[Cite as State v. Thompson, 2020-Ohio-3249.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                 :    JUDGES:
                                               :    Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                   :    Hon. John W. Wise, J.
                                               :    Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
EBONY THOMPSON,                                :    Case No. 2019 CA 00097
                                               :
        Defendant - Appellant                  :    OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Licking County
                                                    Court of Common Pleas, Case No.
                                                    18-CR-072



JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   June 5, 2020



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

WILLIAM C. HAYES                                    JAMES A. ANZELMO
Licking County Prosecutor                           Anzelmo Law
                                                    446 Howland Drive
By: PAUL M. SAWYERS                                 Gahanna, Ohio 43230
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 2019 CA 00097                                             2


Baldwin, J.

       {¶1}   Appellant, Ebony Thompson, appeals the decision of the Licking County

Court of Common Pleas imposing consecutive sentences for two counts of theft in

violation of R.C. 2913.02(A)(1). Appellee is the State of Ohio.

                        STATEMENT OF FACTS AND THE CASE

       {¶2}   Appellant, Ebony Thompson, plead guilty to two counts of theft, the first

occurring on January 20, 2019 and the second on January 23, 2019. Thompson claims

that the trial court erred by not merging the two counts, that her trial counsel was

ineffective for not objecting to the trial court's failure to merge the counts and that the

record does not support the trial court's imposition of consecutive sentences.

       {¶3}   Appellee charged Thompson with two theft offenses, fifth degree

misdemeanors, in violation of R.C. 2913.02(A)(1) based upon allegations that she took

$2000.00 in merchandise from a department store on January 20, 2019 and returned to

that same store on January 23, 2019 and stole $4000.00 in merchandise. Thompson

appeared with counsel, entered a plea of not guilty and was release on bond on February

25, 2019. A capias was issued for her arrest on April 24, 2019 for violation the terms of

her pre-trial release but was withdrawn when she voluntarily appeared before the court

and presented evidence that she was hospitalized during the time that she failed to report

to her probation officer.

       {¶4}   Thompson failed to appear for a Pre-Sentence Interview on July 8, 2019

and a change of plea and sentencing hearing on July 23, 2019. A capias was issued for

her arrest and she was brought before the trial court on August 12, 2019 for a bond
Licking County, Case No. 2019 CA 00097                                             3


hearing. Unable to post bond, she remained incarcerated until her plea hearing and

sentencing.

       {¶5}     Thompson appeared before the trial court on August 30, 2019 and entered

a plea of guilty.

       {¶6}     At the plea hearing, the trial court reviewed Thompson's criminal record.

Thompson had fifteen prior theft convictions over the prior decade as well as eight

dismissed charges of theft and was on probation by order of the Franklin County Common

Pleas Court at the time of the plea. She acknowledged that she was recently sentenced

to 120 days incarceration by the Franklin County Court of Common Pleas for a probation

violation. Appellee informed the trial court that Thompson violated community control

numerous times in the past and that she did not comply with the conditions of her bond

in this case.

       {¶7}     Thompson stated she had been homeless for the past two months and was

unemployed. She claimed that she did not harm or threaten anyone and that she

committed the thefts in an effort to support her children.

       {¶8}     The trial court sentenced Thompson to two years in prison, one year for

each count, and ordered that the sentences were to be served consecutively. The trial

court addressed the need for consecutive sentences at the plea hearing and in its

judgment entry:

                The Court has decided that the offender shall serve the prison terms

       consecutively, pursuant to R.C. 2929.14(C)(4), because the Court finds that

       the consecutive sentences are necessary to protect the public from future

       crime or to punish the offender and that consecutive sentences are not
Licking County, Case No. 2019 CA 00097                                              4


         disproportionate to the seriousness of the offenders conduct and to the

         danger the offender poses to the public, and the Court also finds the

         following:

                The offender's history of criminal conduct demonstrates that

         consecutive sentences are necessary to protect the public from future crime

         by the offender.

Judgment Entry, Aug. 30, 2019, p. 2; Change of Plea Hearing, p. 26, line 5-9.

         {¶9}   Thompson filed a notice of appeal and submitted three assignments of

error:

         {¶10} “I. THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT MERGING

THOMPSON'S THEFT OFFENSES, IN VIOLATION OF THE DOUBLE JEOPARDY

CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

         {¶11} “II. THOMPSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,

IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

         {¶12} “III. THE TRIAL COURT UNLAWFULLY ORDERED THOMPSON TO

SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HER RIGHTS TO DUE

PROCESS,        GUARANTEED        BY   SECTION      10,   ARTICLE    I   OF   THE      OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.”
Licking County, Case No. 2019 CA 00097                                                5


                                              I.

       {¶13} In her first assignment of error, Thompson contends that the trial court

committed plain error by not merging Thompson's theft offenses, arguing that because

the victim was the same and that both offenses were thefts, the offenses were allied

offenses of similar import that should be merged.

       {¶14} Appellate review of an allied-offense question is de novo. State v. Miku, 5th

Dist. No. 2017 CA 00057, 2018-Ohio-1584, ¶ 70,appeal not allowed,154 Ohio St.3d 1479,

2019-Ohio-173, 114 N.E.3d 1207 (2019), quoting State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12. In the instant case, however, Thompson did not

seek merger at trial. By failing to seek the merger of convictions as allied offenses of

similar import in the trial court, a defendant forfeits his or her allied offenses claim for

appellate review, except for plain error. State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–

2459, 38 N.E.3d 860, ¶ 21. In Rogers, the Court reaffirmed that even if an accused shows

the trial court committed plain error affecting the outcome of the proceeding, the appellate

court is not required to correct it. Id. at ¶ 23. Notice of plain error under Crim.R. 52(B) is

to be taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph 3 of the syllabus.

       {¶15} Revised Code 2941.25 protects a criminal defendant's rights under the

Double Jeopardy Clauses of the United States and Ohio Constitutions by prohibiting

convictions of allied offenses of similar import:

              Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or
Licking County, Case No. 2019 CA 00097                                               6


       information may contain counts for all such offenses, but the defendant may

       be convicted of only one.

              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.

       {¶16} The application of R.C. 2941.25 requires a review of the subjective facts of

the case in addition to the elements of the offenses charged. State v. Hughes, 5th Dist.

Coshocton No. 15CA0008, 2016-Ohio-880, ¶ 21. In a plurality opinion, the Ohio Supreme

Court modified the test for determining whether offenses are allied offenses of similar

import. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The

Court directed us to look at the elements of the offenses in question and determine

“whether it is possible to commit one offense and the other with the same conduct.” Id. at

¶ 48[Emphasis sic]. If the answer to such question is in the affirmative, the court must

then determine whether or not the offenses were committed by the same conduct. Id. at

¶ 49. If the answer to the above two questions is yes, then the offenses are allied offenses

of similar import and will be merged. Id. at ¶ 50. If, however, the court determines that

commission of one offense will never result in the commission of the other, or if there is

a separate animus for each offense, then the offenses will not merge. Id. at ¶ 51.

       {¶17} Johnson's rationale has been described by the Court as “incomplete.” State

v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11. The Supreme Court

of Ohio has further instructed us to ask three questions when a defendant's conduct
Licking County, Case No. 2019 CA 00097                                              7


supports multiple offenses: “(1) Were the offenses dissimilar in import or significance? (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.” State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.

       {¶18} These offenses were committed on different dates and involved different

products, with the only identical factor being the store in which they were committed. Due

to the temporal difference, it is not possible to have committed both offenses with the

conduct that happened on January 20, 2019. The commission of the first offense will

never result in the commission of the second. Further, they were committed separately,

on two separate dates. Consequently, we hold that Thompson was not charged with

allied offenses of similar import, the charges do not merge and the trial court did not

commit plain error.

       {¶19} Appellant's first assignment of error is denied.

                                             II.

       {¶20} Thompson next complains that she received ineffective assistance of

counsel because her trial attorney did not object to the trial court's failure to merge the

charges.

       {¶21} In State v. Davis, 2020-Ohio-309 (Ohio), ¶10 the Supreme Court of Ohio

reaffirmed the appellant’s burden for establishing that she suffered from ineffective

assistance of counsel:

              In order to prevail on an ineffective-assistance-of-counsel claim, a

       defendant must prove that counsel's performance was deficient and that the
Licking County, Case No. 2019 CA 00097                                               8


       defendant was prejudiced by counsel's deficient performance. Bradley, 42

       Ohio St.3d at 141-142, 538 N.E.2d 373; Strickland, 466 U.S. 668, 104 S.Ct.

       2052, 80 L.Ed.2d 674. Thus, the defendant must demonstrate that counsel's

       performance fell below an objective standard of reasonableness and that

       there exists a reasonable probability that, but for counsel's error, the result

       of the proceeding would have been different. See Bradley at paragraphs

       two and three of the syllabus. “‘A reasonable probability is a probability

       sufficient to undermine confidence in the outcome.’ ” Id. at 142, 538 N.E.2d

       373, quoting Strickland at 694, 104 S.Ct. 2052.

       {¶22} Thompson alleged that her trial counsel was ineffective for not objecting

when the trial court did not merge the charges prior to sentencing. We have held that the

charges are not allied offenses of similar import in our analysis of the first assignment of

error and need not be merged, so Thompson's allegation and this assignment of error

must fail for lack of evidence that trial counsel's performance was deficient.

       {¶23} Appellant's second assignment of error is denied.

                                             III.

       {¶24} In her third assignment of error, Thompson contends that the trial court's

decision to impose consecutive sentences should be vacated because the trial court

imposed them in contravention of the sentencing statutes, but later concedes that "when

the trial court ordered Thompson to serve consecutive sentences, it made findings under

R.C. 2929.14(C)(4)" as it was obligated to do. (Appellant's Brief, p.6). Thompson then

argues that the facts do not support consecutive sentences.
Licking County, Case No. 2019 CA 00097                                              9


       {¶25} Our authority to modify or vacate any sentence is limited to those

circumstances where we clearly and convincingly find that "the record does not support

the sentencing court's findings under division (B) or (D) of section 2929.13, division

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised

Code, whichever, if any, is relevant [or] [t]hat the sentence is otherwise contrary to law."

R.C. 2953.08(G)(2)(a), (b). Clear and convincing evidence is that “‘which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.’ ” State v. Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7

quoting State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Clear

and convincing evidence is that measure or degree of proof which is more than a mere

“preponderance of the evidence,” but does not require the certainty of “beyond a

reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.

       {¶26} Thompson’s argument falls short of providing this court clear and convincing

evidence that the record does not support the trial courts findings. She contends that

ordering that the sentences be served consecutively is error because she expressed

remorse at the plea hearing, did not cause physical harm when she committed the

offenses and the thefts were not an “egregious amount of money.” While these facts can

be relevant, they do not “affirmatively show that the court did not consider the applicable

sentencing criteria or that the sentence imposed is ‘strikingly inconsistent’ with the

applicable sentencing factors.” State v. Hull, 11th Dist. Lake No. 2016–L–035, 2017–

Ohio–157, ¶ 8. The record before the trial court supports its finding that consecutive
Licking County, Case No. 2019 CA 00097                                              10


sentences were appropriate to protect the public, considering Thompson’s criminal

record.

       {¶27} Upon review, we find that the record in the case at bar supports the trial

court's findings under R.C. 2929.14(C)(4). While appellant may disagree with the weight

given to the facts by the trial judge, Thompson has failed to clearly and convincingly show

the record does not support the trial court’s findings, or that the aggregate two year

sentence is otherwise contrary to law. Her third assignment of error is denied.

       {¶28} The Decision of the Licking County Court of Common Pleas is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.
