Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
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.
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.
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
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.
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.
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."
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.
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 ...