State v. Koller
| Decision Date | 10 February 2014 |
| Docket Number | CASE NO. CA2013-07-069 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. BRANDON JACK KOLLER, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Thomas G. Eagle, 3386 North St. Rt. 123, Lebanon, Ohio 45036, for defendant-appellant
{¶ 1} Defendant-appellant, Brandon Jack Koller, appeals his sentence in the Warren County Court of Common Pleas for forgery and receiving stolen property. For the reasons stated below, we vacate appellant's sentence and affirm in part and reverse in part the decision of the trial court and remand for further proceedings.
{¶ 2} On May 6, 2013, appellant was indicted on one count of receiving stolen property and two counts of forgery. On June 6, 2013, appellant pled guilty to one count ofreceiving stolen property and one count of forgery, both fifth-degree felonies. Upon appellant's plea, the state dismissed the second count of forgery.
{¶ 3} The state proffered as the factual basis for the receiving stolen property charge, that on or about February 20, 2013 through February 22, 2013, appellant possessed two checks that belonged to his grandparents without their permission. These checks had been stolen from appellant's grandparents and appellant knew or had a reasonable belief that the checks were obtained through the commission of a theft offense. Regarding the single count of forgery, the state averred that on February 20, 2013, appellant possessed one of the checks stolen from his grandparents and attempted to cash the check at a LCNB National Bank (LCNB). Appellant forged the check or had someone else forge the check and presented the check as having been written to him. The court accepted appellant's guilty pleas and referred appellant for a presentence investigation and evaluation for possible community corrections placement.
{¶ 4} On July 17, 2013, the trial court held a sentencing hearing. Initially, it appeared that the trial court would sentence appellant to successfully complete an inpatient drug treatment program. The state and appellant's counsel requested that appellant be sent to a treatment facility while appellant specifically requested an outpatient program. The court stated that while appellant wanted to stay with his family and complete an outpatient program, its job in sentencing appellant was to punish him, protect others from his behavior, and deter those who commit similar acts. Appellant responded by stating, "I understand that." The court then dismissed the outpatient option due to appellant's heroin addiction, but agreed to sentence appellant to complete an inpatient treatment program.
{¶ 6} After this exchange the court sentenced appellant to nine months in prison on each count, to be served consecutively, for a total of 18 months imprisonment. The court made a series of findings, including that a single sentence would not adequately punish appellant and that the nature of the crime combined with his lengthy record mandated that his sentences be served consecutively. The court then declared, sua sponte, that portions of R.C. 2929.13 that limit the power of the court to impose a sentence on fourth and fifth-degree felonies are unconstitutional because they violate the separation of powers doctrine. After the court's pronouncement of appellant's sentence, appellant's counsel objected and stated that the statute required appellant to be sentenced to a community control sanction.
{¶ 7} Appellant now appeals, asserting two assignments of error.
{¶ 9} THE TRIAL COURT ERRED IN CONVICTING DEFENDANT FOR RECEIVING STOLEN PROPERTY AND FORGING THE SAME PROPERTY.
{¶ 10} Appellant argues that the trial court erred in sentencing him for both receiving stolen property and forgery because the offenses are allied offenses of similar import.Appellant maintains that the state relied on the same act, the February 20, 2013 cashing of the check at LCNB, to establish that he had possession of the check for both of his convictions. Therefore, the conduct underlying the convictions was the same and the offenses should have been merged.
{¶ 11} At the outset, we note that appellant has waived all but plain error by failing to raise any allied offense objection with the trial court. State v. Seymore, 12th Dist. Butler Nos. CA2011-07-131, CA2011-07-143, 2012-Ohio-3125, ¶ 18. However, the imposition of multiple sentences for allied offenses of similar import amounts to plain error, whether ordered to be served consecutively or concurrently. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31. We will therefore review appellant's allied offense argument for plain error. State v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 14.
{¶ 12} R.C. 2941.25 prohibits the imposition of multiple punishments for the same criminal conduct and provides that:
{¶ 13} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme Court clarified the test used to determine whether offenses are allied offenses of similar import under R.C. 2941.25. State v. Jackson, 12th Dist. Clermont No. CA2013-04-037, 2013-Ohio-5371, ¶ 10. Under this test, courts must first determine "whether it is possible to commit one offense and commit the other with the same conduct." (Emphasis sic.) Johnson at ¶ 48. It is not necessary that the commission of one offense will always result in thecommission of the other. Id. Rather, the question is simply whether it is possible for both offenses to be committed by the same conduct. Id.
{¶ 14} If it is possible to commit both offenses with the same conduct, courts must next determine whether the offenses were in fact committed by the same conduct, that is, by a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied offenses of similar import and must be merged. Id. at ¶ 50. On the other hand, if the offenses are committed separately or with a separate animus, the offenses will not merge. Id. at ¶ 51.
{¶ 15} Appellant was charged with receiving stolen property in violation of R.C. 2913.51(A). That statute prohibits a person from receiving, retaining, or disposing of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense. R.C. 2913.51(A). If the property is a printed form for a check, that on its face identifies the drawer for whose use it is designed or identifies the account on which it is to be drawn, and that has not been executed by the drawer, the offense is a fifth-degree felony. R.C. 2913.51(C); R.C. 2913.71(B).
{¶ 16} Appellant was also charged with forgery in violation of R.C. 2913.31(A)(3). The statute states that no person, with purpose to defraud, or knowing that the person is facilitating a fraud shall utter, possess with purpose to utter, any writing that the person knows to have been forged. R.C. 2913.31(A)(3). To "utter" means "to issue, publish, transfer, use, put, or send into circulation, deliver, or display." R.C. 2913.01(H). The state concedes, and we agree that it is possible to commit both offenses with the same conduct.
{¶ 17} While it is possible to commit both offenses with the same conduct, under the facts presented in this case, appellant did not commit the offenses by way of a single act with a single state of mind. Though neither party addresses this issue in their brief, it is clear from the statement of facts recited at the plea hearing, that the conduct underlying the receivingstolen property charge was appellant's possession of two of his grandparents' checks without their permission. However, the forgery charge was based only on appellant's act of uttering one of the checks. Therefore, the conduct in forging only one of the checks at LCNB is separate from his conduct of possessing the other check without his grandparents' permission. Consequently, the offenses were based on two independent acts and should not be merged. See State v. Willis, 192 Ohio App.3d 579, 2011-Ohio-797 (6th Dist.), ¶ 35-36; State v. Bowlin, 12th Dist. Butler No. CA2009-09-227, 2010-Ohio-1635, ¶ 15 ().
{¶ 18} Even if appellant's convictions were based on a single check, the offenses would still not be allied. This court has stated that in determining whether offenses are...
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