State v. Cunningham , 2017 Ohio 4069 ( 2017 )

[Cite as State v. Cunningham, 2017-Ohio-4069.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104520
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TIFFANY L. CUNNINGHAM
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-602805-A
BEFORE: Laster Mays, J., Stewart, P.J., and Jones, J.
RELEASED AND JOURNALIZED: June 1, 2017
-i-
ATTORNEYS FOR APPELLANT
Mark Stanton
Cuyahoga County Public Defender
By: Cullen Sweeney
Assistant County Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Jennifer Lynne O’Malley
Edward D. Brydle
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Avenue
Cleveland, Ohio, 44113
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, Tiffany L. Cunningham (“Cunningham”), appeals her
consecutive sentences and asks this court to vacate her sentence and remand to the trial
court for resentencing. We affirm.
{¶2} Cunningham was indicted on 40 counts of various felonies. She pleaded
guilty to Counts 2, 4, 7, 9, 12, and 14 of the indictment. Count 2 was for conspiracy, a
second-degree felony, in violation of R.C. 2923.02(A)(1). Count 4 was for theft, a
fifth-degree felony, in violation of R.C. 2913.02(A)(3). Count 7 was for money
laundering, a third-degree felony, in violation of R.C. 1315.55(A)(3). Count 9 was for
identity fraud, a fourth-degree felony, in violation of R.C. 2913.49(B)(2). Counts 12
and 14 were for forgery, fifth-degree felonies, in violation of R.C. 2913.31(A)(3). The
trial court sentenced Cunningham to prison for three years on Count 2, six months on
Count 4, 12 months on Count 7, nine months on Count 9, six months on Count 12, and six
months on Count 14, to be served consecutively for a total of six years and three months.
Cunningham was also ordered to pay $254,687.81 in restitution.
I. Facts
{¶3} Cunningham, along with her coconspirators, defrauded the retail chain stores
of TJ Maxx across seven states over a period of four years. The scheme included the
purchase of several items, mostly over $50.00, and one or two items that were less than
$50.00. Immediately after purchasing the items, Cunningham would return most of the
items over $50.00. Because she did not return all of the items, she was able to retain the
original receipt. Cunningham would then take the original receipt to other TJ Maxx
stores in surrounding areas and repeat the return process with duplicate items that she
either stole or cheaper merchandise that she sewed on labels. Cunningham would
complete the returns all in one day before midnight so that the online system could not
track the multiple returns.
{¶4} Cunningham signed all refund slips with a different name, and was able to
defraud TJ Maxx out of $254,687.81. Cunningham was arrested in January 2016, and
charged with 40 counts of conspiracy, theft, money laundering, identity fraud, and
forgery. She pleaded guilty to 6 of the 40 counts and was sentenced to 6 years and 3
months imprisonment, to be served consecutively. The state and defense counsel agreed
that none of the offenses were allied offenses. As a result of the agreement,
Cunningham has filed this timely appeal assigning one error for our review:
I. The trial court erred by not merging allied offenses of similar import
for the purpose of sentencing.
II. Allied Offenses
A. Standard of Review
{¶5} “An appellate court applies a de novo standard of review when reviewing
whether two offenses are allied offenses of similar import.” State v. Boczek, 8th Dist.
Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 4.
B. Law and Analysis
{¶6} In Cunningham’s sole assignment of error, she argues that the trial court erred
by not merging Counts 4 and 12 for the purpose of sentencing.
When the defendant’s conduct constitutes a single offense, the defendant
may be convicted and punished only for that offense. When the conduct
supports more than one offense, however, a court must conduct an analysis
of allied offenses of similar import to determine whether the offenses merge
or whether the defendant may be convicted of separate offenses. R.C.
2941.25(B).
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 24.
{¶7} When determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25,
[C]ourts must ask three questions when defendant’s conduct supports
multiple offenses: (1) Were the offenses dissimilar in import or
significance — in other words, did each offense cause separate, identifiable
harm? (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 ¶ 6, citing Ruff at ¶ 31.
{¶8} Cunningham contends that theft and forgery are allied offenses. However,
the state and Cunningham’s counsel agreed that none of the offenses were allied offenses.
This court has previously held that where the transcript demonstrates that
the state and defense counsel agreed that offenses were not allied, the issue
of allied offenses is waived. See, e.g., State v. Booker, 8th Dist. Cuyahoga
No. 101886, 2015-Ohio-2515, ¶ 18-19; State v. Adams, 8th Dist. Cuyahoga
No. 100500, 2014-Ohio-3496, ¶ 10-13; State v. Yonkings, 8th Dist.
Cuyahoga No. 98632, 2013-Ohio-1890, ¶ 5; State v. Carman, 8th Dist.
Cuyahoga No. 99463, 2013-Ohio-4910, ¶ 17-18; State v. Ward, 8th Dist.
Cuyahoga No. 97219, 2012-Ohio-1199, ¶ 20; see also State v. Crockett, 8th
Dist. Cuyahoga No. 100923, 2014-Ohio-4576, ¶ 4-7, 15-16; State v. James,
8th Dist. Cuyahoga No. 102604, 2015-Ohio-4987, ¶ 27, 53 N.E.3d 770(where there was no plea agreement, but the state told the trial court at
sentencing that it did not believe that Counts 5 and 6 merged for sentencing
and defense counsel agreed, stating that ‘Count [sic] 5 and 6 do not merge
into the first four counts * * *,’ defense counsel’s statement was ‘enough to
constitute a waiver of R.C. 2941.25’ and to distinguish the case from
Underwood); but see State v. Carter, 8th Dist. Cuyahoga No. 101810,
2015-Ohio-1834, ¶ 31 (rejecting argument that defendant could not appeal
allied offense issue because the parties ‘agreed to a sentencing range that
could only be achieved by [the defendant] being sentenced to consecutive
terms on both counts’); State v. Ewing, 6th Dist. Lucas No. L-14-1127,
2015-Ohio-3804, ¶ 14-15 (an agreed sentence to a term that ‘by necessity
would require * * * two sentences to be run consecutively * * * does not
overcome the strong presumption against waiver, particularly where the
record contains no discussion of the issue’).
State v. Black, 2016-Ohio-383, 58 N.E.3d 561, ¶ 18 (8th Dist.). In this case, the
transcript clearly shows that defense counsel agreed that the offenses were not allied
offenses and would not merge for sentencing. Therefore, Cunningham waived the allied
offenses issue.
{¶9} However, we can review for plain error.
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 error unless it affected the outcome of the proceeding and
reversal is necessary to correct a manifest miscarriage of justice.
Accordingly, an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import
committed with the same conduct and without a separate animus; and,
absent that showing, the accused cannot demonstrate that the trial court’s
failure to inquire whether the convictions merge for purposes of sentencing
was plain error.
State v. Hilliard, 8th Dist. Cuyahoga No. 102214, 2015-Ohio-3142, ¶ 26.
{¶10} Cunningham was charged with theft, in violation of R.C. 2913.02(A)(3),
which states, “no person, with purpose to deprive the owner of property or services, shall
knowingly obtain or exert control over either the property or services in any of the
following ways: By deception.” She was also charged with forgery, in violation of
R.C. 2913.31(A)(3), which states, “no person, with purpose to defraud, or knowing that
the person is facilitating a fraud, shall do any of the following: [u]tter, or possess with
purpose to utter, any writing that the person knows to have been forged.”
{¶11} On May 14, 2012, in Columbus, Ohio, Cunningham made a purchase and
immediately returned the items for a refund at a TJ Maxx store. On the refund slip,
Cunningham signed someone else’s name. This is when the forgery was committed and
the initial harm. Upon completion of the refund, Cunningham kept the original purchase
receipt. Then, Cunningham went to a TJ Maxx store in Mansfield, Ohio, stole the same
items she returned in Columbus, and returned them to the Mansfield store using her own
name. This is the separate theft offense and the second identifiable harm.
Cunningham’s theft and forgery caused a separate, identifiable harm.
{¶12} Cunningham committed the theft and forgery with a separate animus and
motivation even though there was agreement between the state and defense that there
were no allied offenses. She committed the theft in order to return the items for
additional money from TJ Maxx. However, the forgery was committed so that TJ Maxx
could not identify her. Therefore, the charges for theft and forgery are not allied
offenses, Cunningham has not demonstrated where an error occurred during the
proceedings and that reversal is necessary to correct a manifest miscarriage of justice.
Cunningham’s sole assignment of error is overruled.
{¶13} Judgment is affirmed.
It is ordered that the appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_____________________________________
ANITA LASTER MAYS, JUDGE
LARRY A. JONES, SR., J., CONCURS;
MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY