[Cite as State v. Sheets, 2018-Ohio-996.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMATTHEW D. SHEETS 

 Defendant-Appellant 

JUDGES: 

Hon. John W. Wise, P. J. 

Hon. William B. Hoffman, J. 

Hon. Craig R. Baldwin, J. 

Case No. 17 CA 44 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 16 CR 00613 

JUDGMENT: Reversed in Part and Remanded 

DATE OF JUDGMENT ENTRY: March 15, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CLIFFORD J. MURPHY ELIZABETH E. OSORIO 

ASSISTANT PROSECUTOR LAW OFFICE OF BRIAN JONES 

20 North Second Street 35 North Sandusky Street 

4th Floor Suite 200 

Newark, Ohio 43055 Delaware, Ohio 43015 
Licking County, Case No. 17 CA 44 2

Wise, P. J. 

{¶1} Defendant-Appellant Matthew D. Sheets appeals the sentencing portions of 

his conviction, in the Court of Common Pleas, Licking County, on counts of receiving 

stolen property and aggravated drug possession. Appellee is the State of Ohio. The 

relevant facts leading to this appeal are as follows. 

{¶2} On or about April 6, 2016, officers from the Licking County Sheriff’s Office 

and the CODE Task Force executed a search warrant at appellant’s residence in Hanover 

Township. The officers located, among other things, a Ford F-450 truck, a Polaris RZR 

all-terrain vehicle, and portions of a 2010 Harley-Davidson motorcycle, all apparently the 

property of Kenneth Casada. All of these items were confirmed to have been stolen. 

{¶3} Based on the search and ensuing investigation, the Licking County Grand 

Jury indicted appellant on October 27, 2016 on three counts of receiving stolen property 

(motor vehicle), R.C. 2913.51(A)(C), all felonies of the fourth degree, based on appellant’s 

possession of the aforesaid Ford truck, the RZR, and the Harley-Davidson. Appellant was 

also indicted on one count of aggravated possession of drugs (methamphetamine), R.C. 

2925.11(A)(C)(1)(a), a felony of the fifth degree. 

{¶4} Appellant thereafter entered pleas of not guilty to all of the above counts. 

Appellant also filed a motion for treatment in lieu of conviction under R.C. 2951.041. 

However, following a hearing on May 25, 2017, with appellant represented by defense 

counsel, the trial court determined appellant was not suitable for same. 

{¶5} A change of plea and sentencing hearing also went forward on May 25, 

2017. The trial court first duly engaged in a plea colloquy with appellant. After appellant 

acknowledged he had reviewed discovery, stated he understood his rights, expressed 
Licking County, Case No. 17 CA 44 3

that he was aware the trial court could impose financial sanctions, and entered his pleas 

of guilty to all four charges in the aforesaid indictment, the State provided a factual basis 

to the court regarding the charges. Tr. at 9-11. Appellant via counsel suggested to the 

trial court that restitution to two of his theft victims, Michael Tonn and Rodney Simpson, 

were not part of the plea negotiations. Tr. at 20. The trial court orally expressed its position 

that a plea to an indictment, without any recommendation for sentencing, is not a plea 

agreement. Tr. at 22. The State also advised the court that appellant and Casada had 

worked out compensation for Casada’s stolen property via payment in kind, and that 

restitution for Casada was not an issue. Tr. at 16. After additional discussion with counsel, 

the court indicated it would decide the remaining issues of restitution then and there, at 

the sentencing hearing. Tr. at 22. 

{¶6} The trial court proceeded to place appellant on three years of community 

control and ordered restitution owed to victim Michael Tonn in the amount of $21,650.00 

and to victim Rodney Simpson in the amount of $1,924.98. Appellant was also fined 

$2,500.00. 

{¶7} Appellant filed a notice of appeal on June 26, 2017. He herein raises the 

following three Assignments of Error: 

{¶8} “I. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY 

CONSIDERING EVIDENCE DEHORS THE RECORD; RESULTING IN THE 

IMPOSITION OF A SENTENCE THAT IS UNSUPPORTED BY THE RECORD AND 

CONTRARY TO LAW. 

{¶9} “II. THE TRIAL COURT PERPETRATED A VIOLATION OF THE 

APPELLANT'S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FIFTH AND 
Licking County, Case No. 17 CA 44 4

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND ART. I. SEC. 16 

OF THE OHIO CONSTITUTION AND RIGHT TO CONFRONT WITNESSES AGAINST 

HIM AS GUARANTEED BY THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION 

AND ART. I. SEC. 10 OF THE OHIO CONSTITUTION. 

{¶10} III. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN 

DECLINING TO SET A HEARING ON RESTITUTION WHEN THE STATE ADMITTED 

IT HAD NOT SUBPOENAED WITNESSES NOR PREPARED DOCUMENTATION IN 

SUPPORT OF ITS RESTITUTION REQUEST, AND THE DEFENDANT-APPELLANT 

OBJECTED TO THE RESTITUTION AMOUNT AS CONTEMPLATED BY R.C. 2929.18.” 

III. 

{¶11} In his Third Assignment of Error, which we find dispositive of this appeal, 

appellant contends the trial court abused its discretion in declining to conduct a hearing 

on the issue of restitution. We agree. 

Standard of Review 

{¶12} R.C. 2929.18(A) states in pertinent part that “[e]xcept as otherwise provided 

in this division and in addition to imposing court costs pursuant to section 2947.23 of the 

Revised Code, the court imposing a sentence upon an offender for a felony may sentence 

the offender to any financial sanction or combination of financial sanctions authorized 

under this section * * *.” R.C. 2929.18(A)(1) sets forth that restitution is one such sanction. 

{¶13} Ohio appellate courts no longer review sentences pursuant to the standard 

set forth in State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, 896 N.E.2d 124. See 

State v. Cox, 5th Dist. Licking No. 16-CA-80, 2017-Ohio-5550, ¶ 9. We now review felony 

sentences using the standard of review set forth in R.C. 2953.08. See State v. Marcum, 
Licking County, Case No. 17 CA 44 5

146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22. Thus, in essence, we may 

increase, reduce, modify a sentence, or vacate and remand for resentencing if we clearly 

and convincingly find that the record does not support the sentencing court's statutory 

findings, if applicable, or the sentence is contrary to law. State v. Theodorou, 8th Dist. 

Cuyahoga No. 105630, 2017-Ohio-9171, ¶ 7, citing R.C. 2953.08(G)(2). 

{¶14} Accordingly, some Ohio appellate districts have concluded that restitution 

orders should be reviewed on appeal using the same standard of review as with any 

typical sentencing issue. For example, the Second District Court of Appeals has held: 

“[I]nstead of applying an abuse of discretion standard, as we have previously done in 

restitution cases prior to Marcum, the proper standard of review for analyzing the 

imposition of restitution as a part of a felony sentence is whether it complies with R.C. 

2953.08(G)(2)(b), i.e., whether it is clearly and convincingly contrary to law.” State v. 

Becraft, 2nd Dist. Clark No. 2016-CA-9, 2017-Ohio-1464, ¶18, citing State v. Geldrich, 

12th Dist. Warren No. CA2015-11-103, 2016-Ohio-3400, 2016 WL 3257788, ¶ 6. 

{¶15} However, we have continued, post-Marcum, to review restitution orders 

under an abuse of discretion standard. See, e.g., State v. Cook, 5th Dist. Fairfield No. 16-

CA-28, 2017-Ohio-1503, ¶ 8; State v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 

2016–Ohio–7389, ¶ 40. We also recently reiterated that an order of restitution must be 

supported by competent and credible evidence from which the trial court can discern the 

amount of restitution to a reasonable degree of certainty. State v. Spencer, 5th Dist. 

Delaware No. 16 CAA 04 0019, 2017-Ohio-59, ¶ 44 (citations omitted). Furthermore, a 

trial court abuses its discretion if it orders restitution in an amount that does not bear a 

reasonable relationship to the actual loss suffered. Id. (citations omitted). 
Licking County, Case No. 17 CA 44 6

Restitution to Michael Tonn ($21,650.00) 

{¶16} In State v. Kreischer, 5th Dist. Perry No. 03 CA 20, 2004-Ohio-6854, this 

Court cited State v. Brumback (1996), 109 Ohio App.3d 65, 82, 671 N.E.2d 1064, for the 

holding that restitution is limited to actual losses caused by a defendant's crime. We 

further recognized: “It is incumbent upon the state in seeking restitution in a criminal case 

to provide sufficient evidence to support such an award.” Kreischer at ¶ 15. A trial court 

may determine the amount of restitution by reviewing the record, or if the evidence in the 

record is insufficient, the court must conduct an evidentiary hearing. State v. Hoskinson, 

5th Dist. Tuscarawas No. 2007 AP 09-0055, 2008-Ohio-3897, ¶ 14. Similarly, where the 

trial court fails to determine by "a reasonable certainty" the amount of restitution, the 

matter should be remanded for additional review. See, e.g., State v. Bruno, 8th Dist. 

Cuyahoga No. 85009, 2005-Ohio-3830, ¶ 4. However, we remain mindful that the Rules 

of Evidence do not apply at restitution hearings. State v. Burgess, 5th Dist. Stark No. 

2013CA00070, 2013-Ohio-4691. 

{¶17} Appellant urges that in this instance neither the State nor the trial court 

established the nature of the property for which Mr. Tonn was being compensated, 

particularly in connection with the stolen items alleged in the indictment or the bill of 

particulars. The trial court, in ordering the restitution amounts for Mr. Tonn and Mr. 

Simpson, invoked to some extent its recollection of what had occurred in the codefendant’s criminal case, State v. Ricki L. Hupp, common pleas case number 2016-CR00612. See Tr. at 15, 18-19. Our review of the PSI report in the record provides no 

additional information clarifying the restitution figures ultimately accepted by the trial 

court. 
Licking County, Case No. 17 CA 44 7

{¶18} In response, the State argues that appellant failed to properly object to the 

restitution order or request a hearing pursuant to R.C. 2929.18(A)(1). Generally, “[i]f a 

defendant fails to object to the restitution order the court imposes, he forfeits any error in 

the court's order, save for a claim of plain error.” State v. Ford, 9th Dist. Summit No. 

26073, 2012–Ohio–1327, ¶ 6. See, also, State v. Sharier, 9th Dist. Summit No. 27421, 

2015–Ohio–2629, ¶ 8. 

{¶19} Technically speaking, appellant indeed failed to request a hearing as to the 

$21,650.00 restitution order, although his counsel did raise the objection that restitution 

should not be awarded as to Tonn’s and Simpson’s property because “[n]either of those 

charges were indicted.” Tr. at 20. The assistant prosecutor stated that while he had not 

discussed the matter of restitution with defense counsel, "I guess the worst-case scenario 

if [defense] counsel wants to contest those matters, we'd ask that that part be set for 

hearing to have these folks come back in and testify ***." Tr. at 21, 22. However, the court 

abruptly responded that “[t]oday’s the hearing” and made clear it would forthwith address 

restitution “at least with respect to Mr. Simpson and Mr. Tonn,” thereby implicitly denying 

the request for an evidentiary hearing from the State. Tr. at 22. 

{¶20} Under these circumstances, where the State indicated it would be amenable 

to a further hearing on restitution, and the trial court immediately curtailed the prospect of 

such a hearing, we find it would have been a vain gesture for appellant to have pressed 

for one. As such, we find the “plain error” rule of Ford, supra, herein inapplicable, and we 

need not relegate this matter to such an analysis. Instead, we find the proper remedy is 

to remand the issue of Mr. Tonn’s restitution amount for an evidentiary hearing. Bruno, 

supra. 
Licking County, Case No. 17 CA 44 8

Restitution to Rodney Simpson ($1,924.98) 

{¶21} During the sentencing hearing in the case sub judice, the State asserted as 

follows: 

{¶22} “[ASSISTANT PROSECUTOR] MR. MURPHY: *** The residence [of 

appellant] itself had an operable video security system that was seized by law 

enforcement. They executed a search warrant on the system; 1,200 hours of recording 

on it. The property itself had a stolen 2000 Ford F-450 that is the property of Kenneth 

Casada; there was a 2001 Honda Civic Ex owned by Rodney Simpson that was stolen 

on the property; there was a Polaris Razor 900 Model year 2015, which was stolen and 

was on the property; there was a Harley Davidson motorcycle 2010, or the pieces that 

remained of it, stolen and on the property. * * *.” 

{¶23} Tr. at 10. 

{¶24} Appellant’s trial counsel at that point specifically took exception to the 

State’s reference to Mr. Simpson’s allegedly stolen Honda Civic, maintaining it was “not 

a part of Discovery and not listed as a charge count in the Bill of Particulars." Tr. at 10. 

The trial court then asked the assistant prosecutor if he had “[a]ny objection to that.” Tr. 

at 11. He replied in the negative. Id. However, the assistant prosecutor also later advised 

the court that “there’s a variety of stolen items that were on the property” and “[t]here is 

different property that was on there.” Tr. at 21. In any event, the State did not specifically 

withdraw its pursuit of restitution regarding Mr. Simpson, and the trial court ultimately 

ordered same. Tr. at 14, 35. 

{¶25} A trial court is authorized to order restitution by a felony offender to a crime 

victim in an amount based upon the victim's economic loss. State v. Martin (2000), 140 
Licking County, Case No. 17 CA 44 9

Ohio App.3d 326, 337, 747 N.E.2d 318; R.C. 2929.18(A)(1). Upon review, although the 

present record is murky as to whether Mr. Simpson was a direct victim of the proven 

offenses, at least as to the stolen Honda, in the interest of justice we will remand this 

issue for an evidentiary hearing as well. Bruno, supra. 

Conclusion 

{¶26} Appellant's Third Assignment of Error is therefore sustained. We will thus 

remand this matter for a hearing as to restitution regarding Mr. Tonn and Mr. Simpson, 

and, if necessary, the issuance of an amended final judgment entry. 

I., II. 

{¶27} Based on our previous determinations, we find the remaining arguments set 

forth in appellant’s First and Second Assignments of Error are presently moot. 

{¶28} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Licking County, Ohio, is hereby reversed in part and remanded as to sentencing only. 

By: Wise, P. J. 

Hoffman, J., and 

Baldwin, J., concur. 

 

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