State v. Shanklin , 2014 Ohio 5624 ( 2014 )

[Cite as State v. Shanklin, 2014-Ohio-5624.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-13-23
v.
GEORGE A. SHANKLIN, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 08-CR-0103
Judgment Affirmed
Date of Decision: December 22, 2014
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips and Thayne D. Gray for Appellee
Case No. 14-13-23
PRESTON, J.
{¶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 R.C.
2913.02(A)(3), (B)(2), a second-degree felony;1 Count Two of passing bad checks
in violation of R.C. 2913.11(B), (F), a fifth-degree felony; Count Three of passing
bad checks in violation of R.C. 2913.11(B), (F), a fourth-degree felony; Count
Four of passing bad checks in violation of R.C. 2913.11(B), (F), a fourth-degree
felony; and Count Five of engaging in a pattern of corrupt activity in violation of
R.C. 2923.32(A)(1), a second-degree felony.2 (Doc. No. 1). After Shanklin was
indicted, a warrant was issued for his arrest and bond was set at $50,000 cash or
surety. (Doc. Nos. 2, 3, 5).
{¶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
1
Due to a change in the statute, the parties in the plea agreement stated, “[W]ith the change in law HB 86,
this offense of Aggravated Theft is now a felony of the third degree with the value of the property or
services stolen is one hundred fifty thousand dollars or more and is less than seven hundred fifty thousand
dollars.” (Doc. No. 209). See also Am.Sub.H.B. 86, 2011 Ohio Laws 29.
2
The charge was amended to a first-degree felony on February 15, 2013. (Feb. 15. 2013 Tr. at 4).
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company”) as the surety. (Doc. No. 10). An extradition waiver was also filed.
(Doc. No. 11).
{¶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
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times at Shanklin’s request so he could arrange payment of restitution, court costs,
and fees, the trial court sentenced Shanklin on November 7, 2013 to 30 months
imprisonment as to Count One and 17 months imprisonment as to Count Four, to
be served consecutively. (Nov. 7, 2013 JE, Doc. No. 225). The trial court granted
Shanklin 609 days of credit for time already served as of the date of his
sentencing.3 (Id.). Further, the trial court ordered Shanklin to pay $136,626.09 in
restitution and to pay for his jail time, court costs, costs of prosecution, and fees
under R.C. 2929.18. (Id.). On November 19, 2013, the trial court clarified that
Shanklin was to pay $140,763.14 in court costs, fines, and restitution. (Nov. 19,
2013 JE, Doc. No. 229).
{¶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
3
The record reflects Shanklin filed a motion on April 3, 2014 requesting an additional 62 days of jail-time
credit. (Doc. No. 249). The State filed a memorandum on April 10, 2014 in which it did not oppose
granting Shanklin an additional 62 days of jail-time credit. (Doc. No. 250). However, the record does not
reflect any judgments of the trial court granting Shanklin’s motion.
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purposes of sentencing. Specifically, Shanklin argues that because Count Five of
the indictment stated, “Between the dates of June 28, 2005 through October 31,
2005 in a continuing course of criminal conduct in the furtherance of the same
conspiracy and/or similar modus operandi * * *,” he recognized that passing bad
checks was part of a continuing course of conduct related to a loan for vehicles
that he fraudulently induced Daimler Chrysler Financial Services (“DCFS”) into
entering. As such, he argues that the two offenses for which he was convicted
should have been merged.
{¶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.
R.C. 2941.25, Ohio’s multiple-count statute, 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
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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 R.C.
2941.25, the court must first determine whether it is possible to commit both
offenses with the same conduct. State v. Johnson, 128 Ohio St. 3d 153,
2010-Ohio-6314, ¶ 48. “If the multiple offenses can be committed with the same
conduct, then the court must determine whether the offenses were committed by
the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id. at
¶ 49, quoting State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, ¶ 50
(Lanzinger, J., dissenting).
{¶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 R.C.
2941.25(B), the offenses will not merge.” (Emphasis sic.) Id. at ¶ 51. “The
Supreme Court of Ohio has defined animus as ‘purpose, or more properly,
immediate motive.’” State v. Hadding, 3d Dist. Auglaize No. 2-12-14,
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2013-Ohio-643, ¶ 14, quoting State v. Logan, 60 Ohio St. 2d 126, 131 (1979).
“‘The defendant bears the burden to prove entitlement to merger.’” State v. Love,
3d Dist. Marion No. 9-13-09, 2014-Ohio-437, ¶ 25, quoting State v. Forney, 2d
Dist. Champaign No. 2012-CA-36, 2013-Ohio-3458, ¶ 10.
{¶10} Here, Shanklin was convicted of aggravated theft, under R.C.
2913.02(A)(3), and passing bad checks, under R.C. 2913.11(B). R.C.
2913.02(A)(3) provides: “No person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either property
or services * * * [b]y deception.” R.C. 2913.11(B) provides: “No person, with
purpose to defraud, shall issue or transfer or cause to be issued or transferred a
check or other negotiable instrument, knowing that it will be dishonored or
knowing that a person has ordered or will order stop payment on the check or
other negotiable instrument.”
{¶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 services of a person who provides the property or services in
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exchange for the bad check, when the actor has the purpose of depriving the owner
of the property or services he provided.”); State v. Snyder, 12th Dist. Butler No.
CA2011-02-018, 2011-Ohio-6346, ¶ 19-20 (finding that it is possible to commit
the offenses of grand theft by deception and passing bad checks with the same
conduct). We agree and conclude that it is possible to commit the offenses of
aggravated theft in violation of R.C. 2913.02(A)(3) and passing bad checks in
violation of R.C. 2913.11(B) with the same conduct.
{¶12} Because we determined that it is possible to commit the two offenses
by engaging in the same conduct, we must determine if Shanklin committed
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
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February 18, 2009. Id. The Twelfth District Court of Appeals concluded that
Snyder’s grand-theft-by-deception and passing-bad-checks convictions were allied
offenses of similar import and subject to merger because, in part, Snyder issued
the bad checks during the continuing course of conduct alleged in the
grand-theft-by-deception count of the indictment. Id. ¶ 25, 33. However, the
decision in Snyder is inapplicable to the facts in this case for the reasons that
follow.
{¶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
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or about June 28, 2005 through August 15, 2005.” (Doc. No. 1). During that
period of time, Shanklin entered a contract valued at $598,938.00 to purchase or
lease a fleet of 13 vehicles—one Jeep Grand Cherokee, three Mercedes, and nine
Dodge Sprinter vans—to use in his dry cleaning business and, subsequently, took
possession of the 13 vehicles. (Doc. Nos. 4, 14); (Feb. 15, 2013 Tr. at 15-16). To
obtain the vehicles, Shanklin provided documents to Nelson Auto Group in
Marysville, Ohio that falsely inflated the value of his business. (Feb. 15, 2013 Tr.
at 15). Shanklin provided the false documents to Nelson Auto Group to secure
financing from DCFS to purchase or lease the vehicles. (Id.). In an interview with
the Marysville Police Department on June 7, 2006, Shanklin stated that he knew
that if he provided DCFS with accurate information, DCFS would not loan him the
money for the vehicles. (Shanklin Inter., Doc. No. 73 at 7). Thus to obtain the
loan, Shanklin falsely inflated the value of his business by altering the 2003 and
2004 financial records of his company. (Id. at 4). He also provided a false credit
questionnaire and credit application. (Feb. 15, 2013 Tr. at 15-16). Accordingly,
between June 28, 2005 and August 15, 2005, Shanklin knowingly deceived DCFS
by misrepresenting the value of his business to induce DCFS into loaning him the
money for the vehicles. See State v. Edmondson, 92 Ohio St. 3d 393, 397 (2001),
citing R.C. 2913.01(A) (defining “deception” to include “any false or misleading
representation * * * that creates, confirms, or perpetuates a false impression in
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another”). During that same period of time, Shanklin knowingly obtained control
over the vehicles with the purpose to deprive DCFS of them. Id.
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 R.C. 2913.01(B) (defining
“defraud” as “to knowingly obtain, by deception, some benefit for oneself or
another, or to knowingly cause, by deception, some detriment to another”).
“Fraud exists where the check writer gains any type of advantage as a result of his
or her actions.” Id., citing State v. Hedrick, 92 Ohio App. 3d 618, 620 (2d
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Dist.1994) and State v. Smith, 5th Dist. Stark No. 2002CA306, 2003-Ohio-2033, ¶
47. “The terms ‘advantage’ and ‘benefit’ have not been interpreted to require that
something of value be obtained as a result of the deception.” Id. at ¶ 13, citing
State v. Doane, 69 Ohio App. 3d 638, 650 (11th Dist.1990).
{¶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 investigation (“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
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DCFS. The theft offense was complete once he took possession of the vehicles
after inducing DCFS to lending the money to him based on the false information
he provided. See State v. Ballard, 8th Dist. Cuyahoga No. 98355, 2013-Ohio-373,
¶ 14. Separate from that, Shanklin intended to defraud DCFS by issuing a check
on a closed account that he knew would be dishonored. “‘Because one offense
was complete before the other offense occurred, the two offenses were committed
separately for purposes of R.C. 2941.25(B), notwithstanding their proximity in
time and that one was committed in order to commit the other.’” State v. Sludder,
3d Dist. Allen No. 1-11-69, 2012-Ohio-4014, ¶ 14, quoting State v. Turner, 2d
Dist. Montgomery No. 24421, 2011-Ohio-6714, ¶ 24. In addition, Shanklin did
not commit the offenses with the same purpose or immediate motive—that is,
Shanklin intended to deceive DCFS by misrepresenting the value of his business
to obtain a loan from DCFS for the vehicles and, later, Shanklin intended to
defraud DCFS by issuing the bad check to “postpone[] the inevitable.” See
Rogers, 2012-Ohio-4451, at ¶ 15. Therefore, we conclude that the two offenses
were committed separately and with a separate animus for each, and merger is
avoided under R.C. 2941.25(B).
{¶18} For these reasons, Shanklin’s first assignment of error is overruled.
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Assignment of Error No. II
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 failure 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 Crim.R. 52(B). “In order to have plain error under Crim.R. 52(B),
there must be an error, the error must be an ‘obvious’ defect in the trial
proceedings, and the error must have affected ‘substantial rights.’” Id., citing
State v. Barnes, 94 Ohio St. 3d 21, 27 (2002). “Plain error exists only in the event
that it can be said that ‘but for the error, the outcome of the trial would clearly
have been otherwise.’” Id., quoting State v. Biros, 78 Ohio St. 3d 426, 431 (1997).
“Plain error is to be used ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” Id., quoting
Barnes at 27. “[I]mposition of a sentence not authorized by statute constitutes
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plain error.” Id., citing State v. Rhoda, 135 Ohio App. 3d 21, 25 (3d Dist.1999)
and State v. Samuels, 4th Dist. Washington No. 03CA8, 2003-Ohio-6106, ¶ 9.
{¶21} R.C. 2929.18 governs financial sanctions that are imposed by a trial
court, and, in pertinent part, states:
(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 imposes 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
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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.) R.C. 2929.18(A)(1). The statute is clear that a trial court must
hold a hearing on restitution if the offender disputes the amount of restitution.
State v. Lamere, 3d Dist. Allen No. 1-07-11, 2007-Ohio-4930, ¶ 10. See also State
Lalain, 136 Ohio St. 3d 248, 2013-Ohio-3093, ¶ 22-23. Absent such a challenge,
the statute grants the trial court the authority to order restitution “in an amount
based on the victim’s economic loss” as established by “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.” State v. Halcomb, 3d Dist. Seneca No. 13-12-13, 2013-Ohio-1301,
¶ 31, citing R.C. 2929.18(A)(1). See also State v. Buckeye Truck & Trailer
Leasing, Inc., 187 Ohio App. 3d 309, 2010-Ohio-1699, ¶ 26 (6th Dist.). “[T]he
amount of restitution must bear a reasonable relationship to the loss suffered.”
State v. Estes, 3d Dist. Seneca No. 13-11-14, 2011-Ohio-5740, ¶ 20, quoting
Marbury, 104 Ohio App. 3d at 181. “There must be competent and credible
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evidence in the record from which the court may ascertain the amount of
restitution to a reasonable degree of certainty.” Id.
{¶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 to 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. R.C. 2929.18(A)(1) allows the trial court to base the
amount of restitution it orders “on amount recommended by the victim,” “a
presentence investigation report,” or “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.” Wilkins at ¶ 12; R.C. 2929.18(A)(1). DCFS’s victim-impact statement,
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which was also included in the PSI, asserted that its economic loss was
$243,148.17. (Doc. No. 4); (PSI). “Economic loss is defined by R.C. 2929.01(L)
as, ‘any economic detriment suffered by a victim as a direct and proximate result
of the commission of an offense and includes any loss of income due to lost time
at work because of any injury caused to the victim, and any property loss, medical
cost, or funeral expense incurred as a result of the commission of the offense.’”
Halcomb at ¶ 31, quoting R.C. 2929.01(L). “Restitution is limited to the actual
economic loss, which requires that any losses be offset by any gains.” State v.
Love, 3d Dist. Marion No. 9-13-09, 2014-Ohio-437, ¶ 57, citing State v. Clayton,
2d Dist. Montgomery No. 22937, 2009-Ohio-7040, ¶ 56.
{¶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
4
We note that the victim-impact statement reflects only 12 vehicles and does not include any value for the
Jeep Grand Cherokee. (See Doc. No. 4).
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the original contract price. Accordingly, the trial court based the amount of
restitution on “other information” recommended by the State that did not exceed
the economic loss asserted by DCFS as a direct and proximate loss of Shanklin’s
conduct. Therefore, there was competent, credible evidence that DCFS’s
economic detriment—namely, the loss in value of the vehicles less additional
interest and finance charges in the amount of $136,626.09—was directly and
proximately related to Shanklin’s offenses and bore a reasonable relationship to
the loss it suffered. Thus, the trial court did not err in ordering Shanklin to pay
restitution in the amount of $136,626.09.
{¶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
R.C. 2937.40. Specifically, Shanklin avers, “It is unclear from the record if the
court applied any of the forfeited bail money to Appellant’s restitution and other
costs, even though it had the authority to do so.” However, Shanklin’s contention
is erroneous as there were neither bail proceeds posted by Shanklin on his own
behalf nor bail proceeds remaining in his case.5 See R.C. 2937.40(A)-(C). See
also R.C. 2937.35; R.C. 2937.36.
{¶26} Therefore, Shanklin’s second assignment of error is overruled.
5
Shanklin did not appeal from the trial court’s judgment entries of July 23, 2010, February 22, 2011, and
February 23, 2012 declaring his bail forfeited, executing judgment against the bond company, and
distributing the forfeited proceeds. (See July 23, 2010 JE, Doc. No. 144); (Feb. 22, 2011 JE, Doc. No.
150); (Feb. 23, 2012 JE, Doc. No. 153). See also App.R. 3(A); App.R. 4(A).
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Assignment of Error No. III
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
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generally constitute ineffective assistance. State v. Carter, 72 Ohio St. 3d 545, 558
(1995). Rather, the errors complained of must amount to a substantial violation of
counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136,
141-42 (1989), quoting State v. Lytle, 48 Ohio St. 2d 391, 396 (1976).
{¶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 counsel was ineffective because
he failed to object to the amount of restitution requested by the State and ordered
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by the trial court. As we determined in Shanklin’s second assignment of error, the
trial court properly imposed $136,626.09 in restitution under R.C. 2929.18(A)(1).
On appeal, Shanklin has not argued that there was any additional information that
would have altered the final restitution order. Indeed, because the trial court
ordered an amount of restitution that was less than the economic loss DCFS
asserted in its victim-impact statement, it is unlikely that Shanklin would have
prevailed even if his trial counsel challenged the restitution requested by the State
and ordered by the trial court. Having no argument that would have changed the
outcome here, we are not persuaded that trial counsel was ineffective for failing to
object to the restitution requested by the State and ordered by the trial court. See
State v. Tate, 2d Dist. Montgomery No. 25386, 2013-Ohio-5167, ¶ 88 (concluding
that the defendant was not prejudiced by his trial counsel’s failure to object to the
restitution order because the restitution was properly imposed under R.C.
2929.18(A)(1) and the defendant did not provide any evidence that would have
changed the final restitution order).
{¶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
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any argument relative to how he was prejudiced or how his trial counsel was
deficient for failing to review the charges in the indictment. State v. Raber, 189
Ohio App. 3d 396, 2010-Ohio-4066, ¶ 30 (9th Dist.) (“[I]f an argument exists that
can support [an] assignment of error, it is not this [c]ourt’s duty to root it out.”).
See also App.R. 12(A)(2); App.R. 16(A)(7).
{¶32} Accordingly, 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 R.C.
2929.14(C)(4) and that it was improper for the trial court to impose consecutive
sentences because of the change in the law.
{¶34} Shanklin concedes that he did not object to the imposition of
consecutive sentences at the sentencing hearing. Consequently, Shanklin’s failure
to 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.
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{¶35} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.
{¶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
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incorporated its findings into its sentencing entry, it was not plain error for the trial
court to impose consecutive sentences.
{¶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.
/jlr
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