State v. Atchison ( 2018 )

[Cite as State v. Atchison, 2018-Ohio-2419.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-76
:
v. : Trial Court Case No. 2017-CR-413
:
ROBIN ATCHISON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 22nd day of June, 2018.
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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 W. Second Street, Suite 1717, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Robin Atchison pled guilty in the Clark County Common Pleas Court to a Bill
of Information charging a single count of forgery, in violation of R.C. 2913.31(A)(2), a
felony in the fourth degree. After a presentence investigation, the trial court sentenced
Atchison to 15 months in prison, and she was ordered to pay $28,810.33 in restitution.
Atchison appeals from her conviction, challenging her sentence.
I. Facts and Procedural History
{¶ 2} The prosecutor’s summary attached to the presentence investigation (“PSI”)
reveals the following facts:
{¶ 3} On March 24, 2014, Heartland Federal Credit Union (“Heartland”) received
notice that it had incurred losses of $7,984 from four counterfeit cashier’s checks, which
were written to individuals in Arizona, Virginia, California and Florida. Heartland later
learned that 444 counterfeit checks were presented for payment throughout the United
States, which totaled $1,030,735.14. Locally, Heartland incurred a loss of $21,972 from
the counterfeit checks that were cleared.
{¶ 4} An investigation by Heartland led to Atchison, who had opened an account
and obtained a legitimate cashier’s check. The history of Atchison’s conduct revealed that
she would purchase cashier’s checks and, subsequently, counterfeit checks would be
presented by “secret shoppers” to be cleared at Heartland.
{¶ 5} On November 14, 2014, Heartland filed a police report with the German
Township Police Department, which requested assistance from the Ohio Bureau of
Criminal Investigation (“BCI”).
{¶ 6} Atchison stated to BCI Special Agent Cooper and German Township Police
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Officer Barga that she had lost her primary source of employment, so she searched for a
new job where she could work from home. She found an internet company and was hired
to work with a contact, whom she knew as “Gary.” This work-from-home job required her
to go to local banks and obtain cashier’s checks (in a nominal amount) from those banks.
She would then scan those legitimate checks and email the scanned copies to “Gary”,
who would send templates of the checks (in a much larger amount) back to Atchison
along with names and addresses of people to whom Atchison was instructed to send
them. Atchison would then print the checks onto watermark check stock that she
purchased from a local supply store. Finally, Atchison would send the forged checks to
the names provided to her by “Gary” along with a letter offering a potential “secret
shopper” opportunity to the recipients.
{¶ 7} This “secret shopper” opportunity involved individuals who responded to an
advertisement to participate in a job where they would receive an agreed amount of
money for evaluating various retail establishments. The secret shoppers received checks
that, unbeknownst to them, were counterfeit. The secret shoppers were to deposit the
checks in their personal bank accounts. Once deposited, the secret shoppers would then
withdraw a predetermined amount of money for their services and send the remainder of
the money to a third party through Western Union. Eventually, when the counterfeit
checks would be returned, the secret shoppers’ personal accounts would be debited for
the returned bad check, and they would incur a loss for the money that was forwarded
through Western Union. The exceptions to this would be when Heartland failed to timely
return the checks or when the checks were cashed.
{¶ 8} Atchison mailed approximately 90 checks a day, four days per week, to
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recipients beginning in January 2014. Each check had an amount of at least $2,000. She
initially received $450 every week from “Gary,” which increased to $600, and which she
obtained through Western Union. The sender of the payment was always different,
according to Atchison. According to the PSI and its attachments, a subpoena was issued
for Western Union transfers, which indicated that Atchison received money by wire
transfer from various places, including Turkey and the Philippines. Overall, Atchison
received $10,349.99 by Western Union wire transfers from February 21, 2014 through
February 26, 2015.
{¶ 9} Atchison stated to the investigators that she was aware that her conduct was
“probably illegal.” “Gary” told Atchison that her work was legal, but Atchison told “Gary”
that she wanted to stop working for the internet company. Atchison stated that “Gary” sent
her a picture of the front of her house and threatened to hurt her and her family if she quit
the job or told anyone about her involvement in the scheme.
{¶ 10} Atchison’s computer was imaged and analyzed in BCI’s Cyber Crimes
Section, which revealed a conversation between Atchison and “Gary” where “Gary”
questioned Atchison about her interaction with the police. A scanned copy of a two dollar
cashier’s check from Huntington National Bank was also located on Atchison’s computer.
{¶ 11} Atchison reached a plea agreement with the State and pled guilty to a single
count of forgery, a felony of the fourth degree, related to her conduct. In exchange for the
plea, the State agreed that a PSI would be prepared and considered before sentencing.
{¶ 12} The PSI indicated that Atchison was 49 years old, divorced, and had no
prior adult or juvenile criminal record. It indicated that she had three adult children and
that her Ohio Risk Assessment Score was low. It also stated that Atchison was raised by
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her parents; there were no reports of physical or sexual abuse, and no environment of
drug or alcohol abuse.
{¶ 13} As discussed above, the trial court sentenced Atchison to 15 months in
prison.
{¶ 14} Atchison raises two assignments of error on appeal.
{¶ 15} Atchison’s first assignment of error is that “Appellant’s sentence is contrary
to law because the Court did not adequately follow the requisite statutory procedures prior
to imposing sentence upon appellant.”
{¶ 16} Atchison’s second assignment of error is that “Appellant’s sentence is
contrary to law because it is excessive, an unnecessary burden on government
resources, and the Court did not adequately follow the requisite statutory procedures prior
to imposing sentence upon appellant.”
II. Standard of Review
{¶ 17} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
only if it “clearly and convincingly” finds either (1) that the record does not support certain
specified findings or (2) that the sentence imposed is contrary to law.
III. Sentencing
{¶ 18} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
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Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App. 3d 500,
2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio St. 3d
54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 19} R.C. 2929.11 requires trial courts to be guided by the overriding principles
of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). The court must “consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.” Id.
{¶ 20} R.C. 2929.11(B) provides that “[a] sentence imposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony sentencing * * *,
commensurate with and not demeaning to the seriousness of the offender’s conduct and
its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” R.C. 2929.12(B) sets forth nine factors indicating that an
offender’s conduct is more serious than conduct normally constituting the offense; R.C.
2929.12(C) sets forth four factors indicating that an offender’s conduct is less serious than
conduct normally constituting the offense. R.C. 2929.12(D) and (E) each lists five factors
that trial courts are to consider regarding the offender’s likelihood of committing future
crimes. Finally, R.C. 2929.12(F) requires the sentencing court to consider the offender’s
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military service record, if any.
{¶ 21} Generally, a sentence is not contrary to law when it is within the authorized
statutory range and the trial court states that it has considered the principles and purposes
of sentencing and the seriousness and recidivism factors. State v. Smith, 2d Dist.
Montgomery No. 26307, 2016-Ohio-1269, ¶ 25.
{¶ 22} Atchison contends that the court did not expressly state what it considered
when deciding the sentence, nor did the court state that it followed the purposes and
principles of sentencing set forth in R.C. 2929.11 and 2929.12.
{¶ 23} The trial court addressed the purposes and principles of sentencing in its
judgment entry by stating that it considered the “record, oral statements of counsel, the
defendant’s statements and the purposes and principles of sentencing under R.C.
2929.11.” Even though the trial court did not expressly state at sentencing what it
considered prior to sentencing, “[o]n a silent record, a trial court is presumed to have
considered the statutory purposes and principles of sentencing, and the statutory
seriousness and recidivism factors.” State v. Goldblum, 2d Dist. Montgomery No. 25851,
2014-Ohio-5068, ¶ 50.
{¶ 24} R.C. 2929.13(B)(1) provides that the trial court shall sentence offenders to
community control for nonviolent felonies of the fourth degree. However, the trial court
has discretion to impose a prison term on an offender who commits a non-violent fourth
or fifth degree felony and committed the offense “for hire or as part of an organized
criminal activity.” R.C. 2929.13(B)(1)(b)(ix). The term “organized criminal activity” is not
defined in R.C. Chapter 2929. Courts have generally considered the scope and length of
the criminal activity, whether the offense was committed spontaneously/impulsively or
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with extensive planning, the number of people involved, and the nature of the charges in
determining whether there was “an organized criminal activity.” See, e.g., State v. Orms,
10th Dist. Franklin No. 14-AP-750, 2015-Ohio-2870; State v. Coran, 2d Dist. Clark No.
2003-CA-80, 2004-Ohio-6874; State v. Miller, 4th Dist. Washington No. 07CA1, 2008-
Ohio-1059; State v. Radcliff, 10th Dist. Franklin Nos. 97APA08-1054 and 97APA08-
1056, 1998 WL 120304 (Mar. 17, 1998). When a prison sentence for a felony in the fourth
degree is permitted, the trial court is authorized to impose a sentence of, at minimum, six
months, and at maximum, eighteen months. R.C. 2929.14(A)(4).
{¶ 25} The trial court found that Atchison committed an offense for hire or as part
of an organized criminal activity. This was supported by the facts that Atchison scanned
copies of legitimate cashier’s checks, sent those checks to “Gary,” and subsequently
mailed out forged checks to numerous recipients. The Court was permitted to impose a
prison sentence on Atchison. The trial court’s 15-month sentence was within the statutory
range. Since Atchison had not previously been convicted of a felony, the trial court could
have granted community control. However, because Atchison committed a fourth degree
felony and was involved in an organized criminal activity, the trial court had the discretion
to impose a prison term. R.C. 2929.13(B)(1)(b)(ix).
{¶ 26} Atchison further contends that “[her] sentence is contrary to law because it
is excessive, an unnecessary burden on government resources, and the Court did not
adequately follow the requisite statutory procedures prior to imposing sentence upon
appellant.”
{¶ 27} A sentencing court is not required to elevate consideration of resource
burdens over the seriousness and recidivism factors of R.C. 2929.12. State v. Reeves,
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10th Dist. No. 14AP-856, 2015-Ohio-3251, ¶ 9. “Where the interests of public protection
and punishment are well served by a prison sentence, the claim is difficult to make that
the prison sentence imposes an unnecessary burden on government resources.” State v.
Bowshier, 2d Dist. Clark No. 08-CA-58, 2009-Ohio-3429, ¶ 14.
{¶ 28} Factors “indicating that the offender’s conduct is more serious than conduct
normally constituting the offense” include (1) the physical or mental injury to the victim
was exacerbated because of the physical or mental condition of the victim, (2) the victim
suffered serious physical, psychological, or economic harm as a result of the offense,
(3) the offender held a public office or position of trust in the community, and the offense
related to that office or position, (4) the offender was obliged by the nature of his
profession or occupation to prevent the offense or bring others committing it to justice,
(5) the offender’s professional reputation or occupation was used to facilitate the offense
or is likely to influence the future conduct of others, (6) the offender’s relationship with the
victim facilitated the offense, (7) the offender committed the offense for hire or as a part
of an organized criminal activity, and (8) in committing the offense, the offender was
motivated by prejudice based on race, ethnic background, gender, sexual orientation, or
religion. R.C. 2929.12(B).
{¶ 29} Factors indicating that an offender’s conduct is less serious than conduct
normally constituting the offense include (1) the victim induced or facilitated the offense,
(2) in committing the offense, the offender acted under strong provocation, (3) in
committing the offense, the offender did not cause or expect to cause physical harm to
any person or property, (4) there are substantial grounds to mitigate the offender’s
conduct, although the grounds are not enough to constitute a defense. R.C. 2929.12(C).
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{¶ 30} The trial court could have concluded that Atchison’s offense was more
serious than conduct normally constituting the offense. As previously mentioned, Atchison
committed the offense as part of an organized criminal activity. She not only provided
“Gary” with legitimate cashier’s checks over the internet, but she also mailed what she
believed to be forged checks to approximately 90 different recipients a day, four days a
week. The scheme also caused Heartland to lose $21,972 from cleared counterfeit
checks. In total, 444 counterfeit checks were presented throughout the United States and
amounted to $1,030,735.14.
{¶ 31} Although Atchison claimed that she was threatened by “Gary” in order to
continue her role in the scheme, she admitted that before she tried to quit, she knew that
her conduct was “probably illegal.”
{¶ 32} Given the record before us, we cannot conclude that the 15-month sentence
was clearly and convincingly unsupported by the record or contrary to law.
{¶ 33} Atchison’s assignments of error are overruled.
IV. Conclusion
{¶ 34} The judgment of the trial court will be affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Andrew P. Pickering
Adam J. Arnold
Hon. Douglas M. Rastatter