[Cite as State v. Koller, 2014-Ohio-450.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2013-07-069

                                                  :             OPINION
    - vs -                                                       2/10/2014
                                                  :

BRANDON JACK KOLLER,                              :

        Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 13CR29105



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Thomas G. Eagle, 3386 North St. Rt. 123, Lebanon, Ohio 45036, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Brandon Jack Koller, appeals his sentence in the Warren

County Court of Common Pleas for forgery and receiving stolen property. For the reasons

stated below, we vacate appellant's sentence and affirm in part and reverse in part the

decision of the trial court and remand for further proceedings.

        {¶ 2} On May 6, 2013, appellant was indicted on one count of receiving stolen

property and two counts of forgery. On June 6, 2013, appellant pled guilty to one count of
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receiving stolen property and one count of forgery, both fifth-degree felonies.           Upon

appellant's plea, the state dismissed the second count of forgery.

       {¶ 3} The state proffered as the factual basis for the receiving stolen property charge,

that on or about February 20, 2013 through February 22, 2013, appellant possessed two

checks that belonged to his grandparents without their permission. These checks had been

stolen from appellant's grandparents and appellant knew or had a reasonable belief that the

checks were obtained through the commission of a theft offense. Regarding the single count

of forgery, the state averred that on February 20, 2013, appellant possessed one of the

checks stolen from his grandparents and attempted to cash the check at a LCNB National

Bank (LCNB). Appellant forged the check or had someone else forge the check and

presented the check as having been written to him. The court accepted appellant's guilty

pleas and referred appellant for a presentence investigation and evaluation for possible

community corrections placement.

       {¶ 4} On July 17, 2013, the trial court held a sentencing hearing. Initially, it appeared

that the trial court would sentence appellant to successfully complete an inpatient drug

treatment program. The state and appellant's counsel requested that appellant be sent to a

treatment facility while appellant specifically requested an outpatient program. The court

stated that while appellant wanted to stay with his family and complete an outpatient

program, its job in sentencing appellant was to punish him, protect others from his behavior,

and deter those who commit similar acts. Appellant responded by stating, "I understand

that." The court then dismissed the outpatient option due to appellant's heroin addiction, but

agreed to sentence appellant to complete an inpatient treatment program.

       {¶ 5} The following exchange then took place,

              [Court]: * * * You have pretty much hit rock bottom. When you
              start stealing from your grandparents that's about as low as you
              can go. The other crimes—

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              [Appellant]: I know that.

              [Court]: What?

              [Appellant]: I know that.

              [Court]: Well, don't interrupt me. It's rude number one, and
              number two, I'm the Judge that decides what to do with you, why
              would you want to irritate me?

              [Appellant]: I'm not trying to irritate you sir, I've already dwelled
              over this for four months and I'm stressed out about it. I don't
              need you to tell me that.

              [Court]: Well, I won't bother telling you that. I'm going to send
              you to prison now because your attitude convinces me you're not
              ready for a [community based control facility.]

       {¶ 6} After this exchange the court sentenced appellant to nine months in prison on

each count, to be served consecutively, for a total of 18 months imprisonment. The court

made a series of findings, including that a single sentence would not adequately punish

appellant and that the nature of the crime combined with his lengthy record mandated that

his sentences be served consecutively. The court then declared, sua sponte, that portions of

R.C. 2929.13 that limit the power of the court to impose a sentence on fourth and fifth-degree

felonies are unconstitutional because they violate the separation of powers doctrine. After

the court's pronouncement of appellant's sentence, appellant's counsel objected and stated

that the statute required appellant to be sentenced to a community control sanction.

       {¶ 7} Appellant now appeals, asserting two assignments of error.

       {¶ 8} Assignment of Error No. 1

       {¶ 9} THE TRIAL COURT ERRED IN CONVICTING DEFENDANT FOR RECEIVING

STOLEN PROPERTY AND FORGING THE SAME PROPERTY.

       {¶ 10} Appellant argues that the trial court erred in sentencing him for both receiving

stolen property and forgery because the offenses are allied offenses of similar import.


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Appellant maintains that the state relied on the same act, the February 20, 2013 cashing of

the check at LCNB, to establish that he had possession of the check for both of his

convictions. Therefore, the conduct underlying the convictions was the same and the

offenses should have been merged.

       {¶ 11} At the outset, we note that appellant has waived all but plain error by failing to

raise any allied offense objection with the trial court. State v. Seymore, 12th Dist. Butler Nos.

CA2011-07-131, CA2011-07-143, 2012-Ohio-3125, ¶ 18. However, the imposition of multiple

sentences for allied offenses of similar import amounts to plain error, whether ordered to be

served consecutively or concurrently. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-

1, ¶ 31. We will therefore review appellant's allied offense argument for plain error. State v.

Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 14.

       {¶ 12} R.C. 2941.25 prohibits the imposition of multiple punishments for the same

criminal conduct and provides that:

              (A) Where the same conduct by defendant can be construed to
              constitute two or more allied offenses of similar import, the
              indictment or information may contain counts for all such
              offenses, but the defendant may be convicted of only one.

              (B) 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.

       {¶ 13} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme

Court clarified the test used to determine whether offenses are allied offenses of similar

import under R.C. 2941.25. State v. Jackson, 12th Dist. Clermont No. CA2013-04-037,

2013-Ohio-5371, ¶ 10. Under this test, courts must first determine "whether it is possible to

commit one offense and commit the other with the same conduct." (Emphasis sic.) Johnson

at ¶ 48. It is not necessary that the commission of one offense will always result in the

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commission of the other. Id. Rather, the question is simply whether it is possible for both

offenses to be committed by the same conduct. Id.

       {¶ 14} If it is possible to commit both offenses with the same conduct, courts must

next determine whether the offenses were in fact committed by the same conduct, that is, by

a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied

offenses of similar import and must be merged. Id. at ¶ 50. On the other hand, if the

offenses are committed separately or with a separate animus, the offenses will not merge. Id.

at ¶ 51.

       {¶ 15} Appellant was charged with receiving stolen property in violation of R.C.

2913.51(A). That statute prohibits a person from receiving, retaining, or disposing of property

of another knowing or having reasonable cause to believe that the property has been

obtained through commission of a theft offense. R.C. 2913.51(A). If the property is a printed

form for a check, that on its face identifies the drawer for whose use it is designed or

identifies the account on which it is to be drawn, and that has not been executed by the

drawer, the offense is a fifth-degree felony. R.C. 2913.51(C); R.C. 2913.71(B).

       {¶ 16} Appellant was also charged with forgery in violation of R.C. 2913.31(A)(3). The

statute states that no person, with purpose to defraud, or knowing that the person is

facilitating a fraud shall utter, possess with purpose to utter, any writing that the person

knows to have been forged. R.C. 2913.31(A)(3). To "utter" means "to issue, publish,

transfer, use, put, or send into circulation, deliver, or display." R.C. 2913.01(H). The state

concedes, and we agree that it is possible to commit both offenses with the same conduct.

       {¶ 17} While it is possible to commit both offenses with the same conduct, under the

facts presented in this case, appellant did not commit the offenses by way of a single act with

a single state of mind. Though neither party addresses this issue in their brief, it is clear from

the statement of facts recited at the plea hearing, that the conduct underlying the receiving

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stolen property charge was appellant's possession of two of his grandparents' checks without

their permission. However, the forgery charge was based only on appellant's act of uttering

one of the checks. Therefore, the conduct in forging only one of the checks at LCNB is

separate from his conduct of possessing the other check without his grandparents'

permission. Consequently, the offenses were based on two independent acts and should not

be merged. See State v. Willis, 192 Ohio App.3d 579, 2011-Ohio-797 (6th Dist.), ¶ 35-36;

State v. Bowlin, 12th Dist. Butler No. CA2009-09-227, 2010-Ohio-1635, ¶ 15 (pre-Johnson

case that found offenses were not allied because different checks were involved in the

commission of each crime).

       {¶ 18} Even if appellant's convictions were based on a single check, the offenses

would still not be allied. This court has stated that in determining whether offenses are allied,

courts may look not only to the fact recitation during the plea hearing, and the fact statement

contained in the indictment but also to the information contained in the presentence

investigation report (PSI). State v. Tannreuther, 12th Dist. Butler No. CA2013-04-062, 2014-

Ohio-74, ¶ 16. During the sentencing hearing, the trial court relied on facts contained in the

PSI and noted in the judgment entry that it had relied on the PSI in sentencing appellant.

Appellant did not object to the state's recitation of the facts, nor did he raise any objection to

the information contained in the PSI. Nor did appellant present any evidence or offer any

additional or contradicting facts to support his claim that his crimes were allied offenses.

       {¶ 19} At the plea hearing, the state proffered that appellant committed receiving

stolen property when he possessed two of his grandparents' checks without their permission

from February 20, 2013 through February 22, 2013. Appellant committed forgery when he

uttered one of these checks on February 20, 2013 at LCNB. The PSI indicates that appellant

came into possession of these checks while he was living at his grandparent's home. During

this time, appellant saw two checks lying on his grandparents' desk and took these checks

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without asking his grandparents' permission and had the checks forged by a friend.

Appellant then cashed one of the checks for $120 and a few days later, cashed the other

check.

         {¶ 20} The information contained in the PSI combined with the facts stated in the

indictment and at the plea hearing establishes that the two offenses were completed at

different times and in different locations. The offense of receiving stolen property was

complete once appellant took the checks from his grandparents' home. However, the forgery

offense was not complete until appellant went to LCNB and uttered the check, knowing the

check to be forged. Consequently, it is clear that appellant committed the acts of receiving

stolen property and forging individually by separate acts.            State v. Brown, 2d Dist.

Montgomery Nos. 25342, 25343, 2013-Ohio-2756, ¶ 22. See State v. Taylor, 4th Dist.

Hocking No. 12CA10, 2013-Ohio-472, ¶ 13 (theft and forgery were allied offenses because

act of uttering check coincided with receipt of victim's money). Thus, appellant's offenses are

not allied offenses of similar import and should not be merged.

         {¶ 21} Appellant's first assignment of error is overruled.

         {¶ 22} Assignment of Error No. 2

         {¶ 23} THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT.

         {¶ 24} Appellant also challenges his sentence. Appellant sets forth a number of

arguments as to why his sentence is in error, including that the trial court violated his due

process rights when it found R.C. 2929.13 unconstitutional without providing him notice and

an opportunity to be heard regarding this issue. The state concedes that this amounted to

error. Because we find that the trial court erred when it sua sponte declared portions of R.C.

2929.13 unconstitutional without providing appellant notice or an opportunity to be heard, we

will only address this argument.

         {¶ 25} "The right to procedural due process is found in the Fourteenth Amendment to

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the United States Constitution and Section 16, Article I of the Ohio Constitution."

Youngstown v. Traylor, 123 Ohio St.3d 132, 2009-Ohio-4184, ¶ 8. At a minimum, due

process requires notice and the opportunity to be heard. Krusling v. Ohio Bd. of Pharmacy,

12th Dist. Clermont No. CA2012-03-023, 2012-Ohio-5356, ¶ 13, citing Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652 (1950). "A hearing before

judgment, with full opportunity to present all evidence and arguments which the party deems

important, is * * * vital under the guaranty of due process of law." Reed v. Morgan, 12th Dist.

Butler No. CA2011-03-065, 2012-Ohio-2022, ¶ 11.

       {¶ 26} The Ohio Supreme Court has noted that, "[d]eclaring a statute unconstitutional,

sua sponte, without notice to the parties would be unprecedented" when "neither party has

raised a constitutional issue in briefs or oral argument before the court." Smith v. Landfair,

135 Ohio St. 3d 89, 2012-Ohio-5692, ¶ 12. Instead, the constitutionality of a statute should

be decided when the issue is raised by either party or the record establishes a legal basis for

summarily declaring the statute unconstitutional by the trial court. Cleveland v. Watts, 164

Ohio Misc.2d 25, 2011-Ohio-3606, ¶ 3 (M.C.), citing Cleveland v. Scott, 8 Ohio App.3d 358,

359 (8th Dist.1983). See State v. Wagner, 9th Dist. Lorain No. 12CA010199, 2013-Ohio-

2036, ¶ 7.

       {¶ 27} The trial court erred when it sua sponte found portions of R.C. 2929.13

unconstitutional. Prior to declaring the statute unconstitutional, the trial court did not give

appellant notice that it intended to consider the constitutionality of the statue. Instead, it is

clear that the state, appellant, and the court believed that appellant would be sentenced to a

drug treatment facility. Where neither party has raised a constitutional argument before the

trial court, it should not sua sponte declare a statute unconstitutional without providing the

parties notice of the court's intention and the opportunity to respond. See In re K.A.G., 12th

Dist. Warren No. CA2012-10-101, 2013-Ohio-780, ¶ 17 (court's decision to sua sponte

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vacate final order without providing parties notice and opportunity violated due process).

      {¶ 28} Appellant's second assignment of error is sustained.

      {¶ 29} Appellant's sentence is vacated, the decision of the trial court as to sentencing

is reversed, and this matter is remanded for a new sentencing hearing during which the

parties should be given notice and the opportunity to respond regarding the constitutionality

of R.C. 2929.13.


      HENDRICKSON, P.J., and S. POWELL, J., concur.




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