         [Cite as State v. Wright, 2018-Ohio-877.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-170278
                                                         TRIAL NO. B-1607332
        Plaintiff-Appellee,                          :
                                                                 O P I N I O N.
  vs.                                                :

JACQUELINE WRIGHT,                                   :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: March 9, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Stuart W. Penrose, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS


M ILLER , Judge.

       {¶1}    Jacqueline Wright was indicted on eight counts of theft following a

spree of breaking into vehicles and stealing credit cards therein. Wright entered a

plea of no contest, and was found guilty on all eight counts. The trial court imposed

concurrent ten-month sentences on counts 1, 2, and 3, which it ran consecutively to

consecutive ten-month sentences on counts 4, 5, 6, 7, and 8. In aggregate, the court

imposed a 60-month prison sentence for the eight counts of theft. Wright now

appeals.

       {¶2}   In her first assignment of error, Wright challenges the trial court’s

failure to merge counts 1 and 3 as allied offenses of similar import. The state

concedes this error, and agrees that the cause should be remanded for the limited

purpose of merging the counts. Under R.C. 2941.25, allied offenses of similar import

must merge.     “When the defendant’s conduct constitutes a single offense, the

defendant may be convicted and punished only for that offense.” State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 24. When considering whether

allied offenses merge into a single conviction under R.C. 2941.25(A), the reviewing

court must first take into account the conduct of the defendant. Id. at ¶ 25. “If any of

the following is true, the offenses cannot merge and the defendant may be convicted

and sentenced for multiple offenses: (1) the offenses are dissimilar in import or

significance—in other words, each offense caused separate, identifiable harm, (2) the

offenses were committed separately, or (3) the offenses were committed with

separate animus or motivation.” Id. See State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923.

       {¶3}   In this case, Wright broke into a vehicle and stole two credit cards

belonging to Nicholas Staples, which led to her indictment on counts 1 and 3 for




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                        OHIO FIRST DISTRICT COURT OF APPEALS


theft, in violation of R.C. 2913.02(A)(1). Wright’s conduct victimized one person in a

single event, thus the harm was not separate and distinct. Therefore, counts 1 and 3

are of similar import and must be merged. The trial judge said as much on the

record, but ultimately the sentence did not reflect this conclusion.           We sustain

Wright’s first assignment of error.

          {¶4}   In her second assignment of error, Wright argues that the trial court

failed to make all of the findings necessary under R.C. 2929.14(C)(4) prior to

imposing consecutive sentences. Our standard of review of felony sentencing is set

forth by statute:

          The court hearing an appeal [of a felony sentence] shall review the

          record, including the findings underlying the sentence or modification

          given by the sentencing court.

          The appellate court may increase, reduce, or otherwise modify a

          sentence that is appealed under this section or may vacate the

          sentence and remand the matter to the sentencing court for

          resentencing. The appellate court’s standard for review is not whether

          the sentencing court abused its discretion. The appellate court may

          take any action authorized by this division if it clearly and convincingly

          finds either of the following: (a) That the record does not support the

          sentencing court’s findings * * *; (b) That the sentence is otherwise

          contrary to law.


R.C. 2953.08(G)(2). See, e.g., State v. White, 2013-Ohio-4225, 997 N.E.2d 629 (1st

Dist.).

          {¶5}   Under R.C. 2929.14(C)(4), the trial court may impose consecutives

sentences if it finds



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                     OHIO FIRST DISTRICT COURT OF APPEALS


       that the consecutive sentence is necessary to protect the public from

       future crime or to punish the offender and that consecutive sentences are

       not disproportionate to the seriousness of the offender’s conduct and to

       the danger the offender poses to the public, and if the court also finds

       any of the following:

       (a) The offender committed one or more of the multiple offenses while

       the offender was awaiting trial or sentencing, was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

       Code, or was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or

       more courses of conduct, and the harm caused by two or more of the

       multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the

       courses of conduct adequately reflects the seriousness of the offender’s

       conduct.

       (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future

       crime by the offender.


       {¶6}   The trial court is not required to state the letter of the statute verbatim as

long as the reasons for the sentence are apparent from the record. See State v. Jones,

1st Dist. Hamilton No. C-110603, 2012-Ohio-2075, ¶ 22; State v. Wedge, 1st Dist.

Hamilton No. C-000747, 2001 WL 1635585 (Dec. 21, 2001). Having reviewed the

record, including the transcript of the sentencing hearing, we find that the trial court

imposed consecutive sentences in accordance with R.C. 2929.14(C)(4). During the

sentencing hearing, the trial court stated that the consecutive sentences were necessary



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                     OHIO FIRST DISTRICT COURT OF APPEALS


to protect the public from Wright’s conduct and to punish Wright for the string of

thefts, and were warranted because of Wright’s disregard for the safety of the

community and because she had a criminal record. The court also noted that Wright

committed the crimes while on probation. We hold that the trial court’s imposition of

consecutive sentences was appropriate and supported by the record. Therefore, we

overrule Wright’s second assignment of error.

                                     Conclusion

       {¶7}    In conclusion, we vacate Wright’s sentences for theft on counts 1 and

3, and remand the matter to the trial court for the purpose of allowing the state to

elect which allied offense to pursue for sentencing. The trial court’s judgment is

affirmed in all other respects.

               Affirmed in part, sentences vacated in part, and cause remanded.

M OCK , P.J., and Z AYAS , J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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