State v. Carter, Unpublished Decision (11-21-2005)
State v. Carter, Unpublished Decision (11-21-2005)
Opinion of the Court
{¶ 2} On June 9, 2004, Carter was indicted by the Wyandot County Grand Jury on one count of forgery in violation of R.C.
VADA T. CARTER, AKA ROBERT LEE CARR, * * * on or about the 17th day ofMay, 2004, at Wyandot County, Ohio did, with purpose to defraud, orknowing that he was facilitating a fraud, utter or possess with purposeto utter, a writing, to-wit: Check No. 9907 on the account of Betty JaneCenter Choice Rehab of 65 St. Francis Avenue, Tiffin, OH 44883, U.S.Bank, N.A., made payable to Robert Lee Carr, in the amount of $170.85,the said Vada T. Carter, AKA Robert Lee Carr, knowing it to have beenforged, in violation of Section
Specifically, this indictment arises out of a forged check that was passed at the local business, A A Grocery in Upper Sandusky, Wyandot County, Ohio on May 17, 2004, which was returned to the business unpaid.
{¶ 3} On May 12, 2004, in Urbana, Champaign County, Ohio, a second check, No. 9902, was passed at Steve's Market Deli in the amount of $349.81 and was later returned to the business as unpaid. Both checks were written on the same non-existing account of Betty Jane Center Choice Rehab Center on the U.S. Bank N.A. made payable to Robert Lee Carr. On July 15, 2004, the Champaign County Grand Jury also indicted Carter on a single count of forgery in violation of R.C.
{¶ 4} On February 1, 2005, Carter filed a motion to dismiss and a motion in limine in the Wyandot County case indicating that the only distinguishing element separating these matters was that a different check was passed at a different business in a different county by the same defendant. On February 11, 2005, the trial court held a hearing on Carter's motions and denied both of his motions.
{¶ 5} On March 15, 2005, the trial court held a plea hearing and advised Carter of his rights under Crim.R. 11. Carter then entered a written plea of guilty to the indictment. The trial court accepted the written plea signed by Carter which included a Sentence Recommendation that provided that:
The State will recommend, and Defendant will agree to, the impositionof a consecutive prison term to that imposed in Champaign County in CaseNo. 2004 CR 142. * * *
{¶ 6} On March 16, 2005, the trial court held a sentencing hearing and sentenced him to a term of incarceration of eleven months to be served consecutively with the prison term imposed by the Champaign County case. On March 28, 2005, the Wyandot County Court of Common Pleas filed its Judgment Entry of Sentencing stating on the record its findings in support thereof.
{¶ 7} On April 26, 2005, the defendant-appellant filed his notice of appeal raising the following assignment of error:
THE TRIAL COURT ERRED AS A MATTER OF LAW AND COMMITTED REVERSIBLE ERRORWHEN IT FAILED TO DISMISS THE INDICTMENT HEREIN FOR FORGERY IN THAT THEDEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF A CHARGE OF FORGERY IN THECOMMON PLEAS COURT OF CHAMPAIGN COUNTY, OHIO AND SUCH OFFENSE WAS ANALLIED OFFENSE OF SIMILAR IMPORT IN COURT A CONVICTION FOR WHICHPRECLUDED THE IMPOSITION OF A PUNISHMENT AS TO THE FORGERY CHARGEHEREIN.
{¶ 8} Carter argues that due to the amount of overlap between the misconduct in both Champaign County and Wyandot County the law indicates that the two offenses of forgery are allied offenses of similar import and should be considered as one offense. He also claims that double jeopardy precludes his conviction in Wyandot County.
{¶ 9} At the outset, we note that Carter did plead guilty to both charges of forgery in Champaign County and Wyandot County. An individual who pleads guilty to a crime is limited on appeal. State v. Mullins,
Wyandot App. No. 16-04-05,
{¶ 10} The Ohio Supreme Court held in State v. Rance (1999),
We discern the General Assembly's intent on this subject through reviewof Ohio's multiple-count statute, R.C.
{¶ 11} "[I]f a defendant commits offenses of similar import separately or with a separate animus, he may be punished for both pursuant to R.C.
{¶ 12} R.C.
(A) Where the same conduct by a defendant can be construed toconstitute two or more allied offenses of similar import, the indictmentor information may contain counts for all such offenses, but thedefendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses ofdissimilar import, or where his conduct results in two or more offensesof the same or similar kind committed separately or with a separateanimus as to each, the indictment or information may contain counts forall such offenses, and the defendant may be convicted of all of them.
{¶ 13} Pursuant to State v. Cooper (2004),
{¶ 14} Furthermore, the Ohio Supreme Court noted in Cooper that it had elaborated on this requirement in State v. Jones (1997),
This court has generally not found the presence or absence of anyspecific factors to be dispositive on the issue of whether crimes werecommitted separately or with a separate animus. * * * Instead, ourapproach has been to analyze the particular facts of each case before usto determine whether the acts or animus were separate. See State v.Nicholas (1993),
{¶ 15} In this case, the misconduct in Champaign County and Wyandot County, respectively, may be compared factually as follows:
On May 12, 2004, Defendant, Vada T. Carter, while using the alias,"Robert Lee Carr," cashed a forged check, No. 9902, at Steve's Market Deli in Urbana, Champaign County, Ohio, in the amount of $349.81; whichcheck was dishonored. See Indictment from Champaign County, July 15, 2004.
On May 17, 2004, Defendant, Vada T. Carter, while using the alias,"Robert Lee Carr," cashed a forged check, No. 9907, at A A Grocery inUpper Sandusky, Wyandot County, Ohio, in the amount of $170.85; whichcheck was dishonored. See Indictment from Wyandot County, June 9, 2004.
{¶ 16} The Champaign and Wyandot County crimes were each a violation of R.C.
{¶ 17} Because these crimes are allied offenses, the issue in this case is whether the defendant's conduct when reviewed establishes that the defendant may be convicted of both offenses. Clearly, the Champaign and Wyandot County crimes were committed separately or with a separate animus as to each. The two crimes were committed in two different counties, with two different check numbers, on two different dates, with different amounts, on separate victims. Therefore, it is clear that the two crimes have a separate animus and the Wyandot County Court of Common Pleas acted properly in not treating these offenses as allied offenses of similar import and in sentencing Carter consecutively to the Champaign County case.
{¶ 18} Accordingly, Carter's assignment of error is overruled and the March 28, 2005 Judgment of conviction and sentence entered in the Common Pleas Court of Wyandot County, Ohio is affirmed.
Judgment affirmed. Cupp, P.J., and Rogers, J., concur.
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