[Cite as State v. Lindsey, 2012-Ohio-804.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96601




                                      STATE OF OHIO

                                                   PLAINTIFF-APPELLEE

                                             vs.

                                 TERRANCE LINDSEY
                                                   DEFENDANT-APPELLANT




                                 JUDGMENT:
                         AFFIRMED IN PART, REVERSED
                           IN PART, AND REMANDED


                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                       Case Nos. CR-507095, CR-509932, and CR-540066

        BEFORE: E. Gallagher, J., Blackmon, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                  March 1, 2012
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ATTORNEY FOR APPELLANT

Christina M. Joliat
P.O. Box 391531
Solon, Ohio 44139

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
                                            3

EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant Terrance Lindsey appeals convictions entered in the

Cuyahoga County Court of Common Pleas. Appellant presents seven assignments of

error stemming from his guilty pleas to eight felonies entered on October 14, 2010. For

the following reasons, we affirm, in part, and reverse, in part.

       {¶2} Appellant was indicted in three separate cases.        In CR-507095, appellant

was charged with theft in violation of R.C. 2913.02(A)(1) (Count 1), theft in violation of

R.C. 2913.02(A)(3) (Count 2), and passing a bad check in violation of R.C. 2913.11(B)

(Counts 3, 4, and 5). In CR-509932 appellant was charged with burglary in violation of

R.C. 2911.12(A)(2) (Count 1), forgery in violation of R.C. 2913.31(A)(2) (Counts 2

and 4), forgery in violation of R.C. 2913.31(A)(3) (Counts 3 and 5), and theft in

violation of R.C. 2913.02(A)(1) (Count 6). In CR-540066, appellant was charged with

burglary in violation of R.C. 2911.12(A)(2) (Counts 1, 3, and 5), theft in violation of

R.C. 2913.02(A)(1) (Counts 2 and 4), identity fraud in violation of R.C. 2913.49(B)(2)

(Counts 6, 8, 9, 11, 13, and 16), forgery in violation of R.C. 2913.31(A)(2) (Counts 7,

14, 17, and 18), receiving stolen property in violation of R.C. 2913.51(A) (Counts 10 and

12) and forgery in violation of R.C. 2913.31(A)(3) (Count 15). Appellant initially pled

not guilty to the charges.

       {¶3} On October 14, 2010, pursuant to a plea agreement, appellant plead guilty

in CR-507095 to Count 1 as indicted. In CR-509932, appellant pled guilty to theft as

amended in Count 1 in violation of 2913.02(A)(1) and to Counts 2, 3, and 6 as indicted.
                                            4

In CR-540066 appellant pled guilty to Counts 1, 2, and 6 as indicted. All remaining

counts in these indictments were nolled.

        {¶4} In CR-507095, appellant was sentenced to a prison term of one year to run

concurrent with the sentences in CR-509932 and CR-540066. In CR-509932, appellant

was sentenced to prison terms of one year on Counts 1, 2, 3, and 6.         The one-year

prison terms were ordered to be served concurrent to one another and concurrent with the

sentences in CR-507095 and CR-540066. In CR-540066, appellant was sentenced to a

prison term of six years on Count 1, one year on Count 2, and time served on Count 6.

Appellant’s sentences on Counts 1 and 2 were ordered to be served consecutive to one

another and concurrent with the sentences imposed in CR-507095 and CR-509932, for a

cumulative prison term of seven years. Appellant was ordered to pay restitution in the

amount of $3,200.

        {¶5} On December 22, 2010, appellant filed a motion to withdraw his guilty

pleas in the above three cases.   The trial court denied appellant’s motion on January 12,

2011.     On March 30, 2011, appellant filed a motion for leave to file a delayed appeal,

which this Court granted on May 16, 2011.

        {¶6} In appellant’s first assignment of error, he posits that:

        [Appellant] was deprived of due process of law when the trial court abused
        its discretion by failing to allow his withdrawal of guilty plea despite a
        showing of manifest injustice.

        {¶7} Appellant’s first assignment of error is beyond the scope of the present

appeal.    Appellant’s motion for leave to file a delayed appeal sought our direct review
                                            5

of his conviction and specifically, the trial court’s November 5, 2010 journal entries in

CR-507095, CR-509932, and CR-540066. We did not grant appellant leave to appeal

from the trial court’s January 12, 2011 denial of his motion to withdraw his guilty pleas.

Therefore, appellant’s first assignment of error shall not be considered.

       {¶8}    Appellant’s second assignment of error states:

       It was error for the trial court to convict the appellant of both forgery and

       uttering since these were each committed without any separate animus and

       are thusly offenses of similar import and thereby contrary to law.

       {¶9}    Appellant argues that the trial court committed plain error by failing to

hold an allied offense hearing and merging Counts 2 and 3 in CR-509932, convictions

for forgery in violation of R.C. 2913.31(A)(2) and R.C. 2913.31(A)(3), respectively.

The indictment provides in Count 2 that appellant forged check #57797822148, dated

November 8, 2007, in the amount of $80.00 and names as the victim Juanita Williams

and/or CJ Beverage.      Count 3 references the same check and victim and charges

appellant with uttering the forged check.

       {¶10}    Appellant failed to object to the court’s imposition of multiple sentences

and has, therefore, waived all but plain error.   Under Crim.R. 52(B), “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” However, plain error exists only when it is obvious on the

record.   See State v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995).

       {¶11} The Ohio Supreme Court established the proper analysis for determining
                                             6

whether offenses qualify as allied offenses subject to merger pursuant to R.C. 2941.25 in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50

(internal citations omitted), and has held that:

       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. * * * 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.

       If the multiple offenses can be committed by the same conduct, then the
       court must determine whether the offenses were committed by the same
       conduct, i.e., “a single act, committed with a single state of mind.”

       If the answer to both questions is yes, then the offenses are allied offenses
       of similar import and will be merged. Id.

       {¶12} We have previously recognized that forgery under R.C. 2913.31(A)(2) and

uttering under R.C. 2913.31(A)(3) may constitute allied offenses depending on the

underlying factual circumstances. State v. Bounds, 107 Ohio App.3d 700, 705, 669

N.E.2d 334 (8th Dist.1995); State v. Griffiths, 8th Dist. No. 61980, 1993 WL 106952

(1993).   However, under Johnson, we must consider the defendant’s conduct in

determining whether the offenses are allied offenses that should merge.           State v.

Corrao, 8th Dist. No. 95167, 2011-Ohio-2517, 2011 WL 2112721, at ¶ 10. The record

of appellant’s plea does not contain the necessary details as to the timing and

circumstances of the forgery and uttering acts from which we can make such a

determination.   Despite the nearly identical facts stated in the indictment of the two
                                           7

offenses and the fact that the date of the offenses are the same, it is impossible to

determine whether they were committed in “a single act with a single state of mind”

based on the record before us.

      {¶13}    In instances where a defendant, after entering a guilty plea, fails to raise

the issue of merger of offenses at sentencing, the trial court fails to sua sponte conduct

an allied offense analysis and the defendant has failed to offer any evidence to make an

obvious case for plain error in the trial court’s failure to merge counts, this court has

refused to find plain error on appeal. State v. Snuffer, 8th Dist. Nos. 96480, 96481,

96482, 96483, 2011-Ohio-6430, 2011 WL 6245774, at ¶ 9-11.

      {¶14} Accordingly, appellant’s second assignment of error is without merit and

overruled.

      {¶15}    Appellant’s third assignment of error states:

      The trial court erred when it entered judgment and sentence on the guilty
      plea to theft because the indictment was insufficient to constitute a felony
      of the fifth degree.

      {¶16}    Appellant argues that three of his convictions for fifth degree felony theft

were in error based on the indictments and that the court should reduce the convictions to

first degree misdemeanors and remand for resentencing.

      {¶17}    In Count 1 of CR-507095, appellant was indicted for theft of money

orders in violation of R.C. 2913.02(A)(1). Appellant concedes in his reply brief that

pursuant to R.C. 2913.71, a theft of a money order is properly a felony of the fifth

degree.   See also State v. Rygelski, 8th Dist. Nos. 54557 and 54558, 1988 WL 122946
                                            8

17 (1988), (holding that a money order is the type of property that the legislature sought

to include in the automatic enhancement statute, R.C. 2913.71.)

       {¶18}    In Count 1 of CR-509932, appellant was charged with burglary in

violation of R.C. 2911.12(A)(2). Pursuant to appellant’s plea bargain, the state moved

to amend the charge to theft in violation of R.C. 2913.02(A)(1).               However, in

presenting the plea to the trial court neither the state nor the appellant specified that the

amended charge was a felony of the fifth degree rather than a first degree misdemeanor

or indicated the monetary value of the checks.    There is no explanation on the record as

to how the amended charge qualified for enhanced treatment as a fifth degree felony, nor

is there any indication in the record of the value or type of items underlying the amended

theft charge.   As such, we find that the trial court erred in assuming that the charge was

a fifth degree felony rather than a first degree misdemeanor.

       {¶19}    In Count 6 of CR-509932, appellant was charged with theft of money

with the specification that the amount was less than $500.00.             Pursuant to R.C.

2913.02(A)(1), we similarly find that the trial court erred in classifying appellant’s plea

to this charge as a fifth degree felony.

       {¶20}    As indicted, the above two counts were first-degree misdemeanors.        We

find the trial court erred in entering a conviction for fifth-degree felonies on those two

counts and remand the case for the trial court to correct the journal entry so that it

reflects a conviction for a first-degree misdemeanor on Counts 1 and 6 of CR-509932.

The trial court must also resentence appellant on those counts. State v. Moulton, 8th
                                             9

Dist. No. 93726, 2010-Ohio-4484, 2010 WL 3706620, at ¶ 19.

       {¶21}     Appellant’s fourth assignment of error states:

       It was plain error for the court to amend a burglary offense to a theft

       offense as they are two offenses containing different elements and

       requiring independent proof and this is violative [sic] of the constitutional

       right to indictment.

       {¶22}     Appellant argues that his right to indictment under Section 10, Article I of

the Ohio Constitution and Crim.R. 7(A) was violated by the trial court’s acceptance of

his plea bargain wherein the state agreed to amend count one of CR-509932 from

burglary to theft in exchange for appellant’s guilty plea.    Appellant argues that theft is

not a lesser included charge of burglary and the amendment violated Crim.R. 7(D).

       {¶23}     Appellant cites the third district’s decision in State v. Rohrbaugh, 178

Ohio App.3d 211, 2008-Ohio-4781, 897 N.E.2d 238 (3rd Dist.), in support of his

argument.      However, the Ohio Supreme Court overruled that decision in State v.

Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, wherein the court

held that “[a] defendant may plead guilty to an indictment that was amended to change

the name or identity of the charged crime when the defendant is represented by counsel,

has bargained for the amendment, and is not prejudiced by the change.” Id. at syllabus.

 The court reasoned that a defendant cannot take advantage of an error that he invited

through the plea negotiations. Id. at ¶ 10.

       {¶24}     We find that the present situation satisfies the three-part test of
                                             10

Rohrbaugh.        Appellant was represented by counsel, his bargained for plea deal resulted

in numerous counts of the indictments being nolled and a reduction in the charge at issue

from a burglary to a lesser charge of theft, and he was not prejudiced by the amendment

to a lesser charge.

       {¶25}      Appellant’s fourth assignment of error is without merit.

       {¶26}      Appellant’s fifth assignment of error states:

       The trial court committed plain error when it convicted appellant of

       burglary, a crime for which there was insufficient evidence.

       {¶27}      Appellant argues that the record contains insufficient evidence to support

his plea and conviction for burglary.       Appellant cites to facts outside the record and

asks this court to perform a sufficiency analysis on the state’s case for a charge to which

he pled guilty.

       {¶28}       “The Ohio Supreme Court, following United States Supreme Court

precedent, has, in no uncertain terms, long held that a ‘counseled plea of guilty is an

admission of factual guilt which removes issues of factual guilt from the case.’”      State

v. Wenson, 8th Dist. No. 78522, 2001 WL 824480 (2001), citing State v. Wilson, 58 Ohio

St.2d 52, 388 N.E.2d 745 (1979), at paragraph one of the syllabus. “[A] counseled plea

of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent,

it Quite [sic] validly removes the issue of factual guilt from the case.” Wilson, supra at

54.

       {¶29} Appellant’s guilty plea is a complete admission of his guilt pursuant to
                                             11

Crim.R. 11 that precludes challenging his conviction on the basis of insufficient

evidence. State v. Venable, 2d Dist. No. 24020, 2010-Ohio-6211, 2010 WL 5274055,

at ¶ 7,    citing State v. Buhrman, 2d Dist. No. 96CA145, 1997 WL 566154 (1997); State

v. Jamison, 2d Dist. No. 21165, 2006-Ohio-4933, 2006 WL 2709707.

          {¶30}   Appellant’s fifth assignment of error lacks merit.

          {¶31}   Appellant’s sixth assignment of error states:

          The trial court abused its discretion when it sentenced appellant to the

          maximum penalty and a consecutive sentence, it was plain error and

          contrary to law.

          {¶32}   Appellant argues that the trial court erred in sentencing him to the

maximum prison sentence for his fifth degree felonies and in ordering his convictions in

Counts 1 and 2 in CR-540066 to be served consecutively.

          {¶33}   This court has recognized that we review felony sentences using the

Kalish framework. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124; State v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936, 2011 WL 1584479. In

Kalish, the Ohio Supreme Court applied a two-prong approach to appellate review of

felony sentences.        Appellate courts must first “examine the sentencing court’s

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law.” Id. at ¶ 4.       If this

first prong is satisfied, then we review the trial court’s decision under an

abuse-of-discretion standard. Id. at ¶ 4 and 19.
                                              12

          {¶34}   We must determine whether or not the sentence is contrary to law as

required by R.C. 2953.08(G). “[T]rial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings and give

reasons for imposing maximum, consecutive or more than the minimum sentence.”1 Id.

at ¶ 11, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 100.

 The Kalish court declared that although Foster eliminated mandatory judicial

fact-finding, it left R.C. 2929.11 and 2929.12 intact. Kalish, supra at ¶ 13.    As a result,

the trial court must still consider these statutes when imposing a sentence. Id.

          {¶35}   R.C. 2929.11(A) provides that:

          A court that sentences an offender for a felony shall be guided by the

          overriding purposes of felony sentencing[,] * * * to protect the public from

          future crime by the offender and others and to punish the offender. To

          achieve those purposes, the sentencing court shall consider the need for

          incapacitating the offender, deterring the offender and others from future

          crime, rehabilitating the offender, and making restitution to the victim of

          the offense, the public, or both.

          {¶36}   R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

      1
        The General Assembly recently amended former R.C. 2929.14(E)(4),
renumbered R.C. 2929.14(C)(4), and enacted new language requiring fact-finding
for consecutive sentences. Am.Sub. H.B. No. 86; State v. Calliens, 8th Dist. No.
97034, 2012-Ohio-703, ¶ 28. However, this legislation, which had an effective date
of September 30, 2011, is not applicable to appellant, who was sentenced in
November 2010.
                                           13

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses.

       {¶37} In the instant case, aside from the appropriate resentencing mandated by

our disposition of appellant’s third assignment of error, we do not find appellant’s

sentence to be contrary to law.   Appellant’s sentence falls within the statutory range for

each charge.   Further, the record reflects that the trial court properly considered the

applicable sentencing statutes when imposing appellant’s sentence.         The trial court

stated in its judgment entry that appellant’s prison term is consistent with the principles

and purposes of sentencing set forth in R.C. 2929.11 and that it had considered all

required factors of the law.      On these facts, we cannot conclude that appellant’s

sentence is contrary to law.

       {¶38}   Having satisfied the first step, we next consider whether the trial court

abused its discretion. Kalish at ¶ 4 and 19.      An abuse of discretion is more than an

error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable. Id. at ¶ 19, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d

144 (1980).

       {¶39}   The trial court did not abuse its discretion in imposing a seven year

cumulative prison sentence in the present case.       The trial court allowed appellant and

his counsel to advocate for a lesser      sentence.     We find nothing in the record to

suggest that the trial court’s decision was unreasonable, arbitrary, or unconscionable.
                                            14

Accordingly, appellant’s sixth assignment of error is overruled.

         {¶40}   Appellant’s seventh assignment of error states:

         The trial court abused its discretion when it ordered restitution sanctions
         upon the defendant in the absence of any competent and credible evidence
         in the record to support such an order, thus the amount of restitution set at
         the defendant’s sentencing hearing constitutes plain error.

         {¶41}   Appellant argues that the trial court erred in ordering appellant to pay

restitution in the amount of $3,200 based solely upon the representation of the prosecutor

as to what the appropriate amount of restitution was in the case.

         {¶42} Preliminarily, we note that appellant did not object at his sentencing

hearing to the order of restitution or the amount ordered, thus he waived all but plain

error.    State v. Jarrett, 8th Dist. No. 90404, 2008-Ohio-4868, 2008 WL 4356160, ¶ 14,

citing State v. Marbury, 104 Ohio App.3d 179, 181, 661 N.E.2d 271 (8th Dist.1995).

         {¶43}   R.C. 2929.18(A)(1) requires that when restitution is imposed as part of a

criminal sanction for felony offenses, “the amount the court orders as restitution shall not

exceed the amount of the economic loss suffered by the victim as a direct and proximate

result of the commission of the offense.”     Ohio courts have recognized that the amount

of restitution ordered by a trial court must bear a reasonable relationship to the loss

suffered and is limited to the actual loss caused by the offender’s criminal conduct for

which he was convicted. State v. McRae, 8th Dist. No. 96253, 2011-Ohio-6157, 2011

WL 5998202, at ¶ 37. A trial court abuses its discretion in ordering restitution in an

amount that exceeds the economic loss resulting from the defendant’s crime.       Id.
                                          15

       {¶44}   The statute further provides that

       If the court imposes restitution, the court may base the amount of

       restitution it orders on an amount recommended by the victim, the

       offender, a presentence investigation report, estimates or receipts

       indicating the cost of repairing or replacing property, and other

       information, provided that the amount the court orders as restitution shall

       not exceed the amount of the economic loss suffered by the victim as a

       direct and proximate result of the commission of the offense.           R.C.

       2929.18(A)(1).

       {¶45}    Documentary and/or testimonial evidence must be introduced to

demonstrate the victim’s economic loss. State v. Waiters, 191 Ohio App.3d 720, 725,

2010-Ohio-5764, 947 N.E.2d 710, at ¶ 18, citing State v. Webb, 173 Ohio App.3d 547,

2007-Ohio-5670, 879 N.E.2d 254; Marbury, supra.

       {¶46} In this case, the restitution order does not comply with the directives of the

statute and this assignment of error has merit even under a plain error analysis. Id at ¶

20-21; McRae, supra at ¶ 40.       The court did not determine the amount of restitution

based upon an amount recommended by the victim, the offender, an amount agreed upon

during plea negotiations, a presentence investigation report, estimates, receipts, or any

other information that would enable us to determine that it correlates to the amount of

economic loss suffered by the victim as a result of defendant’s conduct. Accordingly,

this assignment of error is sustained and the trial court’s order of restitution is vacated
                                            16

and the matter remanded for a restitution hearing.

       {¶47}   Appellant’s third and seventh assignments of error are sustained. Case

remanded for resentencing under assignments of error three and seven.

       {¶48} Judgment affirmed in part, reversed in part, and remanded.

       It is ordered that appellee and appellant split the 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, A.J., and
MELODY J. STEWART, J., CONCUR
