[Cite as State v. Rossiter, 2017-Ohio-316.]

COURT OF APPEALS 

COSHOCTON COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. John W. Wise, J. 

-vs- : 

 : 

BRIAN ROSSITER : Case No. 2016CA0001 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 15CR0111 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: January 26, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JASON W. GIVEN DAVID A. SAMS 

318 Chestnut Street P.O. Box 40 

Coshocton, OH 43812 West Jefferson, OH 43162 
Coshocton County, Case No. 2016CA0001 2 

Farmer, P.J. 

{¶1} On January 11, 2016, appellant, Brian Rossiter, pled guilty pursuant to a 

plea agreement to two counts of receiving stolen property in violation of R.C. 2913.51 

and one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32. 

One of the stolen items was a concrete pulverizer belonging to Shelly & Sands, Inc. By 

judgment entry filed January 13, 2016, the trial court sentenced appellant to an 

aggregate term of three years in prison, and ordered him to pay restitution to Shelly & 

Sands in the amount of $64,395.00. 

{¶2} Appellant filed a pro se appeal and argued the following assignments of 

error: 

PRO SE I 

{¶3} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED 

RESTITUTION OF $64,395.00 BY FAILING TO: (A) ENSURE THE RECORD 

POSSESSED COMPETENT, CREDIBLE EVIDENCE FROM WHICH THE COURT 

COULD DISCERN THE AMOUNT OF RESTITUTION TO A REASONABLE DEGREE 

OF CERTAINTY BEFORE ORDERING RESTITUTION; (B) FAILING TO INQUIRE 

INTO THE ABILITY OF THE APPELLANT TO PAY THE $64,395.00 DOLLARS IN 

RESTITUTION AND FAILED TO CONSIDER THE APPELLANT'S PRESENT OR 

FUTURE ABILITY TO PAY WITHIN THE RECORD; (C) THE TRIAL COURT FAILED 

TO INFORM THE APPELLANT OF RESTITUTION PRIOR TO APPELLANT 

PLEADING GUILTY AND WAIVING HIS CONST. RIGHTS. TRIAL COURT VIOLATED 

APPELLANT'S 6TH AND 14TH U.S. CONST. RIGHTS AND HIS ARTICLE I, SEC. 10 

OF THE OHIO CONST." 
Coshocton County, Case No. 2016CA0001 3 

PRO SE II 

{¶4} "DEFENSE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO 

OBJECT TO THE RESTITUTION ORDER BY TRIAL COURT. COUNSEL 

POSSESSED EVIDENCE THAT SHOWED NO RESTITUTION WAS DUE IN THIS 

CASE. COUNSEL'S INEFFECTIVENESS PREJUDICED THE APPELLANT & 

VIOLATED DUE PROCESS & EQUAL PROTECTION OF LAW, A VIOLATON OF 

APPELLANT'S 5TH, 6TH, & 14TH U.S. CONST. AMENDS AND HIS ARTICLE I, SEC. 

10 OF THE OHIO CONST." 

{¶5} Thereafter, appellant was appointed counsel who submitted the following 

assignment of error: 

COUNSEL I 

{¶6} "DEFENDANT-APPELLANT WAS DENIED EFFECTIVE COUNSEL 

WHEN RESTITUTION FOR WHICH THERE WAS NO BASIS WAS ORDERED 

WITHOUT A HEARING REQUEST OR OBJECTION." 

PRO SE I 

{¶7} Appellant claims the trial court erred in ordering him to pay restitution 

without determining the reasonableness of the amount and his ability to pay, and 

without informing him of restitution prior to his plea. We disagree. 

{¶8} Appellant was indicted on five counts, and pled guilty to three counts 

pursuant to a plea agreement. During the change of plea and dispositional hearing held 

on January 11, 2016, the following exchange occurred (T. at 14-15): 
Coshocton County, Case No. 2016CA0001 4 

MR. MERANDA [Defense Counsel]: Thank you, Your Honor. Just 

real briefly. My client is 42 years old. He has made mistakes in his life. 

Currently serving out an eight-year prison sentence. I would ask the court 

to impose consecutive three years on these cases here today. It is my 

understanding he has five days' jail credit. We take no objection to the 

restitution that's going to be asked for by the state, if any. 

With regards to the first two counts, Your Honor, I would ask the 

court to take into consideration that he is going to be serving out a hefty 

prison sentence with today's sentence and his current eight year sentence 

that he is serving, to waive any fines and court costs here today. Thank 

you. 

THE COURT: Thank you. Mr. Rossiter, let me ask you, do you 

have any statement or information that you wish to offer on your own 

behalf in mitigation of punishment? Is there anything about sentencing 

that you want to say? 

THE DEFENDANT: No, sir. 

THE COURT: Mr. Hall, anything on behalf of the State of Ohio? 

MR. HALL [Prosecutor]: The state agreed to take no position, Your 

Honor. 

THE COURT: What's the restitution amount? 

MR. HALL: $64,395. 

THE COURT: Payable to who? 

MR. HALL: Shelly & Sands. 
Coshocton County, Case No. 2016CA0001 5 

THE COURT: Brian Rossiter is hereby ordered to pay as and for 

restitution in this matter $64,395 to the Shelley & Sands Company. That's 

as and for the concrete pulverizer in Count 4 of the indictment. 

{¶9} The trial court deferred payment until after appellant is released from 

prison. T. at 19; Judgment Entry Plea of Guilty and Sentencing filed January 13, 2016. 

{¶10} We find no further analysis is necessary. Appellant and his trial counsel 

waived any right to object to the restitution order. 

{¶11} Assignment of Error I is denied. 

PRO SE II, COUNSEL I 

{¶12} Appellant claims his trial counsel was ineffective for failing to object to the 

restitution order. We disagree. 

{¶13} As noted in Assignment of Error I, the record demonstrates all the 

participants were aware of and waived any error with the order of restitution. 

{¶14} Assignment of Error II is denied. 
Coshocton County, Case No. 2016CA0001 6 

{¶15} The judgment of the Court of Common Pleas of Coshocton County, Ohio 

is hereby affirmed. 

By Farmer, P.J. 

Hoffman, J. and 

Wise, J. concur. 

 

 

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