State v. Smith

[Cite as State v. Smith, 2014-Ohio-5076.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-G-3185
- vs - :
JEFFREY M. SMITH, :
Defendant-Appellant. :
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 10 C
000179.
Judgment: Affirmed.
James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Plaintiff-Appellee).
Sean C. Buchanan, Slater & Zurz LLP, One Cascade Plaza, Suite 2210, Akron, OH
44308 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Jeffrey M. Smith, appeals his conviction and
sentence for Theft and Forgery in the Geauga County Court of Common Pleas. The
issues before this court are: whether a defendant is entitled to credit for jail-time served
after his arrest and the revocation of his bond; whether Theft by deception and Forgery
based on the manufacture of spurious documents should merge; and whether the H.B.
86 amendments to the Theft statute applied retroactively where the offender pled guilty
to fifth-degree felony Theft. For the following reasons, we affirm the decision of the
court below.
{¶2} On December 28, 2010, the Geauga County Grand Jury handed down an
Indictment, charging Smith with the following crimes: Passing Bad Checks (Count 1), a
felony of the fifth degree in violation of R.C. 2913.11(B); Theft (Count 2), a felony of the
fifth degree in violation of R.C. 2913.02(A)(3); and Forgery (Count 3), a felony of the fifth
degree in violation of R.C. 2913.31(A)(2).
{¶3} On January 21, 2011, Smith waived his right to be present at arraignment
and entered a plea of “not guilty” to all charges. The trial court ordered Smith to post a
personal recognizance bond and set a trial date for April 26, 2011.
{¶4} On March 3, 2011, the trial court revoked bond after Smith failed to appear
for a pre-trial and issued a capias for his arrest.
{¶5} On February 6, 2013, Smith, then incarcerated at Ross Correctional
Institution for charges arising in Cuyahoga County and Lake County, filed an Inmate’s
Notice of Place of Imprisonment and Request for Disposition of Indictments, Information
or Complaints.
{¶6} On October 28, 2013, Smith entered a written Plea Agreement to Theft
(Count 2) and Forgery (Count 3).
{¶7} On January 13, 2014, a sentencing hearing was held. The trial court
ordered Smith to serve eight-month prison sentences for Theft and Forgery, “to be
served consecutive with each other and consecutive to the prison term the defendant is
currently serving.” The court ordered Smith to pay restitution to Huntington Bank in the
amount of $2,955.00 and to Chase Bank in the amount of $250.00. The court advised
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Smith of post release control. With the court’s leave, the State dismissed Count 1 of the
Indictment pursuant to Criminal Rule 48(A).
{¶8} On January 15, 2014, Smith’s sentence was memorialized in a Judgment
of Conviction.
{¶9} On February 13, 2014, Smith filed a Notice of Appeal. On appeal Smith
raises the following assignments of error:
{¶10} “[1.] The court erred by not awarding jail time defendant served * * * after
he was arrested and the bond in this case was revoked.”
{¶11} “[2.] The court erred by finding that forgery and theft in counts 2 and 3 did
not merge.”
{¶12} “[3.] The court erred by sentencing Mr. Smith under the pre H.B. 86 theft
threshold based on an erroneous bill of particulars.”
{¶13} In his first assignment of error, Smith argues the trial court erred in its
determination that he was not entitled to any credit for time served prior to his January
13, 2014 sentencing. Specifically, Smith claims he is entitled to jail-time credit
beginning with the filing of his notice of availability on February 6, 2013.
{¶14} Pursuant to R.C. 2967.191, a prisoner’s stated prison term shall be
reduced “by the total number of days that the prisoner was confined for any reason
arising out of the offense for which the prisoner was convicted and sentenced, including
confinement in lieu of bail while awaiting trial * * *.” Also R.C. 2929.19(B)(2)(g)(i) (the
sentencing court shall “[d]etermine, notify the offender of, and include in the sentencing
entry the number of days that the offender has been confined for any reason arising out
of the offense for which the offender is being sentenced and by which the department of
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rehabilitation and correction must reduce the stated prison term under section 2967.191
of the Revised Code”); State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d
476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7 (“[a]lthough the APA has a mandatory duty
pursuant to R.C. 2967.191 to credit an inmate with jail time already served, it is the trial
court that makes the factual determination as to the number of days of confinement that
a defendant is entitled to have credited toward his sentence”).
{¶15} We review the trial court’s determination as to the amount of credit to
which Smith is entitled under the “clearly and convincingly” contrary to law standard.
R.C. 2953.08(G)(2); State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶ 26 (“when reviewing felony sentences * * *, [appellate courts] must examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the
sentence to determine whether the sentence is clearly and convincingly contrary to
law”); State v. Fuller, 3rd Dist. Henry No. 7-13-06, 2013-Ohio-5661, ¶ 17; State v.
Hargrove, 1st Dist. Hamilton No. C-120321, 2013-Ohio-1860, ¶ 8.
{¶16} Smith’s contention that he was entitled to jail-time credit upon the filing of
his notice of availability, at which point he was awaiting trial for the present charges, is
refuted by this court’s decision in State v. Struble, 11th Dist. Lake No. 2005-L-115,
2006-Ohio-3417. In Struble, this court recognized that “jail-time credit is appropriate
only when the facts and circumstances giving rise to the incarceration are the result of
the charge for which the offender is eventually sentenced.” Id. at ¶ 11. In other words,
“R.C. 2967.191 is inapplicable when the offender is imprisoned as a result of another
unrelated offense,” and “there is no jail-time credit for time served on unrelated
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offenses, even if that time served runs concurrently during the pre-detention phase of
another matter.” Id.
{¶17} Smith counters that Struble is distinguishable because the offender therein
was out on a personal recognizance bond that “was never changed when he was sent
to prison [for the unrelated offenses],” whereas he “was held in lieu of bond awaiting
trial.” Appellant’s brief at 5. This distinction is immaterial. In the case of State v. Smith,
71 Ohio App.3d 302, 593 N.E.2d 402 (10th Dist.1992), relied upon by this court in
Struble, the offender, like Smith in the present case, had been released on his own
recognizance. When he failed to appear for trial, bond was revoked and a capias
issued. Id. at 303. Upon his arrest, the offender began to receive jail-time credit. While
awaiting trial, the offender was sentenced to a term of incarceration for unrelated
charges. At this point, the offender ceased to receive jail-time credit, although still
awaiting trial. The court affirmed that “R.C. 2967.191 * * * does not entitle a defendant
to jail-time credit for any period of incarceration which arose from facts which are
separate and apart from those on which his current sentence is based.” Id. at 304;
State v. Smiley, 8th Dist. Cuyahoga No. 99486, 2013-Ohio-4495, ¶ 14 (“because Smiley
was serving a prison sentence for a previous case when he was held in Cuyahoga
County jail, he could not have posted bond and been released while awaiting the
disposition of the new case,” and, “[t]herefore, the trial court’s refusal to give jail-time
credit did not offend the notion of equal protection, which, as the Fugate court
explained, is the overall objective of jail-time credit”).
{¶18} Finally, Smith’s contention that he should receive jail-time credit in the
present case for time served in another case would essentially reward him for
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committing multiple crimes: “R.C. 2967.191 does not allow a convicted person to turn
his confinement for various convictions into a ‘bank’ of jail time that he ‘withdraw[s]’ as
needed for pending felony offenses.” State v. Barnett, 7th Dist. Mahoning No. 13 MA
123, 2014-Ohio-3686, ¶ 13 (cases cited).
{¶19} The first assignment of error is without merit.
{¶20} Under the second assignment of error, Smith maintains the trial court
erred by not merging his convictions for Theft and Forgery.
{¶21} Ohio’s multiple counts statute or allied offenses of similar import statute
provides:
(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.
R.C. 2941.25; State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,
¶ 29 (“[w]hen the plea agreement is silent on the issue of allied offenses of similar
import * * * the trial court is obligated under R.C. 2941.25 to determine whether the
offenses are allied, and if they are, to convict the defendant of only one offense”).
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{¶22} The Ohio Supreme Court has described the application of R.C. 2941.25
as follows:
In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to
commit one offense and commit the other with the same conduct * *
*. If the multiple offenses can be committed by 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.” * * * If the answer to both questions is yes,
then the offenses are allied offenses of similar import and will be
merged.
(Citation omitted.) State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, ¶ 48-50.
{¶23} “An appellate court should apply a de novo standard of review in reviewing
a trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶24} Smith was convicted of Theft in violation of R.C. 2913.02(A)(3), in the
language of the Indictment: “with purpose to deprive the owner of property or service,
[Smith] did knowingly obtain and exert control over either the property or services by
deception.” Smith was convicted of Forgery in violation of R.C. 2913.31(A)(2), in the
language of the Indictment: with “purpose to defraud, * * * [Smith] did forge any writing
so that it purports to be genuine when it actually is spurious, or to be the act of another
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who did not authorize that act, or to be a copy of an original when no such original
existed.”
{¶25} At sentencing, the State argued that the acts of depriving (Theft) and
forging (Forgery) were distinct:
[W]hat happened in this case, Mr. Smith actually took routing and
account numbers, manufactured checks on a computer program,
and then he went and cashed those checks and received money for
them. * * * [T]o me, they are distinct and separate crimes. Yes, he
used the forged check to commit the theft. But the manufacturing
of the check in and of itself was a completely separate, distinct
crime from stealing the money.
{¶26} Smith contends that, in the present case, “the theft required forgery” and
so constituted one act. Appellant’s brief at 7. We disagree. The Theft and Forgery
may have been part of a single course of conduct, but a single course of conduct may
entail multiple criminal acts. Here, the Theft consisted of obtaining another’s property,
whereas the Forgery consisted of fabricating or creating spurious documents. R.C.
2913.01(G). The act of creating spurious checks is distinct from the act of using those
checks to obtain another’s property. The offense of Forgery by the fabrication or
creation of spurious writings is not allied with the offense of Theft by deception, i.e., they
do not correspond to such a degree that the commission of the one offense constitutes
the commission of the other. Compare State v. Rhodehamel, 10th Dist. Franklin Nos.
11AP-96 and 11AP-97, 2011-Ohio-5618, ¶ 45.
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{¶27} The State v. Taylor, 4th Dist. Hocking No. 12CA10, 2013-Ohio-472, case
relied upon by Smith is distinguishable in that it involved Forgery, under R.C.
2913.31(A)(3), by uttering a writing known to have been forged. R.C. 2913.01(H)
(“‘[u]tter’ means to issue, publish, transfer, use, put or send into circulation, deliver, or
display”). In Taylor, the “appellant * * * presented the check at the bank and received, in
return, three hundred dollars of the victim’s money.” Id. at ¶ 13. The court of appeals
noted that “[t]he passing (or ‘uttering’) of the check [wa]s the forgery offense and his
receipt of money was the theft offense,” so that “these two offenses occurred
simultaneously, as a result of the same conduct, and arose from the same animus.” Id.
{¶28} The State v. Haney, 11th Dist. Lake No. 2012-L-098, 2013-Ohio-2823,
case cited by Smith did not involve Forgery, but rather Fraud and Theft, and so is
distinguishable. The State v. Wolfe, 10 Ohio App.3d 324, 462 N.E.2d 455 (2nd
Dist.1983), case was decided pre-Johnson and is no longer good law.
{¶29} The second assignment of error is without merit.
{¶30} In his third assignment of error, Smith argues that the trial court erred by
sentencing him for fifth-degree felony Theft.
{¶31} At the time of Smith’s indictment in 2010, Theft was a fifth degree felony if
the value of the property or services stolen was five hundred dollars or more but less
than five thousand dollars. Former R.C. 2913.02(B)(2). The Indictment and Bill of
Particulars reflect those dollar amounts. “Effective September 30, 2011, the General
Assembly enacted H.B. 86, and among other changes to Ohio’s sentencing laws, it
decreased the classification of theft of property valued at less than $1,000, making the
offense a first-degree misdemeanor, which correspondingly reduced the punishment for
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that offense.” State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 6.
Accordingly, at the time Smith entered his plea in 2013, Theft was only a fifth-degree
felony if the value of the property or services stolen was one thousand dollars or more.
{¶32} Smith’s position is that he pled “to the indictment as particularized in the
bill of particulars,” i.e., “he pled to a theft of $500.” Appellant’s brief at 8.
{¶33} Although Smith presents this as a sentencing issue, the actual issue is
whether Smith’s plea to Theft as a fifth-degree felony was valid. If the plea is valid,
there was no impediment to the trial court sentencing Smith accordingly.
{¶34} The Ohio Supreme Court has recognized that, when accepting a plea, “the
courts of this state have generally held that a detailed recitation of the elements of the
charge is not required.” (Citation omitted.) State v. Fitzpatrick, 102 Ohio St.3d 321,
2004-Ohio-3167, 810 N.E.2d 927, ¶ 57. “In order for a trial court to determine that a
defendant is entering a plea with an understanding of the nature of the charge, the court
need not advise him of the elements of the crime or specifically ask him if he
understands the charge, so long as the totality of the circumstances indicate that the
trial court was warranted in deciding that the defendant did understand the charge.”
State v. Singh, 141 Ohio App.3d 137, 141, 750 N.E.2d 598 (11th Dist.2000).
{¶35} In the present case, the Plea Agreement, both written and oral, was that
Smith plead to fifth-degree felony Theft. During the plea colloquy, the trial court did not
specify a particular value of the property or services stolen. That issue, however, was
discussed extensively during the pre-trial hearing preceding the Plea Agreement. The
prosecutor raised the issue of the H.B. 86 amendments and requested “that the jury
instructions and most importantly the verdict form should maybe branch out the dollar
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amounts differently so it is clear we are dealing with over a thousand dollars. * * * I
could envision a scene where the Court would say because the [amended] law could be
applied retroactively, the jury should have made a finding that it was at least a
$1,000.00.”1 The prosecutor did not request a charge on misdemeanor Theft, as he
was “convinced the evidence would say that [the value of the property or services
stolen] would be over $2,000.00.” Smith, although representing himself, demonstrated
a clear understanding of the issue, its significance, and the prosecutor’s concern. Smith
observed that “the Prosecutor would like to have that monetary finding * * * for the
purposes of * * * the theft and passing bad check [charges],” and then correctly advised
the court that, with respect to the Forgery charge, the monetary amount did not matter
as there was no misdemeanor-level Forgery.
{¶36} Based on the totality of the circumstances, Smith understood that he was
pleading guilty to fifth-degree felony Theft which required the value of the property or
services stolen to equal or exceed one thousand dollars.
{¶37} The third assignment of error is without merit.
{¶38} For the foregoing reasons, Smith’s convictions and sentence for Theft and
Forgery are affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
1. In fact, the Ohio Supreme Court, in Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, held
that the amended law applied retroactively when the offender had not yet been sentenced. Id. at ¶ 19.
(“the determining factor on whether the provisions of H.B. 86 apply to an offender is not the date of the
commission of the offense but rather whether sentence has been imposed”).
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