COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69334 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION KENNETH CHEN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 11, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-308671 JUDGMENT: JUDGMENT REVERSED AND VACATED IN PART AND AFFIRMED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant: For Appellee: NIKI Z. SCHWARTZ JEANNETTE M. WEAVER ORVILLE E. STIFEL II Environmental Enforcement Section Gold, Rotatori & Schwartz Attorney General of Ohio 1500 Leader Building 615 West Superior Avenue Cleveland, Ohio 44114 12th Floor Cleveland, Ohio 44113 and ROBERT E. ASHTON THOMAS GREVER Environmental Enforcement Section Attorney General of Ohio 30 East Broad Street 25th Floor Columbus, Ohio 43266 - 2 - O'DONNELL, J.: Kenneth Chen appeals from an order of the trial judge imposing conditions of probation in connection with his Common Pleas Court convictions for illegal storage of hazardous waste and criminal endangering. Harvard University conferred dual doctorate degrees on Chen in Environmental Science and Engineering in 1970 and he thereafter joined the faculty of the University of Southern California where in 1978, he became Director of the University's Department of Environmental Engineering. In 1984, however, Chen left the University and began to devote his efforts full time to various real estate ventures throughout the United States. On April 18, 1991, Premier Enterprises, Inc., which is owned by Malibu P.H.C. Holdings Inc., acquired the Worsted Mills, a 750,000 sq. ft. warehouse located on Broadway Avenue in Cleveland and after acquisition, the owner discovered a significant amount of toxic waste stored in barrels inside the property. Both the City of Cleveland and the Ohio EPA issued violation notices for this and other property conditions and ordered the waste removed; the owner obtained a loan to renovate the complex and installed a new roof and sprinkler system, but on July 4, 1993, a fire, later determined to be arson, lasted for several days and destroyed the - 3 - complex. The city incurred $1,655,015.53 in costs in fighting this fire. On March 18, 1994, after an investigation, the grand jury indicted Kenneth Chen and Premier Enterprises, Inc. for Illegal Storage of Hazardous Waste and Criminal Endangering. Thereafter, Chen submitted a written change of plea to the court, and entered a plea of no contest to both charges. The court, after obtaining a presentence report, sentenced him to four years in prison but suspended that sentence and placed him on probation on conditions he pay $1,397,466.71 in restitution, $25,750.00 in fines, and the cost of a biannual independent financial audit of his holdings to be submitted to the court. Chen objected and filed a motion to enforce plea under- standing; the court, upon consideration, amended its original sentence to two years incarceration in conformity with the language contained in the written change of plea and incorporated that document into its sentencing journal entry. Chen now appeals to our court complaining that the financial conditions of probation imposed by the trial judge do not conform to the change of plea document. Two errors are assigned for our review which share a common basis and permit us to consider them together. They are: I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO PAY THE COSTS OF POST-SENTENCE INVESTIGATORY - 4 - AUDITS TO BE PERFORMED BY THE STATE WHERE (A) THE WRITTEN PLEA UNDERSTANDING PROVIDED THAT THE RESTITUTION COMPONENT OF APPELLANT'S SENTENCE WOULD BE BASED UPON APPELLANT'S "ABILITY TO PAY AT THE TIME OF SENTENCING" AS DETERMINED FROM PRE- SENTENCE SUBMISSIONS, AND (B) THE SENTENCING JUDGE LACKED POWER, UNDER THIS COURT'S DECISION IN STATE V. FITZPATRICK, TO ORDER RESTITUTION FOR INVESTIGATION COSTS (Sent. Tr. at 79-80 and Journal Entry of June 22, 1995) II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO PAY $1,397,466.71 IN RESTITUTION, REPRESENTING THE FULL AMOUNT OF THE LOSS, WHERE THE WRITTEN PLEA UNDERSTANDING PROVIDED THAT THE AMOUNT OF RESTITUTION WOULD BE BASED UPON APPELLANT'S "ABILITY TO PAY AT THE TIME OF SENTENCING" AND "DEGREE OF CULPABILITY," AND EVIDENCE SUBMITTED PRIOR TO SENTENCING ESTABLISHES THAT (A) APPELLANT IS BANKRUPT, AND (B) THERE ARE THREE EQUALLY CULPABLE DEFENDANTS TO WHOM NONE OF THE LOSS WAS APPORTIONED BY THE SENTENCE. Chen complains the financial conditions of his probation fail to conform to the terms of the change of plea document in that restitution should have been determined as of the time of sentencing, not on subsequent audits. The State urges that the court is not bound by the change of plea document and maintains that the sentence as imposed is in accordance with law. The issues then for our resolution are whether the court erred in imposing these financial conditions of probation at the time of sentencing. We begin by examining the duty of a court when sentencing a defendant upon conviction. - 5 - The Supreme Court stated in State v. Beasley (1984), 14 Ohio St.3d 74, at 75: The function and duty of a court is to apply the law as written. R.C. 5145.01 states that the court shall impose no term of imprisonment " *** less than the minimum term provided (by statute) for such felony." R.C. 2929.51 (A)(1), however, provides in part: *** the court may suspend the sentence and place the offender on probation pursuant to section 2951.02 of the Revised Code. ***. Additionally, a defendant's probation may be subject to certain conditions within the reasonable exercise of the court's discretion. R.C. 2951.02 (C) provides in pertinent part: When an offender is placed on probation, or when his sentence otherwise is suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code ***. *** the court may impose addi- tional 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 ***. ***. In this case, the trial court initially imposed a suspended four year sentence, ordered $1.3 million paid as restitution, and required biannual audits of Chen at his expense. In imposing this sentence, the court exercised its discretion and acted in accordance with the law. However, on July 19, 1995, in response to Chen's motion to enforce plea understanding, the trial court amended its sentence from four years to two years and incorporated the change of plea document into its journal entry and thereby evidenced its intent to be bound thereby. - 6 - It is well settled in Ohio law that a court speaks only through its journal and not by oral pronouncement. State v. King (1994), 70 Ohio St.3d 158, 162. Since the trial court incorporated the change of plea document into its journal and modified its sentence to conform to the terms of that document, the court lost its discretion to sentence independently and became bound by the change of plea document. In considering Chen's first assignment of error, then, regarding the payment of audit costs, since these are neither referenced nor contemplated in the change of plea document, the trial court had no discretion to impose this charge as a condition of probation. The court therefore abused its discretion in requiring these post sentencing audit charges and committed reversible error. Accordingly, we reverse and vacate the court's determination in this regard and remand the matter to the court for correction of the record in this regard. Regarding Chen's second assignment of error which concerns the amount of restitution ordered by the court, our review of the change of plea document reveals the trial court had discretion to assess restitution based upon culpability. It states in part: ***. The court will determine the amount of restitution based upon my ability to pay at the time of sentencing and my degree of culpability, to be determined by the Court from the written submissions and oral allocution of counsel, ***. Since the total amount of restitution in this case exceeds $1.6 million, the trial court exercised its discretion in accordance - 7 - with both the applicable sentencing statutes and the change of plea document because it assessed $1.3 million as Chen's portion of restitution. Accordingly, we affirm this portion of the court's order as a proper condition of probation in this case. We note, however, that in accordance with R.C. 2947.14 and our decision in State v. Johnson (November 30,1995) Cuyahoga App. No. 68519, unreported, prior to revoking probation or incarcerating Chen for non-payment, the court must conduct a hearing and determine his ability to pay. Accordingly, the judgment of the trial court is reversed and vacated in part and affirmed in part and the matter is remanded to the trial court for further proceedings consistent with this opinion. Judgment reversed and vacated in part and affirmed in part and remanded. - 8 - Each party to pay its own costs. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J., NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .