STATE OF OHIO v. VANCE G. AMISON
No. 104728
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 18, 2017
[Cite as State v. Amison, 2017-Ohio-2856.]
KEOUGH, A.J., Kilbane, J., and Blackmon, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: VACATED IN PART; REMANDED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-16-602512-A
Mark Stanton
Cuyahoga County Public Defender
By: Paul Kuzmins
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Michael Lisk
Gregory Ochocki
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Vance G. Amison, appeals the trial court‘s sentence on two counts of tampering with records. Amison contends that the trial court erred in sentencing him on both offenses because the offenses were allied offenses that should have merged for sentencing. The offenses were not allied, and the trial court did not err in not merging them for sentencing. Nevertheless, we vacate the sentence imposed on Count 2 and remand for resentencing on that count.
{¶2} Amison was charged in a multicount indictment with six counts of tampering with records. He subsequently entered into a plea agreement whereby he pleaded guilty to Counts 1 and 2 of the indictment, and the state nolled Counts 3, 4, 5, and 6. The trial court sentenced Amison to 18 months in prison on Count 1 and 3 years of community control sanctions on Count 2, to be served concurrently. This appeal followed.
{¶3}
{¶5} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio Supreme Court held that courts considering whether there are allied offenses that merge into a single conviction under
{¶6} Amison was convicted in Count 1 of tampering with records in violation of
{¶7} At the sentencing hearing, the prosecutor explained that the offenses occurred when Amison, whose license was suspended, falsified Ohio BMV Form 5736 by using his father‘s driving information and forging his father‘s signature, and then used the falsified document to obtain a temporary registration for a 1998 Buick Park Avenue.
{¶8} Amison argues that Counts 1 and 2 were allied offenses because they involved the same conduct: they occurred on the same day, at the same location, and on the same BMV form. Amison‘s argument is without merit, however.
{¶9}
{¶10} In State v. Hughley, 8th Dist. Cuyahoga No. 90323, 2008-Ohio-6146, as in this case, the appellant argued that his uttering and tampering with records convictions were allied offenses that should have merged for sentencing. This court found, however, that a person can falsify a record without uttering the falsified record. Thus, it concluded that the act of uttering a falsified document has a separate animus from falsifying a record. Id. at ¶ 67.
{¶12} After oral argument, we ordered the parties to brief the issue of whether the trial court‘s sentence imposing 18 months in prison on Count 1 concurrent with three years of community control sanctions on Count 2 was a valid sentence. Both parties briefed the issue. Upon review, we conclude that the trial court improperly imposed a split sentence on Count 2, which is prohibited.
{¶13} “Current felony sentencing statutes, contained primarily in
{¶14} Here, the trial court sentenced Amison to 18 months in prison on Count 1, concurrent with three years of community control on Count 2. Thus, part of the sentence on Count 2 was to be served while Amison was in prison, and part after his release from prison — clearly an impermissible split sentence.
{¶15} This case is nearly identical to State v. Paige, 8th Dist. Cuyahoga No. 104109, 2016-Ohio-7615, wherein the trial court sentenced the defendant to 42 months in prison on a sexual battery count, concurrent with five years of community control on a domestic violence count. The trial court ordered that the defendant serve a portion of the community control in prison and then, upon release from prison, he was to be assessed and placed in a community-based correctional facility. This court held that the sentence on the domestic violence count was an impermissible split sentence because, by making the community control sentence longer than that imposed for the sexual battery count, the defendant was sentenced to serve the community control both while in prison and after he was released from prison. Accordingly, this court vacated the defendant‘s sentence on the domestic violence count. Id. at ¶ 10.
{¶16} The same reasoning applies here. By ordering the sentences to be served concurrently, and by making the community control sentence on Count 2 longer than the prison sentence on Count 1, the trial court imposed an improper split sentence on Count 2.
It is ordered that the parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR