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State v. Walker

Court of Appeals of Ohio, Fifth District, Richland

December 16, 2016

STATE OF OHIO Plaintiff-Appellee
v.
GARY D. WALKER Defendant-Appellant

         Appeal from the Richland County Court of Common Pleas, Case No. 2009 CR 0052 D

         AFFIRMED IN PART, VACATED IN PART, AND REMANDED

          For Plaintiff-Appellee: BAMBI COUCH PAGE RICHLAND CO. PROSECUTOR DANIEL M. ROGERS

          For Defendant-Appellant: PAUL MANCINO, JR.

          JUDGES: Hon. Sheila G. Farmer, P.J. Hon. W. Scott Gwin, J. Hon. Patricia A. Delaney, J.

          OPINION

          Delaney, J.

         {¶1} 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.

         FACTS AND PROCEDURAL HISTORY

         {¶2} 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.

         {¶3} 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];[1] and one count of grand theft pursuant to R.C. 2913.02(A)(3), a felony of the fourth degree [Count 48].

         {¶4} 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.

         {¶5} 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 6, 2008.
* * * *.

         {¶6} 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.)

         {¶7} On June 2, 2009, in the midst of a jury trial, [2] 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.[3] 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 the pleas.

         {¶8} 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 forged checks.
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 sentence.
* * * *.

         {¶9} 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.

         {¶10} 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."

         {¶11} 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.

         {¶12} 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).

         {¶13} Appellant filed a number of motions to reactivate or reopen his appeal, all of which were denied.

         {¶14} 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.

         {¶15} We reopened appellant's direct appeal on April 12, 2016.

         {¶16} Appellant raises eight assignments of error:

         ASSIGNMENTS OF ERROR

         {¶17} "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 ...


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