[Cite as State v. Edner, 2017-Ohio-1365.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104594




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       JOHN E. ESNER
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                               REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-604184-A

        BEFORE: S. Gallagher, J., McCormack, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: April 13, 2017
ATTORNEY FOR APPELLANT

John F. Corrigan
19885 Detroit Road, #335
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Christine M. Vacha
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

      {¶1} John Esner appeals the sentences imposed on a single count of theft and

three counts of forgery. All are fifth-degree felonies. The trial court, after specifying

that Esner had been on postrelease control at the time he committed the offenses, imposed

a one-year term of imprisonment on each count to be consecutively served to each other

for an aggregate sentence of four years. We affirm in part, reverse in part, and remand.

      {¶2} Neither Esner nor the state provided a recitation of the facts as required under

App.R. 16(A)(6). App.R. 16(A)-(B) (the parties shall include in their briefs a statement

of facts relevant to the assignments of error presented for review, with appropriate

references to the record). We take this omission to mean that the facts of Esner’s

criminal conduct are not dispositive of the assigned errors. Id. Nevertheless, and so any

reader is not placed in the situation that we find ourselves, we shall provide a brief

statement of the facts as can be discerned from our own review of the record.

      {¶3} At the time of the offenses, Esner was on postrelease control, having just

completed an eight-year term of imprisonment for other theft-related offenses. Esner, a

middle-aged man, has spent most of his adult life behind bars. According to Esner, he

spent only a couple of years out of some form of criminal confinement. At the time of

the latest felony offenses, Esner was providing services for a church and was owed money

for the work performed. While the check was being prepared, Esner was left alone in the

church office or at least left unobserved for a short period of time.           He took the

opportunity to grab nearly 40 blank checks. Esner then made six checks out to himself,
totaling approximately $2,100.     It is not clear where Esner attempted to cash those

checks, if they were indeed cashed. Esner pleaded guilty to uttering the forged checks,

but the indictment does not elaborate on what the uttering entailed in practical terms.

According to the prosecutor’s statement during the change of plea colloquy, the “financial

institution” did not cash the checks and no restitution should be imposed.                 A

representative from the church indicated that it had not been deprived of any funds. For

all this, Esner agreed to plead guilty to the theft of the blank checks and for forging three

of the six checks. The aggregate amount of the forged checks to which Esner pleaded

guilty was $1,127.34. The remaining counts were nolled.

       {¶4} The trial court felt that someone was out the money, most likely an obvious

presumption if Esner indeed succeeded in cashing the checks made out to himself. The

trial court identified FirstMerit Bank as the financial institution that was economically

harmed, although that fact was not in the record or provided by the state during any oral

hearing. In fact, the only mention of “First Merit” in the record came from the trial court

during the plea and sentencing hearings.         Restitution was imposed, over Esner’s

objection, in the amount of $1,703.79 to be paid to “First Merit Bank.” That amount

appears to have come from the registered warrant, which alleged that Esner uttered four

checks. It also appears in the presentence investigation report, but the report repeated the

language from the warrant.

       {¶5} In this timely appeal, Esner complains that restitution was improper, that the

trial court relied on irrelevant factors for imposing consecutive sentences, and that the
offenses should have merged because they arose from the same conduct. The state

“concedes” that the theft, which was predicated on stealing the blank checks,1 should

have merged with the forgery counts because “the forgery counts pertain to the checks.”

One crime “pertaining” to another is not a recognized form of analysis to determine

whether offenses are allied and subject to merger.              The state’s concession seems

somewhat inadvisable in this respect. We do agree that the trial court’s imposition of

restitution was improper, but we affirm the convictions in all other respects.

       {¶6} Beginning with the allied-offense issue, under R.C. 2941.25, courts must use

a three-part inquiry to determine whether a defendant can be convicted of multiple

offenses if those offenses arose from the same act or transaction:

       (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. In addition, “a

defendant’s conduct that constitutes two or more offenses against a single victim can

support multiple convictions if the harm that results from each offense is separate and

identifiable from the harm of the other offense.” Id. at ¶ 26. The test is stated in the

disjunctive form: the existence of any one prong suffices for the imposition of separate

sentences.


       1
        One of the nolled counts was a second theft in violation of R.C. 2913.02(A)(1) for the theft
of between $1,000 and $7,500.
      {¶7} Despite the fact that no one presented a factual basis for their argument as

required by the Rules of Appellate Procedure, both the state and Esner solely rely on the

same-conduct analysis — a fact-intensive inquiry — claiming that Esner committed the

forgery and the theft of the blank checks simultaneously. This ignores the fact that Esner

committed each act of forgery and the act of stealing the blank checks through separate

acts or with distinctly different conduct. Had Esner pleaded guilty to the nolled theft

count pertaining to the theft of between $1,000 and $7,500, we might be inclined to agree

with the parties. See generally State v. Marneros, 2015-Ohio-2156, 35 N.E.3d 925, ¶ 3

(8th Dist.). We, however, are not faced with that issue.

      {¶8} Esner pleaded guilty to theft in violation of R.C. 2913.02(A)(1) because he

purposely deprived the church of blank checks and knowingly obtained and exerted

control over those blank checks without the consent of the owner, and because blank

checks are listed in R.C. 2913.71, the offense was a felony of the fifth degree as a matter

of law regardless of the intrinsic value of the property. Esner was also convicted of three

separate counts of forgery in violation of R.C. 2913.31(A)(3) by purposely defrauding the

church through the uttering of three fraudulent checks. Although the theft facilitated the

forgery, and thus could be considered a single course of conduct, the crimes were all

based on separate and distinct acts. See, e.g., State v. Smith, 11th Dist. Geauga No.

2014-G-3185, 2014-Ohio-5076, ¶ 26. The theft was complete once Esner left the church

with the blank checks.       State v. Washington, 8th Dist. Cuyahoga No. 100994,

2014-Ohio-4578, ¶ 28 (once one crime is complete, the commission of a second crime is
separate and distinct from the commission of the first). The theft offense does not merge

with any of the forgery convictions.      The theft occurred as the product of separate

conduct under the Ruff analysis.

       {¶9} Further, nothing in the record demonstrates when or how Esner forged or

uttered the separate checks for the purpose of determining whether the forgery counts

should merge amongst themselves. Esner’s argument is limited to consideration of the

allegations that the forgeries occurred on the same day, which is essentially the same

argument overruled in State v. Rogers.          State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860, ¶ 15 (the defendant unsuccessfully argued that multiple

sentences for receiving stolen property cannot stand if the offender received the stolen

property in a single transaction). Esner did not raise the merger issue at sentencing, and

we cannot find plain error under these circumstances. There is no factual basis to review

whether the offenses were committed with the same conduct or occurred simultaneously.

Id. at ¶ 25.

       {¶10} Esner asks us to consider the holding from Marneros, 2015-Ohio-2156, 35

N.E.3d 925, at ¶ 43, as dispositive.      Marneros, however, involved a theft of cash

proceeds that was merged with a forgery offense because the theft was solely predicated

upon the underlying forgery acts. Stated another way, in Marneros the act of uttering the

forged checks simultaneously constituted the theft itself. This is an important distinction.

 Although there is no express indication in Marneros whether the theft was of blank

checks or cash proceeds, we can infer the latter because of the severity of the sentence.
A theft of blank checks is a felony of the fifth degree. R.C. 2913.02(A)(1). We know

the theft offense in Marneros involved the theft of $8,413.39, and we also know that the

sentence was at least a third-degree felony — the defendant was sentenced to a 36-month

term of imprisonment. Id. at ¶ 5, 15 (indicating the economic harm was greater than

$7,500 but less than $10,000 and the victim was 71 years old).

      {¶11} Under R.C. 2913.02(B), the only applicable sentencing paradigm

implicating a third-degree or higher felony range for a theft offense when the value of the

stolen goods exceeds $7,500 but is less than $37,000 is R.C. 2913.02(B)(3), which makes

it a third-degree felony if the victim is elderly or disabled. Thus, we can infer that the

forging of the checks, legally defined as uttering a writing the person knows to have been

forged under R.C. 2913.31(A)(3), and the theft of over $7,500 in cash occurred

simultaneously. Id. Marneros is distinguishable from the current facts because Esner

pleaded guilty to stealing blank checks, not an amount between $1,000 and $7,500. As a

result, it must be concluded that the guilty plea was to the commission of crimes

inherently involving separate conduct. Esner’s reliance on Marneros is misplaced.

      {¶12} We recognize that merger analysis is at times a tortured process for trial

judges, defense counsel, and prosecutors alike. This is especially true when, as here, the

events seem intertwined and dependant.        Nevertheless, we must apply the merger

analysis as construed by the Supreme Court of Ohio.           Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892. The subtle distinction between the general motive to

steal and the narrower method of how that theft is accomplished becomes paramount.
Parties must become ever vigilant at the time of the plea and sentencing to assess the

effect of the counts they are pleading to or being sentenced on for merger purposes.

       {¶13} We also are required to overrule Esner’s challenge to the imposition of

individual prison terms to be consecutively served.          The applicable statute, R.C.

2929.14(C)(4), authorizes the court to order consecutive service of sentences if

consecutive service (1) is necessary to protect the public from future crime or to punish

the offender; (2) is not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public; and additionally, (3) if (a) the offender

committed the offense while awaiting trial or sentencing, under community control

monitoring, or under postrelease control for a prior offense; (b) at least two of the

offenses caused harm so great and unusual that no single term for any offense adequately

reflects the seriousness of the offender’s conduct; or (c) the offender’s history of criminal

conduct demonstrates the necessity of consecutive sentences to protect the public from

future crime. State v. Jones, 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145, ¶ 10,

citing State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709, ¶

6.

       {¶14} The trial court made all the findings, and Esner is not challenging that aspect

or whether the record supports the findings under R.C. 2953.08(G)(2). Instead, Esner

challenges the sentence based on the trial court’s consideration of purported irrelevant

issues based on the trial court’s language during the sentencing hearing. The trial court

concluded, in light of Esner’s extensive criminal history and inability to free himself from
a cycle of drug dependency and abuse, that the public would be better served if Esner

could be indefinitely sent to an off-shore penal colony because Esner’s death would likely

be the only impediment to his recidivism. Further, the trial court voiced its displeasure

with the “VA” offering to pay for Esner’s drug treatment despite the fact that Esner was

not entitled to “VA” benefits for one reason or another. As quixotic as we may find

those statements, Esner has not challenged whether the findings were made. Nor has he

challenged whether those findings were supported by the record. The starting point for

our review is to consider that which the law requires, not the trial court’s obiter dictum.2

       {¶15} The trial court found that

       consecutive sentences are necessary to [(1)] protect the public from future
       crimes and to punish you and [(2)] consecutive sentences are not
       disproportionate to the seriousness of your conduct and to the danger that
       you pose to the public. Your criminal history is just — it’s amazing. And
       you committed this offense while you were under Post-Release Control.
       And so [(3)] I do find that your history demonstrates that consecutive
       sentences are necessary, obviously, to protect the public from future crimes
       by you.

Thus, all three findings were made.            R.C. 2929.14(C)(4).        Further, Esner has not

provided us a basis to conclude that the record does not support the findings, and we

cannot review the individual sentences under R.C. 2953.08(A)(2) because the trial court

specified that Esner committed the offenses while on postrelease control under R.C.




       2
         This is not to say that statements by the trial court will always be dismissed as irrelevant.
We were asked to review the imposition of consecutive sentences under R.C. 2953.08(G)(2). In this
respect, we were given an extremely narrow question to answer.
2929.13(B)(1)(b)(xi).      Our sentencing review is limited, and upon the arguments

presented, we cannot conclude that any error occurred.

       {¶16} Finally, we do agree that the imposition of restitution was contrary to law.3

The trial court may impose restitution in an amount based on the victim’s economic loss.

R.C. 2929.18(A)(1). If restitution is imposed, the amount shall be determined from the

amount recommended by the victim, the offender, a presentence investigation report,

estimates or receipts indicating the cost to repair or replace, or any other information, as

long as the restitution does not exceed the economic loss suffered by the victim. Id.

       {¶17} In this case, the state represented that the named victim, the church, had not

been financially harmed by Esner’s conduct and did not request any restitution. The trial

court then assumed that a financial institution was harmed, although the state indicated

that the checks were never cashed by the financial institution. The amount of restitution

for FirstMerit Bank is not derived from any fact in the record, any information in the

presentence investigation report, or any statements by the state, the victim, or the

defendant at the sentencing hearing.

       {¶18} Even if ordering restitution to be paid to a financial institution instead of the

named victim is permitted by R.C. 2929.18(A)(1), at the least, there has to be evidence of

an economic injury suffered by that institution. State v. Sailes, 8th Dist. Cuyahoga No.

103095, 2016-Ohio-5132, ¶ 12 (Stewart, J., concurring) (a “victim” as contemplated

under R.C. 2929.18(A) may include those who suffered a financial loss as a result of the


       Esner objected to the restitution at his sentencing to preserve this issue for appeal.
       3
offender’s conduct regardless of whether named as the victim in the indictment or

information); but see State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d

1178, ¶ 1 (noting the legislature amended R.C. 2929.18(A)(1) to delete the authority to

order restitution to “third parties for amounts paid to or on behalf of the victim”). The

trial court’s supposition is insufficient to satisfy the rigors of R.C. 2929.18. In re T.C.,

8th Dist. Cuyahoga No. 102632, 2015-Ohio-4384, ¶ 19 (trial court abused its discretion

by imposing restitution without competent, credible evidence supporting the amount of

economic loss suffered by the victim). The trial court’s presumption that FirstMerit was

harmed by Esner’s conduct could result in a double recovery, and that risk is the reason

R.C. 2929.18(A)(1) requires a demonstration of actual economic loss to be considered by

the trial court before restitution may be imposed.

       {¶19} Accordingly, we reverse and vacate the imposition of restitution and remand

for the sole purpose of correcting the final sentencing entry to delete the order of

restitution. We affirm the convictions in all other respects.

       {¶20} Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.

       It is ordered that appellant and appellee share 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. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial 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.



SEAN C. GALLAGHER, JUDGE

TIM McCORMACK, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
