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State v. Esner

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-604184-A.

          ATTORNEY FOR APPELLANT John F. Corrigan

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Christine M. Vacha Assistant Prosecuting Attorney

          BEFORE: S. Gallagher, J., McCormack, P.J., and E.T. Gallagher, J.



         {¶1} John Esner appeals the sentences imposed on a single count of theft and three counts of forgery. All are fifth-degree felonies. The trial court, after specifying that Esner had been on postrelease control at the time he committed the offenses, imposed a one-year term of imprisonment on each count to be consecutively served to each other for an aggregate sentence of four years. We affirm in part, reverse in part, and remand.

         {¶2} Neither Esner nor the state provided a recitation of the facts as required under App.R. 16(A)(6). App.R. 16(A)-(B) (the parties shall include in their briefs a statement of facts relevant to the assignments of error presented for review, with appropriate references to the record). We take this omission to mean that the facts of Esner's criminal conduct are not dispositive of the assigned errors. Id. Nevertheless, and so any reader is not placed in the situation that we find ourselves, we shall provide a brief statement of the facts as can be discerned from our own review of the record.

         {¶3} At the time of the offenses, Esner was on postrelease control, having just completed an eight-year term of imprisonment for other theft-related offenses. Esner, a middle-aged man, has spent most of his adult life behind bars. According to Esner, he spent only a couple of years out of some form of criminal confinement. At the time of the latest felony offenses, Esner was providing services for a church and was owed money for the work performed. While the check was being prepared, Esner was left alone in the church office or at least left unobserved for a short period of time. He took the opportunity to grab nearly 40 blank checks. Esner then made six checks out to himself, totaling approximately $2, 100. It is not clear where Esner attempted to cash those checks, if they were indeed cashed. Esner pleaded guilty to uttering the forged checks, but the indictment does not elaborate on what the uttering entailed in practical terms. According to the prosecutor's statement during the change of plea colloquy, the "financial institution" did not cash the checks and no restitution should be imposed. A representative from the church indicated that it had not been deprived of any funds. For all this, Esner agreed to plead guilty to the theft of the blank checks and for forging three of the six checks. The aggregate amount of the forged checks to which Esner pleaded guilty was $1, 127.34. The remaining counts were nolled.

         {¶4} The trial court felt that someone was out the money, most likely an obvious presumption if Esner indeed succeeded in cashing the checks made out to himself. The trial court identified FirstMerit Bank as the financial institution that was economically harmed, although that fact was not in the record or provided by the state during any oral hearing. In fact, the only mention of "First Merit" in the record came from the trial court during the plea and sentencing hearings. Restitution was imposed, over Esner's objection, in the amount of $1, 703.79 to be paid to "First Merit Bank." That amount appears to have come from the registered warrant, which alleged that Esner uttered four checks. It also appears in the presentence investigation report, but the report repeated the language from the warrant.

         {¶5} In this timely appeal, Esner complains that restitution was improper, that the trial court relied on irrelevant factors for imposing consecutive sentences, and that the offenses should have merged because they arose from the same conduct. The state "concedes" that the theft, which was predicated on stealing the blank checks, [1] should have merged with the forgery counts because "the forgery counts pertain to the checks." One crime "pertaining" to another is not a recognized form of analysis to determine whether offenses are allied and subject to merger. The state's concession seems somewhat inadvisable in this respect. We do agree that the trial court's imposition of restitution was improper, but we affirm the convictions in all other respects.

         {¶6} Beginning with the allied-offense issue, under R.C. 2941.25, courts must use a three-part inquiry to determine whether a defendant can be convicted of multiple offenses if those offenses arose from the same act or transaction:

(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. In addition, "a defendant's conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense." Id. at ¶ 26. The test is stated in the disjunctive form: the existence of any one prong suffices for the imposition of separate sentences.

         {¶7} Despite the fact that no one presented a factual basis for their argument as required by the Rules of Appellate Procedure, both the state and Esner solely rely on the same-conduct analysis - a fact-intensive inquiry - claiming that Esner committed the forgery and the theft of the blank checks simultaneously. This ignores the fact that Esner committed each act of forgery and the act of stealing the blank checks through separate acts or with distinctly different conduct. Had Esner pleaded guilty to the nolled theft count pertaining to the theft of between $1, 000 and $7, 500, we might be ...

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