Does State ‘RICO’ Statute Allowing for Fine Apply to Attempted Conviction Too?
A trial court will need to determine if a fine permitted by the state statute governing a conviction for engaging in a pattern of corrupt activity also applies to an attempted conviction, after a ruling Monday by the 11th District Court of Appeals.
The 3-0 decision, authored by Judge Timothy P. Cannon, reversed and remanded the case to the Lake County Common Pleas Court.
After John M. Jones pleaded guilty to attempted engaging in a pattern of corrupt activity, grand theft of a motor vehicle, and two counts of receiving stolen property, the trial court ordered him to pay “a financial sanction of restitution” of $17,850.27 to victim Mike Bunt, who had tools taken from his vehicle and workshop.
“Although it has not been raised or briefed by the parties, it seems the provision providing for trebling of the fine may be applicable only to a violation of R.C. 2923.32 – engaging in a pattern of corrupt activity,” Judge Cannon wrote. “It is not clear this can be done based on a conviction for an attempt of that section.”
“The issue for the trial court to consider is whether the fine permitted by R.C. 2923.32(B)(2)(a) may be imposed when a defendant is convicted of attempted engaging in a pattern of corrupt activity, or whether the fine for a conviction of the attempt is limited to the amount set forth in the general felony sentencing provisions of R.C. 2929.18.”
Judge Cannon also addressed the fact that the trial court did not hold a restitution hearing as required or give appellant (Jones) the opportunity to cross-examine the victim impact statement.
“At the outset, we noted that the state indicates in its brief that, because a notice of total value of recovered property ($2,856) was filed and the trial court did not subsequently adjust the amount of restitution ordered, this case should be remanded for that purpose. We agree,” Judge Cannon wrote. “At issue is not only calculation of the restitution, but calculation of the ultimate restitution-based fine.”
He noted that “Ohio Revised Code section 2929.18(A)(1) authorizes the trial court to order restitution, based upon the victim’s economic loss, as a financial sanction.”
“In this case, appellant’s objection, coupled with the state’s original assertion that Mr. Bunt’s property had been recovered, and given the fact that the value of Mr. Bunt’s recovered property allowed for a credit of only $2,865, it is apparent the issue of restitution is unclear at best,” Judge Cannon wrote.
“Under these circumstances, a meaningful hearing should be conducted that would allow appellant to review the itemized list of property and, at minimum, compare it to what was recovered and what Mr. Bunt originally reported as stolen.”
Judges Cynthia Westcott Rice and Thomas R. Wright concurred in the opinion.
State v. Jones, 2013-Ohio-2616
Criminal Appeal From: Lake County Common Pleas Court
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: June 24, 2013
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