State v. Green
2021 Ohio 2412
| Ohio Ct. App. | 2021Background:
- Corey Green pled guilty in July 2018 to: (1) theft (R.C. 2913.02) and (2) receiving stolen property (R.C. 2913.51) arising from a March 2018 ring theft (two separate indictments: theft alleged March 26; receiving alleged March 27). He also pled guilty to passing bad checks (R.C. 2913.11) for a $1,050 check dated March 28, 2018.
- The state initially recommended community control; sentencing was continued for restitution, Green left the state in violation of bond, was later arrested out of state, served time in New York, then was returned to Ohio.
- At sentencing in February 2020 the court imposed 12 months on each of the theft and receiving counts to run consecutively, and 12 months for passing bad checks to run concurrently.
- Green appealed, arguing (1) the theft and receiving counts were allied offenses requiring merger, (2) the consecutive sentences for those counts lacked statutory support, and (3) the trial court failed to properly consider R.C. 2929.12 in imposing the sentence for passing bad checks.
- The appellate court reviewed plea, PSI, and sentencing transcripts and affirmed both judgments.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether theft and receiving stolen property must be merged as allied offenses (18 CR 423B) | State: offenses were distinct (theft on March 26; disposal/sale the next day), so separate convictions are permissible | Green: the two convictions flowed from the same conduct and should merge under allied-offense law | Held: No merger. Court relied on Ruff factual-conduct test; theft (snatching) and later sale at pawn shop were separate acts at different times/places causing separately identifiable harm. No plain error. |
| Whether consecutive 12‑month sentences for theft and receiving are supported by R.C. 2929.14(C)(4) | State: consecutive sentences justified to protect public and punish; court found R.C. 2929.14(C)(4)(a) and (c) applied | Green: record lacks evidence for (a) (offender awaiting trial/sentencing or under sanction when offenses committed) and lacks support for (c) (history of criminal conduct) | Held: Affirmed. PSI and record showed pending Pennsylvania charges predating the offenses (supporting (a)) and an extensive criminal history supported (c); trial court made required findings at hearing and in entry. |
| Whether the trial court failed to consider R.C. 2929.12 seriousness/recidivism factors when sentencing on passing bad checks (18 CR 458) | Green: court did not expressly analyze R.C. 2929.12 on the record; maximum term was excessive | State: sentencing entry and PSI show the court considered R.C. 2929.11–2929.12; presumption that court considered statutory factors | Held: No reversible error. Court need not recite specific R.C. 2929.12 findings; record (statement, PSI, criminal history) does not affirmatively show failure to consider factors. The challenge is also moot because Green served the sentence. |
Key Cases Cited
- State v. Ruff, 34 N.E.3d 892 (Ohio 2015) (adopted conduct-focused test for allied-offense merger)
- State v. Yarbrough, 817 N.E.2d 845 (Ohio 2004) (recognized plain-error merger where same facts supported both theft and receiving convictions)
- State v. Rogers, 38 N.E.3d 860 (Ohio 2015) (upheld separate RSP counts where receiving/disposing involved distinct acts)
- State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (trial court must make statutory consecutive-sentence findings at sentencing and in entry; no verbatim recitation required)
- State v. Marcum, 59 N.E.3d 1231 (Ohio 2016) (clarified appellate standard of review under R.C. 2953.08)
- State v. Wilson, 951 N.E.2d 381 (Ohio 2011) (trial court not required to make specific factual findings on R.C. 2929.11–2929.12)
- State v. Arnett, 724 N.E.2d 793 (Ohio 2000) (discussed sentencing court's discretion regarding statutory factors)