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State v. Cunningham

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 1, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TIFFANY L. CUNNINGHAM DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602805-A

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor

          BEFORE: Laster Mays, J., Stewart, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶1} Defendant-appellant, Tiffany L. Cunningham ("Cunningham"), appeals her consecutive sentences and asks this court to vacate her sentence and remand to the trial court for resentencing. We affirm.

         {¶2} Cunningham was indicted on 40 counts of various felonies. She pleaded guilty to Counts 2, 4, 7, 9, 12, and 14 of the indictment. Count 2 was for conspiracy, a second-degree felony, in violation of R.C. 2923.02(A)(1). Count 4 was for theft, a fifth-degree felony, in violation of R.C. 2913.02(A)(3). Count 7 was for money laundering, a third-degree felony, in violation of R.C. 1315.55(A)(3). Count 9 was for identity fraud, a fourth-degree felony, in violation of R.C. 2913.49(B)(2). Counts 12 and 14 were for forgery, fifth-degree felonies, in violation of R.C. 2913.31(A)(3). The trial court sentenced Cunningham to prison for three years on Count 2, six months on Count 4, 12 months on Count 7, nine months on Count 9, six months on Count 12, and six months on Count 14, to be served consecutively for a total of six years and three months. Cunningham was also ordered to pay $254, 687.81 in restitution.

         I. Facts

         {¶3} Cunningham, along with her coconspirators, defrauded the retail chain stores of TJ Maxx across seven states over a period of four years. The scheme included the purchase of several items, mostly over $50.00, and one or two items that were less than $50.00. Immediately after purchasing the items, Cunningham would return most of the items over $50.00. Because she did not return all of the items, she was able to retain the original receipt. Cunningham would then take the original receipt to other TJ Maxx stores in surrounding areas and repeat the return process with duplicate items that she either stole or cheaper merchandise that she sewed on labels. Cunningham would complete the returns all in one day before midnight so that the online system could not track the multiple returns.

         {¶4} Cunningham signed all refund slips with a different name, and was able to defraud TJ Maxx out of $254, 687.81. Cunningham was arrested in January 2016, and charged with 40 counts of conspiracy, theft, money laundering, identity fraud, and forgery. She pleaded guilty to 6 of the 40 counts and was sentenced to 6 years and 3 months imprisonment, to be served consecutively. The state and defense counsel agreed that none of the offenses were allied offenses. As a result of the agreement, Cunningham has filed this timely appeal assigning one error for our review:

         II. Allied Offenses

         A. Standard of Review

         {¶5} "An appellate court applies a de novo standard of review when reviewing whether two offenses are allied offenses of similar import." State v. Boczek, 8th Dist. Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 4.

         B.Law and ...


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