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State v. Amison

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 18, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
VANCE G. AMISON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602512-A

         VACATED IN PART; REMANDED.

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender By: Paul Kuzmins Assistant Public Defender.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Michael Lisk Gregory Ochocki Assistant Prosecuting Attorneys The Justice Center.

          BEFORE: Keough, A.J., Kilbane, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.

         {¶1} Defendant-appellant, Vance G. Amison, appeals the trial court's sentence on two counts of tampering with records. Amison contends that the trial court erred in sentencing him on both offenses because the offenses were allied offenses that should have merged for sentencing. The offenses were not allied, and the trial court did not err in not merging them for sentencing. Nevertheless, we vacate the sentence imposed on Count 2 and remand for resentencing on that count.

         {¶2} Amison was charged in a multicount indictment with six counts of tampering with records. He subsequently entered into a plea agreement whereby he pleaded guilty to Counts 1 and 2 of the indictment, and the state nolled Counts 3, 4, 5, and 6. The trial court sentenced Amison to 18 months in prison on Count 1 and 3 years of community control sanctions on Count 2, to be served concurrently. This appeal followed.

         {¶3} R.C. 2941.25(A) allows only a single conviction for conduct by a defendant that constitutes "allied offenses of similar import." However, under R.C. 2941.25(B), a defendant charged with multiple offenses may be convicted of all the offenses if (1) the defendant's conduct constitutes offenses of dissimilar import, (2) the conduct demonstrates that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with a separate animus.

         {¶4} In his single assignment of error, Amison asserts that the trial court erred in sentencing him on Counts 1 and 2 because the offenses were allied offenses of similar import that should have merged for sentencing. Amison did not raise the issue of allied offenses in the trial court and, accordingly, has forfeited all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. A forfeited error is not reversible error unless it affected the outcome of the proceedings and reversal is necessary to correct a manifest miscarriage of justice. Id.

         {¶5} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio Supreme Court held that courts considering whether there are allied offenses that merge into a single conviction under R.C. 2941.25 should focus on the defendant's conduct. Id. at ¶ 25. Specifically, courts are to ask three questions: (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 three questions will permit separate convictions. Id. at ¶ 31.

         {¶6} Amison was convicted in Count 1 of tampering with records in violation of R.C. 2913.42(A)(1), which provides that "[n]o person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall * * * falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data, or record." He was convicted in Count 2 of tampering with records in violation of R.C. 2913.42(A)(2), which provides that "[n]o person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall * * * utter any writing or record, knowing it to have been tampered with as provided in division (A)(1) of this section."

         {¶7} At the sentencing hearing, the prosecutor explained that the offenses occurred when Amison, whose license was suspended, falsified Ohio BMV Form 5736 by using his father's driving information and forging his father's signature, and then used the falsified document to obtain a temporary registration for a 1998 Buick Park Avenue.

         {¶8} Amison argues that Counts 1 and 2 were allied offenses because they involved the same conduct: they occurred on the same day, at the same location, and on the same BMV ...


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