State v. Silva, Unpublished Decision (8-4-2003)
State v. Silva, Unpublished Decision (8-4-2003)
Opinion of the Court
OPINION
{¶ 1} Defendant-appellant Louella Ann Silva appeals her conviction and sentence from the Stark County Court of Common Pleas on five counts of taking the identity of another in violation of R.C.{¶ 3} Thereafter, appellant, on July 24, 2002, withdrew her former not guilty plea and entered a plea of guilty to the charges contained in the indictment. As memorialized in a Judgment Entry filed on September 27, 2002, appellant was sentenced to an aggregate sentence of five years in prison. A Nunc Pro Tunc Entry correcting typographical errors was filed on November 19, 2002.
{¶ 4} Appellant now raises the following assignments of error on appeal:
{¶ 5} "I. THE IMPOSITION OF SENTENCES WHICH WERE GREATER THAN THE MINIMUM AND CONSECUTIVE TO EACH OTHER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW.
{¶ 6} "II. THE TRIAL COURT ABUSED ITS DISCRETION AND TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST AND/OR MERGE CRIMINAL ACTS WHICH WERE ALLIED OFFENSES OF SIMILAR IMPORT AS SET FORTH IN THE TWENTY-ONE COUNT INDICTMENT PRIOR TO THE APPELLANT'S PLEA AND SENTENCE."
{¶ 8} Revised Code
{¶ 9} "(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
"The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
"(a) That the record does not support the sentencing court's findings under division (B) or (D) of section
2929.13 , division (E)(4) of section2929.14 , or division (H) of section2929.20 of the Revised Code, whichever, if any, is relevant;
"(b) That the sentence is otherwise contrary to law."
{¶ 10} As is stated above, appellant argues, in part, that the trial court erred in imposing more than the minimum sentence on appellant for fourth and fifth degree felonies.
{¶ 11} R.C.
"(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
"(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 12} In interpreting this requirement, the Supreme Court of Ohio has held that R.C.
{¶ 13} In the case sub judice, the trial court stated, in relevant part, on the record at the September 12, 2002, sentencing hearing:
{¶ 14} "The Court finds pursuant to Revised Code
{¶ 15} Clearly, the trial made the findings required by R.C.
{¶ 16} As is stated above, appellant also contends that the trial court erred in imposing consecutive sentences on appellant. The imposition of consecutive sentences is governed by R.C.
{¶ 17} "(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
{¶ 18} "(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
{¶ 19} "(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
{¶ 20} "(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
{¶ 21} R.C.
{¶ 22} At the September 12, 2002 hearing, the trial court specifically stated on the record, in pertinent part, as follows:
{¶ 23} "The Court makes these findings relative to the consecutive sentence as follows: That the consecutive sentences are necessary to fulfill the purpose of Revised Code
{¶ 24} The trial court further noted on the record that recidivism was likely and that appellant had a "prior adjudication of delinquency or history of criminal offenses." Id. The trial court additionally noted on the record as follows:
{¶ 25} "The Court finds, as far as seriousness factors, that this is more serious because the injury to the victims was worsened by the age of the victims, again all of the victims being elderly, and as I'm trying to glance through I believe the youngest victim was 76 years old. We have victims age 76, three of them at the time, one age 82, and one age 87, at the time these offenses were committed.
{¶ 26} "And these are people who were living law abiding lives, whose good name and credit was very dear to them, and now you've put them through months and probably, unfortunately, there will be additional months of frustration and really probably, to some degree, embarrassment as it was explained by some of these victims when, you know, they received bills and now I have to go about trying to correct their credit history which is not something that can be easily done. Which is why, again, I'm going to direct the prosecuting attorney to write letters on behalf of these victims so that they can clear their credit and clear their good names. And, again, if the Court needs to be involved in that process, the Court will become involved in that process." Transcript of September 12, 2002, hearing at 25-26.
{¶ 27} Based on the foregoing, we find that the trial court made each of the required findings required by R.C.
{¶ 28} Therefore, we find that the trial court made all of the requisite findings for imposing consecutive sentences and stated its reasons for doing so.
{¶ 29} Appellant's first assignment of error is, therefore, overruled.
{¶ 31} A claim for ineffective assistance of counsel requires a two-prong analysis. The first prong is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Strickland v. Washington (1984),
{¶ 32} As is stated above, appellant contends that the trial court abused its discretion and trial counsel was ineffective in failing to merge the crimes of forgery and theft.
{¶ 33} R.C.
{¶ 34} _¶ 26_ "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 35} " (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
{¶ 36} The applicable test for deciding whether crimes are allied offenses of similar import was set forth in State v. Blankenship (1988),
{¶ 37} As is stated above, appellant was indicted for theft in violation of
{¶ 38} The crimes of theft and forgery each contain elements not possessed by the other. State v. Marvin (1999),
{¶ 39} Appellant's second assignment of error is, therefore, overruled.
{¶ 40} Accordingly, the judgment of the Stark County Court of Common Pleas is affirmed.
By: Edwards, J., Hoffman, P.J., and Wise, J. concur.
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