711 N.E.2d 746 | Ohio Ct. App. | 1998
Lead Opinion
Defendant-appellant Patrick D. Flahive was indicted by the grand jury in two indictments on six counts of misuse of credit cards. As a result of a plea bargain, in case number B-960894 Flahive pleaded guilty to one fourth-degree felony count, and in case number B-9609310 he pleaded guilty to two fifth-degree felony counts. The state agreed not to proceed on the remaining counts. The trial court imposed a prison term of one and one-half years in case number B-9608994, to run consecutively with the one-year concurrent prison terms imposed for each count under case number B-9609310. Flahive appeals from his convictions and sentences, although he raises only sentencing errors in this appeal.1 *34
In his second assignment of error, which we consider first, Flahive challenges the court's imposition of a prison term for the offenses he committed.2 Under the new sentencing provisions now in effect, a trial court cannot impose a prison term for a fourth — or a fifth-degree felony unless the court finds that one of the eight factors set forth in R.C.
The sentencing factor in R.C.
"The offender held a public office or position of trust and the offense related to that office or position; the offender's position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender's professional reputation or position facilitated the offense or was likely to influence the future conduct of others."
On its sentencing worksheet, the trial court checked the above factor as being applicable to Flahive.4 The abbreviated language of the worksheet describes this factor as "(D) public trust, office or position." We hold that the record supports the findings of the trial court in imposing a prison sentence in this case.
In his position as a clerk both for Kroger's and for a Marriott hotel, Flahive took credit cards from customers as payment for goods and services, copied their credit-card numbers, and later personally used their numbers to make purchases from mail-order catalogues for his own use. The record demonstrates that in furtherance of his scheme he used the credit cards of forty-seven different individuals, unlawfully obtaining in excess of $25,000 worth of merchandise. We have no difficulty in finding that the final clause in R.C.
We find clearly and convincingly that Flahive received the credit-card numbers as a result of his position, and therefore that his position facilitated the offense. Because the record establishes that use of the sentencing factor in R.C.
In his first assignment of error, Flahive contends that the trial court was biased against him because of statements made at the sentencing hearing, particularly the statement that Flahive was "the pedophile of the credit card industry.5
In order to impose the maximum term of imprisonment, the court must find one of the factors in R.C.
The judgment of the trial court is affirmed.
Judgment affirmed.
SUNDERMAN, P.J., concurs.
GORMAN, J., dissents.
"We're at the mercy of people like you. The whole credit card industry is at your mercy. And you have gone from one place to another. Now you're in a third place. And as sure as God made little green apples, you're going to do it again. I know you will. You're the pedophile of the credit card industry. They're your babies."
Dissenting Opinion
Although I agree that Flahive deserves the prison term imposed by the trial court, I cannot accept the majority's analysis with respect to the applicability of *36
R.C.
For Flahive to be eligible for a prison term, it is beyond dispute that he must satisfy the criteria in R.C.
The majority implicitly concludes that as a cashier or clerk, Flahive did not hold a public "position of trust" under the first of the three clauses of R.C.
I do not agree, however, with the majority's conclusion that Flahive's offense satisfies the language of the third clause of R.C.
Significantly, comparable language in R.C.
In State v. Wilson (1997),
I find that the evidence is clearly and convincingly insufficient to support a finding under R.C.