STATE OF OHIO v. SHANE S. SNUFFER
Nos. 96480, 96481, 96482, and 96483
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 15, 2011
[Cite as State v. Snuffer, 2011-Ohio-6430.]
Criminal Appeals from the Cuyahoga County Court of Common Pleas, Case Nos. CR-536812, CR-536868, CR-538335, and CR-539285
JUDGMENT: AFFIRMED
BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.
ATTORNEY FOR APPELLANT
Kelly A. Gallagher
P.O. Box 306
Avon Lake, OH 44012
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶ 1} Defendant-appellant, Shane Snuffer, pleaded guilty in four different criminal cases to 15 counts of theft and one count of forgery. The state charged that Snuffer, the director of a company that handled the disbursement of government funds to the disabled, deposited less than the full amount of those government funds that his clients received and also withdrew money from the clients’ accounts for his own purposes. After merging some of the counts, the court sentenced Snuffer to a total term of 12 years in prison and ordered him to make restitution to the affected government agencies and victims. On appeal, Snuffer complains that the court committed plain error
I
{¶ 2} Snuffer first argues that the court committed plain error by failing to merge any of the ten counts of theft contained in CR-538335 or the theft and forgery counts contained in CR-539285.
{¶ 3} When a defendant‘s conduct results in the commission of two or more “allied” offenses of similar import, that conduct can be charged separately, but the defendant can be convicted and sentenced for only one offense.
A
{¶ 4} In CR-538335, Snuffer pleaded guilty to ten different counts of theft charged against ten different victims. “When an offense is defined in terms of conduct towards another, then there is a dissimilar import for each person affected by the conduct.” State v. Phillips (1991), 75 Ohio App.3d 785, 790, 600 N.E.2d 825, citing State v. Jones (1985), 18 Ohio St.3d 116, 118, 480 N.E.2d 408. See, also, State v. Polk, 8th Dist. No. 88639, 2007-Ohio-4436, ¶ 15. Although he may have had the single goal of
B
{¶ 5} The theft and forgery counts charged in CR-539285 were committed against the same victim. In Count 1, Snuffer pleaded guilty to theft under
{¶ 6} Courts have uniformly found that theft and forgery are not allied offenses because each offense contains elements not possessed by the other: forgery only requires a fraudulent writing, so unlike theft, it does not require that one obtain control over the property of another. State v. Marvin, 134 Ohio App.3d 63, 70, 1999-Ohio-811, 730 N.E.2d 401, citing State v. Wilson (1996), 113 Ohio App.3d 737, 746, 682 N.E.2d 5; State v. Hunter (1983), 12 Ohio App.3d 75, 78, 466 N.E.2d 183; State v. Anderson, 10th Dist. No. 08AP-1071, 2009-Ohio-6566, ¶ 37.
{¶ 7} Nevertheless, Johnson no longer requires us to slavishly compare the elements of each offense, but rather to determine “whether it is possible to commit one offense and commit the other with the same conduct[.]” Id., 128 Ohio St.3d at ¶ 48. The forgery count charged Snuffer with forging the victim‘s signature on a bank account
{¶ 8} Snuffer might plausibly argue that he used the forged withdrawal slip to facilitate the theft of money from the victim‘s bank account so that the forgery was in essence the act of theft. But Snuffer does not make this argument. Instead, he states only that “[t]he record of Snuffer‘s plea does not contain the necessary details as to the time and circumstances of the various criminal acts from which to make a determination [as to whether offenses are allied].” Appellant‘s Brief at 9.
{¶ 9} Snuffer did not object to his sentence, so we review for plain error. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. Plain error exists only when it is obvious on the record. See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Snuffer pleaded guilty to the indictment, thus admitting the facts as charged in the indictment and obviating the need for any factual basis for the plea. State v. Kent (1980), 68 Ohio App.2d 151, 156, 428 N.E.2d 453. As he concedes, he offered no other facts at sentencing, so the record on appeal is such that we cannot say that plain error in failing to merge the sentences was “obvious.”
{¶ 10} We are aware that in State v. Masters, 8th Dist. No. 95120, 2011-Ohio-937, a panel of this court cited to Underwood for the proposition that the “trial court should have inquired into the facts when accepting Masters‘s plea to all charges in order to determine whether any of the offenses were allied.” Id. at ¶ 9. The holding that the court must inquire into the facts during a plea hearing cannot be reconciled with Crim.R.
{¶ 11} For the foregoing reasons, we find that Snuffer failed to offer any evidence to make an obvious case for plain error in the court‘s failure to merge the theft and forgery counts in CR-539285. The first assignment of error is overruled.
II
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas 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 execution of sentence.
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR