[Cite as State v. Taylor, 2013-Ohio-472.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       HOCKING COUNTY


STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :   Case No. 12CA10

        vs.                                           :

DANDY E. TAYLOR, II,                                  :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                          :

_________________________________________________________________

                                             APPEARANCES:

COUNSEL FOR APPELLANT:                      Benjamin E. Fickel, 47 North Market Street, Ste. 208,
                                            Logan, Ohio 43138

COUNSEL FOR APPELLEE:                       Laina Fetherolf, Hocking County Prosecuting Attorney, 88
                                            South Market Street, Logan, Ohio 43138

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-6-13
ABELE, J.

        {¶ 1} This is an appeal from a Hocking County Common Pleas Court judgment of

conviction and sentence. Dandy E. Taylor, II, defendant below and appellant herein, pled guilty

to (1) theft in violation of R.C. 2913.02(A)(1), and (2) forgery in violation of R.C. 2913.31(A)

(3).

        {¶ 2} Appellant assigns the following error for review:

                 “THE TRIAL COURT ERRED WHEN IT IMPOSED
                 SEPARATE SENTENCES UPON DANDY E. TAYLOR FOR
                 OFFENSES THAT AROSE FROM THE SAME CONDUCT,
                 WERE NOT COMMITTED SEPARATELY OR WITH A
                SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED
                FOR SENTENCING PURPOSES UNDER O.R.C. 2941.25.”

        {¶ 3} On February 24, 2012, the Hocking County Grand Jury returned an indictment

that charged appellant with the above noted offenses, as well as a separate count that charged him

with receiving stolen property in violation of R.C. 2911.32(A). Appellant initially pled not

guilty, but later agreed to plead guilty to the first and third counts in return for dismissal of the

receiving stolen property charge.

        {¶ 4} At the plea hearing, the parties reviewed the agreement's terms and the trial court

endeavored to ascertain whether appellant understood his rights. Satisfied that he did, the trial

court accepted appellant's guilty pleas and imposed six month terms of incarceration for each

count to be served consecutively as per the plea agreement. This appeal followed.

        {¶ 5} Before we address the merits of the assignment of error, we first note that R.C.

2953.08(D)(1) provides that a sentence is not subject to appellate review if it is “recommended

jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.”

Ordinarily, this means that appellant could not appeal his sentence in this case. As both the

parties note, however, an exception exists to this general rule.

        {¶ 6} The Ohio Supreme Court held in State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, at paragraph one of the syllabus, that when multiple sentences are

“imposed for multiple convictions on offenses that are allied offenses of similar import in

violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar appellate review of that sentence

even though it was jointly recommended by the parties and imposed by the court.” The Court

explained that R.C. 2941.25, in essence, codifies the Double Jeopardy protections of the Fifth

Amendment to the United States Constitution and, thus, must be considered as an exception to
HOCKING, 12CA10                                                                                     3

R.C. 2953.08(D)(1). Underwood, supra, at ¶¶23-26. Thus, because appellant can appeal his

sentence on this issue, we now turn to the merits of his assignment of error.

       {¶ 7} Appellant asserts that the trial court erred by imposing separate sentences for the

first (theft) and third (forgery) counts of the indictment because they are allied offenses of similar

import under R.C. 2941.25(A).

       {¶ 8} Although little information appears in the record as to the facts that surround these

crimes, appellant admitted in a motion that he committed the theft by forging the name of an

elderly gentleman on a check (somehow obtained from said individual), and then cashed the

check at the bank on which it was drawn. Appellant thus argues that “the forgery was the means

by which [he] committed the theft,” and because both “counts arose from and were committed by

the same conduct[,]” they are allied offenses of similar import.

       {¶ 9} It is true that appellant could not be convicted of two crimes that are allied

offenses of similar import. R.C. 2941.25 (A). However, appellant could be convicted and

sentenced on two crimes of dissimilar import. Id. at (B).     The Ohio Supreme Court’s most

recent and definitive ruling on R.C. 2941.25(A) is State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, at ¶48, where the Court held:

       “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, not whether it is possible to commit one
       without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816
       (Whiteside, J., concurring) (“It is not necessary that both crimes are always
       committed by the same conduct but, rather, it is sufficient if both offenses can be
       committed by the same conduct. It is a matter of possibility, rather than certainty,
       that the same conduct will constitute commission of both offenses.” [Emphasis
       sic]). If the offenses correspond to such a degree that the conduct of the defendant
       constituting commission of one offense constitutes commission of the other, then
       the offenses are of similar import.”
HOCKING, 12CA10                                                                                       4



       {¶ 10} R.C. 2913.31(A)(3) defines forgery to have occurred when someone, with purpose

to defraud, “[u]tter[s], or possess[es] with purpose to utter, any writing that the person knows to

have been forged.” “Utter” in this context means to issue, publish, transfer, use, put or send into

circulation, deliver, or display. R.C. 2913.01(H). Someone commits a theft by knowingly

obtaining or exerting control over the property of another without consent of the owner of the

property. R.C. 2913.02(A)(1).



       {¶ 11} Prior to Johnson, the weight of authority indicated that theft and forgery are not

allied offenses of similar import because they involve different elements and a person could

commit one without committing the other. See State v. Kuhlen, 10th Dist. No. 99-AP107, 1999

WL 1054830 (Nov. 23, 1999)(as well as the various cases cited therein). Has Johnson changed

that view? Neither the appellee nor appellant cite any direct authority to support their respective

arguments. The only remotely applicable authority we have located is State v. Snuffer, 8th Dist.

Nos. 96480, 96481, 96482, 96483, 2011-Ohio-6430. In Snuffer, the appellant forged the

victim’s name on a withdrawal slip and took money from the victim’s account. Id. at ¶¶5&7.

This action resulted in a forgery charge and theft charge with respect to that particular victim.

After noting that forgery and theft were not allied offenses under prior law, our Eighth District

colleagues opined that Johnson no longer “requires us to slavishly compare the elements of each

offense[.]” 2011-Ohio-6430, at ¶¶6-7. The Court further noted that “Snuffer might plausibly

argue that he used the forged withdrawal slip to facilitate the theft of money from the victim's

bank account so that the forgery was in essence the act of theft.” (Emphasis added) Id. at ¶8. He
HOCKING, 12CA10                                                                                      5

did not make that argument, however, and, thus, the court did not so rule. The opinion's

language, however, suggests that the Eighth District would be receptive to that argument. In the

end, the issue of whether, subsequent to Johnson, theft and forgery are allied offenses appears to

be one of first impression.

       {¶ 12} In deciding that issue, we must apply the Johnson two-part test: (1) we must

determine “[i]f the offenses correspond to such a degree that the conduct of the defendant

constituting commission of one offense constitutes commission of the other . . .”

2010-Ohio-6314, at ¶48; (2) if the multiple offenses can be committed by the same conduct, we

must determine whether the offenses were committed by the same conduct, i.e., “a single act,

committed with a single state of mind.” (Citations omitted) Id. at ¶49. “If the answer to both

questions is yes, then the offenses are allied offenses of similar import and will be merged.” Id. at

¶50.

       {¶ 13} R.C. 2913.31 is Ohio's general forgery statute and this is the label given to the

offense with which appellant was charged under Count III. However, the specific charge against

him is not actually forging a signature under subsection (A)(1). Rather, the subsection charged

in the indictment alleged that appellant uttered a forged check (subsection (A)(3)). This is an

important distinction. As noted above, to “utter” is statutorily defined, inter alia, as being to use,

transfer or put into circulation. This suggests, although the record is unclear on the point, that

appellant committed the crime when he presented the check at the bank and received, in return,

three hundred dollars of the victim’s money. The passing (or “uttering”) of the check is the

forgery offense and his receipt of money was the theft offense. However, these two offenses

occurred simultaneously, as a result of the same conduct, and arose from the same animus.
HOCKING, 12CA10                                                                                                                 6

Therefore, under Johnson we agree with appellant that under the facts present in this case these

offenses are allied offenses of similar import. Consequently, appellant may only be convicted

and sentenced on one offense.1

         {¶ 14} The appellee argues that State v. Gaines, 6th Dist. No. WD-08-058, 2010-Ohio-91

supports a contrary view. However, we believe that Gaines is not applicable for two reasons.

First, Gaines involves forgery and the misuse of a credit card, rather than forgery and theft.

Second, and more important, the court’s analysis is based upon a comparison of the elements of

each offense in the abstract. Id. at ¶¶37-43. In Johnson, the Ohio Supreme Court modified, or

rejected entirely, that approach.

         {¶ 15} We also reject the application of Gaines because it predates Johnson. The court

decided Johnson on December 29, 2010, whereas Gaines was journalized on January 15, 2010.

Thus, the Gaines court did not have the benefit of the Johnson test.

         {¶ 16} For these reasons, appellant’s assignment of error is well taken and hereby

sustained. Accordingly, we hereby affirm the trial court’s judgment as to the conviction, but

reverse as to the sentence and remand the matter for re-sentencing consistent with this opinion.

                                                            JUDGMENT AFFIRMED IN
                                                      PART, REVERSED IN PART,
                                                 AND CASE REMANDED FOR
                                            FURTHER PROCEEDINGS
                                       CONSISTENT WITH THIS
                                                            OPINION.


         1
            We note, however, that a slightly different set of facts could have arguably changed the outcome of our analysis.
For instance, if appellant was charged with an (A)(1) violation, and the forgery occurred several days before he cashed the
check, it may not constitute the same conduct. Similarly, if appellant was charged with (A)(1), but someone else cashed the
check and then returned the money to appellant, the result of our analysis may have been different as well.
[Cite as State v. Taylor, 2013-Ohio-472.]
                                             JUDGMENT ENTRY

        It is ordered that the judgment be affirmed, in part, reversed, in part, and that the case be
remanded for further proceedings consistent with this opinion. Appellant to recover of appellee
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 Hocking County
Common Pleas Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

        Harsha, J. & Kline, J.: Concur in Judgment & Opinion

                                                                For the Court




                                                                 BY:
                                                Peter B. Abele, Judge


                                            NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
