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State v. Carter

Court of Appeals of Ohio, Fifth District, Muskingum

August 26, 2019

STATE OF OHIO Plaintiff - Appellee
v.
OLIVIA CARTER Defendant-Appellant

          Appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0373

         JUDGMENT: Affirmed

          For Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney.

          TAYLOR P. BENNINGTON Assistant Prosecuting Attorney.

          For Defendant-Appellant JAMES ANZELMO Anzelmo Law.

          JUDGES: Hon. John W. Wise, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          BALDWIN, J.

         {¶1} 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 degree.

         {¶2} Appellee is the State of Ohio.

         STATEMENT OF FACTS AND THE CASE

         {¶3} 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.

         {¶4} 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.

         {¶5} Appellant filed a timely appeal and submitted two assignments of error:

         {¶6} "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 ...


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