[Cite as State v. Weimert, 2011-Ohio-2846.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 2-10-35 

 v. 

JOSHUA B. WEIMERT, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Auglaize County Common Pleas Court 

Trial Court No. 2010-CR-107 

Judgment Affirmed in Part, Reversed in Part 

Date of Decision: June 13, 2011 

 

APPEARANCES: 

E. Kelly Mihocik for Appellant 

R. Andrew Augsburger for Appellee 
Case No. 2-10-35 

-2- 

WILLAMOWKI, J.

{¶1} Defendant-appellant Joshua Weimert. (“Weimert”) brings this appeal 

from the judgment of the Court of Common Pleas of Auglaize County sentencing 

him to consecutive sentences. For the reasons set forth below, the judgment is 

affirmed in part and reversed in part. 

{¶2} During June 2010, a series of burglaries occurred in rural areas of 

Auglaize County. On June 28, 2010, Sgt. Detective Jerry Sawmiller 

(“Sawmiller”) of the Auglaize County Sherriff’s Office was informed by the Allen 

County Sheriff’s office that Weimert and Christopher Hall (“Hall”) had admitted 

to committing burglaries in Auglaize County. Sawmiller was advised to speak 

with Ashley Hall (“Ashley”), the girlfriend of Weimert. When questioned, Ashley 

told Sawmiller that Hall and Weimert were burglarizing homes in Auglaize 

County and selling the stolen property. On July 2, 2010, Sawmiller interviewed 

Weimert and Hall. Weimert eventually confessed that both he and Hall had 

committed the series of burglaries in Auglaize County. 

{¶3} On August 12, 2010, the Auglaize County Grand Jury indicted 

Weimert on ten counts of burglary and theft, ranging from a second degree felony, 

eight third degree felonies, and one fifth degree felony. Weimert entered a plea of 

not guilty to each of the counts on September 1, 2010. On October 14, 2010, 

Weimert entered into a written plea agreement with the state. Pursuant to the plea 
Case No. 2-10-35 

-3- 

agreement, Weimert agreed to enter a guilty plea to three counts of burglary and 

one count of theft, all felonies of the third degree and to pay restitution for all 

indicted offenses, including those dismissed. In exchange, the State agreed to 

dismiss all other charges and to refrain from prosecuting him for two additional 

offenses. The trial court accepted the plea agreement and proceeded to conduct an 

immediate sentencing hearing. The trial court sentenced Weimert to four years in 

prison on counts one, three, and nine of the indictment, and five years in prison for 

count ten of the indictment. The sentences were ordered to be served 

consecutively for a total of seventeen years. Weimert was also ordered to pay 

$6,050 in restitution, which included $150 for offenses for which Weimert was not 

indicted. Weimert appeals from this judgment and raises the following 

assignments of error. 

First Assignment of Error 

The trial court sentenced [Weimert] to consecutive sentences 

without applying a presumption that concurrent sentences 

would be imposed. Because State v. Hodge * * * recognized that 

R.C. 2929.14(E)(4) and R.C. 2929.41(A) were erroneously struck 

down, the controlling public policy demands that that 

presumption be applied. [Weimert’s] sentence should be 

vacated. 

Second Assignment of Error 

When [Weimert] pleaded guilty to theft, he agreed to pay 

restitution for an unindicted 2009 offense. Because [Weimert] 

did not plead guilty to that offense nor was it covered by the 
Case No. 2-10-35 

-4- 

indictment, the trial court erred when it ordered [Weimert] to 

pay restitution for that offense. 

Third Assignment of Error 

The trial court erred when it did not determine [Weimert’s] 

present or future ability to pay a financial sanction before the 

court ordered [Weimert] to pay $6,050.00 in restitution. 

Fourth Assignment of Error 

[Weimert’s] trial counsel rendered constitutionally ineffective 

assistance when counsel knew that [Weimert] was indigent, but 

did not object to the imposition of court costs. 

{¶4} In the first assignment of error, Weimert claims that the trial court 

erred in sentencing him to consecutive sentences without making the necessary 

findings. Weimert argues that the decision by the Supreme Court in State v. 

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, wrongly severed the 

requirement that the trial court make findings before imposing consecutive 

sentences. Weimert then claims that since the Supreme Court recognized its error 

in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, public 

policy requires the original statutory language be followed. However, the Ohio 

Supreme Court in Hodge held that the holding in Foster, was still valid. The 

Supreme Court admitted that the logic used to decide Foster was called into 

question, but held that since it was not reversed by the U.S. Supreme Court, it was 

still the law and only the legislature could reenact the severed provisions of the 
Case No. 2-10-35 

-5- 

statute. Since Weimert was sentenced pursuant to the law in effect at the time of 

his sentencing, the appellant has not demonstrated that the sentence is clearly and 

convincingly contrary to law and the first assignment of error is overruled. 

{¶5} In the second assignment of error, Weimert claims that the trial court 

erred by ordering him to pay restitution for an offense that was based on neither an 

indictment nor a conviction. The amount of restitution is generally limited to the 

offenses for which a defendant is tried and convicted. State v. Rohrbaugh, 191 

Ohio App.3d 117, 2010-Ohio-6375, 944 N.E.2d 1230. “[A]s a matter of law, an 

offender cannot be ordered to pay restitution for damage arising from a crime of 

which he was not convicted.” State v. Williams, 3d Dist. No. 8-03-25, 2004-Ohio2801, ¶23. However, a defendant can agree to pay restitution for damages relating 

to dismissed charges as part of a negotiated plea agreement. State v. Strickland, 

10th Dist. No. 08AP-164, 2008-Ohio-5968, ¶12. A negotiated plea agreement is a 

contract and the principles of contract law apply. State v. Bethel, 110 Ohio St.3d 

416, 2006-Ohio-4853, ¶50, 854 N.E.2d 150. Thus, as long as the defendant agrees 

to make the payment as part of the consideration for the dismissal of the other 

charges, the defendant may contract to do things that otherwise could not be 

required by law. 

{¶6} Here, Weimert claims that the trial court erred in requiring him to pay 

restitution for damages resulting from offenses for which he was neither indicted 
Case No. 2-10-35 

-6- 

nor convicted. The negotiated plea agreement provided that Weimert would enter 

pleas of guilty to counts one, three, nine, and ten of the indictment, as amended 

and that Weimert “agrees to make Restitution as to all Counts of the Indictment.” 

October 14, 2010, Agreement, 2-3. In return, the State agreed to dismiss counts 

two, four, five, six, seven, and eight. The State also agreed not to go forward with 

the two additional charges for which no indictment was issued. This agreement 

was signed by Weimert and the State. At the sentencing hearing, the State 

informed the trial court that Weimert agreed “to make restitution as to all counts of 

the indictment.” October 14, 2010, Tr. 4. Although, the trial court later discussed 

whether Weimert had agreed to pay restitution for the unindicted offenses, this 

was not included in the written contract. The contract, which in this case is the 

negotiated plea agreement, is unambiguous and parol evidence is not necessary to 

interpret it. The agreement indicates that Weimert will make restitution as to all 

counts of the indictment. It does not include any additional offenses for which no 

indictment was issued. If the State had wished to include the unindicted offenses 

for purposes of restitution, they should have been included in the contract.1

 The 

State did not include them. In addition, the record does not indicate that Weimert 

received any additional consideration for agreeing to pay restitution for the 

 

1

 This court makes no determination at this time as to whether including restitution for an unindicted 

offense is permissible. Since the contract was silent as to restitution for these offenses, the issue is not 

before this court at this time. 
Case No. 2-10-35 

-7- 

unindicted offenses above what was already included in the contractual plea 

agreement. Thus, there was no modification of the contract at the hearing. The 

trial court erred in ordering restitution for the unindicted offenses when the written 

contract did not indicate an agreement to pay them. The second assignment of 

error is sustained. 

{¶7} Weimert alleges in the third assignment of error that the trial court 

erred in imposing restitution without first inquiring into his ability to pay. Having 

found error with the trial court’s imposition of restitution in the second assignment 

of error, the issue is remanded to the trial court. Thus, this issue is moot and need 

not be addressed. 

{¶8} Finally, Weimert claims that his trial counsel was ineffective. 

“Reversal of convictions on ineffective assistance requires the defendant to show 

‘first that counsel's performance was deficient and, second that the deficient 

performance prejudice the defense so as to deprive the defendant of a fair trial.’” 

State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 105, 772 N.E.2d 81. The 

defendant must show that there was a reasonable probability that but for counsel's 

error, the result of the trial would have been different. Id. at ¶ 108. State v. 

Baughman, 3d Dist. No. 1-10-34, 2010-Ohio-4951. 

{¶9} Weimert alleges that his trial counsel was ineffective for failing to 

object to court costs even though Weimert was indigent. The Ohio Supreme Court 
Case No. 2-10-35 

-8- 

has held that R.C. 2947.23 requires a trial court to assess costs against all 

convicted defendants. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶8, 

817 N.E.2d 393. “Thus, trial counsel’s failure to object to the imposition of costs 

of prosecution and court fees does not constitute ineffective assistance of counsel 

because such an objection would not have been successful.” State v. Layne, 12th

Dist. No. CA2009-07-043, 2010-Ohio-2308, ¶54. For this reason, the fourth 

assignment of error is overruled. 

{¶10} Having found error prejudicial to the defendant in the imposition of 

restitution, the judgment of the Court of Common Pleas of Auglaize County is 

affirmed in part and reversed in part. 

Judgment Affirmed in Part, 

Reversed in Part 

ROGERS, P.J., concurs in Assignments of Error Nos. 1, 3 and 4, and concurs 

in Judgment Only in Assignment of Error No. 2 

SHAW, J., concurs in Judgment Only 

/jlr