Court of Appeals of Ohio, Fifth District, Richland
from the Richland County Court of Common Pleas, Case No. 2009
CR 0052 D
IN PART, VACATED IN PART, AND REMANDED
Plaintiff-Appellee: BAMBI COUCH PAGE RICHLAND CO. PROSECUTOR
DANIEL M. ROGERS
Defendant-Appellant: PAUL MANCINO, JR.
JUDGES: Hon. Sheila G. Farmer, P.J. Hon. W. Scott Gwin, J.
Hon. Patricia A. Delaney, J.
Appellant Gary D. Walker appeals from the June 2, 2009
Sentencing Entry of the Richland County Court of Common
Pleas. Appellee is the state of Ohio.
AND PROCEDURAL HISTORY
This case arose from a scheme in which appellant directed
others to cash forged federal stimulus checks at Wal-Marts
throughout Ohio. The case has a lengthy factual and
procedural history; the following is relevant to
appellant's assignments of error.
On January 9, 2009, appellant was charged by indictment with
one count of engaging in a pattern of corrupt activity
pursuant to R.C. 2923.32(A)(1), a felony of the second degree
[Count 1]; 46 counts of forgery pursuant to R.C.
2913.31(A)(2) and 2913.31(A)(3), all felonies of the fifth
degree [Counts 2 through 47]; and one count of grand theft
pursuant to R.C. 2913.02(A)(3), a felony of the fourth degree
Each incident of forgery was charged as two counts: the
even-numbered counts, beginning with Count 2, are charged
pursuant to R.C. 2913.31(A)(2) [forging]. The odd-numbered
counts, beginning with Count 3, are charged pursuant to R.C.
2913.31(A)(3) [uttering]. Count 47 stands alone because
appellant did not utter, i.e. cash that check.
The indictment as amended states the following:
[Appellant], on or about a period from June 12, 2008, through
November 30, 2008, in a continuing course of conduct in
Richland, Ashland, Summit, Stark, Cuyahoga, Holmes,
Tuscarawas, and Wayne Counties, [appellant] did, while
employed by or associated with an enterprise, to wit:
[appellant] and/or Starisia Moore, and/or other identified
and unidentified individuals did conduct or participate in,
either directly or indirectly, the affairs of the enterprise
through a pattern of corrupt activity. [Appellant] engaged
in, conspired to engage in, attempted to engage in or coerced
another to engage in violations of the law including but not
limited to forgery and theft as set out in the subsequent
counts and incorporated as if fully restated herein. This
enterprise functioned to create forged Federal Government
stimulus checks using an account number assigned to actual
stimulus checks. Individuals with identification and the
ability to cash the checks were recruited, made payees of the
forged checks, and driven to Wal-Mart stores in the
aforementioned counties in order to cash the forged checks.
Payees were compensated with a small portion of the proceeds
of the check upon cashing it, with the remainder of the
proceeds going to [appellant] and/or Starisia Moore. The
aggregate value of these thefts is $32, 538. As a result of
the actions of the enterprise, [appellant] was convicted of
three counts of Complicity to Commit Forgery, in Ashland
County, Ohio Common Pleas case number 08-CRI-108 on October
* * * *.
In pretrial discovery, appellee disclosed appellant's
prior adult criminal record including: 1) three counts of
complicity to forgery in Ashland County Court of Common Pleas
case no. 08-CRI-108, to which appellant was sentenced to a
term of 10 months on each count to be served concurrently,
and an additional one-year term for violations of
post-release control, to be served consecutively; and 2)
Cuyahoga County Court of Common Pleas case nos. 08-CR-512655
and 08-CR-507670-A. Appellee also disclosed appellant's
record of prior convictions including "* * *3/30/04
Cuyahoga CPC, convicted of Trafficking in Drugs, Possession
of Drugs, and Unauthorized Use of Motor Vehicle, 2 years;
4/24/06 CC CPC, convicted of Failure to Comply with Signal of
Police Officer and Trafficking in Drugs, 1 year; 10/23/06 CC
CPC, convicted of Resisting Arrest, 1 year; 5/08 or
thereafter, Felony Theft, Cuyahoga County CPC #08-CR-512655
& #08-CR-507670-A, 12 months additional to Ashland County
sentences." (Appellee's "Continance to Answer
to Discovery, " sic, May 22, 2009.)
On June 2, 2009, in the midst of a jury trial,  appellant
withdrew his pleas of not guilty and entered counseled guilty
pleas to the remaining 47 counts in the indictment. The trial
court proceeded to immediate sentencing. The parties
agreed the 45 counts of forgery were allied offenses of
similar import and the trial court could only impose sentence
upon one count of each pair of forgery charges. At the plea
hearing, appellant was given an "Admission of
Guilt/Judgment Entry" describing his pleas, the
associated penalties, and the rights he waived upon entering
Appellant was sentenced to a prison term of 7 years upon
Count 1, engaging in a pattern of corrupt activity, and a
term of 12 months upon Count 48, grand theft. During the
sentencing hearing, the trial court also stated:
THE COURT: * * * *.
You have an engaging in a pattern of corrupt activity. For
that particular charge, I sentence you to seven years in
prison. That really is sort of the framework in which all
this stuff takes place, this enterprise you had of cashing
On the theft counts, I'm sentencing you to a year for the
theft counts, twelve months, in other words. For each of the
forgeries I'm sentencing you to twelve months in prison.
I am making Counts 1, 48, 2, 4, 6 and 8 consecutive, the rest
are concurrent. That means your total sentence is twelve
years prison. That will be consecutive to your other
* * * *.
Appellant was also ordered to make restitution to Wal-Mart in
the amount of $32, 538. The trial court ordered forfeiture of
three vehicles pursuant to specifications in the indictment.
The sentencing entry states as follows: * * *. "Count 2,
4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34,
36, 38, 40, 42, 45 & 47: 12 mos. each count." * * *,
and further: "If there is more than one count, or if
there are other cases, the sentences will be served
consecutively on counts 1, 2, 4, 6, 8, and 12 and on
sentences from other courts; concurrently on other counts.
The total sentence in this case is 12 years prison."
On July 1, 2009, appellant filed a notice of direct appeal.
On September 4, 2009, appellant filed a motion to dismiss the
appeal, which we granted on September 24, 2009.
On September 28, 2009, appellant filed a "Motion for
Sentencing" arguing the trial court did not properly
notify him of the consequences of a violation of post-release
control; appellee agreed that the matter should be remanded
for the limited purpose of resentencing pursuant to R.C.
2929.19(B)(3)(e). The record contains a transcript of the
resentencing hearing held on December 30, 2009. On July 28,
2010, the trial court filed a "Judgment Entry on
Defendant's Motions" and "Findings and Journal
Entry" stating that although appellant was not
personally advised in open court of the consequences of a
post-release control violation at the original sentencing, he
received written notification in the sentencing entry and the
court corrected any error when it properly advised appellant
during a video conference pursuant to R.C. 2929.191(C).
Appellant filed a number of motions to reactivate or reopen
his appeal, all of which were denied.
On March 15, 2016, the U.S. District Court for the Southern
District of Ohio, Western Division granted appellant a
conditional writ of habeas corpus, ordering that appellant
was to be released unless he was granted a new direct appeal
of the Richland County conviction with appointed counsel
within 180 days. Walker v. Warden, Lake Erie Correctional
Institution, S.D.Ohio No. 1:13cv159 (Mar. 15, 2016), 16.
We reopened appellant's direct appeal on April 12, 2016.
Appellant raises eight assignments of error:
"I. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE
FORGERIES IN VIOLATION OF R.C. 2913.31(A)(2) AND THE
FORGERIES IN VIOLATION OF R.C. 2913.31(A)(3), AND ORDERED THE
SENTENCES TO BE SERVED CONCURRENTLY WHEN THESE OFFENSES WERE
ALLIED OFFENSES OF SIMILAR IMPORT, THEREBY VIOLATING
WALKER'S RIGHTS ...