[Cite as State v. Zampini-Solarek, 2024-Ohio-1532.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY

STATE OF OHIO,

Plaintiff,

- vs -

KELLY S. ZAMPINI-SOLAREK,

Defendant-Appellee,

(MARK PAGE,

Appellant).

CASE NO. 2023-L-056

Criminal Appeal from the

Court of Common Pleas

Trial Court No. 2015 CR 000847

O P I N I O N

Decided: April 22, 2024

Judgment: Affirmed

Michelle M. Fisher, 1612 East Prospect Road, Ashtabula, OH 44004 (For DefendantAppellee).

R. Russell Kubyn, Kubyn & Ghaster, 8373 Mentor Avenue, Mentor, OH 44060 (For 

Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Mark Page, is the victim of assorted theft and financial crimes

Appellee, Kelly Zampini-Solarek, committed. He appeals the trial court’s order denying 

his “Notice of Violation of Probation and Motion to re/impose prison sentence and/or to 

deliver balloon payment.” For the following reasons, the judgment of the Lake County 

Court of Common Pleas is affirmed.
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{¶2} Appellant employed Appellee as a bookkeeper for his plumbing business. 

She was subsequently arrested based on her improper conduct in that role between 2015 

and 2016. The Lake County Court of Common Pleas, after a bench trial, found her guilty 

of one count of aggravated theft, a third-degree felony in violation of R.C. 2913.02(A)(1), 

four counts of tampering with records, fourth-degree felonies, in violation of R.C. 2913.42, 

and one count of misuse of credit cards, a fifth-degree felony, in violation of R.C. 

2913.21(B)(2). On January 19, 2017, the trial court sentenced Appellee to a total of 48 

months imprisonment and ordered that she pay Appellant restitution of $204,000.00. 

{¶3} On December 15, 2017, Appellee moved for judicial release. The court 

granted her motion on May 10, 2018, and ordered her to serve five years of community 

control. As a condition of her community control, the court ordered Appellee to pay 

Appellant a minimum of $520.00 restitution a month until paid in full, and that she make 

full restitution at least 60 days before community control expired. The court’s judgment 

entry stated that failure to pay restitution “may” result in a violation of community control. 

{¶4} On April 17, 2023, Appellant filed a “Notice of Violation of Probation and 

Motion to re/impose prison sentence and/or to deliver balloon payment.” He asserted 

that Appellee’s community control would expire in May 2023, and that she had only paid 

$30,170.00 in restitution. On May 2, 2023, the court held a hearing on Appellant’s motion. 

On May 4, 2023, the court denied the motion. The trial court released Appellee from 

community control on May 11, 2023.

{¶5} Appellant timely appealed on May 23, 2023, and raises one assignment of 

error:
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“The trial court erred and committed an abuse of discretion, in denying the victim’s 

Notice of Violation of Probation and Motion to re/impose prison sentence and/or to 

deliver balloon payment.”

{¶6} As an initial threshold question, we first address Appellee’s assertion that 

Appellant, as a victim, did not have standing to move the trial court to reimpose Appellee’s 

prison sentence or order her to deliver a balloon payment. Appellee specifically argues

that “the right to intervene as a party in probation violation or other criminal proceedings 

is not expressly provided for” in Marsy’s Law. Appellant contends that he had standing 

to move the court as he did, and that even if he did not, the court could have provided the 

requested relief on its own accord. For the following reasons, we hold that Appellant had 

standing under Marsy’s Law to move the court accordingly.

{¶7} Article I, Section 10a(B) of the Ohio Constitution, as amended by Marsy's 

Law, provides: “The victim * * * in any proceeding involving the criminal offense or 

delinquent act against the victim or in which the victim's rights are implicated, may assert 

the rights enumerated in this section and any other right afforded to the victim by law. If 

the relief sought is denied, the victim or the victim's lawful representative may petition the 

court of appeals for the applicable district, which shall promptly consider and decide the 

petition.”

{¶8} Article I, Section 10a(A)(7) provides a victim the right “to full and timely 

restitution from the person who committed the criminal offense or delinquent act against 

the victim.”

{¶9} Appellant here, in essence, was asserting rights under Article I, Section 

10a(A)(7). First, Appellant “notified” the trial court of Appellee’s violating probation by her 
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failure to pay full and timely restitution. He then moved the court to enforce its judgment 

ordering that full restitution be paid to him before Appellee’s community control ended. 

We do not propose that a victim in every case has standing to move the trial court to 

enforce probation terms and sanction the defendant for violating community control 

conditions. However, in this case, Appellant was asserting a right to full and timely 

restitution, which the trial court had ordered, but had not enforced as provided under the 

community control terms and conditions. 

{¶10} We therefore hold that Appellant had standing to move the trial court to 

enforce the terms and conditions of Appellee’s community control as to paying full and 

timely restitution.

{¶11} We now proceed to the merits of this appeal.

{¶12} The procedural context in which we consider this case is important to our 

analysis. The trial court imposed Appellee’s obligation to make restitution to Appellant as 

part of her original sentence under R.C. 2929.18(A). That section permits a court 

sentencing an offender “to sentence the offender to any financial sanction or combination 

of financial sanctions authorized under” that section, which includes restitution based on 

the victim’s economic loss. R.C. 2929.18(A) and (B). 

{¶13} A court’s order of restitution under R.C. 2929.18 is a judgment in favor of 

the victim. R.C. 2929.18(D). The law provides a civil mechanism to collect it. R.C. 

2929.18(D)(2); see also State v. Fairbank, 6th Dist. Wood Nos. WD-06-015, WD-06-016, 

2006-Ohio-6180, ¶ 11. Appellant has other remedies at law to enforce that judgment if 

he elects to pursue those options. Id.
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{¶14} After the court sentenced Appellee to prison and ordered her to pay 

restitution, she moved for judicial release. The trial court granted Appellee’s motion for 

judicial release under R.C. 2929.20(K) and imposed a period of community control with 

conditions. 

{¶15} R.C. 2929.20(K) provides: “If the court grants a motion for judicial release 

under this section, the court shall order the release of the eligible offender * * *, shall place 

the offender under an appropriate community control sanction, under appropriate 

conditions, and under the supervision of the department of probation serving the court 

and shall reserve the right to reimpose the sentence that it reduced if the offender violates 

the sanction.” 

{¶16} One condition placed upon Appellee as part of her community control 

following judicial release was to make monthly payments toward the restitution part of her 

sentence. The trial court did not order that payment schedule as part of Appellee’s

sentence for her convictions. The court (when granting Appellee’s motion for judicial 

release and imposing a period of community control on her) neither eliminated nor 

reduced the financial sanction that was part of her original sentence. Nor does the court 

have authority to alter a defendant’s original sentence when granting judicial release. See

State v. Jones, 3d Dist. Mercer Nos. 10-07-26 and 10-07-27, 2008-Ohio-2117, ¶ 15

(holding “[t]he trial court may not alter the defendant's original sentence except to 

reimpose the sentence consecutively to or concurrently with a new sentence it imposes 

as a result of the judicial release violation that is a new criminal offense.”).

{¶17} So, before us is not a challenge to the trial court’s sentence that ordered 

restitution to Appellant, nor a challenge to its decision to grant Appellee’s motion for 
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judicial release; nor to the terms of judicial release. Rather, Appellant challenges the trial 

court’s judgment refusing to strictly enforce the conditions of judicial release it imposed 

on May 10, 2018, which allowed Appellee’s five-year maximum community control period 

to end and led to her release from community control before she paid restitution in full.

{¶18} Ohio appellate courts have held that a trial court’s decision to revoke 

community control following judicial release under R.C. 2929.20(K) for failure to comply 

with its terms is a decision to be reviewed on appeal for an abuse of discretion. State v. 

Barefield, 2023-Ohio-115, 206 N.E.3d 130, ¶ 25 (12th Dist.); State v. Arm, 3d Dist. Union 

Nos. 14-14-03 and 14-14-04, 2014-Ohio-3771, ¶ 22; State v. Woody, 6th Dist. Ottawa 

No. OT-21-007, 2021-Ohio-3861, ¶ 18; State v. Sanchez, 2021-Ohio-1593, 170 N.E.3d 

958, ¶ 16 (8th Dist.).

{¶19} The Twelfth District Court of Appeals reasoned in State v. Barefield, supra:

* * * [A]n abuse-of-discretion standard applies to a trial court's 

decision under R.C. 2929.20(K) to revoke community control 

and reimpose a prison sentence. We reach this conclusion 

based on the text of R.C. 2953.08(G)(2) and R.C. 2929.20(K). 

First, as mentioned above, R.C. 2953.08(G)(2) refers to 

appellate review of R.C. 2929.20(I), which concerns judicial 

release findings, but does not refer to R.C. 2929.20(K), which 

concerns revocation of community control after judicial 

release. Second, the text of R.C. 2929.20(K) states that when 

a trial court grants judicial release, the court “shall reserve the 

right to reimpose the sentence that it reduced if the offender 

violates the sanction.” By stating that a court shall reserve “the 

right” to impose the original, pre-judicial release prison 

sentence, the statute suggests that the trial court has the 

option of reimposing that prison sentence. This conclusion is 

bolstered by the next sentence in the statute, which states that 

in reimposing a pre-judicial release prison term a court “may” 

reimpose that sentence either concurrently with or 

consecutive to “any new sentence imposed upon the eligible 

offender as a result of the violation that is a new offense.” 

(Emphasis added.) Id. There are therefore two bases in the 

statutory text for concluding that a trial court has discretion 
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under R.C. 2929.20(K) to revoke community control and 

reimpose the original, pre-judicial release prison sentence 

when an offender violates community control after judicial 

release. When a statute confers discretion on a trial court, we 

review the trial court's decision for an abuse of discretion. See

Dill v. Dill, 3d Dist. Logan, 179 Ohio App.3d 14, 2008-Ohio5310, 900 N.E.2d 654, ¶ 10 (noting that court findings 

pursuant to discretionary-not mandatory-language in a 

statute, are reviewed under an abuse-of-discretion standard).

So too here.

{¶20} We hold that, by the same reasoning, a trial court’s decision to revoke or 

not revoke community control, or otherwise sanction or not sanction an offender for not 

complying with the terms of community control while on judicial release is also subject to 

review under an abuse of discretion standard. 

{¶21} Abuse of discretion is a term of art. It connotes a court's exercise of 

judgment that neither comports with reason nor the record. State v. Underwood, 11th 

Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶ 30, citing State v. Ferranto, 112 Ohio St. 

667, 676-678, 148 N.E. 362 (1925). Stated differently, an abuse of discretion is “the trial 

court's ‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Raia, 

11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, ¶ 9, quoting State v. Beechler, 2d 

Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black's Law Dictionary 11 (8th 

Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere fact 

that the reviewing court would decide the issue differently is enough to find error[.] * * * 

By contrast, where the issue on review has been confined to the discretion of the trial 

court, the mere fact that the reviewing court would have reached a different result is not 

enough, without more, to find error.’” Id., quoting Beechler at ¶ 67. When applying the 

abuse of discretion standard, a reviewing court may not substitute its judgment for that of 
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the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 

(1993).

{¶22} Here, the trial court did not abuse its discretion when it denied Appellant’s 

motion to reimpose Appellee’s prison sentence or order her to deliver a balloon payment. 

First, the trial court was not required to do so. R.C. 2929.20(K) is discretionary. It

provides that in granting judicial release, the court “shall reserve the right to reimpose the 

sentence that it reduced if the offender violates the sanction;” it does not require the trial 

court to sanction an offender who violates community control. The trial court held, in its 

discretion, that it would neither reimpose Appellee’s prison sentence nor strictly enforce 

the terms of her community control.

{¶23} Was that an abuse of discretion? Reimposing Appellee’s sentence would 

have merely put her in prison and neither increased nor expedited restitution; it would 

have left the total amount owed unchanged and with no schedule for its payment. 

Appellant has always had, and still has, his civil remedy to collect his restitution. The trial 

court’s decision reflects sound, reasonable, and legal decision-making. 

{¶24} In short, Appellant is no worse off than he was when Appellee was 

sentenced. Appellee is still legally obligated to pay him restitution. The trial court’s 

denying his motion did not modify the original sentence ordering restitution. Appellee’s 

obligation to pay restitution (that the trial court originally ordered as part of her sentence) 

did not expire when her community control ended. “While community-control sanctions 

end after five years, R.C. 2929.15(A)(1), the obligation to pay restitution does not expire 

due to the passage of time. See R.C. 2929.18.” State v. Aguirre, 144 Ohio St. 3d 179, 

2014-Ohio-4603, 41 N.E.3d 1178, ¶ 28. And, his civil recourse for enforcing that 
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obligation remains open; the trial court’s denying his motion does not foreclose him from 

bringing a separate action to enforce the court’s restitution order.

{¶25} Having found the trial court did not abuse its discretion in denying 

Appellant’s motion, we affirm the judgment of the Lake County Court of Common Pleas.

MARY JANE TRAPP, J.,

ROBERT J. PATTON, J.,

concur.