COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72451 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : MICHAEL DINGESS : OPINION : Defendant-Appellant : Date of Announcement of Decision: APRIL 30, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-334516 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender RICHARD A. NEFF, Assistant JEAN GALLAGHER, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 1200 West Third Street, N.W. Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Michael Dingess appeals from the trial court's order requiring restitution in the amount of $20,403 to reimburse his six victims after his plea of guilty to six counts of theft under R.C. 2913.02. Defendant asserts that the trial court abused its discretion and denied him due process when the court failed to provide him with a hearing on restitution and that the State failed to prove the amount of the restitution awarded. We find no error and affirm. Between March and October of 1995, while going through financial problems and abusing alcohol, defendant obtained credit by using his roommate's name. Defendant admitted that he incurred credit on his roommate's name, ran up the charges and lived off of the money. Defense counsel further admitted that defendant ran up approximately $20,000 in debt over a four month period. On February 22, 1996, defendant was indicted in a fourteen count indictment alleging misuse of a credit card (R.C. 2913.21); forgery (R.C. 2913.31); uttering (R.C. 2913.31); and theft (R.C. 2913.02). Six victims were involved in these various crimes. On March 3, 1997, defendant entered a plea of guilty to the six theft counts. He pled guilty to one count as related to each of the six victims: Sunoco Master Charge, Providan Visa, Kendall Credit Union, Associates and Visa. Five of the theft counts were for value between $300 and $5,000, felonies of the fourth degree. The remaining count having a value over $5,000 was a felony of the third degree. The Court fully informed defendant of the -3- ramifications of a guilty plea as required under Crim.R. 11. He was also fully informed of the potential penalties for the crimes involved and the State's request for restitution in the amount of $20,403 to reimburse the six victims. The prosecutor stated: Your Honor, it's also my understanding that the defendant agrees to reimburse the county prosecutor's office $694 for the prosecutor's cost in returning this defendant from the state of Texas. Also, your Honor, the state requests a restitution order in the amount of $20,403 to cover the six separate victims. (Tr. 4). Immediately following this statement, defense counsel was asked if this was his understanding of the plea offer. Defense counsel responded: Yes Judge. Defendant did not otherwise object to the amount of restitution sought. Having found that defendant's plea was voluntary, knowing and intelligent, the Court accepted defendant's guilty pleas. Defendant was sentenced on March 31, 1997. During defendant's sentencing hearing, his counsel admitted that defendant ran up $20,000 over an approximate four month period. Before sentencing defendant, the trial court ordered restitution to Sunoco Master Charge, $3,848.12; to Providian Visa, $2,983.51; to First USA Visa, $5,070.41; to Kendell Credit Union, $1,274.85; to Associates, $1,974.98; to Visa, $4,156.30. Defendant was also ordered to pay a $1,000 fine and repayment of the $649 extradition cost. Subsequently,defendant was sentenced to five consecutive terms of six months for the fourth degree felonies and a one year term for the third degree felony to run consecutive to the others. -4- The court found defendant indigent, appointed an attorney for appeal and provided him with a transcript of the proceedings at State expense. On May 5, 1997, defendant timely filed his notice of appeal. Defendant's sole assignment of error asserts as follows: I. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED DUE PROCESS WHEN THERE WAS NO HEARING ON RESTITUTION AND NO EVIDENCE OF THE COST OF THE DAMAGE. R.C. 2929.11(E) permits a trial court to order a convicted felon to make restitution for all or part of the value of the property that is the subject of any theft offense *** that the person committed. See State v. Warner (1990), 55 Ohio St.3d 31, 68-70. There are two limitations on the exercise of this authority. First, restitution is limited to the actual loss caused by the defendant's illegal conduct for which he was convicted. State v. Friend (1990), 68 Ohio App.3d 241, 243. Restitution can be ordered only for those acts which constitute the crime for which the defendant was convicted and sentenced. State v. Irvin (1987), 39 Ohio App.3d 12. Second, there must be sufficient evidence in the record from which the court can ascertain the amount of the loss to a reasonable degree of certainty. State v. Brumback (1996), 109 Ohio App.3d 65, 82-83; State v. Marbury (1995), 104 Ohio App.3d 179, 181-82; Statev. Williamson (1986), 34 Ohio App.3d 33, 34. If the evidence in the record is insufficient, an evidentiary hearing may be necessary to satisfy due process. State v. Wohlgemuth (1990), 66 Ohio App.3d 195, 200; State v. Eberling (Apr. 9, 1992), Cuyahoga -5- App. Nos. 58559 and 58560, unreported. However, a hearing is not necessary if there is evidence in the record to substantiate the loss. State v. Carrino (May 11, 1995), Cuyahoga App. No. 67696, unreported, citing State v. Montes (1993), 92 Ohio App.3d 539. To establish the amount of restitution within a reasonable certainty, there must be some competent, credible evidence. State v. Warner (1990), 55 Ohio St.3d 31, 69. Defendant asserts that he did not admit to the theft of $20,000. That he admitted only to running up $20,000 in debt over a short period of time and lived off of that money. He asserts that no evidence was presented of how much of the debt was obtained by the use of the credit cards, and therefore, the State failed to prove the amount of restitution. Defendant further asserts that a hearing was necessary to determine his effort and ability to pay the restitution. However, neither the language of R.C. 2929.11(E) nor any other provision of the Ohio Revised Code requires a trial court to inquire into the defendant's financial ability to pay restitution before it may impose an order of restitution as part of the defendant's sentence. State v. Lake (1996), 111 Ohio App.3d 127, 133. We find the trial court did not abuse its discretion in rendering its restitution order. Defendant himself admitted that he incurred credit on his roommate's name, ran up the charges and lived off of the money. During defendant's sentencing hearing, defense counsel admitted that defendant ran up $20,000 over an approximate four month period. (Tr. 12-13). Defendant also did not -6- object when informed of the State's request for restitution in the amount of $20,403. There was competent and credible evidence sufficient for the trial court to ascertain the amount of the loss to a reasonable degree of certainty. Based on this evidence, the trial court ordered restitution to Sunoco Master Charge, $3,848.12; to Providian Visa, $2,983.51; to First USA Visa, $5,070.41; to Kendell Credit Union, $1,274.85; to Associates, $1,974.98; to Visa, $4,156.30. The restitution to the six victims totaled $19,308.17. This figure closely reflects defendant's admission of incurring $20,000 in debt and the State's $20,403 request for restitution. In view of the evidence presented, the restitution ordered by the trial court accurately reflects the actual loss caused by defendant's illegal conduct for which he pled guilty. The restitution amount is also supported by competent, credible evidence and established to a reasonable degree of certainty. Therefore, the trial court did not abuse its discretion in rendering its restitution order. Additionally, defendant asserts that the State failed to prove any amount of restitution above the minimum in each count to which the defendant pled guilty. He asserts that by pleading guilty to one count of theft of property worth $5,000 or more and five counts of theft of property worth between $300 and $5,000, he has pled guilty to theft of a total of only $6,500. This assertion is without merit. -7- We are unable to determine exactly how the court arrived at the precise figures for its restitution order as defendant failed to provide this Court with a copy of his pre-sentence report. App.R. 9(B) states in pertinent part: *** If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant shall include in the record a transcript of all evidence relevant to the findings or conclusions. Under this rule, the duty to provide a transcript of all relevant evidence falls upon the defendant. This duty is necessary because defendant bears the burden of showing error by reference to matters in the record. Absent evidence that these figures do not reflect the amount of loss to a reasonable certainty, we are unable to evaluate the merits of defendant's assignment of error and must presume regularity in the trial court's proceedings. Defendant's sole assignment of error is overruled. Judgment affirmed. -8- 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 Court of Common Pleas 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. DYKE, J., and JAMES D. SWEENEY, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .