State v. Edner
2017 Ohio 1365
| Ohio Ct. App. | 2017Background
- Defendant John Esner pleaded guilty to one count of theft (blank checks) and three counts of forgery (uttering forged checks); all offenses were fifth-degree felonies; other counts were nolled.
- At the time of the offenses Esner was on postrelease control after a lengthy prior incarceration history.
- Facts: Esner took nearly 40 blank checks from a church, made several checks payable to himself (six were made; he pleaded to three), aggregate forged-check amount pleaded to was $1,127.34. The record contains no clear evidence the checks were cashed or that the church suffered a financial loss.
- At sentencing the trial court imposed consecutive one-year terms on each count (aggregate four years), citing Esner’s criminal history and that he committed the offenses while on postrelease control.
- The court also ordered $1,703.79 restitution to FirstMerit Bank over Esner’s objection; the amount and the identified payee were not supported by record evidence.
- On appeal the court affirmed convictions and consecutive sentences but reversed and vacated restitution, remanding to delete the restitution order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether theft (blank checks) must merge with forgery counts under allied-offense analysis | State conceded theft should merge with forgery because they "pertain" to same conduct | Esner argued offenses arose from same conduct and should merge | Court held theft did not merge with the forgery convictions: theft completed when Esner took the blank checks (separate conduct) and each forgery was a distinct act; convictions affirmed |
| Whether the separate forgery counts should merge with each other | State did not concede; relied on charging and plea | Esner argued for merger because forgeries occurred the same day | Court declined to find merger among forgeries; record lacked factual basis to establish same-conduct merger and defendant did not preserve issue at sentencing |
| Whether consecutive sentences were improper or based on irrelevant considerations | State argued consecutive sentences were authorized under R.C. 2929.14(C)(4) given postrelease control and criminal history | Esner argued court relied on irrelevant and improper statements (e.g., wish for off-shore penal colony, comments about VA) | Court affirmed consecutive sentences: trial court made statutory findings (necessity, proportionality, postrelease-control factor) and record supported them; appellate review limited |
| Whether restitution to FirstMerit Bank was proper | State asserted no restitution to church was needed and did not establish bank loss; at oral statements indicated checks were not cashed | Esner objected; argued no victim loss shown and payee unsupported | Court vacated restitution: trial court imposed restitution without competent evidence of economic loss to the identified payee; order reversed and remanded to delete restitution |
Key Cases Cited
- State v. Ruff, 143 Ohio St.3d 114, 34 N.E.3d 892 (Ohio 2015) (sets three-part allied-offense analysis and test for whether multiple convictions may stand)
- State v. Marneros, 35 N.E.3d 925 (Ohio Ct. App. 2015) (discussed merger where theft was predicated solely on underlying forgery)
- State v. Rogers, 143 Ohio St.3d 385, 38 N.E.3d 860 (Ohio 2015) (addresses same-transaction argument for multiple property offenses)
- State v. Aguirre, 144 Ohio St.3d 179, 41 N.E.3d 1178 (Ohio 2014) (addresses statutory scope of restitution authority and limitations)