[Cite as State v. Rogers, 2012-Ohio-4451.]




              IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :   C.A. CASE NO. 2011 CA 0057

vs.                                              :   T.C. CASE NO. 2011 CR 0060

STEVEN J. ROGERS                                 :   (CRIMINAL APPEAL FROM
                                                      COMMON PLEAS COURT)
        Defendant-Appellant                      :

                                             .........

                                             OPINION

                          Rendered on the 28th day of September, 2012.

                                             .........

Steven K. Haller, Prosecuting Attorney, by Elizabeth A. Ellis, Assistant Prosecuting
Attorney, Atty. Reg. No. 0074332, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

Adrian King, Atty. Reg. No. 0081882, 36 North Detroit Street, Suite 104, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

Steven J. Rogers, Inmate No. A613-650, London Correctional Institute, P.O. Box 69,
London, Ohio 43140
      Pro Se Defendant-Appellant

                                             .........

GRADY, P.J.:

        {¶ 1} In February 2011, Defendant Steven Rogers was indicted on one count of theft,

R.C. 2913.02(A)(3), a felony of the fifth degree, and one count of passing bad checks, R.C.
                                                                                             2

2913.11(B), also a felony of the fifth degree. Each offense was alleged to have occurred

between January 22 and 27, 2011. The State and Defendant reached a plea agreement

whereby Defendant pled guilty to both counts, and the State agreed not to pursue an additional

charge of felony drug possession. In September 2011, the trial court sentenced Defendant to

consecutive sentences of nine months for each count. The court ordered that the sentences be

served concurrently with a sentence Defendant was serving for Fayette County. Defendant

filed a timely notice of appeal.

       {¶ 2} Appellate counsel filed an Anders brief, Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 19 L.Ed.2d 493 (1967), stating that he could find no potentially meritorious issues

for appellate review. We notified Defendant of his appellate counsel’s representations and

afforded him ample time to file a pro se brief. Defendant has filed a pro se brief presenting

one assignment of error for our review. This matter is now before us for a decision on the

merits and our independent review of the record. Penson v. Ohio, 488 U.S. 75, 109 S.Ct.

346, 102 L.Ed.2d 300 (1988).

       {¶ 3} The only potential issue for appeal raised by Defendant’s appellate counsel is

whether Defendant’s convictions were allied offenses of similar import. Counsel refers us to

State v. Jones, 78 Ohio St.3d 12, 13, 676 N.E.2d 80 (1997), and concludes: “It appears that the

Court and/or Defense Counsel believed that Defendant’s offenses did not ‘correspond to such

a degree that the commission of one crime [resulted] in the commission of [the others].’”

       {¶ 4} In his pro se brief, Defendant raises the following related assignment of error:
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“THE TRIAL COURT COMMITTED PLAIN ERROR IN IMPOSING CONSECUTIVE

SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT.”

       {¶ 5} At the sentencing hearing the trial court asked, “I presume we have discussed

that these are not allied offenses?” The State responded, “Correct, Your Honor.” (Tr. 11).

Defendant did not object to this characterization, and he made no argument that his two

convictions were allied offenses of similar import that must be merged. Defendant has

therefore waived all error except plain error. State v. Coffey, 2d Dist. Miami No. 2006CA6,

2007-Ohio-21, ¶ 14. Failure to merge allied offenses of similar import is plain error. State

v. Coffey; State v. Fairman, 2d Dist. Montgomery No. 42499, 2011-Ohio-6489, ¶ 56. To

prevail under the plain error standard, an appellant must demonstrate both that there was an

obvious error in the proceedings and that but for the error, the outcome of the trial clearly

would have been otherwise. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044.

       {¶ 6} An appellant who argues that the trial court erred by not merging multiple

offenses bears the burden to show not only that the offenses were allied offenses pursuant to

R.C. 2941.25(A), but also that neither of the exceptions to merger of allied offenses in R.C.

2941.25(B) applies. State v. Hale, 2d Dist. Clark No. 11CA0033, 2012-Ohio-2662, ¶ 24.

Defendant relies on State v. Snyder, 12th Dist. Butler No. CA2011-02-018, 2011-Ohio-6346.

       {¶ 7} In Snyder, the defendant ordered building materials for which he paid with

three separate checks, each of which was subsequently dishonored for insufficient funds. The

defendant was convicted of three counts of passing bad checks and one count of theft by

deception. The trial court imposed consecutive sentences for the four offenses. The court of

appeals affirmed the consecutive sentences for the passing bad checks offenses because they
                                                                                                4

were committed separately. The court reversed the consecutive sentence imposed for the

theft by deception offense, finding that it was an allied offense of similar import to the three

passing bad check charges and that merger of the theft by deception offense was required by

R.C. 2941.25, precluding the concurrent sentence the trial court imposed.

       {¶ 8} In his pro se brief, Rogers contends that “[t]he Snyder case is on all fours with

the instant case.” (Brief, p. 2.). We do not agree. Critical to the appellate court’s decision

in Snyder was the fact that the indictment in that case alleged that all four offenses constituted

a “continuing course of conduct.” On that basis, the theft by deception charge was held to

constitute the same conduct as the three passing bad check charges, requiring merger pursuant

to R.C. 2941.25(A). The court further found that neither of the exceptions to merger in R.C.

2941.25(B) applied.

       {¶ 9} We do not necessarily agree with the holding in Snyder. R.C. 2941.25(A)

applies to “the same conduct by defendant,” not to a course of conduct. Nevertheless, the

holding in Snyder presents no basis for merger in the present case. The offenses of theft and

passing bad checks to which Defendant Rogers pled guilty were charged in discrete counts in

the indictment, and no continuing course of conduct in relation to the two offenses was

alleged. The question remains whether they are allied offenses of similar import per R.C.

2941.25.

       {¶ 10} We have a transcription of the plea and sentencing proceedings, but neither

portrays the particular facts of the two offenses of which Defendant was convicted. In his pro

se brief, Rogers contends: “Appellant stole a payroll check and cashed it.” (Brief, p. 1.)
                                                                                            5

       {¶ 11} “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 offenses correspond to such a degree that the

conduct of the defendant constituting one offense constitutes commission of the other, then

the offenses are of similar import.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,

942 N.E.2d 1061, ¶ 48.

       {¶ 12} Defendant was convicted of theft, R.C. 2913.02(A)(3), which provides:

       No person, with purpose to deprive the owner of property or services, shall

       knowingly obtain or exert control over either property or services * * * [b]y

       deception.

       {¶ 13} Defendant was also convicted of passing bad checks, R.C. 2913.11(B), which

provides:

       No person, with purpose to defraud, shall issue or transfer or cause to be issued

       or transferred a check or other negotiable instrument, knowing that it will be

       dishonored or knowing that a person has ordered or will order stop payment on

       the check or other negotiable instrument.

       {¶ 14} It is possible, in committing the offense of passing bad checks, to knowingly

obtain control over the property or services of a person who provides the property or services

in exchange for the bad check, when the actor has the purpose of depriving the owner of the

property or services he provided. Because it is possible to commit the two offenses by

engaging in the same conduct, R.C. 2913.02 and 2913.11(B) are allied offenses of similar

import that must be merged pursuant to R.C. 2941.25(A). Johnson. The further issue is
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whether merger is avoided in the present case per R.C. 2941.25(B) because the two offenses

were committed separately or with a separate animus as to each.

        {¶ 15} Defendant stole the payroll check in order to obtain cash or other value when

he negotiated it. We see no separate animuses. However, his conduct in stealing the check

was not the same conduct in which Defendant engaged when, as he described it, he “cashed

it.” The two offenses were therefore committed separately, and merger is avoided per R.C.

2941.25(B). Any claim to the contrary would be frivolous.

        {¶ 16} Defendant’s assignment of error is Overruled.

        {¶ 17} In addition to reviewing the possible issue for appeal identified by Defendant’s

appellate counsel and the issue presented by Defendant pro se, we have conducted an

independent review of the trial court’s proceedings and have found no error having arguable

merit. Accordingly, this appeal is without merit and the judgment of the trial court will be

Affirmed.



Froelich, J., and Hall, J., concur.



Copies mailed to:

Elizabeth A. Ellis, Esq.
Adrian King, Esq.
Steven J. Rogers, Pro Se Defendant-Appellant
Hon. Steven A. Wolaver
