[Cite as State v. Grimm, 2014-Ohio-38.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :
                                            :       Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                :       Hon. John W. Wise, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
-vs-                                        :
                                            :
TIMOTHY R. GRIMM                            :       Case No. 13-CA-25
                                            :
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County
                                                    Court of Common Pleas, Case No.
                                                    12-CR-468



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   January 3, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

GREGG MARX                                          ANDREW T. SANDERSON
Prosecuting Attorney                                118 West Chestnut Street, Suite B
239 W. Main Street, Suite 101                       Lancaster, OH 43130
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-25                                                       2




Baldwin, J.

      {¶1}    Defendant-appellant Timothy Grimm appeals from the February 11, 2013

Judgment Entry of the Fairfield County Court of Common Pleas. Plaintiff-appellee is the

State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On October 15, 2012, the Fairfield County Grand Jury indicted appellant

on one (1) count of theft in violation of R.C. 2913.02, a felony of the fifth degree, and

fifteen (15) counts of forgery in violation of R.C. 2913.31(A)(1), felonies of the fourth

degree.

      {¶3}    On November 29, 2012, appellant filed a Motion to Dismiss the indictment.

Appellant, in his motion, alleged that he had been charged with three (3) counts each of

theft and receiving property in Fairfield County Municipal Court Case No. CRB 1201405,

that the victim in such case was Naomi Boggs and involved the theft of her checks

which were numbered 4221, 4224 and 4228, and that he had pleaded guilty to and was

convicted of a theft and receiving stolen property in such case on September 10, 2012.

Appellant alleged that all of the counts in the indictment in the case sub judice related to

the same victim and the same checks as in the Municipal Court case and that the

double jeopardy clause prohibited him from being prosecuted again for the same

offenses. Appellee filed a memorandum contra to appellant’s motion on December 4,

2012. Appellant filed a supplemental memo on December 19, 2012.

      {¶4}    Pursuant to an Entry filed on January 8, 2013, the trial court overruled

appellant’s motion with respect to the forgery counts. With respect to the felony charge
Fairfield County, Case No. 13-CA-25                                                   3


of theft, the trial court found that appellee was not permitted to prosecute appellant

based solely on the theft of Check Nos. 4221 and 4224, but that a further examination

of the facts surrounding the theft charges in both cases was necessary and that,

therefore, an oral hearing was required. The trial court indicated that the oral hearing

“shall be limited to the narrow issue remaining before the Court: whether the felony

charge of theft, as set forth in Count One of the Indictment, arose from the same act or

transactions as the misdemeanor charges of Theft and Receiving Stolen Property to

which the Defendant pled guilty.”

      {¶5}   Thereafter, before any hearing was held, appellant, on February 1, 2013,

pleaded no contest to six (6) counts of forgery. The remaining counts were dismissed.

Pursuant to a Judgment Entry filed on February 11, 2013, appellant was sentenced to

thirty six (36) months in prison. Appellant’s prison sentence was suspended and

appellant was placed on community control for a period of five (5) years.

      {¶6}   Appellant now raises the following assignments of error on appeal:

      {¶7}   THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO

DISMISS THE INDICTMENT HEREIN.

      {¶8}   THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO

HOLD AN ORAL HEARING ON THE DEFENDANT-APPELLANT’S MOTION TO

DISMISS THE INDICTMENT HEREIN.

      {¶9}   THE    DEFENDANT-APPELLANT            WAS    DENIED     THE    EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL HEREIN.

                                              I.
Fairfield County, Case No. 13-CA-25                                                       4


      {¶10}   Appellant, in his first assignment of error, argues that the trial court erred

in failing to dismiss the indictment on double jeopardy grounds. We disagree.

      {¶11}   Appellant contends that his prosecution in this case on the charges of theft

and forgery violated his protections from double jeopardy under the Fifth Amendment to

the United States Constitution and Article I, Section 10 of the Ohio Constitution. These

clauses “ * * * protect a defendant from successive prosecutions and multiple

punishments for the same offense.” State v. Kelly, 7th Dist. Columbiana No. 08 CO 23,

2009–Ohio–1509, ¶ 18, (additional citations omitted). “[T]he successive prosecution

branch of the Double Jeopardy Clause prohibits the state from trying a defendant for a

greater offense after a conviction of a lesser included offense and from twice trying a

defendant for the same offense.” State v. Morton, 2nd Dist. No. 20358, 2005–Ohio–308,

¶ 8 (internal quotations and additional citations omitted).

      {¶12}   A de novo standard applies when an appellate court reviews the denial of

a motion to dismiss an indictment on the grounds of double jeopardy. See State v.

Betts, 8th Dist. No. 88607, 2007–Ohio–5533, ¶ 20, citing In re Ford , 987 F.2d 334, 339

(6th Cir. 1992).

      {¶13}   In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed.

306 (1932), the United States Supreme Court set forth its test for determining double

jeopardy claims as follows: “The applicable rule is that where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.” In State v. Tolbert, 60 Ohio

St.3d 89, 573 N.E.2d 617 (1991), the Ohio Supreme Court clearly held: “To determine
Fairfield County, Case No. 13-CA-25                                                         5


whether a subsequent prosecution is barred by the Double Jeopardy Clause of the Fifth

Amendment, a court must first apply the Blockburger test. If application of that test

reveals that the offenses have identical statutory elements or that one is a lesser

included offense of the other, the subsequent prosecution is barred.” Id. at para. 1 of the

syllabus. See, also, Univ. of Cincinnati v. Tuttle, 1st Dist. No. C–080357, 2009–Ohio–

4493, ¶ 12: (“Because this case concerns only the issue of successive prosecution, it is

not controlled by R.C. 2941.25 or State v. Cabrales. Rather, we must employ the test

outlined in Blockburger v. United States and its progeny.”)

      {¶14}   Appellant, in the Fairfield County Municipal Court case, was charged with

three (3) counts of theft in violation of R.C. 2913.02 and three (3) counts of receiving

stolen property in violation of R.C. 2913.51(A), all misdemeanors of the first degree. On

September 10, 2012, appellant, in such case, entered a plea of guilty to the charge of

theft concerning Check No. 4221 and receiving stolen property concerning Check No.

4424. The remaining charges were dismissed.

      {¶15}   In the case sub judice, appellant was indicted on October 15, 2012, on

one (1) count of theft in violation of R.C. 2913.02, a felony of the fifth degree, and fifteen

(15) counts of forgery in violation of R.C. 2913.31(A)(1), felonies of the fourth degree.

As noted by the trial court in its January 8, 2013 Entry, the charges in both cases arose

from incidents occurring in April of 2012 in which appellant allegedly stole blank checks

from the victim, who was Naomi Boggs, forged her signature and subsequently passed

such checks. The misdemeanor charges in the Fairfield County Municipal Court case

concerned only three checks (Check Nos. 4221, 4224, 4228) of the fifteen checks

covered by the indictment     in the case sub judice. The three checks were the subject
Fairfield County, Case No. 13-CA-25                                                      6


of Counts One (Theft), Four (Forgery of Check #4221), Six (Forgery of Check #4224)

and Seven (Forgery of Check #4228). Thus, as noted by the trial court, of the sixteen

counts in the indictment in this case, only four (Counts One, Four, Six and Seven) are

arguably implicated. The remaining counts concern different check numbers, different

dates and different transactions than the charges filed in the Municipal Court case and,

as noted by the trial court, “cannot constitute the same act or transaction’ that was

previously prosecuted in the misdemeanor cases.”

      {¶16}   A comparison of R.C. 2913.31(A)(1), defining forgery, and R.C.

2913.51(A), defining receiving stolen property, demonstrates that the two offenses are

distinguishable for double jeopardy purposes under Blockburger. R.C. 2913 .31(A)(1)

provides that “[n]o person, with purpose to defraud, or knowing that the person is

facilitating a fraud, shall * * * [f]orge any writing of another without the other person's

authority[.]” In turn, R.C., R. C. 2913.51(A), requires proof that defendant received the

property of another, knowing or having reasonable cause to believe it had been

obtained through commission of a theft offense. Forgery, requires proof that the

defendant, with purpose to defraud, forged a writing of another without his or her

authority. Comparing the offenses of receiving stolen property and forgery, it is obvious

that each requires proof of an additional fact which the other does not. Using the test of

double jeopardy as stated in Blockburger, the double jeopardy clause was not violated

with respect to the charges of forgery and receiving stolen property because they are

not the “same offense” for purposes of double jeopardy analysis.

      {¶17}   Appellant also maintains that the felony charge of theft in this case should

have been dismissed on double jeopardy grounds. The trial court, in its Entry, held that
Fairfield County, Case No. 13-CA-25                                                      7


appellee could not re-prosecute appellant for illegally obtaining control over Check Nos.

4221 and 4224, but that it could prosecute appellant “for theft of the other twelve

checks, which allegedly spanned two weeks and entailed different checks and different

situations, as long as it is able to prove the Defendant acted with a separate animus.”

The trial court ordered that an oral hearing be scheduled            on “the narrow issue

remaining before the Court: whether the felony charge of theft, as set forth in Count One

of the Indictment, arose from the same act or transactions as the misdemeanor charges

of Theft and Receiving Stolen Property to which the Defendant pled guilty.” The date

and time of the hearing were to be set by a separate scheduling order.

      {¶18}   However, before any such hearing was held, appellant entered his no

contest plea in this case. Appellant has, therefore, waived such issue.

      {¶19}   Appellant’s first assignment of error is, therefore, overruled.

                                                II

      {¶20}   Appellant, in his second assignment of error, argues that the trial court

erred in failing to hold a hearing on his Motion to Dismiss. We disagree.

      {¶21}   As is stated above, the trial court, in overruling much of appellant’s Motion

to Dismiss on January 8, 2013, ordered that an oral hearing be held on certain portions

of the Indictment. The docket indicates that a notice was filed on January 10, 2013

setting a plea hearing for February 1, 2013. As a result, no hearing on appellant’s

motion was ever held. Moreover, a trial court is within its discretion in holding non-oral

hearings. Crim.R. 47. In the case sub judice, the trial court gave a lengthy explanation

for its reasoning in overruling most of appellant’s Motion to Dismiss. We further note

that appellant never requested an oral hearing.
Fairfield County, Case No. 13-CA-25                                                      8


      {¶22}   Appellant’s second assignment of error is, therefore, overruled.

                                               III

      {¶23}   Appellant, in his third assignment of error, argues that he received

ineffective assistance of trial counsel due to counsel’s failure to request an oral hearing

on appellant’s Motion to Dismiss.

      {¶24}   A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel's error, the

result of the proceedings would have been different. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989). In other words, appellant must show that counsel's conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id.

      {¶25}   We find that appellant has failed to demonstrate that his trial counsel’s

performance was deficient or that he was prejudiced by trial counsel’s representation.

As is discussed above, the trial court did not err in its ruling on appellant’s Motion to

Dismiss. Moreover, appellant originally was indicted on sixteen (16) felony counts in this

case and, as a result of plea negotiations, entered no contest pleas to six (6) of those

counts. The remaining counts were dismissed.         While appellee recommended that

appellant be sentenced to nine months consecutive on each count, for a total of 54

months, the trial court sentenced appellant to six (6) months on each count, to be

served consecutively, for a total of thirty six (36) months. Moreover, over appellee’s
Fairfield County, Case No. 13-CA-25                                                 9


objections, defense counsel convinced the trial court to place appellant on community

control.

      {¶26}    Appellant’s third assignment of error is, therefore, overruled.

      {¶27}    Accordingly, the judgment of the Fairfield County Court of Common Pleas

is affirmed.


By: Baldwin, J.

Farmer, P.J. and

Wise, J. concur.
