[Cite as State v. Dent , 2021-Ohio-2551.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y

STATE OF OHIO, Plaintiff-Appellee,

- v - AMEEN R. DENT, Defendant-Appellant. CASE NO. 2020-L-110

Criminal Appeal from the Willou g hb y Municipal Court

Trial Court No. 2020 CRB 01964

O P I N I O N

Decided: Jul y 26, 2021 Jud g ment: Reversed and vacated in part.

Richard J. Perez and Leslie S. Johns , 4230 State Route 306, Suite 240, Willoughby, OH 44094 ( For Plaintiff-Appellee )

. Vanessa R. Clapp , Lake County Public Defender, and Melissa A. Blake , Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 ( For DefendantAppellant )

.

MARY JANE TRAPP, P.J. {¶1} Appellant, Ameen R. Dent (“Mr. Dent”), appeals the restitution order that was a part of his sentence for one count of first-degree misdem eanor theft. {¶2} In his sole assignment of error, Mr. Dent contends the trial co urt abused its discretion when it ordered him to repay his student loans as re stitution because the federal Department of Education is not a victim in this case an d the unpaid loans are not the direct and proximate causes of harm and/or economic loss to the victim, Malkia Dent2

Case No. 2020-L-110 (“Ms. Dent”), who is also Mr. Dent’s mother. The state “does n ot disagree” with Mr. Dent’s assignment of error and agrees that the Department of Education is not a recognized victim pursuant to the Supreme Court of Ohio’s recent holding i n Centerville v. Knab , 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, which found a municipality in the exercise of its ordinary duties was not a victim entitled to re stitution under the victim’s bill of rights known as Marsy’s Law Ohio Constitution, Article I, Se c. 10a(B). Id. at ¶ 1. {¶3} A review of the trial court’s restitution order reveals that Mr . Dent’s assignment of error has merit and that the trial court erred in ordering Mr. Dent to repay his defaulted student loans to the Department of Education. Th e United States Department of Education, a governmental agency, is not a victim of Mr. Dent’s theft offense of Ms. Dent’s personal information, and the restitution order is not related to the direct and proximate cause o f Ms. Dent’s economic loss. {¶4} Finding Mr. Dent’s assignment of error to have merit, we vacate the portion of the Willoughby Municipal Court’s judgment that orders Mr. De nt to pay restitution to the Department of Education by way of monthly payments on his defau lted loans.

Substantive and Pr ocedural History {¶5} In September 2020, a complaint was filed in the Willoughby Muni cipal Court charging Mr. Dent with one count of tampering with records, a f irst-degree misdemeanor, in violation of R.C. 2913.42(A)(1). {¶6} A preliminary hearing was subsequently held during which the pr osecutor explained that in 2014 or 2015, Mr. Dent sought to attend the C leveland Institute of Art and electronically submitted his student loan application, whic h named Ms. Dent as guarantor and listed her personal information, including her so cial security number. A loan officer from the Department of Education called Ms. Dent, who told the officer she3

Case No. 2020-L-110 did not know “anything about this” and to “send me the paperwor k.” In the meantime, the loans were approved. Mr. Dent defaulted on the loans after his first year of school. There were three loans, totaling approximately $4,000, $24,037, and $ 14,637. {¶7} Ms. Dent discovered the defaulted loans several years later whe n her credit report listed a lowered credit score. She called the Departmen t of Education and discovered that she was a guarantor of almost $60,000 in loans. No action was ever taken against Ms. Dent, and a conviction against Mr. Dent would remove her from the

loan and clear her credit score. {¶8} The prosecutor informed the court that Mr. Dent was willing to enter an

Alford plea to one count of theft, a first-degree misdemeanor, in vio lation of R.C. 2913.02 and that the state recommended a $100 fine and probation. The victim advocate, on Ms. Dent’s behalf, advocated time in jail. Mr. Dent, by way of his attorney, denied providing his mother’s information, but he agreed to enter an Alford plea to avoid potential felony charges. {¶9} The trial court accepted the plea and proceeded to sentencing. The court inquired whether there was a restitution issue, to which the pr osecutor informed the court that Ms. Dent had not lost any money on the loan and that he wa s not seeking restitution to pay the Department of Education, as that was “between them.” He reiterated that Mr.

Dent’s conviction would allow Ms. Dent to remove her name from the loan and her credit report. Ms. Dent confirmed in court that the Department of Edu cation had never filed a claim or sent a letter in regard to the defaulted loans. {¶10} The court noted that although Mr. Dent had no criminal history, his offense was serious. After considering the state’s recommendation for suspended time and a fine, all of the statements made in open court, including those of Mr. Dent and his counsel,4

Case No. 2020-L-110 and the purposes and principles of sentencing, the court ordere d a $100 fine and imposed a 60-month term of probation with various conditions, including full-time employment (a minimum of 40 hours/week), 100 hours of community service, and a monthly payment on Mr. Dent’s school loans. The probation also carried a suspende d 180-day jail term if Mr. Dent failed to meet his probation conditions. {¶11} Mr. Dent’s counsel objected to the restitution order because th e student

loan lender was not a victim to the case and because the monthl y payments were uncertain since the loans were still in default. Mr. Dent ques tioned the court as to what would happen to the “probation condition” if he was able to def er repayment and/or obtain loan forgiveness. The court clarified that if no payment was d ue, then no payment was required, as far as the restitution order for the probation dep artment. {¶12} Mr. Dent appeals, raising one assignment of error: {¶13} “The trial court committed an abuse of discretion when it order ed Mr. Dent to repay his student loans as restitution.” {¶14} In his sole assignment of error, Mr. Dent contends the trial co urt abused its discretion when it ordered him to repay his student loans as re stitution because the Department of Education is not a victim and the unpaid loans ar e not the direct and proximate causes of harm to Ms. Dent. The state “does not disa gree” with Mr. Dent’s arguments and agrees that the Department of Education is not a recognized victim in light of the recent holding of the Supreme Court of Ohio in Centerville , supra

. Standard of Review {¶15} We review misdemeanor restitution orders for an abuse of discre tion. State

v. Johnson , 2d Dist. Montgomery No. 24288, 2012-Ohio-1230, ¶ 11. An abus e of discretion is the trial court’s “‘failure to exercise sound, re asonable, and legal decision-5 Case No. 2020-L-110 making.’” State v. Beechler , 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004). To the extent we are required to interpret and apply sections of the Ohio Revised Code, our review is de novo. State v. Talameh , 11th Dist. Portage No. 2011-P-0074, 2012-Ohio-4205, ¶ 20; Johnson at ¶ 11(“[W]e utilize a de novo standard of review when determining to whom restitution ma y appropriately be awarded”).

Restitution Orders {¶16} R.C. 2929.28(A)(1) provides a statutory mechanism for ordering restitution in misdemeanor cases, allowing a court to impose financial sanc tions on a criminal offender that include “‘restitution by the offender to the vict im of the offender’s crime * * *

in an amount based on the victim’s economic loss.'” Centerville at ¶ 19, quoting R.C. 2929.28(A)(1). The statute further states that restitution may be made “to the victim in open court or to the adult probation department that serves the jurisdiction or the clerk of the court on behalf of the victim.” R.C. 2929.28(A)(1). The a mount of restitution ordered cannot “exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense.” Id.

“Victim” {¶17} Neither R.C. 2929.28, its felony counterpart, R.C. 2929.18, nor the definition statute for the chapter, R.C. 2929.01, defines “victim.” {¶18} R.C. Chapter 2930 et. seq., which deals with rights of victims of crimes, defines a “victim” as “[a] person who is identified as the vict im of a crime or specified delinquent act in a police report or in a complaint, indictment , or information that charges the commission of a crime and that provides the basis for the c riminal prosecution or delinquency proceeding and subsequent proceedings * * *.” R.C. 2930.01(H)(1). The6

Case No. 2020-L-110 Supreme Court of Ohio, however, clarified in State v. Allen , 159 Ohio St.3d 75, 2019- Ohio-4757, 147 N.E.3d 618, that by the express terms of R.C. 29 30.01, the definitions in the victim’s rights chapter are limited to that chapter and, th us, do not govern the provisions in R.C. 2929.18 and R.C. 2929.28. Id. at ¶ 13. {¶19} This court has defined a “victim of a crime” as “the person or entity that was the ‘object’ of the crime.” State v. Pietrangelo , 11th Dist. Lake No. 2003-L-125, 2005- Ohio-1686, ¶ 15, quoting State v. Samuels , 4th Dist. Washington No. 03CA8, 2003-Ohio6106, ¶ 5. {¶20} In Pietrangelo , we determined that “a government entity voluntarily advancing its own funds to pursue a drug buy through an informa nt is not one of the scenarios contemplated by R.C. 2929.18(A)(1).” Id . We recognized that “[i]n certain circumstances, a government entity may be considered a victim o f a crime under R.C. 2929.18(A)(1): For example, when government funds are embezzle d or when government property is vandalized.” Id . We also acknowledged the state’s “legitimate interest and entitlement, in certain cases, to defray the spira ling costs of criminal investigation on behalf of the taxpayer.” Id . at ¶ 17. However, we agreed with the majority of federal and state courts that had concluded “‘the government is not a victim entitled to restitution where public moneys are expended in pursuit of solv ing crimes, as these expenditures represent normal operating costs.’” Id ., quoting State v. Sequiera , 93 Haw. 34, 43, 995 P.2d 335 (Haw. App. 2000). Based on the absence of “an express statement from the legislature authorizing trial courts to sentence crimi nal defendants to pay restitution to law enforcement agencies for this purpose,” we d eclined to “take it upon ourselves to judicially rewrite the statute.” Id

.7 Case No. 2020-L-110 {¶21} In Allen , supra , the Supreme Court of Ohio considered whether a bank was

a “victim” entitled to restitution. The court found that a ban k was a victim for the purposes of restitution when it cashed a forged check and then recredite d the depositor’s account

for a stolen amount. Id. at ¶ 1. The court explained that three considerations supporte d the conclusion that the bank was a victim: (1) the bank had a proper interest in the money it held for an account holder and suffered a loss; (2) the bank had a statutory obligation

to bear the loss and correct an erroneous deduction from an acc ount; and (3) the bank itself was the target of the crime because the offender defraud ed and tricked the bank when he presented a forged check to the bank. Id. at ¶ 6-8. See also State v. Burgett , 2019-Ohio-5348, 139 N.E.3d 940, ¶ 20-21 (1st Dist.) (reversing the trial court’s restitution order and remanding in light of Allen to determine whether a fundraising website was a victim statutorily entitled to restitution, and if so, to then determine its economic loss). {¶22} Recently, in Centerville , the Supreme Court of Ohio considered the meaning of the word “victim” in the misdemeanor restitution statute, R. C. 2929.28, as well as its felony counterpart, R.C. 2929.18, as it relates to Ohio Constit ution, Article I, Section 10a(B), “Marsy’s Law ,” the victim’s bill of rights. {¶23} The court first noted that Marsy’s Law does not provide a proce dural mechanism for ordering restitution; instead it states that a vi ctim “may assert his or her constitutional rights in a proceeding involving the underlying criminal act.” Id. at ¶ 18. The provisions of the amendment are self-executing and “‘supers ede all conflicting state

laws.’” Id. , quoting Article I, Section 10a(E). {¶24} The court concluded that a municipal corporation does not quali fy as a victim under Article I, Section 10a of the Ohio Constitution an d that it is not entitled to

restitution under that section based on both the text and conte xt of the amendment. The8

Case No. 2020-L-110 voters who approved the constitutional amendment did not intend that a municipal corporation – a governmental entity – qualifies as a victim und er that amendment. Id. at ¶ 31. Further, as the court of appeals had noted, the municipa l corporation in that case was not a victim because it was performing official duties, and did not experience “economic loss” as used in R.C. 2929.28(A)(1). All of the offi cers responding to the false report were on duty and would have been paid regardless of the appellant’s action. Id. at ¶ 9. {¶25} As our review of the definition of “victim” for statutory resti tution purposes indicates, the Department of Education is not a victim in this case. The restitution order requiring repayment of defaulted loans is not remedying Ms. Den t’s economic loss caused by Mr. Dent’s theft of her perso nal information. Ms. Dent stat ed twice during the hearing that there was no claim against her by the Department of Educat ion and that Mr. Dent’s

conviction would allow her to fix her credit score and remove h er as guarantor of the loans, which is the “harm” caused by Mr. Dent’s conviction for theft. {¶26} Furthermore, we decline to speculate whether the Department of Education

can be a “victim” entitled to restitution under either R.C. 292 9.28, R.C. 2929.29, or Marsy’s Law because it is not a victim in this case. It would be prema ture to decide whether the Department of Education, acting in its quasi-capacity as a lend er, can be a “victim” entitled to restitution or if the Suprem e Court of Ohio foreclosed on th at possibility under Marsy’s

Law.

Economic Loss {¶27} Mr. Dent also argues that the restitution order is not related to the direct and proximate cause of Ms. Dent’s harm from his theft of her person al information.9

Case No. 2020-L-110 {¶28} We agree. “Generally, the right to order restitution is limite d to the actual damage or loss caused by the offense of which the defendant is convicted. Implicit in this principle is that the amount claimed must be established to a r easonable degree of certainty before restitution can be ordered.” State v. Williams , 34 Ohio App.3d 33, 516 N.E.2d 1270 (2d Dist.1986), paragraph one of the syllabus. {¶29} In a felony restitution case, State v. Ciresi , 2020-Ohio-5305, 162 N.E.3d 846 (11th Dist.), we discussed “economic loss” as it relates to res titution. It is defined in part as “‘any economic detriment suffered by a victim as a direct an d proximate result of the commission of an offense and includes * * * any property loss * * * incurred as a result of

the commission of the offense.’ ‘Economic loss’ does not inclu de non-economic loss or any punitive or exemplary damages.” Id. at ¶ 20, quoting R.C. 2929.01(L); State v. Blas , 11th Dist. Portage No. 2017-P-0030, 2018-Ohio-2461, ¶ 21. “‘Ec onomic loss’ is further defined as ‘[a] monetary loss such as lost wages or lost profit s * * *.’” Ciresi at ¶ 21, quoting Black’s Law Dictionary (11th Ed.2019). We further explained that “[u]nlike intrinsic value, which reflects value as a personal internal va lue, the restitution statute limits recovery to the victim’s ‘economic loss’ that connotes a tangible loss of material wealth or money that is objective and determinable in relation to trade.” Id. at ¶ 27. Most fundamentally, in the context of restitution, due process “‘“re quires that the amount of restitution ordered bear a reasonable relationship to the actua l loss suffered by the

victim.”’” Id. at ¶ 29, quoting State v. Chaney , 2018-Ohio-552, 106 N.E.3d 79, ¶ 12 (12th Dist.), quoting State v. Stamper , 12th Dist. Butler No. CA2009-04-115, 2010-Ohio-1939, ¶ 17. {¶30} Ordering the repayment of defaulted loans to the Department of Education does not bear a reasonable relationship to Ms. Dent’s economic loss, i.e., her lowered10

Case No. 2020-L-110 credit score. Moreover, even if the Department of Education wa s entitled to restitution in this case, the defaulted loans are not yet in repayment status, and the sum and/or monthly payment is uncertain. Implicit in the principle that the right to order restitution is limited to the actual damage or loss caused by the offense of which the de fendant is convicted is that the amount claimed must be established to a reasonable deg ree of certainty before

restitution can be ordered. Williams , supra , at paragraph one of the syllabus (construing former R.C. 2929.11(E)). See also State v. Betley , 2018-Ohio-2516, 115 N.E.3d 836, ¶ 19 (8th Dist.) (restitution amount was arbitrary because the st ate failed to establish the exact amount of restitution to a reasonable degree of certainty ). {¶31} In light of the foregoing, we conclude that the trial court err ed in ordering Mr. Dent to make payments on his student loans as part of a res titution order. Thus, this portion of the trial court’s sentence is reversed and vacated. {¶32} Mr. Dent’s sole assignment of error having been sustained, the order of restitution to Department of Education is reversed and vacated.

CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J.,

concur.