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State of Ohio v. Dandy E. Taylor

February 6, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DANDY E. TAYLOR, II, DEFENDANT-APPELLANT.



CRIMINAL APPEAL FROM COMMON PLEAS COURT

The opinion of the court was delivered by: Abele, J.

Cite as State v. Taylor,

DECISION AND JUDGMENT ENTRY

{¶1} This is an appeal from a Hocking County Common Pleas Court judgment of conviction and sentence. Dandy E. Taylor, II, defendant below and appellant herein, pled guilty to (1) theft in violation of R.C. 2913.02(A)(1), and (2) forgery in violation of R.C. 2913.31(A) (3).

{¶2} Appellant assigns the following error for review:

"THE TRIAL COURT ERRED WHEN IT IMPOSED

SEPARATE SENTENCES UPON DANDY E. TAYLOR FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER O.R.C. 2941.25."

{¶3} On February 24, 2012, the Hocking County Grand Jury returned an indictment that charged appellant with the above noted offenses, as well as a separate count that charged him with receiving stolen property in violation of R.C. 2911.32(A). Appellant initially pled not guilty, but later agreed to plead guilty to the first and third counts in return for dismissal of the receiving stolen property charge.

{¶4} At the plea hearing, the parties reviewed the agreement's terms and the trial court endeavored to ascertain whether appellant understood his rights. Satisfied that he did, the trial court accepted appellant's guilty pleas and imposed six month terms of incarceration for each count to be served consecutively as per the plea agreement. This appeal followed.

{¶5} Before we address the merits of the assignment of error, we first note that R.C. 2953.08(D)(1) provides that a sentence is not subject to appellate review if it is "recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge." Ordinarily, this means that appellant could not appeal his sentence in this case. As both the parties note, however, an exception exists to this general rule.

{¶6} The Ohio Supreme Court held in State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, at paragraph one of the syllabus, that when multiple sentences are "imposed for multiple convictions on offenses that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate review of that sentence even though it was jointly recommended by the parties and imposed by the court." The Court explained that R.C. 2941.25, in essence, codifies the Double Jeopardy protections of the Fifth Amendment to the United States Constitution and, thus, must be considered as an exception to R.C. 2953.08(D)(1). Underwood, supra, at ¶¶23-26. Thus, because appellant can appeal his sentence on this issue, we now turn to the merits of his assignment of error.

{¶7} Appellant asserts that the trial court erred by imposing separate sentences for the first (theft) and third (forgery) counts of the indictment because they are allied offenses of similar import under R.C. 2941.25(A).

{ΒΆ8} Although little information appears in the record as to the facts that surround these crimes, appellant admitted in a motion that he committed the theft by forging the name of an elderly gentleman on a check (somehow obtained from said individual), and then cashed the check at the bank on which it was drawn. Appellant thus argues that "the forgery was the means by which [he] committed the theft," and because ...


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