STATE OF OHIO, Plaintiff - Appellee v. OLIVIA CARTER, Defendant - Appellant
Case No. CT2018-0072
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 26, 2019
2019-Ohio-3485
Hon. John W. Wise, P.J.; Hon. Craig R. Baldwin, J.; Hon. Earle E. Wise, J.
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0373; JUDGMENT: Affirmed
For Plaintiff-Appellee
D. MICHAEL HADDOX
Prosecuting Attorney
Muskingum County, Ohio
By: TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
For Defendant-Appellant
JAMES ANZELMO
Anzelmo Law
446 Howland Drive
Gahanna, Ohio 43230
{¶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
{¶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
{¶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 CONSTITUTION AND
{¶7} “II. CARTER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ANALYSIS
{¶8} Appellant‘s argument cites case law that supports the conclusion that charges of receiving stolen property arising from one transaction shall be merged, but the precedent she cites does not address the distinctive facts of this case. The credit cards at issue were all held by different persons, and each suffered separate, distinct harms. Further, the parties negotiated and agreed upon a joint recommendation regarding the
{¶9} Appellate review of an allied-offense question is de novo. State v. Miku, 5th Dist. No. 2017 CA 00057, 2018-Ohio-1584, 111 N.E.3d 558, appeal not allowed, 154 Ohio St.3d 1479, 2019-Ohio-173, 114 N.E.3d 1207, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.
{¶10} The Supreme Court of Ohio has explained “that an accused may be convicted and sentenced for multiple offenses when “(1) the offenses are dissimilar in import or significance—in other words, each offense caused separate, identifiable harm , (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 18 quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.
{¶11} This court has cited Ruff with approval and noted that “[o]ffenses are of dissimilar import when a defendant‘s conduct “victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted on multiple counts.” State v. Montgomery, 5th Dist. Guernsey No. 18 CA 38, 2019 WL 2354946, ¶ 22.
{¶12} Three separate parties were harmed in this case; the victim who owned the purse and was the sole holder of one of the credit card accounts, her fiancé, the joint owner of a different account and the medical facility, the holder of the third credit card account. Each credit card was used by Appellant at least once and always at a different
{¶13} The record supports the contention that defense counsel completed the same analysis before entering a plea agreement/joint recommendation for sentence and receiving a sentence significantly less than the maximum that may have been imposed. The Appellant‘s plea agreement is not silent on the issue of allied offenses of similar import, but expressly addresses the issue, making it unnecessary for the trial court to complete an analysis of the charges under
{¶14} During the plea hearing the prosecutor mentioned that he had “spoken with Ms. Otto (defense counsel) beforehand about merger” to which the trial court responded “I would assume they all merge, but you go ahead.” Thereafter the prosecutor described the merger that had been discussed with Appellant‘s trial counsel. The trial court further inquired about the merger of the criminal tools charge with the theft offenses and both the prosecutor and trial counsel agreed that the criminal tools charge would merge. Thereafter the prosecutor summarized the offenses after merger “as 5F fives left, those being on counts one, six, 11, 14 and 15 and then the count 17 is an F2. (sic)” The trial court turned to Appellant‘s trial counsel who responded “no objection, your honor” and the court granted the merger.
{¶15} The Appellant engaged in plea negotiations, part of which included the merger of offenses, considered and approved the merger as presented to the trial court and now contends that the trial court was obligated to reject the terms of the plea
The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted. It follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible.
Lester v. Leuck (1943), 142 Ohio St. 91, 92-93, 50 N.E.2d 145, quoting State v. Kollar (1915), 142 Ohio St. 89, 91, 49 N.E.2d 952.
{¶16} The parties in this case negotiated a plea agreement, addressed the merger of charges within that agreement and requested the trial court‘s approval of that agreement. The trial court was prepared to merge all of the offenses, but the parties
{¶17} The first assignment of error is overruled.
{¶18} In her second assignment of error, Appellant contends that she received ineffective assistance of counsel when her trial counsel did not object “when the trial court decided not to merge the receiving stolen property offenses.”
{¶19} The standard of review of an ineffective assistance of counsel claim is well established. Pursuant to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) in order to prevail on such a claim, the appellant must demonstrate both (1) deficient performance, and (2) resulting prejudice, i.e., errors on the part of counsel of a nature so serious that there exists a reasonable probability that, in the absence of those errors, the result of the trial court would have been different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶20} Appellant‘s trial counsel entered into a plea agreement that resulted in Appellant receiving a two year sentence for sixteen separate counts, several of which were felonies which could have served as the basis for a more lengthy term. The plea agreement also resulted in the dismissal of a charge of Telecommunications Fraud, a violation of
{¶21} We hold that Appellant‘s trial counsel was not ineffective and therefore overrule the second assignment of error.
{¶22} The decision of the Muskingum County Court of Common Pleas is affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Wise, Earle, J. concur.