was “an organized criminal activi ty,” courts have generally considered the scope and length of the cr iminal activity, whether the offense was committed spontaneously/impul sively or with extensive planning, the number of people involved, and the nature of the charges. See, e.g ., State v. Orms , 10th Dist. Franklin No. 14-AP-750, 2015-Ohio-2870; State v. Coran , 2d Dist. Clark No. 2003-CA-80, 2004- Ohio-6874; State v. Miller, 4th Dist. Washington No. 07CA1, 2008-Ohio1059; State v. Radcliff , 10th Dist. Franklin Nos. 97APA08-1054 and-12- 97APA08-1056 (Mar. 17, 1998). See also , State v. Washington , 4th Gallia No. 17CA8, 2018-Ohio-3545, ¶ 14, citing Griffin and Katz, OHIO FELONY SENTENCING LAW (1999), 368-369, Section T. 4.14.3 (“Commentator s have defined an ‘organized criminal activity’ as ‘criminal acti vity which because of the number of participants and planned utilization o f those participants poses more of a risk to the public order than an a ctivity carried out by a single individual acting in isolation from other offen ders or than multiple individuals acting together spontaneously or impulsive ly.”); State v. Morgan , 10th Dist. Franklin No. 13-AP-620, 2014-Ohio-5661, ¶ 38, (sta ting that “[a] defendant's participation in an aggravated robbery al ong with one or more co-defendants is sufficient to find the incident occurr ed as part of organized criminal activity”). State v. Lewis , 4th Dist. Marion No. 9-20-49 , 2021-Ohio-1692, ¶ 27. {¶ 26} We now must decide if the record supports the court’s determin ation that R.C. 2929.13(B)(1)(b) gave it the discretion to impose a prison term. Since the case was resolved by a plea, the PSI provides the most detail in the rec ord, and we have reviewed it. As noted by the trial court, the scope and length of Moore ’s engagement in theft with her co-defendants was significant; they committed the offenses over several months, and they acted with some planning rather than impulsively or sponta neously. Three people were involved in the scheme that involved both theft and deceit . Moore and her codefendants planned the timing of their fake deposits so that th ey could withdraw cash before the bank became aware of the fraud. They were able to s teal over $18,000. The trial court reasonably concluded that Moore and her co-defendan ts’ actions posed more-13- of a risk to public order than an individual acting in isolatio n or multiple people acting impulsively, since the scheme required more than one person to accomplish it, and it could not be accomplished impulsively or spontaneously. In oth er words, the trial court reasonably concluded that it could sentence Moore to prison bec ause she had engaged in organized criminal activity pursuant to R.C. 2929.13(B)(1)(b )(viii). Thus, Moore’s sentence was not contrary to law. For the foregoing reasons, M oore’s first assignment

of error is overruled. {¶ 27} Moore’s second assignment of error is as follows: THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE RECORD DOES NOT SUPPORT THE ORDER OF RESTITUTION AND THE ORDER OF RESTITUTION IS CONTRARY TO LAW. {¶ 28} Moore asserts that the trial court “failed to order joint and s everal restitution,” despite repeatedly referencing her co-defendants during the sentencing hearing. She asserts that, although R.C. 2929.18 does not requ ire apportionment of restitution among co-defendants, it also does not prohibit appo rtionment. She also argues that R.C. 2929.18 specifically limits an order of restit ution to the victim’s economic loss suffered as a result of the offense, and the amount of res titution ordered by the trial court between Moore and Cameron in Case No. 2020-CR-710B exceed ed the economic loss suffered. {¶ 29} The State contends that, although “a victim is not permitted to receive a windfall in excess of his loss, an order for joint- and several liability is perhaps sound practice, but not absolutely necessary.” The State cites State v. Becraft , 2d Dist. Clark-14- No. 2013-CA-54, 2015-Ohio-3911. According to the State, restit ution for the full amount of loss may be demanded from each co-defendant, although the vi ctim may only recover up to the actual amount of loss. Thus, Moore would need to esta blish that the victim had been compensated by another source in order to have her restitu tion order reduced, and

she has not done so. {¶ 30} As this Court has noted: R.C. 2929.18(A)(1) gives a sentencing court discretion to orde r restitution to compensate the victim for economic loss. State v. Lalain , 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 3, ¶ 20. The amount of restitution may be based on “an amount recommended by the vi ctim, the offender, a presentence investigation report, estimates or rece ipts indicating the cost of repairing or replacing property, and oth er information.” R.C. 2929.18(A)(1); Lalain at ¶ 3, ¶ 20. However, the amount of restitution cannot be greater than the amount of economic loss suffered by the victim as a direct and proximate result of the commission of the offense. Lalain at ¶ 22 citing R.C. 2929.18(A)(1); State v. Banks , 2d Dist. Montgomery No. 20711, 2005-Ohio4488, ¶ 5 (“A sentence of restitution must be limited to the ac tual economic loss caused by the illegal conduct for which the defendant was convicted.”). Because double recovery would amount to an impermissible econom ic windfall for the victim, the order of restitution must take acc ount of any offsets to the victim's economic loss and any mitigation of dam ages in the form of compensation received for the loss. See State v. Clayton , 2d Dist.-15- Montgomery No. 22937, 2009-Ohio-7040, ¶ 56.

A trial court abuses its discretion when it orders restitution that does not bear a reasonable relationship to the actual financial loss suffered. State v. Woods , 2d Dist. Clark No. 2015-CA-75, 2016-Ohio-1103, ¶ 10, citing State v. Williams , 34 Ohio App.3d 33, 34, 516 N.E.2d 1270 (2d Dist.1986).

* * * In general, a trial court's order of restitution must indicate the amount of restitution and the individual to whom it is to be paid. State v. Murillo , 2d Dist. Montgomery No. 21919, 2008-Ohio-201, ¶ 17 (“In the absenc e of a judgment indicating the amount of restitution and the individua l to whom it was to be paid, the court has not properly ordered [the defenda nt] to pay restitution.”). We have recognized that it may not be necessar y to identify each victim by name. [ State v .] DeLong, [2d Dist. Montgomery No. 20656, 2005-Ohio-1905,] at ¶ 19. However, particularly when there are multiple victims, the trial court's order should, at a minimum, include the total amount of restitution and “a cogent record must exist as to whom said amount shall be distributed.” Id. We emphasize that it is the role of the trial court to determine the appropriate amount of restitution for each victim , and when the amount of restitution is in dispute, the trial court's dete rmination of restitution may differ from that proposed by the defendant or t he State. State v. Shaw , 2d Dist. Greene Nos. 2017-CA-35, 2017-CA-36, 2017-CA-37, 2018 -Ohio3816, ¶ 17-19, 30.-16- {¶ 31} This Court has also stated: The Third District Court of Appeals has held that the statute, R.C. 2929.18, allowing the imposition of restitution does not requir e apportionment. State v. Kline, 3d Dist. Henry No. 7-12-03, 2012-Ohio4345, ¶ 12. However, the statute also does not prohibit apport ionment. Since the statute specifically limits an order of restitution t o the victim's actual economic losses, suffered as a direct and proximate resu lt of the offense, it can be concluded that the victim is not entitled to double recovery from multiple offenders. Therefore, it would be a sound and re asonable practice for a trial court to designate the liability for resti tution among codefendants as joint and several. If an order of restitution is not designated as imposing joint and several liability among codefendants, the statute, R.C. 2929.18(A)(1), allows the offender to file a motion for modific ation of the payment terms of any restitution ordered. If the movant establ ishes that the victim was compensated by any other source, the amount of t he

restitution should be reduced. State v. Becraft, 2d Dist. Clark No. 2013-CA-54, 2015-Ohio-3911, ¶ 30. {¶ 32} The PSI stated that the total amount of restitution was $18,852 .59. There was no evidence that the bank had received any restitution from any other source. Hence, the trial court could impose the full $18,852.59 against Moore; in the event a co-defendant pays a portion, a motion in the trial court to modify the amoun t of restitution would be in

order. {¶ 33} The second assignment of error is overruled.-17- {¶ 34} The judgments of the trial court are affirmed.

. . . . . . . . . . . . .

TUCKER, P.J. and EPLEY, J., concur.

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Ian A. Richardson Briana C. Breault Hon. Douglas M. Rastatter