[Cite as State v. Atchison,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-76 : v. : Trial Court Case No. 2017-CR-413 : ROBIN ATCHISON : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 22nd day of June, 2018.

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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office, Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 W. Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

............. -2-

FROELICH, J.

{¶ 1} Robin Atchison pled guilty in the Clark County Common Pleas Court to a Bill

of Information charging a single count of forgery, in violation of R.C. 2913.31(A)(2), a

felony in the fourth degree. After a presentence investigation, the trial court sentenced

Atchison to 15 months in prison, and she was ordered to pay $28,810.33 in restitution.

Atchison appeals from her conviction, challenging her sentence.

I. Facts and Procedural History

{¶ 2} The prosecutor’s summary attached to the presentence investigation (“PSI”)

reveals the following facts:

{¶ 3} On March 24, 2014, Heartland Federal Credit Union (“Heartland”) received

notice that it had incurred losses of $7,984 from four counterfeit cashier’s checks, which

were written to individuals in Arizona, Virginia, California and Florida. Heartland later

learned that 444 counterfeit checks were presented for payment throughout the United

States, which totaled $1,030,735.14. Locally, Heartland incurred a loss of $21,972 from

the counterfeit checks that were cleared.

{¶ 4} An investigation by Heartland led to Atchison, who had opened an account

and obtained a legitimate cashier’s check. The history of Atchison’s conduct revealed that

she would purchase cashier’s checks and, subsequently, counterfeit checks would be

presented by “secret shoppers” to be cleared at Heartland.

{¶ 5} On November 14, 2014, Heartland filed a police report with the German

Township Police Department, which requested assistance from the Ohio Bureau of

Criminal Investigation (“BCI”).

{¶ 6} Atchison stated to BCI Special Agent Cooper and German Township Police -3-

Officer Barga that she had lost her primary source of employment, so she searched for a

new job where she could work from home. She found an internet company and was hired

to work with a contact, whom she knew as “Gary.” This work-from-home job required her

to go to local banks and obtain cashier’s checks (in a nominal amount) from those banks.

She would then scan those legitimate checks and email the scanned copies to “Gary”,

who would send templates of the checks (in a much larger amount) back to Atchison

along with names and addresses of people to whom Atchison was instructed to send

them. Atchison would then print the checks onto watermark check stock that she

purchased from a local supply store. Finally, Atchison would send the forged checks to

the names provided to her by “Gary” along with a letter offering a potential “secret

shopper” opportunity to the recipients.

{¶ 7} This “secret shopper” opportunity involved individuals who responded to an

advertisement to participate in a job where they would receive an agreed amount of

money for evaluating various retail establishments. The secret shoppers received checks

that, unbeknownst to them, were counterfeit. The secret shoppers were to deposit the

checks in their personal bank accounts. Once deposited, the secret shoppers would then

withdraw a predetermined amount of money for their services and send the remainder of

the money to a third party through Western Union. Eventually, when the counterfeit

checks would be returned, the secret shoppers’ personal accounts would be debited for

the returned bad check, and they would incur a loss for the money that was forwarded

through Western Union. The exceptions to this would be when Heartland failed to timely

return the checks or when the checks were cashed.

{¶ 8} Atchison mailed approximately 90 checks a day, four days per week, to -4-

recipients beginning in January 2014. Each check had an amount of at least $2,000. She

initially received $450 every week from “Gary,” which increased to $600, and which she

obtained through Western Union. The sender of the payment was always different,

according to Atchison. According to the PSI and its attachments, a subpoena was issued

for Western Union transfers, which indicated that Atchison received money by wire

transfer from various places, including Turkey and the Philippines. Overall, Atchison

received $10,349.99 by Western Union wire transfers from February 21, 2014 through

February 26, 2015.

{¶ 9} Atchison stated to the investigators that she was aware that her conduct was

“probably illegal.” “Gary” told Atchison that her work was legal, but Atchison told “Gary”

that she wanted to stop working for the internet company. Atchison stated that “Gary” sent

her a picture of the front of her house and threatened to hurt her and her family if she quit

the job or told anyone about her involvement in the scheme.

{¶ 10} Atchison’s computer was imaged and analyzed in BCI’s Cyber Crimes

Section, which revealed a conversation between Atchison and “Gary” where “Gary”

questioned Atchison about her interaction with the police. A scanned copy of a two dollar

cashier’s check from Huntington National Bank was also located on Atchison’s computer.

{¶ 11} Atchison reached a plea agreement with the State and pled guilty to a single

count of forgery, a felony of the fourth degree, related to her conduct. In exchange for the

plea, the State agreed that a PSI would be prepared and considered before sentencing.

{¶ 12} The PSI indicated that Atchison was 49 years old, divorced, and had no

prior adult or juvenile criminal record. It indicated that she had three adult children and

that her Ohio Risk Assessment Score was low. It also stated that Atchison was raised by -5-

her parents; there were no reports of physical or sexual abuse, and no environment of

drug or alcohol abuse.

{¶ 13} As discussed above, the trial court sentenced Atchison to 15 months in

prison.

{¶ 14} Atchison raises two assignments of error on appeal.

{¶ 15} Atchison’s first assignment of error is that “Appellant’s sentence is contrary

to law because the Court did not adequately follow the requisite statutory procedures prior

to imposing sentence upon appellant.”

{¶ 16} Atchison’s second assignment of error is that “Appellant’s sentence is

contrary to law because it is excessive, an unnecessary burden on government

resources, and the Court did not adequately follow the requisite statutory procedures prior

to imposing sentence upon appellant.”

II. Standard of Review

{¶ 17} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum,

, 2016-Ohio-

1002,

, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,

only if it “clearly and convincingly” finds either (1) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.

III. Sentencing

{¶ 18} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013- -6-

Ohio-2021,

, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory policies that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard,

,

,

(2d Dist.), citing State v. Mathis,

,

,

.

{¶ 19} R.C. 2929.11 requires trial courts to be guided by the overriding principles

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.”

{¶ 20} R.C. 2929.11(B) provides that “[a] sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing * * *,

commensurate with and not demeaning to the seriousness of the offender’s conduct and

its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” R.C. 2929.12(B) sets forth nine factors indicating that an

offender’s conduct is more serious than conduct normally constituting the offense; R.C.

2929.12(C) sets forth four factors indicating that an offender’s conduct is less serious than

conduct normally constituting the offense. R.C. 2929.12(D) and (E) each lists five factors

that trial courts are to consider regarding the offender’s likelihood of committing future

crimes. Finally, R.C. 2929.12(F) requires the sentencing court to consider the offender’s -7-

military service record, if any.

{¶ 21} Generally, a sentence is not contrary to law when it is within the authorized

statutory range and the trial court states that it has considered the principles and purposes

of sentencing and the seriousness and recidivism factors. State v. Smith, 2d Dist.

Montgomery No. 26307,

, ¶ 25.

{¶ 22} Atchison contends that the court did not expressly state what it considered

when deciding the sentence, nor did the court state that it followed the purposes and

principles of sentencing set forth in R.C. 2929.11 and 2929.12.

{¶ 23} The trial court addressed the purposes and principles of sentencing in its

judgment entry by stating that it considered the “record, oral statements of counsel, the

defendant’s statements and the purposes and principles of sentencing under R.C.

2929.11.” Even though the trial court did not expressly state at sentencing what it

considered prior to sentencing, “[o]n a silent record, a trial court is presumed to have

considered the statutory purposes and principles of sentencing, and the statutory

seriousness and recidivism factors.” State v. Goldblum, 2d Dist. Montgomery No. 25851,

.

{¶ 24} R.C. 2929.13(B)(1) provides that the trial court shall sentence offenders to

community control for nonviolent felonies of the fourth degree. However, the trial court

has discretion to impose a prison term on an offender who commits a non-violent fourth

or fifth degree felony and committed the offense “for hire or as part of an organized

criminal activity.” R.C. 2929.13(B)(1)(b)(ix). The term “organized criminal activity” is not

defined in R.C. Chapter 2929. Courts have generally considered the scope and length of

the criminal activity, whether the offense was committed spontaneously/impulsively or -8-

with extensive planning, the number of people involved, and the nature of the charges in

determining whether there was “an organized criminal activity.” See, e.g., State v. Orms,

10th Dist. Franklin No. 14-AP-750,

; State v. Coran, 2d Dist. Clark No.

2003-CA-80,

; State v. Miller, 4th Dist. Washington No. 07CA1, 2008-

Ohio-1059; State v. Radcliff, 10th Dist. Franklin Nos. 97APA08-1054 and 97APA08-

1056,

(Mar. 17, 1998). When a prison sentence for a felony in the fourth

degree is permitted, the trial court is authorized to impose a sentence of, at minimum, six

months, and at maximum, eighteen months. R.C. 2929.14(A)(4).

{¶ 25} The trial court found that Atchison committed an offense for hire or as part

of an organized criminal activity. This was supported by the facts that Atchison scanned

copies of legitimate cashier’s checks, sent those checks to “Gary,” and subsequently

mailed out forged checks to numerous recipients. The Court was permitted to impose a

prison sentence on Atchison. The trial court’s 15-month sentence was within the statutory

range. Since Atchison had not previously been convicted of a felony, the trial court could

have granted community control. However, because Atchison committed a fourth degree

felony and was involved in an organized criminal activity, the trial court had the discretion

to impose a prison term. R.C. 2929.13(B)(1)(b)(ix).

{¶ 26} Atchison further contends that “[her] sentence is contrary to law because it

is excessive, an unnecessary burden on government resources, and the Court did not

adequately follow the requisite statutory procedures prior to imposing sentence upon

appellant.”

{¶ 27} A sentencing court is not required to elevate consideration of resource

burdens over the seriousness and recidivism factors of R.C. 2929.12. State v. Reeves, -9-

10th Dist. No. 14AP-856,

. “Where the interests of public protection

and punishment are well served by a prison sentence, the claim is difficult to make that

the prison sentence imposes an unnecessary burden on government resources.” State v.

Bowshier, 2d Dist. Clark No. 08-CA-58,

, ¶ 14.

{¶ 28} Factors “indicating that the offender’s conduct is more serious than conduct

normally constituting the offense” include (1) the physical or mental injury to the victim

was exacerbated because of the physical or mental condition of the victim, (2) the victim

suffered serious physical, psychological, or economic harm as a result of the offense,

(3) the offender held a public office or position of trust in the community, and the offense

related to that office or position, (4) the offender was obliged by the nature of his

profession or occupation to prevent the offense or bring others committing it to justice,

(5) the offender’s professional reputation or occupation was used to facilitate the offense

or is likely to influence the future conduct of others, (6) the offender’s relationship with the

victim facilitated the offense, (7) the offender committed the offense for hire or as a part

of an organized criminal activity, and (8) in committing the offense, the offender was

motivated by prejudice based on race, ethnic background, gender, sexual orientation, or

religion. R.C. 2929.12(B).

{¶ 29} Factors indicating that an offender’s conduct is less serious than conduct

normally constituting the offense include (1) the victim induced or facilitated the offense,

(2) in committing the offense, the offender acted under strong provocation, (3) in

committing the offense, the offender did not cause or expect to cause physical harm to

any person or property, (4) there are substantial grounds to mitigate the offender’s

conduct, although the grounds are not enough to constitute a defense. R.C. 2929.12(C). -10-

{¶ 30} The trial court could have concluded that Atchison’s offense was more

serious than conduct normally constituting the offense. As previously mentioned, Atchison

committed the offense as part of an organized criminal activity. She not only provided

“Gary” with legitimate cashier’s checks over the internet, but she also mailed what she

believed to be forged checks to approximately 90 different recipients a day, four days a

week. The scheme also caused Heartland to lose $21,972 from cleared counterfeit

checks. In total, 444 counterfeit checks were presented throughout the United States and

amounted to $1,030,735.14.

{¶ 31} Although Atchison claimed that she was threatened by “Gary” in order to

continue her role in the scheme, she admitted that before she tried to quit, she knew that

her conduct was “probably illegal.”

{¶ 32} Given the record before us, we cannot conclude that the 15-month sentence

was clearly and convincingly unsupported by the record or contrary to law.

{¶ 33} Atchison’s assignments of error are overruled.

IV. Conclusion

{¶ 34} The judgment of the trial court will be affirmed.

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DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Andrew P. Pickering Adam J. Arnold Hon. Douglas M. Rastatter