COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59837 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOHN F. HENRY : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 242930. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor George J. Sadd Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: John A. Gasior, Esq. Stringer, Stringer & Gasior 14701 Detroit Ave., #532 Lakewood, Ohio 44107 -2- SWEENEY, JAMES D., J.: Defendant-appellant John F. Henry appeals the sentence on his conviction on three counts of gross sexual imposition in violation of R.C. 2907.05. A presentence report was ordered, and the sentencing occurred on April 11, 1990. At the sentencing the judge stated: Look it, I view what you did as despicable a thing as a man can do. Here's the sentence. It's the sentence of this Court that on each one of these counts, you do a term of a year and a half at the Correction Reception Center. The imposition of sentence is suspended. You're placed on five years probation. The condition of the probation is that you serve a term of nine months at the Harbour Light facility, where you will be allowed work release. You're going to stay there for nine months. I will allow you to keep your job. You're going to have absolutely no contact with the victim or her family. You're to pay restitution, pay any medical bills or psychological bills that Ms. Fifer may develop as a result of what happened that day. You are to remain alcohol free, and you are to participate in a program that will insure that you maintain your sobriety during the term of your probation. You are also to participate in -- I want you evaluated at University Hospital Sexual Dysfunction Unit. I want you to talk to somebody there. It's obvious that you have some problem, and I want you to do that. All these things are conditions of your probation. I expect you to fulfill it. (T. 6, 7.) -3- Appellant sets forth one assignment of error. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT BY REQUIRING HIM TO MAKE RESTITUTION FOR AN OFFENSE OTHER THAN ARSON, THEFT OR PROPERTY DAMAGE CONTRARY TO THE EXPRESS LANGUAGE OF SECTION 2929.11 OF THE OHIO REVISED CODE. Appellant correctly cites State v. Wohlgemuth (1990), 66 Ohio App. 3d 195, for the proposition that restitution may only be ordered as a part of sentencing under circumstances prescribed in R.C. 2929.11. However, in the case sub judice, restitution was ordered not as a part of appellant's sentence, but as a condition of appellant's probation. In order to determine whether or not the trial judge can order restitution for medical and psychological damages as a condition of probation, we must examine R.C. 2951.02, which states in pertinent part: 2951.02 Criteria for and against probation or suspension of sentence; conditions. (A) In determining whether to suspend sentence of imprisonment and place an offender on probation, or whether to otherwise suspend an offender's sentence of imprisonment pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code, the court shall consider the risk that the offender will commit another offense and the need for protecting the public from the risk, the nature and circumstances of the offense, and the history, character, and condition of the offender. (B) The following do not control the court's discretion, but shall be considered in favor of placing an offender on probation, or in favor of otherwise suspending an offender's sentence of imprisonment pursuant -4- to division (D)(2) or (4) of section 2929.51 of the Revised Code. **** (9) The offender has made or will make restitution or reparation to the victim of his offense for the injury, damage, or loss sustained. **** (C) When an offender is placed on probation, .... the probation or other suspension shall be at least on condition that, during the period of probation or other suspension, he shall abide by the law and not leave the state without the permission of the court or his probation officer. In the interests of doing justice, rehabilitating the offender, and ensuring his good behavior, the court may impose additional requirements on the offender, including, but not limited to, requiring the offender to make restitution for all or part of the property damage that is caused by his offense and for all or part of the value of the property that is the subject of any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, that the person committed. Compliance with the additional requirements shall also be a condition of the offender's probation or other suspension. (Emphasis added.) It is clear that the legislature contemplated a defendant making restitution in cases where injury resulted. R.C. 2951.02(B)(9). Although R.C. 2951.02(C) specifically contemplates restitution for property damage, it does not limit a judge from imposing other requirements on a defendant once he is placed on probation. We therefore reiterate the holding set forth by this court in Brook Park v. Smith (August 14, 1986), Cuyahoga App. No. 51013, that restitution for medical expenses -5- may be ordered as a part of the terms of probation. See also State v. Pittman (1990), 61 Ohio App. 3d 425. Lastly, it is worthy of note, appellant's attorney at sentencing stated the following: What happened here, I wouldn't ask the Court to belittle that, but I would ask the Court to consider the fact that this is a first offense, that Mr. Henry is gainfully employed and probably could do more in terms of restitution to the family if he were to be able to preserve that job. **** Again, I would just ask the court to consider any possibilities other than incarceration in this case, community service work, fines, restitution, so that Mr. Henry would be able to keep his job and maintain his livelihood. Thank you. (Emphasis added.) (T. 4, 5.) The trial court acceded to appellant's wish. Appellant's assignment of error is overruled. Judgment affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., CONCURS; FRANCIS E. SWEENEY, J., DISSENTS, WITH ATTACHED DISSENTING OPINION. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59837 STATE OF OHIO : : Plaintiff-appellee : : vs. : DISSENTING OPINION : JOHN F. HENRY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 13, 1992 FRANCIS E. SWEENEY, J., DISSENTING: I respectfully dissent from the majority disposition since I feel this court is bound to follow our decision in State v. Wohlgemuth (1990), 66 Ohio App. 3d, 195. As in the present case, the journal entry in Wohlgemuth, supra, contained an order requiring appellant to pay restitution for medical expenses arising from his conviction of gross sexual imposition. Id. In that case, we concluded that the order to pay medical expenses was not a condition of probation as appel- -2- lant would be required to pay restitution whether he served the modified sentence or the original sentence upon revocation of probation for any violation. Id. Therefore, we held that the order of restitution was contrary to law and invalid. Id. Applying Wohlgemuth, supra, to the present case, I would reverse and vacate the order to pay restitution to the extent to which the order requires the appellant to make restitution for medical and psychological expenses. .