State v. Delaney

2025 Ohio 16

• Court: Ohio Court of Appeals
• Decided: January 2, 2025
• Docket: 24COA019
• Status: Published

Opinion

[Cite as State v. Delaney, 2025-Ohio-16.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : Case No. 24COA019 : ASHLEY DELANEY : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 23-CRI- 339

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: January 2, 2025

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

ANDRES R. PEREZ CHRISTOPHER BAZELEY 110 COTTAGE STREET, 3RD FLOOR 9200 MONTGOMERY ROAD, SUITE 8A ASHLAND, OHIO 44805 CINCINNATI, OHIO 45242 Ashland County, Case No. 24COA019 2

Delaney, P.J.

{¶1} Appellant Ashley Delaney appeals from the April 16, 2024 Entry of

conviction and sentence of the Ashland County Court of Common Pleas. Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case originated in October 2022 when appellant drafted a letter, forged

the signature of one Kimberly Eberhart (nka Cook), and submitted it to the Ohio

Department of Job and Family Services. In the letter, Eberhart stated that she has

sufficient financial assets which ultimately caused her to be disqualified from receiving

her state medical benefits. Appellant is the girlfriend of Eberhart’s ex-husband. The letter

was apparently written out of spite and caused Eberhart to temporarily lose benefits

during a period of time when Eberhart had a surgery scheduled causing it be delayed.

Eberhart’s two minor children also lost benefits.

{¶3} Eberhart reported the incident to the Ashland County Police Department

and an investigation was conducted by the police.

{¶4} Ultimately Appellant entered pleas of guilty to one count of Forgery, a felony

of the fifth degree pursuant to R.C. 2913.31(A)(1) and 2913.31(C)(1)(b) (Count 1); one

court of Identity Fraud, a felony of the fifth degree pursuant to R.C. 2913.49(B)(2) and

2913.49(I)(2) (Count 2); and Attempted Tampering with Evidence, a felony of the fourth

degree pursuant to R.C. 2923.02, 2913.42(A)(1) and 2913.42(B)(4) (Count 3).

{¶5} Appellant was sentenced to 120 days of local incarceration on each count

to be served concurrently. Ashland County, Case No. 24COA019 3

{¶6} Appellant now appeals from the trial court’s sentencing entry of April 16,

2024.

{¶7} Appellant raises two assignments of error.

ASSIGNMENTS OF ERROR

I

{¶8} “THE TRIAL COURT ABUSED ITS DISCRECTION WHEN IT IMPOSED A

CONDITION OF COMMUNITY CONTROL THAT DELANEY HAVE NO CONTACT WITH

THE CHILDREN.

II

{¶9} “THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE DELANEY’S

CONVICTIONS FOR SENTENCING PURPOSES.”

ANALYSIS

l

{¶10} On October 15, 2024, Appellant filed a motion to withdraw the first

assignment of error. This Court granted the motion and we will only address the second

assignment of error.

{¶11} Appellant claims the trial court erred in failing to make a determination on

the issue of allied offenses. Appellant concedes she did not raise the issue of merger

before the trial court.

{¶12} An accused’s failure to raise the issue of allied offenses of similar import in

the trial court forfeits all but plain error, and a forfeited error is not reversible unless it

affected the outcome of the proceedings and a reversal is necessary to correct a manifest Ashland County, Case No. 24COA019 4

miscarriage of justice. State v. Dickinson, Jr., 2024-Ohio-1487, ¶23. Accordingly, an

accused has the burden to demonstrate a reasonable probability the convictions are for

allied offenses of similar import committed with the same conduct and without a separate

animus. Id. Absent such a showing, the accused cannot demonstrate the trial court’s

failure to inquire whether the convictions merge for purposes of sentencing are plain error.

Id.

{¶13} R.C. 2941.25 governs multiple counts and states:

(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.

{¶14} The application of R.C. 2941.25 requires a review of the subjective facts of

the case in addition to the elements of the offense charged. State v. Hughes, 2016-Ohio-

880. The Supreme Court has directed that we ask three questions to determine whether

a 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 questions will Ashland County, Case No. 24COA019 5

permit separate convictions. “The conduct, the animus, and the import must all be

considered.” State v. Ruff, 2015-Ohio-995. The evidence at trial or during a plea or

sentencing hearing will reveal whether the offenses have similar import. Id. at ¶26. 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 of multiple counts.

{¶15} Appellant argues on appeal that Counts I (Forgery), II (Identity Fraud) and

Count III (Attempted Tampering With Records) should have merged for purposes of

sentencing because the offenses were committed with a single act – drafting a letter,

forging Eberhart’s signature and submitting it the Ohio Department or Family Services,

and a single animus – to defraud Eberhart out her state benefits. Appellee contends

Appellant committed three different acts: (1) drafting a false letter (Forgery), (2) writing

Eberhart’s signature (Identity Fraud); and (3) submitting said fraudulent letter with

Eberhart’s signature to a government agency (Attempted Tampering With Records).

Appellee further contends there are two victims, Eberhart and the Ohio Department of

Family Services, therefore the offenses do not merge.

{¶16} The record before us consists of the indictment and transcripts of the

arraignment, bond, plea and sentencing hearings. In addition, the record has been

supplemented with the Presentence Investigation and the Victim Impact Statements, filed

under seal.

{¶17} Here, the record supports the Appellee’s position the counts do not merge

because the act of writing a false statement, the act of a writing another person’s signature

and then the act of sending the letter to a government agency are separate and distinct. Ashland County, Case No. 24COA019 6

In addition, there is no dispute there are two victims in this case, Eberhart – who lost her

benefits and suffered from Appellant’s actions, and the Department of Family and Job

Services – who acted upon receiving the letter and then had to conduct an official

investigation into the matter once it was notified the letter was false. In fact, the Appellant

pled guilty to an enhanced tampering with records charge under R.C. 2913.42 (B)(4)

because the letter was “kept by or belonged to a local, state or federal governmental

entity”.

{¶18} Upon our de novo review, the trial court was not required to merge the

offenses and the record does not reflect plain error.

CONCLUSION

{¶19} Based on the foregoing, appellant’s second assignment of error is

overruled. The April 16, 2024 judgment of the Ashland County Court of Common Pleas

is affirmed.

By: Delaney, P.J.,

Gwin, J. and

Wise, J., concur.