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State v. Henry

Court of Appeals of Ohio, Third District, Logan

July 8, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
BRANDIE D. HENRY, DEFENDANT-APPELLANT.

          Appeal from Logan County Common Pleas Court Trial Court No. CR 18 05 0142

          Eric J. Allen for Appellant

          Sarah J. Warren for Appellee

          OPINION

          PRESTON, J.

         {¶1} Defendant-appellant, Brandie D. Henry ("Henry"), appeals the September 10, 2018 judgment of sentence of the Logan County Court of Common Pleas. For the reasons that follow, we affirm.

         {¶2} In early 2017, Henry became acquainted with the victim in this case, who was between 80 and 81 years old during the commission of Henry's offense. (See Doc. No. 21). As the relationship developed between Henry and the victim, Henry told him that her grandmother had recently died and that she would be receiving a large inheritance. (Id.). Henry informed him that she needed to hire an attorney to administer her grandmother's estate and that the attorney would only accept a cash retainer. (Id.). Thereafter, Henry delivered various checks drawn on her account at Woodforest National Bank to the victim in exchange for cash. (Id.). Henry instructed the victim to retain the checks until she received her inheritance, at which time the victim could cash the checks as payment for the various cash advances. (Id.). Between March 2017 and January 2018, Henry received $239, 896.89 using this scheme. (Id.). Upon realizing that Henry fabricated the story about receiving an inheritance from her grandmother, the victim reported Henry and her scheme to law enforcement authorities. (Id.). The victim further alleged that Henry had stolen a gold bar and a valuable firearm from him, along with other items. (See Sept. 10, 2018 Tr. at 22-23). The victim also accused Henry of charging $2, 000 to a JC Penney credit account that was opened in his name. (Id. at 23).

         {¶3} On May 8, 2018, the Logan County Grand Jury indicted Henry on one count of theft from a person in a protected class in violation of R.C. 2913.02(A)(3), (B)(3), a first-degree felony. (Doc. No. 2). On May 21, 2018, Henry appeared for arraignment and entered a plea of not guilty. (Doc. No. 15).

         {¶4} A change of plea hearing was held on August 7, 2018. (Doc. Nos. 35, 38); (Aug. 7, 2018 Tr. at 1-4). At the hearing, the State moved to amend the indictment from theft from a person in a protected class to attempted theft from a person in a protected class in violation of R.C. 2913.02(A)(3), (B)(3) and 2923.02(A), (E)(1), a second-degree felony. (See Doc. No. 38). The trial court subsequently granted the State's motion and amended the count of the indictment. (Id.). Then, pursuant to a negotiated plea agreement, Henry withdrew her not guilty plea and pleaded guilty to the count of the amended indictment. (Id.); (Aug. 7, 2018 Tr. at 21). In exchange, the State agreed to jointly recommend a sentence of six years in prison. (Doc. No. 38); (Aug. 7, 2018 Tr. at 4, 10). The trial court accepted Henry's guilty plea, found her guilty, and ordered a presentence investigation. (Doc. No. 38); (Aug. 7, 2018 Tr. at 21-23).

         {¶5} On September 10, 2018, the trial court sentenced Henry to a term of seven years' imprisonment. (Doc. No. 39). In addition, the trial court ordered Henry to pay restitution to the victim in the amount of $260, 964.89. (Id.).

         {¶6} Henry filed a notice of appeal on October 10, 2018. (Doc. No. 52). She raises one assignment of error.

         Assignment of Error

         The record in this matter does not support more than the joint sentencing recommendation presented to the court.

         {¶7} In her assignment of error, Henry argues that the trial court erred by sentencing her to seven years in prison. Specifically, Henry argues that the record does not support the imposition of a sentence longer than the jointly recommended sentence of six years' imprisonment. (Appellant's Brief at 4-5).

         {¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence "only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum,146 Ohio St.3d 516, 2016-Ohio-1002, ΒΆ 1. Clear and convincing evidence is that "'which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be ...


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