from Logan County Common Pleas Court Trial Court No. CR 18 05
J. Allen for Appellant
J. Warren for Appellee
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.
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).
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).
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).
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.).
Henry filed a notice of appeal on October 10, 2018. (Doc. No.
52). She raises one assignment of error.
record in this matter does not support more than the joint
sentencing recommendation presented to the court.
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).
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, ¶ 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