Court of Appeals of Ohio, Fifth District, Muskingum
from the Muskingum County Court of Common Pleas, Case No.
Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney.
P. BENNINGTON Assistant Prosecuting Attorney.
Defendant-Appellant JAMES ANZELMO Anzelmo Law.
JUDGES: Hon. John W. Wise, P.J. Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, J.
Olivia Carter appeals the two year sentence imposed by the
Muskingum County Court of Common Pleas after entering a plea
of guilty to three counts of Receiving Stolen Property
(credit cards), in violation of R.C. 2913.51 (A), felonies of
the fifth degree; six counts of Forgery, in violation of R.C.
2913.31(A)(2), felonies of the fifth degree; three counts of
Theft by Deception, in violation of 2913.02(A)(3),
misdemeanors of the first degree; one count of Possession of
Criminal Tools, with a forfeiture specification, in violation
of R.C. 2923.24(A), a felony of the fifth degree; one count
of Theft (credit card), in violation of R.C. 2913.02(A)(1), a
felony of the fifth degree; one count of Identity Theft, in
violation of R.C. 2913.49(B)(1), a felony of the fifth degree
and one count of Engaging in a Pattern of Corrupt Activity,
in violation of R.C. 2923.32(A)(1), a felony of the second
Appellee is the State of Ohio.
OF FACTS AND THE CASE
Appellant, after being charged, admitted to the theft of the
victim's purse from an automobile. The contents of the
purse included three credit cards owned by three different
parties. One card was held by the victim in her individual
name, one card was a joint account held by the victim and her
fiancé, and a medical facility was the holder of the
third credit card account. Each card was used at least once,
but all were used at different locations.
Appellant was indicted on seventeen counts, but as a result
of a plea agreement a telecommunications charge was
dismissed. The parties also addressed the merger of certain
counts in the indictment and stipulated that, for the
purposes of sentencing, Counts One, Two, Three, Four and Five
should merge; the State electing to sentence on Count One;
Counts Six, Seven, Eight, Nine and Ten should merge, the
State electing to sentence on Count Six; and Counts Eleven,
Twelve and Thirteen should merge, the State electing to
sentence on Count Thirteen. The parties presented this
stipulation to the trial court with a joint recommendation of
a two year sentence. The trial court accepted the
stipulation, agreed to the joint recommendation, including
the merger of offenses as outlined above. The trial court
sentenced Appellant to two years of incarceration.
Appellant filed a timely appeal and submitted two assignments
"I. THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT MERGING
CARTER'S RECEIVING STOLEN PROPERTY OFFENSES, IN VIOLATION
OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE
UNITED STATES ...