State v. RogersState v. Rogers
GRADY, P.J.:
{¶ 1} In February 2011, Defendant Steven Rogers was indicted on one count of theft,
{¶ 2} Appellate counsel filed an Anders brief, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 19 L.Ed.2d 493 (1967), stating that he could find no potentiаlly meritorious issues for appellate review. We notified Defendant of his appellate counsel‘s representations and afforded him amрle time to file a pro se brief. Defendant has filed a pro se brief presenting one assignment of error for our review. This matter is now before us for а decision on the merits and our independent review of the record. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
{¶ 3} The only potential issue for appeal raised by Defendant‘s appellate counsel is whether Defendant‘s convictions were allied offenses of similar import. Counsel refers us to State v. Jones, 78 Ohio St.3d 12, 13, 676 N.E.2d 80 (1997), and concludes: “It appears that the Court and/or Defense Counsel believed that Defendant‘s offenses did not ‘correspond to such a degree that the commission of one crime [resulted] in the commission of [the others].‘”
{¶ 4} In his pro se brief, Defendant raises the following related assignment of error:
{¶ 5} At the sentencing hearing the trial court asked, “I presume we have discussed that these are not allied offenses?” The State responded, “Correct, Your Honor.” (Tr. 11). Defendant did not object to this characterization, and he made no argument that his two convictions were allied offenses of similar import that must be merged. Defendant has therefore waived all error except plain error. State v. Coffey, 2d Dist. Miami No. 2006CA6, 2007-Ohio-21, ¶ 14. Failure to merge allied offenses of similar import is plain error. State v. Coffey; State v. Fairman, 2d Dist. Montgomery No. 42499, 2011-Ohio-6489, ¶ 56. To prevail under the plаin error standard, an appellant must demonstrate both that there was an obvious error in the proceedings and that but for the error, the outcomе of the trial clearly would have been otherwise. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044.
{¶ 6} An appellant who argues that the trial court erred by not merging multiple offenses bears the burden to show not only that the offenses were allied offenses pursuant to
{¶ 7} In Snyder, the defendant ordered building materials for which he paid with three separate checks, each of which was subsequently dishonored for insufficient funds. The defendаnt was convicted of three counts of passing bad checks and one count of theft by deception. The trial court imposed consecutivе sentences for the four offenses. The court of appeals affirmed the consecutive sentences for the passing bad checks offenses because they
{¶ 8} In his pro se brief, Rogers contends that “[t]he Snyder case is on all fours with the instant case.” (Brief, p. 2.). We dо not agree. Critical to the appellate court‘s decision in Snyder was the fact that the indictment in that case alleged that all four offenses constituted a “continuing course of conduct.” On that basis, the theft by deception charge was held to constitute the same conduct as the three рassing bad check charges, requiring merger pursuant to
{¶ 9} We do not necessarily agree with the holding in Snyder.
{¶ 10} We have a transcription of the plea and sentencing proceedings, but neither portrays the particular facts of the two offenses of which Defendant was convicted. In his pro se brief, Rogers contends: “Appellant stole a payroll check and cashed it.” (Brief, p. 1.)
{¶ 12} Defendant was convicted of theft,
No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control оver either property or services * * * [b]y deception.
{¶ 13} Defendant was also convicted of passing bad checks,
No person, with purpose to defraud, shall issue or transfer or cause to be issued or trаnsferred a check or other negotiable instrument, knowing that it will be dishonored or knowing that a person has ordered or will order stop payment on thе check or other negotiable instrument.
{¶ 14} It is possible, in committing the offense of passing bad checks, to knowingly obtain control over the propеrty or services of a person who provides the property or services in exchange for the bad check, when the actor has the purрose of depriving the owner of the property or services he provided. Because it is possible to commit the two offenses by engaging in the same conduct,
{¶ 15} Defendant stole the payroll check in order to obtain cash or other value when he negоtiated it. We see no separate animuses. However, his conduct in stealing the check was not the same conduct in which Defendant engaged whеn, as he described it, he “cashed it.” The two offenses were therefore committed separately, and merger is avoided per
{¶ 16} Defendant‘s assignment of error is Overruled.
{¶ 17} In addition to reviewing the possible issue for appeal identified by Defendant‘s appellate counsel and the issue presented by Defendant pro se, we havе conducted an independent review of the trial court‘s proceedings and have found no error having arguable merit. Accordingly, this appeal is without merit and the judgment of the trial court will be Affirmed.
Froelich, J., and Hall, J., concur.
Copies mailed to:
Elizabeth A. Ellis, Esq.
Adrian King, Esq.
Steven J. Rogers, Pro Se Defendant-Appellant
Hon. Steven A. Wolaver