[Cite as State v. Snuffer, 2011-Ohio-6430.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                              Nos. 96480, 96481, 96482, and 96483



                                       STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    SHANE S. SNUFFER
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeals from the
                            Cuyahoga County Court of Common Pleas
                          Case Nos. CR-536812, CR-536868, CR-538335,
                                        and CR-539285

        BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.
      RELEASED AND JOURNALIZED:               December 15, 2011

ATTORNEY FOR APPELLANT

Kelly A. Gallagher
P.O. Box 306
Avon Lake, OH 44012

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Brett Kyker
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

      {¶ 1} Defendant-appellant, Shane Snuffer, pleaded guilty in four different

criminal cases to 15 counts of theft and one count of forgery. The state charged that

Snuffer, the director of a company that handled the disbursement of government funds to

the disabled, deposited less than the full amount of those government funds that his

clients received and also withdrew money from the clients’ accounts for his own

purposes. After merging some of the counts, the court sentenced Snuffer to a total term

of 12 years in prison and ordered him to make restitution to the affected government

agencies and victims. On appeal, Snuffer complains that the court committed plain error
by failing to merge the counts for sentencing and that the length of his sentence

constituted an abuse of the court’s discretion.

                                                  I

       {¶ 2} Snuffer first argues that the court committed plain error by failing to merge

any of the ten counts of theft contained in CR-538335 or the theft and forgery counts

contained in CR-539285.

       {¶ 3} When a defendant’s conduct results in the commission of two or more

“allied” offenses of similar import, that conduct can be charged separately, but the

defendant can be convicted and sentenced for only one offense.         R.C. 2941.25(A).

Offenses are “allied” and must be merged for sentencing if the defendant’s conduct is

such that a single act could lead to the commission of separately defined offenses, but

those separate offenses were committed with a state of mind to commit only one act. See

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶48-50.

                                                  A

       {¶ 4} In CR-538335, Snuffer pleaded guilty to ten different counts of theft

charged against ten different victims. “When an offense is defined in terms of conduct

towards another, then there is a dissimilar import for each person affected by the

conduct.” State v. Phillips (1991), 75 Ohio App.3d 785, 790, 600 N.E.2d 825, citing

State v. Jones (1985), 18 Ohio St.3d 116, 118, 480 N.E.2d 408. See, also, State v. Polk,

8th Dist. No. 88639, 2007-Ohio-4436, ¶15. Although he may have had the single goal of
stealing money, Snuffer committed ten different acts of theft against ten different victims.

 These offenses were not allied and could be separately punished.

                                                B

       {¶ 5} The theft and forgery counts charged in CR-539285 were committed against

the same victim. In Count 1, Snuffer pleaded guilty to theft under R.C. 2913.02(A)(1),

which prohibits a person from obtaining or exerting control over the property of another

without the other’s consent. In Count 4, Snuffer pleaded guilty to forgery under R.C.

2913.31(A)(2), which prohibits another from fraudulently forging any writing of another

without that person’s authority.

       {¶ 6} Courts have uniformly found that theft and forgery are not allied offenses

because each offense contains elements not possessed by the other: forgery only requires

a fraudulent writing, so unlike theft, it does not require that one obtain control over the

property of another. State v. Marvin, 134 Ohio App.3d 63, 70, 1999-Ohio-811, 730

N.E.2d 401, citing State v. Wilson (1996), 113 Ohio App.3d 737, 746, 682 N.E.2d 5; State

v. Hunter (1983), 12 Ohio App.3d 75, 78, 466 N.E.2d 183; State v. Anderson, 10th Dist.

No. 08AP-1071, 2009-Ohio-6566, ¶37.

       {¶ 7} Nevertheless, Johnson no longer requires us to slavishly compare the

elements of each offense, but rather to determine “whether it is possible to commit one

offense and commit the other with the same conduct[.]” Id., 128 Ohio St.3d at ¶48. The

forgery count charged Snuffer with forging the victim’s signature on a bank account
withdrawal slip. The theft count did not describe the nature of the theft, stating only that

Snuffer obtained control over the victim’s property without consent.

       {¶ 8} Snuffer might plausibly argue that he used the forged withdrawal slip to

facilitate the theft of money from the victim’s bank account so that the forgery was in

essence the act of theft. But Snuffer does not make this argument. Instead, he states

only that “[t]he record of Snuffer’s plea does not contain the necessary details as to the

time and circumstances of the various criminal acts from which to make a determination

[as to whether offenses are allied].” Appellant’s Brief at 9.

       {¶ 9} Snuffer did not object to his sentence, so we review for plain error. See

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31. Plain error

exists only when it is obvious on the record. See State v. Tichon (1995), 102 Ohio

App.3d 758, 767, 658 N.E.2d 16.         Snuffer pleaded guilty to the indictment, thus

admitting the facts as charged in the indictment and obviating the need for any factual

basis for the plea. State v. Kent (1980), 68 Ohio App.2d 151, 156, 428 N.E.2d 453. As

he concedes, he offered no other facts at sentencing, so the record on appeal is such that

we cannot say that plain error in failing to merge the sentences was “obvious.”

       {¶ 10} We are aware that in State v. Masters, 8th Dist. No. 95120, 2011-Ohio-937,

a panel of this court cited to Underwood for the proposition that the “trial court should

have inquired into the facts when accepting Masters’s plea to all charges in order to

determine whether any of the offenses were allied.” Id. at ¶9. The holding that the

court must inquire into the facts during a plea hearing cannot be reconciled with Crim.R.
11(C), which does not require a factual basis for a guilty plea. Implicit within Crim.R.

11(C), is the idea that a guilty plea constitutes a full admission of factual guilt that

obviates the need for a fact-finding trial on the charges. State v. Wilson (1979), 58 Ohio

St.2d 52, 388 N.E.2d 745, paragraph one of the syllabus. Moreover, Masters failed to

grasp that merger of offenses is a sentencing issue, not a plea issue, see Cleveland v. Scott

(1983), 8 Ohio App.3d 358, 359, 457 N.E.2d 351, so even if a factual inquiry had to be

made, it could only occur during sentencing, not during the plea hearing.            Masters

assumed the existence of plain error despite acknowledging that “there are insufficient

facts in the record for this court to [find whether offenses are allied] in the instant case.”

Id. As noted, plain error exists only when it is “obvious” in the record. Masters found

the opposite — that the absence of facts raised an issue of fact that the court needed to

resolve on remand — thus showing that the error could not have been “plain” on the face

of the record. Finally, unlike in Underwood, there was no direct concession from the

state that the offenses were allied — in Masters the state only conceded that “unless a

separate animus exists” the charged offenses would be allied. Id. The state did not

concede that Masters’s offenses were allied, only that the offenses might be allied had

there been facts showing that Masters committed them with a single animus.

       {¶ 11} For the foregoing reasons, we find that Snuffer failed to offer any evidence

to make an obvious case for plain error in the court’s failure to merge the theft and

forgery counts in CR-539285. The first assignment of error is overruled.

                                                 II
       {¶ 12} We need not dwell on Snuffer’s second claim — that the court abused its

discretion by sentencing him to a combined prison term of 12 years in all four cases.

Snuffer offers no argument in support of that claim apart from noting that the crimes

occurred over a two-year period. It is unclear why Snuffer believes that fact benefits

him.   That the crimes occurred over a two-year period indicates that Snuffer acted

according to a long-term plan as opposed to a one-time lapse of judgment. In fact, the

court learned during sentencing that in 2002, Snuffer pleaded guilty in West Virginia to

stealing more that $14,000 in federal funds designated for police officer training (Snuffer

was a police officer at the time). Given Snuffer’s predilection for stealing government

money, the long-term nature of the theft in these cases, and the particularly damning fact

that his victims were disabled persons under government supervision, a 12-year combined

sentence did not constitute an abuse of the court’s discretion. See State v. Payne, 114

Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶25.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.       Case remanded

to the trial court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
