State v. Carter

2019 Ohio 3485

Opinion

[Cite as State v. Carter, 2019-Ohio-3485.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : OLIVIA CARTER : Case No. CT2018-0072 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0373

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 26, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX JAMES ANZELMO Prosecuting Attorney Anzelmo Law Muskingum County, Ohio 446 Howland Drive Gahanna, Ohio 43230 By: TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2018-0072 2

Baldwin, J.

{¶1} Olivia Carter appeals the two year sentence imposed by the Muskingum

County Court of Common Pleas after entering a plea of guilty to three counts of Receiving

Stolen Property (credit cards), in violation of R.C. 2913.51(A), felonies of the fifth degree;

six counts of Forgery, in violation of R.C. 2913.31(A)(2), felonies of the fifth degree; three

counts of Theft by Deception, in violation of 2913.02(A)(3), misdemeanors of the first

degree; one count of Possession of Criminal Tools, with a forfeiture specification, in

violation of R.C. 2923.24(A), a felony of the fifth degree; one count of Theft (credit card),

in violation of R.C. 2913.02(A)(1), a felony of the fifth degree; one count of Identity Theft,

in violation of R.C. 2913.49(B)(1), a felony of the fifth degree and one count of Engaging

in a Pattern of Corrupt Activity, in violation of R.C. 2923.32(A)(1), a felony of the second

degree.

{¶2} Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶3} Appellant, after being charged, admitted to the theft of the victim’s purse

from an automobile. The contents of the purse included three credit cards owned by three

different parties. One card was held by the victim in her individual name, one card was a

joint account held by the victim and her fiancé, and a medical facility was the holder of

the third credit card account. Each card was used at least once, but all were used at

different locations.

{¶4} Appellant was indicted on seventeen counts, but as a result of a plea

agreement a telecommunications charge was dismissed. The parties also addressed the

merger of certain counts in the indictment and stipulated that, for the purposes of Muskingum County, Case No. CT2018-0072 3

sentencing, Counts One, Two, Three, Four and Five should merge; the State electing to

sentence on Count One; Counts Six, Seven, Eight, Nine and Ten should merge, the State

electing to sentence on Count Six; and Counts Eleven, Twelve and Thirteen should

merge, the State electing to sentence on Count Thirteen. The parties presented this

stipulation to the trial court with a joint recommendation of a two year sentence. The trial

court accepted the stipulation, agreed to the joint recommendation, including the merger

of offenses as outlined above. The trial court sentenced Appellant to two years of

incarceration.

{¶5} Appellant filed a timely appeal and submitted two assignments of error:

{¶6} “I. THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT MERGING

CARTER'S RECEIVING STOLEN PROPERTY OFFENSES, IN VIOLATION OF THE

DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION.”

{¶7} “II. CARTER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

ANALYSIS

{¶8} Appellant’s argument cites case law that supports the conclusion that

charges of receiving stolen property arising from one transaction shall be merged, but the

precedent she cites does not address the distinctive facts of this case. The credit cards

at issue were all held by different persons, and each suffered separate, distinct harms.

Further, the parties negotiated and agreed upon a joint recommendation regarding the Muskingum County, Case No. CT2018-0072 4

sentence which specifically identified which charges were to be merged. A resolution of

this appeal requires consideration of the impact of those differences.

{¶9} Appellate review of an allied-offense question is de novo. State v. Miku, 5th

Dist. No. 2017 CA 00057, 2018-Ohio-1584, 111 N.E.3d 558, appeal not allowed, 154

Ohio St.3d 1479, 2019-Ohio-173, 114 N.E.3d 1207, citing State v. Williams, 134 Ohio

St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.

{¶10} The Supreme Court of Ohio has explained “that an accused may be

convicted and sentenced for multiple offenses when “(1) the offenses are dissimilar in

import or significance—in other words, each offense caused separate, identifiable harm ,

(2) the offenses were committed separately, or (3) the offenses were committed with

separate animus or motivation.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658,

71 N.E.3d 234, ¶ 18 quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

892, ¶ 25.

{¶11} This court has cited Ruff with approval and noted that “[o]ffenses are of

dissimilar import when a defendant's conduct “victimizes more than one person, the harm

for each person is separate and distinct, and therefore, the defendant can be convicted

on multiple counts.” State v. Montgomery, 5th Dist. Guernsey No. 18 CA 38, 2019 WL

2354946, ¶22.

{¶12} Three separate parties were harmed in this case; the victim who owned the

purse and was the sole holder of one of the credit card accounts, her fiancé, the joint

owner of a different account and the medical facility, the holder of the third credit card

account. Each credit card was used by Appellant at least once and always at a different Muskingum County, Case No. CT2018-0072 5

location. The harm for each person was separate and distinct and, therefore, the offenses

were of dissimilar import and the Appellant could be convicted on multiple counts.

{¶13} The record supports the contention that defense counsel completed the

same analysis before entering a plea agreement/joint recommendation for sentence and

receiving a sentence significantly less than the maximum that may have been imposed.

The Appellant’s plea agreement is not silent on the issue of allied offenses of similar

import, but expressly addresses the issue, making it unnecessary for the trial court to

complete an analysis of the charges under R.C. 2941.25. State v. Underwood, 124 Ohio

St.3d 365, 371, 2010–Ohio–1, 922 N.E.2d 923, as quoted in State v. Cisco, 5th Dist.

Delaware No. 13 CAA 04 0026, 2013-Ohio-5412, ¶ 24.

{¶14} During the plea hearing the prosecutor mentioned that he had “spoken with

Ms. Otto (defense counsel) beforehand about merger” to which the trial court responded

“I would assume they all merge, but you go ahead.” Thereafter the prosecutor described

the merger that had been discussed with Appellant’s trial counsel. The trial court further

inquired about the merger of the criminal tools charge with the theft offenses and both the

prosecutor and trial counsel agreed that the criminal tools charge would merge.

Thereafter the prosecutor summarized the offenses after merger “as 5F fives left, those

being on counts one, six, 11, 14 and 15 and then the count 17 is an F2. (sic)” The trial

court turned to Appellant’s trial counsel who responded “no objection, your honor” and

the court granted the merger.

{¶15} The Appellant engaged in plea negotiations, part of which included the

merger of offenses, considered and approved the merger as presented to the trial court

and now contends that the trial court was obligated to reject the terms of the plea Muskingum County, Case No. CT2018-0072 6

agreement she approved. Even if we were to assume that the trial court erred by not

merging the charges referenced by Appellant, the invited error doctrine prohibits a party

from taking advantage of an error that appellant induced the court to make and applies to

errors arising from a negotiated plea agreement. State v. Spencer, 5th Dist. Fairfield No.

14-CA-42, 2015-Ohio-3064, ¶ 28. The issue of which charges to merge was decided as

part of the negotiated plea agreement, and to allow argument that the trial court erred by

not disallowing the mergers as approved by the parties would violate the invited error

doctrine. State v. Patterson, 5th Dist. Muskingum No. CT2008-0054, 2009-Ohio-273, ¶

11. As the Supreme Court of Ohio has stated:

The law imposes upon every litigant the duty of vigilance in the trial

of a case, and even where the trial court commits an error to his prejudice,

he is required then and there to challenge the attention of the court to that

error, by excepting thereto, and upon failure of the court to correct the same

to cause his exceptions to be noted. It follows, therefore, that, for much

graver reasons, a litigant cannot be permitted, either intentionally or

unintentionally, to induce or mislead a court into the commission of an error

and then procure a reversal of the judgment for an error for which he was

actively responsible.

Lester v. Leuck (1943), 142 Ohio St. 91, 92-93, 50 N.E.2d 145, quoting State v. Kollar

(1915), 142 Ohio St. 89, 91, 49 N.E.2d 952.

{¶16} The parties in this case negotiated a plea agreement, addressed the merger

of charges within that agreement and requested the trial court’s approval of that

agreement. The trial court was prepared to merge all of the offenses, but the parties Muskingum County, Case No. CT2018-0072 7

presented a different merger plan. The prosecutor presented mergers that differed from

the trial court’s intent to merge all of the offenses and Appellant’s trial counsel expressed

that she had “no objection.” Appellant invited any error that could be attributed to a failure

to merge the offenses as Appellant now contends was proper and, for that reason, we

cannot countenance this argument.

{¶17} The first assignment of error is overruled.

{¶18} In her second assignment of error, Appellant contends that she received

ineffective assistance of counsel when her trial counsel did not object “when the trial court

decided not to merge the receiving stolen property offenses.”

{¶19} The standard of review of an ineffective assistance of counsel claim is well

established. Pursuant to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984) in order to prevail on such a claim, the appellant must

demonstrate both (1) deficient performance, and (2) resulting prejudice, i.e., errors on the

part of counsel of a nature so serious that there exists a reasonable probability that, in

the absence of those errors, the result of the trial court would have been different. State

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

{¶20} Appellant’s trial counsel entered into a plea agreement that resulted in

Appellant receiving a two year sentence for sixteen separate counts, several of which

were felonies which could have served as the basis for a more lengthy term. The plea

agreement also resulted in the dismissal of a charge of Telecommunications Fraud, a

violation of R.C. 2913.05(A) and a fifth degree felony. We have found that the trial court

did not commit error by accepting the plea agreement as submitted or, in the alternative,

we found that any error was invited. We likewise conclude that the record does not show Muskingum County, Case No. CT2018-0072 8

that counsel's performance fell below an objective standard of reasonable representation

involving a substantial violation of any of defense counsel's essential duties. Further,

Appellant submits no argument to support a conclusion that Appellant was prejudiced as

a result of her trial counsel’s alleged inaction or that the outcome would have differed had

trial counsel insisted on the merger appellant now contends was appropriate. Finally, we

find that the “failure to negotiate a different plea agreement should instead be

characterized as trial strategy that does not constitute ineffective assistance of counsel”.

State v. Eck, 10th Dist. Franklin No. 08AP-675, 2009-Ohio-1049, ¶ 19, quoting Lawuary

v. United States, 199 F.Supp.2d 866, 877 (C.D.Ill.2002).

{¶21} We hold that Appellant’s trial counsel was not ineffective and therefore

overrule the second assignment of error.

{¶22} The decision of the Muskingum County Court of Common Pleas is affirmed.

By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.