State v. Haddox , 2016 Ohio 3368 ( 2016 )

[Cite as State v. Haddox, 2016-Ohio-3368.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-15-017
Appellee Trial Court No. 2011-CR-309
v.
Gregory R. Haddox DECISION AND JUDGMENT
Appellant Decided: June 10, 2016
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, Mary Ann
Barylski, Chief Assistant Prosecuting Attorney, and Pamela A.
Gross, Assistant Prosecuting Attorney, for appellee.
Emil G. Gravelle III, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Gregory Haddox, appeals the January 8, 2015
judgment of the Erie County Court of Common Pleas which, following appellant’s
admission to a community control violation sentenced him to a total of 58 months of
imprisonment. For the reasons that follow we reverse, in part, and remand for
resentencing.
{¶ 2} On September 9, 2011, a 23-count indictment was filed against appellant
charging him with the predicate offense of engaging in a pattern of corrupt activities.
Specifically, appellant was indicted on 15 counts of forgery, all either fourth or fifth-
degree felonies. Appellant was also indicted for grand theft, theft of elderly persons,
possession of criminal tools, theft, and passing bad checks. The charges stemmed from
appellant’s subcontractor relationship with Yoder’s Home Improvement. On multiple
occasions, from August 2010 through July 2011, appellant, in his salesperson role to
secure roofing jobs, forged checks from multiple roofing customers and took the funds
for his personal use. Appellant fraudulently signed the checks with his employer’s name,
endorsed them with rubber stamps he had made, and deposited them in his personal
account.
{¶ 3} On May 18, 2012, appellant entered guilty pleas to a total of 11 counts.
Specifically, seven counts of forgery, one count of grand theft, one count of theft of
elderly persons (aggregated with four individuals), one count of possession of criminal
tools, and one count of theft. Appellant agreed to pay just over $100,000 in restitution
with the majority of the funds going to Yoder’s Home Improvement and small sums to
the Sandusky Register and Bennett Novelties.
{¶ 4} The sentencing hearing was held on September 20, 2012, and appellant was
sentenced to five years of community control, was ordered to pay $102,285.35 in
restitution, was ordered to have no contact with the victims, and was ordered to pay the
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costs of the proceedings. Appellant was informed at the hearing that if he violated the
terms of his community control, a 58-month sentence would be imposed.
{¶ 5} The October 1, 2012 sentencing judgment entry listed, by name, the 13
customers that appellant stole from including business owner, Mel Yoder. On
October 12, 2012, a nunc pro tunc judgment entry was entered to correct a typographical
error.
{¶ 6} At a hearing held on January 23, 2015, appellant was found to have violated
his community control and it was terminated. The sentencing judgment entry,
journalized on January 28, 2015, ordered that appellant’s 11-month sentences for Counts
2, 6, 14, 19, 20, and 23, run concurrent and that his 17-month sentences for Counts 4, 8,
10, 12, and 17 run concurrent with each other. The court then ordered that the concurrent
sentences be served consecutive to each other for a total of 28 months. Finally, the court
ordered the 28-month sentence be served consecutively to the 30-month sentence in
Count 18 for 58 months of imprisonment. This appeal followed.
{¶ 7} Appellant now sets forth six assignments of error for our review:
1. The trial court committed plain error when it failed to aggregate
offenses pursuant to R.C. 2913.61(C).
2. The trial court committed plain error by failing to merge allied
offenses of similar import pursuant to R.C. 2941.25.
3.
3. The trial court erred when it failed to reduce Mr. Haddox’s
penalties and punishments pursuant to changes made by the enactment of
H.B. 86.
4. The acts and omissions of trial counsel deprived appellant of his
right to effective assistance of counsel in violation of his rights under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution
and Article I, Section 10 and Section 16 of the Ohio Constitution.
5. The trial court erred in sentencing Mr. Haddox to serve
consecutive sentences in violation of R.C. 2929.14(C)(4).
6. The trial court erred when it failed to provide Mr. Haddox with
the proper notification pursuant to R.C. 2947.23(A).
{¶ 8} In appellant’s first assignment of error, he contends that the court committed
plain error in failing to aggregate the grand theft and theft of elderly persons offenses and
all of the forgery offenses. We initially note that because appellant did not raise the
aggregate offense issue in the lower court, our review is limited to plain error. State v.
Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978); Crim.R. 52(B). To prevail under a plain
error analysis, an appellant bears the burden of demonstrating that the outcome of the
trial clearly would have been different but for the error. Id. at paragraph two of the
syllabus. Notice of plain error “is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph
three of the syllabus.
4.
{¶ 9} R.C. 2913.61(C) provides, in relevant part:
(1) When a series of offenses under section 2913.02 of the Revised
Code, or a series of violations of, attempts to commit a violation of,
conspiracies to violate, or complicity in violations of division (A)(1) of
section 1716.14, section 2913.02, 2913.03, or 2913.04, division (B)(1) or
(2) of section 2913.21, or section 2913.31 or 2913.43 of the Revised Code
involving a victim who is an elderly person or disabled adult, is committed
by the offender in the offender’s same employment, capacity, or
relationship to another, all of those offenses shall be tried as a single
offense. * * *. The value of the property or services involved in the series
of offenses for the purpose of determining the value as required by division
(A) of this section is the aggregate value of all property and services
involved in all offenses in the series.
(2) If an offender commits a series of offenses under section 2913.02
of the Revised Code that involves a common course of conduct to defraud
multiple victims, all of the offenses may be tried as a single offense. If an
offender is being tried for the commission of a series of violations of,
attempts to commit a violation of, conspiracies to violate, or complicity in
violations of division (A)(1) of section 1716.14, section 2913.02, 2913.03,
or 2913.04, division (B)(1) or (2) of section 2913.21, or section 2913.31 or
2913.43 of the Revised Code, whether committed against one victim or
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more than one victim, involving a victim who is an elderly person or
disabled adult, pursuant to a scheme or course of conduct, all of those
offenses may be tried as a single offense. * * *. If the offenses are tried as
a single offense, the value of the property or services involved for the
purpose of determining the value as required by division (A) of this section
is the aggregate value of all property and services involved in all of the
offenses in the course of conduct.
{¶ 10} Appellant contends that under R.C. 2913.61(C)(1), the grand theft and theft
of an elderly person counts should have been aggregated into a single offense because
there was only one victim, Yoder’s Home Improvement. Based on this reasoning,
appellant further argues that all 15 forgery offenses, because they were committed in the
same employment, were required to be aggregated. Conversely, the state contends that
R.C. 2913.61(C)(2), rather than (C)(1) applies because there were multiple victims and,
thus, aggregation of the counts was permissive.
{¶ 11} In support of his argument, appellant relies on a case where the defendant
defrauded a single individual, her grandfather, and the court determined that R.C.
2913.61(C)(1), requiring aggregation, applied. State v. Gibson, 2d Dist. Champaign No.
2013-CA-11, 2014-Ohio-136. Similarly, in State v. Preztak, 181 Ohio App. 3d 106,
2009-Ohio-621, 907 N.E.2d 1254 (8th Dist.), the defendant, employed as a payroll
administrator, issued herself additional payroll checks. The court concluded that because
there was only one victim, the employer, the theft counts were required to be aggregated.
6.
Id. at ¶ 14-15. More aligned with the present facts, in State v. Crish, 3d Dist. Allen No.
1-08-13, 2008-Ohio-5196, the defendant, an agent for a title company, used customer
funds directed to go to mortgage payoffs for her personal use. The loss was borne by the
company. The court concluded that the theft offenses against “various investors” (as
described in the indictment) were committed against one victim and that the offenses
were required to be aggregated. Id. at ¶ 32.
{¶ 12} Distinguishable from the above cases but related to the present facts, in
State v. Rodriguez, 8th Dist. Cuyahoga No. 89198, 2007-Ohio-6835, the defendant used a
forged social security card to obtain 17 motor vehicle titles. The court concluded that
each offense was committed when appellant made the application for a title. Id. at ¶ 25.
{¶ 13} Looking at Crish and Rodriguez, we note that unlike Crish, appellant had
face-to-face dealings with Yoder customers, individually named in the indictment, who
appellant forged signatures on each of their personal checks. Further, appellant’s 2012
sentence specifically prohibited contact with each of the named individuals. Thus,
similar to Rodriquez, each act of theft was committed when appellant deceived the
individual customer, forged the check and deposited it into his account.
{¶ 14} Accordingly, because we conclude that there were multiple victims,
aggregation of the offenses was not mandatory. Appellant’s first assignment of error is
not well-taken.
{¶ 15} In appellant’s second assignment of error he argues that the trial court erred
by failing to merge allied offenses of similar import at sentencing. As with the aggregate
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offenses argument, appellant failed to raise the issue in the trial court. The failure to raise
the allied offenses issue waives all but plain error on appeal. State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.
{¶ 16} The allied offense statute, R.C. 2941.25, provides:
(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.
{¶ 17} In State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Supreme Court of Ohio clarified how courts are to determine whether offenses are allied.
The court noted that the allied-offenses analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant’s conduct. Id. at ¶ 26. However, conduct
is but one factor to consider when determining whether offenses are allied. Id. at ¶ 21.
The court stated:
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must
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ask three questions when defendant’s conduct supports multiple offenses:
(1) Were the offenses dissimilar in import or significance? (2) Were they
committed separately? and (3) Were they committed with separate animus
or motivation? An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import must all be
considered. Id. at ¶ 31.
{¶ 18} The court further explained that offenses are of dissimilar import “if they
are not alike in their significance and their resulting harm.” Id. at ¶ 21. Thus, “two or
more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the
defendant’s conduct constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.” Id. at ¶ 26. The evidence at trial
or during a plea or sentencing hearing will reveal whether the offenses have similar
import. Id.
{¶ 19} Appellant argues that at sentencing, the forgery convictions should have
merged into the corresponding theft offenses. Appellant argues that the theft by
deception was committed by forging Mr. Yoder’s name on the checks to deposit them.
Thus, the offenses were committed by the same conduct for each check. Further, as in
appellant’s first assignment of error he contends that the victim, Yoder, was the same for
each check.
{¶ 20} We first note that based upon our prior finding that there were multiple
victims, we reject appellant’s related arguments. As to the offenses of theft by deception
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and forgery, this court has observed that “a single course of conduct may entail multiple
criminal acts.” State v. Russell, 6th Dist. Lucas Nos. L-15-1002, L-15-1003, 2015-Ohio-
2802, ¶ 19, citing State v. Smith, 11th Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076,
¶ 26.
{¶ 21} Reviewing the present facts, we similarly find that the checks involved in
Counts 2, 4, 6, 8, 12, and 14 involved separate individuals, for separate amounts, on
separate days. Count 18, theft of elderly persons, is a distinct offense and appellant has
not demonstrated plain error in the court’s failure to merge the conviction.
{¶ 22} Appellant further contends that the possession of criminal tools conviction
should merge with the theft convictions. Specifically, appellant contends that the rubber
stamps were used to facilitate the offenses and, thus, occurred together with the forgery
and theft offenses. Conversely, the state argues that the record alludes to multiple rubber
stamps and that some of them may not have been used to facilitate these specific charges.
{¶ 23} Reviewing the record before us, we agree that there are references to
multiple stamps, with various names and banking institutions found in appellant’s
possession. Thus, we find that the trial court did not commit plain error in failing to find
that the criminal tools offense was an allied offense of similar import. Appellant’s
second assignment of error is not well-taken.
{¶ 24} In his third assignment of error, appellant contends that the trial court erred
in failing to reduce his penalties and punishments for multiple fourth-degree felonies due
to the 2011 enactment of H.B. 86 which, inter alia, increased values for determining the
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level of theft offenses. Specifically, appellant contends that forgery Counts 4, 8, and 10,
which had loss values below $7,500, should be amended to fifth, rather than fourth-
degree felonies. Further, appellant argues that because Count 23, also a theft count,
failed to have any monetary amount listed, it should be designated as a first-degree
misdemeanor.
{¶ 25} H.B. 86, effective September 30, 2011, reduced the classification of theft-
related felonies. Under the former version of the statute, a fourth-degree felony offense
occurred when the value of the loss was between $5,000 and $100,000. Under the
amended statute, the monetary range was raised to $7,500 to $150,000. The Supreme
Court of Ohio has held, and the state concedes, that because the effective date of the
statute was prior to appellant’s sentencing, he was entitled to a reduction in the offense
classification. See State v. Taylor, 138 Ohio St. 3d 194, 2014-Ohio-460, 5 N.E.3d 612,
accord State v. Cornett, 6th Dist. Wood No. WD-13-024, 2014-Ohio-1988. Accordingly,
plain error occurred and appellant must be resentenced for his convictions under Counts
4, 8, and 10.
{¶ 26} As to Count 23, we find that appellant was properly convicted of theft as
the corresponding charge of passing bad checks listed the monetary amount as $1,561.
Further at the plea hearing appellant was informed that the restitution amount to Bennett
Novelties was $1,561.
11.
{¶ 27} Based on the forgoing, we find that appellant’s third assignment of error is
well-taken, in part, and that appellant be resentenced for his convictions under Counts 4,
8, and 10.
{¶ 28} Appellant’s fourth assignment of error contends that he was deprived of his
constitutional right to effective trial counsel. To prevail on a claim of ineffective
assistance of counsel, a defendant must prove two elements: “First, the defendant must
show that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Proof of prejudice requires a showing “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694; State v. Bradley, 42 Ohio St. 3d 136,
538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶ 29} As it relates to convictions based upon guilty pleas, the prejudice element
generally requires a showing “that there is a reasonable probability that, but for counsel’s
errors * * * [the defendant] * * * would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203
(1985); State v. Xie, 62 Ohio St.3d 521,524, 584 N.E.2d 715 (1992).
{¶ 30} Reviewing our analyses of the preceding three assignments of error, we
cannot say that appellant’s counsel was ineffective by failing to raise various legal issues.
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First, we rejected both the aggregation and allied offense arguments. Next, regarding the
H.B. 86 issue, as the state notes the law was not settled until the Supreme Court of Ohio’s
decision in Taylor, 138 Ohio St. 3d 194, 2014-Ohio-460, 5 N.E.3d 612 (resolving a
conflict between the Ninth and Fifth Appellate Districts). Finally, despite being indicted
on 23 felony counts, appellant’s counsel was able to secure a plea agreement and he was
initially sentenced to community control. Based on these facts, we find appellant’s fourth
assignment of error not well-taken.
{¶ 31} In appellant’s fifth assignment of error he argues that the trial court erred in
sentencing him to consecutive sentences where he was not provided with the notification
required under R.C. 2929.14(C)(4). Specifically, appellant contends that the sentence is
contrary to law because the court at appellant’s initial 2012 sentencing stated that it
would impose consecutive sentences if appellant violated community control, but failed
to explain why a consecutive sentence would be imposed for a community control
violation. Conversely, the state asserts that the necessary findings were, in fact, made at
the January 23, 2015 sentencing hearing and further reflected in the January 28, 2015
judgment entry.
{¶ 32} We review consecutive sentences under the standard of review set forth in
R.C. 2953.08. State v. Banks, 6th Dist. Lucas No L-13-1095, 2014-Ohio-1000, ¶ 10.
Under R.C. 2953.08(G)(2), we may increase, reduce, or modify a sentence, or vacate the
sentence and remand that matter to the sentencing court for resentencing, if we clearly
and convincingly find that either the record does not support the trial court’s findings
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under R.C. 2929.14(C)(4), or the sentence is otherwise contrary to law. This same
standard applies on review of the imposition of consecutive sentences following a
community control revocation hearing. State v. Steck, 6th Dist. Wood Nos. WD-13-017,
WD-13-018, 2014-Ohio-3623.
{¶ 33} R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
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(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 34} In State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
syllabus, the Supreme Court of Ohio clarified the responsibilities of a trial court when
imposing consecutive sentences:
In order to impose consecutive terms of imprisonment, a trial court
is required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry, but
it has no obligation to state reasons to support its findings.
{¶ 35} The court further explained:
[A] word-for-word recitation of the language of the statute is not
required, and as long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains
evidence to support the findings, consecutive sentences should be upheld.
Id. at ¶ 29.
{¶ 36} At the January 23, 2015 sentencing hearing, a lengthy discussion was had
regarding appellant’s criminal activities which resulted in his community control
violation. The court then stated that it was terminating appellant’s community control
and imposing a 58-month prison sentence, a 28-month sentence consecutive to a 30-
month sentence and also consecutive to any prison terms appellant was currently serving.
15.
The court stated that “consecutive sentences are necessary because the sentence is
proportionate to the seriousness of the Defendant’s conduct, and the danger of future
crimes, and the danger the Defendant poses to the public, and his history of criminal
conduct.”
{¶ 37} Appellant contends that the above recitation was insufficient because the
court had predetermined at appellant’s 2012 sentencing hearing that if appellant violated
community control he would receive a consecutive sentence. We disagree. As noted by
the state and conceded by appellant, the consecutive sentence was not imposed until
January 28, 2015. At the sentencing hearing, the trial court properly found that
consecutive sentences were warranted under R.C. 2929.14(C)(4)(c). Appellant’s fifth
assignment of error is not well-taken.
{¶ 38} In appellant’s sixth and final assignment of error he argues that the court
erred when it failed to provide notice under R.C. 2947.23(A) that community service
could be imposed. The version of R.C. 2947.23(A) in effect when appellant was
sentenced to prison provides, in part:
(A)(1)(a) In all criminal cases, including violations of ordinances,
the judge or magistrate shall include in the sentence the costs of
prosecution, including any costs under section 2947.231 of the Revised
Code, and render a judgment against the defendant for such costs. If the
judge or magistrate imposes a community control sanction or other
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nonresidential sanction, the judge or magistrate, when imposing the
sanction, shall notify the defendant of both of the following:
(i) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule approved by the
court, the court may order the defendant to perform community service
until the judgment is paid or until the court is satisfied that the defendant is
in compliance with the approved payment schedule.
(ii) If the court orders the defendant to perform the community
service, the defendant will receive credit upon the judgment at the specified
hourly credit rate per hour of community service performed, and each hour
of community service performed will reduce the judgment by that amount.
(b) The failure of a judge or magistrate to notify the defendant pursuant to
division (A)(1)(a) of this section does not negate or limit the authority of
the court to order the defendant to perform community service if the
defendant fails to pay the judgment described in that division or to timely
make payments toward that judgment under an approved payment plan.
{¶ 39} Former R.C. 2947.23(A)(1)(a) provided that the trial court must notify the
defendant when imposing its sentence that he may be subject to the community service
requirement. See R.C. 2947.23(A)(1)(a), effective September 28, 2012. That subsection
was revised effective March 22, 2013, as set forth above, to require that the court advise
the defendant of the community service notification only when it imposes either a
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community control sanction or other nonresidential sanction. State v. Lewis, 9th Dist.
Summit No. 27222, 2014-Ohio-4559, ¶ 28. That the court did so when it advised
appellant in the judgment entry that his failure to pay court costs could result in the
imposition of community service, does not amount to error. State v. Tunison, 6th Dist.
Wood No. WD-13-046, 2014-Ohio-2692, ¶ 9. Accordingly, we find that appellant’s sixth
assignment of error is not well-taken.
{¶ 40} On consideration whereof, we find that appellant was prejudiced and
prevented from having a fair proceeding and the trial court’s January 28, 2015 judgment
is reversed and the matter is remanded for resentencing in accordance with this decision.
Pursuant to App.R. 24, appellee is ordered to pay the costs of this appeal.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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