State v. ShanklinState v. Shanklin
{¶1} Defendant-appellant, George A. Shanklin (“Shanklin”), appeals the November 7, 2013 judgment entry of sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} On August 6, 2008, the Union County Grand Jury indicted Shanklin on five counts, including: Count One of aggravated theft in violation of
{¶3} On October 9, 2008, Shanklin entered pleas of not guilty at arraignment, and the trial court increased Shanklin’s bond to $100,000 cash or surety. (Doc. No. 6). On October 14, 2008, Shanklin posted a $100,000 surety bond through HLS Bonding, International Fidelity Insurance Company (“the bond
{¶4} On February 2, 2010, Shanklin failed to appear at a change-of-plea hearing. (Feb. 2, 2010 JE, Doc. No. 135). As a result, the trial court placed the case on inactive status, revoked Shanklin’s bond, issued a warrant for his arrest, and ordered the bond company to produce him within 30 days. (Id.). The trial court noted that the State may seek to have Shanklin’s bond forfeited if the bond company did not produce Shanklin within the 30 days. (Id.). Shanklin was not apprehended until January 2012 when he was apprehended in California and extradited to Ohio. (Doc. No. 154). Because Shanklin was out of the jurisdiction for almost two years, the trial court ordered his bail forfeited. (See July 23, 2010 JE, Doc. No. 144); (Feb. 22, 2011 JE, Doc. No. 150). The bond company agreed to remit the $100,000 bond it posted for Shanklin, and the trial court disbursed the proceeds. (Id.); (Id.). (See also July 23, 2010 JE, Doc. No. 145); (Feb. 23, 2012 JE, Doc. No. 153).
{¶5} On February 15, 2013, the trial court held a change-of-plea hearing. (Doc. No. 209). Pursuant to a negotiated plea agreement, Shanklin pled guilty to Counts One and Four and the State dismissed Counts Two, Three, and Five. (Id.). The trial court accepted Shanklin’s pleas and found him guilty as to Counts One and Four. (Feb. 15, 2013 Tr. at 18). After continuing sentencing a number of
{¶6} On December 6, 2013, Shanklin filed his notice of appeal. (Doc. No. 234). He raises four assignment of error for our review.
Assignment of Error No. I
The trial court erred when it failed to merge the charges of aggravated theft and passing bad checks for sentencing purposes, as the charges are allied offenses of similar import.
{¶7} In his first assignment of error, Shanklin argues that the aggravated theft and passing bad checks offenses for which he was convicted were allied offenses of similar import and that the trial court erred by not merging them for
{¶8} Whether offenses are allied offenses of similar import is a question of law that this Court reviews de novo. State v. Stall, 3d Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶ 36.
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
In determining whether offenses are allied offenses of similar import under
{¶9} If it is possible to commit the offenses with the same conduct and the defendant did, in fact, commit the multiple offenses with the same conduct, then the offenses are allied offenses of similar import and will merge. Id. at ¶ 50. However, “if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each, then according to
{¶10} Here, Shanklin was convicted of aggravated theft, under
{¶11} We must first determine whether it is possible to commit the offenses of aggravated theft and passing bad checks with the same conduct. Johnson at ¶ 48. Applying Johnson, at least two districts have determined that theft offenses and passing bad checks can be committed by the same conduct. State v. Rogers, 2d Dist. Greene No. 2011 CA 0057, 2012-Ohio-4451, ¶ 14 (“It is possible, in committing the offense of passing bad checks, to knowingly obtain control over the property or serviсes of a person who provides the property or services in
{¶12} Because we determined that it is possible to commit the two offenses by engaging in the same conduct, we must determine if Shanklin сommitted aggravated theft and passing bad checks—as alleged in Counts One and Four of the indictment—separately or with a separate animus to each. Rogers at ¶ 14, citing Johnson at ¶ 50-51. Shanklin argues that because Count Five of the indictment charged him with engaging in a continuing course of criminal conduct from June 28, 2005 through October 31, 2005, his acts under Counts One and Four should be considered the same conduct under Snyder. See Snyder at ¶ 23-24. The defendant in Snyder was convicted of one count of grand theft by deception and three counts of passing bad checks. Id. at ¶ 1. In the grand-theft-by-deception count, Snyder was charged with engaging in a continuing course of criminal conduct from January 26, 2009 through March 3, 2009. Id. at ¶ 22. During that time, Snyder issued three bad checks—one on February 11, 2009 and two on
{¶13} Pursuant to a negotiated plea agreement, Shanklin pled guilty to Counts One and Four and the State dismissed Counts Two, Three, and Five. The offenses of aggravated theft and passing bad checks—as alleged in Counts One and Four of the indictment—were charged in discrete counts in the indictment, and no continuing course of conduct in relation to the two offenses was alleged. Compare Rogers at ¶ 9 with Snyder at ¶ 22, 25. In addition, unlike the defendant in Snyder, Shanklin did not issue the bad check to obtain the loan for the vehicles. Compare Snyder at ¶ 31-32 (concluding that Snyder committed grand theft by deception and passing bad checks with the same animus because Snyder issued bad checks to obtain steel studs).
{¶14} In Count One of the indictment, Shanklin was charged with having the “purpose to deprive the owner of property or services” by “knowingly obtain[ing] or extert[ing] control over the property or services by deception” “[o]n
Second, in Count Four of the indictment, it was alleged that:
“[o]n or about October 31, 2005 * * *, Shanklin with purpose to defraud, did issue or transfer or cause to be issued or transferred a check or other negotiable instrument, knowing that it would be dishonored, and the check or other negotiable instrument was issued or transferred to a single vender for the payment of five thousand dollars or more but less than one hundred thousand dollars.”
(Doc. No. 1). A discussion of the offense demonstrates how Shanklin’s actions in passing the bad check were committed separately and with separate animus to his actions as alleged in Count One of the indictment.
{¶15} “With respect to purpose or intent to defraud in passing bad check cases, financial damage is not necessary to the existence of a fraud.” State v. Bergsmark, 6th Dist. Lucas No. L-03-1137, 2004-Ohio-5753, ¶ 12, citing State v. Lowenstein, 109 Ohio St. 393, 400 (1927). See also
{¶16} On October 31, 2005, Shanklin issued a check for $20,463.73 from his account with Fifth Third Bank, which was closed by Fifth Third Bank on or about September 29, 2005. (Feb. 15, 2013 Tr. at 16); (Doc. No. 15). In the presentence investigatiоn (“PSI”) report, Shanklin stated, “Once I got too deep and spread too thin in the proposed acquisitions, my cash flow suffered dramatically. I did everything humanly possible to keep the business operating, thinking if I could just hold on things would work out. Writing a bad check just postponed the inevitable * * *.” (PSI at 4). Thus, Shanklin admitted that he issued the bad check to obtain the benefit of “postpon[ing] the inevitable.” Therefore, on October 31, 2005, Shanklin knowingly defrauded DCFS by issuing a check for $20,463.73 from a closed account knowing that it would be dishonored.
{¶17} Consequently, Shanklin’s conduct—as alleged in Counts One and Four of the indictment—was not part of a continuing course of conduct or committed with the same purpose or immediate motive. Instead, his conduct was committed separately and with a separate animus for each. Shanklin provided documents falsely inflating the value of his business to obtain the loan from
{¶18} For these reasons, Shanklin’s first assignment of error is overruled.
The trial court erred when it failed to conduct a separate hearing to determine the exact amount of restitution due the victim.
{¶19} In his second assignment of error, Shanklin argues that it was error for the trial court not to conduct a separate hearing to determine the exact amount of restitution due to the victim.
{¶20} Shanklin concedes that he did not object to the restitution ordered by the trial court. “A failurе to object to the trial court’s award of restitution waives all but plain error.” State v. Stewart, 3d Dist. Wyandot No. 16-08-11, 2008-Ohio-5823, ¶ 7, citing State v. Marbury, 104 Ohio App.3d 179, 181 (8th Dist.1995) and
{¶21}
(A) * * * Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following:
(1) Restitution by the offender to the victim of the offender’s crime or any survivor of the victim, in an amount based on the victim’s economic loss. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court, to the adult probation department that serves the county on behalf of the victim, to the clerk of courts, or to another agency designated by the court. If the court impоses restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the
victim as a direct and proximate result of the commission of the offense. If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount. All restitution payments shall be credited against any recovery of economic loss in a civil action brought by the victim or any survivor of the victim against the offender.
(Emphasis added.)
{¶22} We conclude that it was not plain error for the trial court not to conduct a hearing to determine the exact amount of restitution due to the victim or for the trial court to order Shanklin tо pay restitution in the amount of $136,626.09. State v. Wilkins, 3d Dist. Shelby No. 17-13-13, 2014-Ohio-983, ¶ 11. First, at the November 7, 2013 sentencing hearing, Shanklin’s trial counsel did not object to the amount of restitution. Since there was no dispute as to the amount of restitution, the trial court was not required to hold a hearing. Buckeye Truck & Trailer Leasing, Inc. at ¶ 26 (“By the clear language of the restitution statute, a court need only hold a hearing on the award if one of the named actors disputes the amount.”).
{¶23} Second, the trial court ordered restitution in an amount recommended by the State, which was based on DCFS’s economic loss as established by its victim-impact statement.
{¶24} In its victim-impact statement, DCFS asserted that its economic loss was based on the total contract value less the amount it was able to recapture after repossessing and reselling the vehicles. (Doc. No. 4).4 The State recommended restitution in an amount less than this. At oral argument, the State clarified that it further offset the amount of restitution requested by DCFS by deducting interest and finance charges that were built into the original contract price. Thus, not only was the amount of restitution requested by DCFS offset by its mitigation efforts in repossessing and reselling the vehicles, but the State further offset that amount to Shanklin’s benefit by deducting additional interest and finance charges built into
{¶25} We also note that Shanklin appears to argue that his $100,000 bail forfeiture should have been applied toward his restitution and court costs under
{¶26} Therefore, Shanklin’s second assignment of error is overruled.
Appellant was deprived effective assistance of counsel when counsel failed to identify for the court that the aggravated theft and passing bad check charges were allied offenses of similar import and the failure to object to the restitution amount.
{¶27} In his third assignment of error, Shanklin argues that he was deprived the effective assistance of trial counsel. In particular, Shanklin argues that his trial counsel failed to raise with the trial court that the offenses of which he was convicted were allied offenses of similar import, that his trial counsel failed to object to the amount of restitution requested by the State, and that his trial counsel failed to review the allegations in the indictment.
{¶28} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel’s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show counsel’s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel’s actions were not trial strategies prompted by reasonable professional judgment. Strickland, 466 U.S. at 687. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not
{¶29} First, Shanklin argues that his trial counsel’s performance was deficient because his trial counsel failed to raise with the trial court that the offenses of which he was convicted were allied offenses of similar import. The failure to make a motion is not per se ineffective assistance of counsel. State v. Schlosser, 3d Dist. Union No. 14-10-30, 2011-Ohio-4183, ¶ 34, citing In re Smith, 3d Dist. Hancock No. 5-01-34, 2002 WL 255126, *6 (Feb. 22, 2002). “Without proving that trial counsel was deficient for failing to make certain motions and that those motions had a reasonable probability of success, the ineffective assistance of counsel claim fails.” Id. As we determined in Shanklin’s first assignment of error, the offenses of which Shanklin was convicted were not allied offenses of similar import and, thus, not subject to merger. Accordingly, Shanklin’s argument here is without merit—that is, Shanklin cannot show that had his trial counsel raised the issue of merger with the trial court, his trial counsel’s motion would have had a reasonable probability of success.
{¶30} Next, Shanklin argues that his trial cоunsel was ineffective because he failed to object to the amount of restitution requested by the State and ordered
{¶31} Third, Shanklin argues that his trial counsel was ineffective because he failed to review the allegations in the indictment. Specifically, Shanklin asserts that his trial counsel should have reviewed whether Count One of the indictment should have been based on the contract amount or the actual value of the vehicles. However, we decline to address Shanklin’s assertion because he did not provide
{¶32} Aсcordingly, Shanklin’s third assignment of error is overruled.
Assignment of Error No. IV
The trial court erred when it imposed consecutive sentences.
{¶33} In his fourth assignment of error, Shanklin argues that the trial court erred in sentencing him to consecutive sentences. Specifically, Shanklin argues that the trial court did not make the proper findings required by
{¶34} Shanklin concedes that he did not object to the imposition of consecutive sentences at the sentencing hearing. Consequently, Shanklin’s failure tо object to the imposition of his consecutive sentences waives all but plain error on review. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 152. As we noted above, plain errors are obvious defects in the proceedings that affect substantial rights, and include the imposition of a sentence not authorized by statute. Stewart, 2008-Ohio-5823, at ¶ 7.
{¶36} Here, before imposing consecutive sentences, the trial court found that consecutive sentences were necessary to protect the public and punish Shanklin and that the sentences were not disproportionate to the seriousness of Shanklin’s conduct. (Nov. 7, 2013 Tr. at 11). Further, the trial court found that two or more of the multiple offenses Shanklin committed were so great or unusual that no single prison term for any of the offenses committed as part of any courses of conduct adequately reflected the seriousness of his conduct and that Shanklin’s history of criminal conduct—in particular, his absconsion from the jurisdiction of the court during the pendency of the case—demonstrated that consecutive sentences are necessary to protect the public from future crime. (Id.).
{¶37} The trial court incorporated these findings into its judgment entry of sentence. (Nov. 7, 2013 JE, Doc. No. 225). Therefore, because the trial court made the requisite findings before imposing consecutive sentences and
{¶38} For these reasons, Shanklin’s fourth assignment of error is overruled.
{¶39} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
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