[Cite as State v. Hampton,
2016-Ohio-2991.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
CASE NO. CA2015-09-075
Plaintiff-Appellee, :
OPINION
: 5/16/2016
- vs -
:
SHAWN E. HAMPTON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2015CR0172
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Schuh & Goldberg, LLP, Brian T. Goldberg, 2662 Madison Road, Cincinnati, Ohio 45208, for
defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Shawn E. Hampton, appeals from his conviction in the
Clermont County Court of Common Pleas following his guilty plea to two counts of receiving
stolen property, two counts of forgery, and nine counts of misuse of a credit card belonging to
an elderly person. For the reasons outlined below, we affirm.
{¶ 2} On June 2, 2015, Hampton entered into a plea agreement and pled guilty to the
Clermont CA2015-09-075
above named offenses, all fifth-degree felonies. According to the bill of particulars, the
charges stemmed from Hampton's actions in obtaining and using two stolen credit cards
belonging to an elderly person on the evening of February 15, 2015, as well as obtaining,
forging, and cashing two stolen checks on February 16 and 17, 2015. After denying his
motion alleging a number of the charges should be merged as allied offenses of similar
import, the trial court sentenced Hampton to an aggregate six-year prison term. It is
undisputed that each prison term imposed to reach Hampton's aggregate six-year prison
sentence was within the permissible statutory range.
{¶ 3} Hampton now appeals from his conviction, raising three assignments of error
for review. For ease of discussion, Hampton's first and second assignments of error will be
addressed out of order.
{¶ 4} Assignment of Error No. 2:
{¶ 5} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
IMPOSING CONVICTIONS AND CONSECUTIVE SENTENCES FOR CHARGES THAT
SHOULD HAVE MERGED.
{¶ 6} In his second assignment of error, Hampton argues the trial court erred by
failing to merge his nine convictions for misuse of a credit card belonging to an elderly person
since they were allied offenses of similar import. We disagree.
{¶ 7} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of
multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio
App.3d 437,
2010-Ohio-324, ¶ 7 (12th Dist.). Specifically, R.C. 2941.25 states:
(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
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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.
{¶ 8} Although previously applying the two-part test as outlined in State v. Johnson,
128 Ohio St.3d 153,
2010-Ohio-6314, the Ohio Supreme Court has since clarified the test for
allied offenses in State v. Ruff,
143 Ohio St.3d 114,
2015-Ohio-995. Under the Ruff test, in
determining whether offenses are allied offenses of similar import within the meaning of R.C.
2941.25, "courts must evaluate three separate factors—the conduct, the animus, and the
import."
Id. at paragraph one of the syllabus. In conducting this analysis, 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; and (3) the offenses were committed with separate animus or
motivation. Id. at ¶ 25. Thus, "two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and identifiable."
Id. at ¶ 26. This court applies a de novo standard of review in reviewing a trial court's R.C.
2941.25 merger determination. State v. Williams,
134 Ohio St.3d 482,
2012-Ohio-5699, ¶
28.
{¶ 9} In this case, Hampton argues his nine convictions for misuse of a credit card
belonging to an elderly person should merge because the offenses occurred on the same
date during a continuing course of conduct oftentimes within mere minutes of each other.
However, although close in time, the record firmly establishes that each of these nine
offenses were committed separately in separate transactions through the use of two separate
credit cards with three separate retailers all of which created a separate and identifiable harm
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to the victim.
Count Credit Card Place Time Amount
Used
4 Discover Wal-Mart 9:32 p.m. $112.14
5 Discover Wal-Mart 9:33 p.m. $48.27
6 Discover Speedway 10:33 p.m. $16.16
7 Discover Speedway 10:37 p.m. $23.57
8 Discover Speedway 10:38 p.m. $48.28
9 Bank of America AT&T 9:32 p.m. $48.27
10 Bank of America Wal-Mart 9:10 p.m. $100.00
11 Bank of America Wal-Mart 9:11 p.m. $50.00
12 Bank of America Speedway 8:09 p.m. $20.00
{¶ 10} Despite this, Hampton argues that his nine convictions should have merged
since the plain language of R.C. 2913.21(B)(2) regarding the misuse of a credit card makes it
clear that "each time a credit card is used does not constitute a separate offense." Pursuant
to that statute, no person, with purpose to defraud, shall "[o]btain property or services by the
use of a credit card, in one or more transactions, knowing or having reasonable cause to
believe that the card has expired or been revoked, or was obtained, is retained, or is being
used in violation of law." (Emphasis added.) However, while the statute contemplates the
possibility that the use of one credit card to make multiple transactions could be tried as a
single offense, the statute does not mandate that result. Instead, we find the language in
R.C. 2913.21(B)(2) referencing "one or more transactions" merely alludes to the fact that
under certain circumstances an offender's misuse of a credit card to make multiple
transactions may be tried as a single offense after compiling the aggregate value of all
property and services involved. See R.C. 2913.61(C)(2) (permitting the aggregation of
multiple offenses where the offender is being tried for a series of violations regarding the
misuse of a credit card belonging to an elderly person). Hampton's claim otherwise lacks
merit.
{¶ 11} Again, the record in this case firmly establishes that each of these nine
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offenses were committed separately in separate transactions through the use of two separate
credit cards with three separate retailers all of which created a separate and identifiable harm
to the victim. "As we have previously recognized, if one offense is completed before the
other begins, the offenses are considered separately for sentencing purposes even though
the two offenses may have been committed in close proximity in time." State v. Fields, 12th
Dist. Clermont No. CA2014-03-025, 2015-Ohio-1345, ¶ 18. Therefore, because each of the
nine offenses were committed separately and created a separate and identifiable harm to the
victim, the trial court did not err by failing to merge Hampton's nine convictions for misuse of
a credit card belonging to an elderly person as they were not allied offenses of similar import.
Accordingly, Hampton's second assignment of error is overruled.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT'S SIXTH
AMENDMENT RIGHTS BY ENTERING JUDGMENT OF CONVICTION AFTER A PLEA AND
SENTENCING AT WHICH APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL FOR HIS DEFENSE.
{¶ 14} In his first assignment of error, Hampton argues he received ineffective
assistance of counsel since his attorney allowed him to enter a plea agreement to nine
counts of misuse of a credit card belonging to an elderly person when those charges were
allied offenses of similar import that should have merged. However, in light of our decision
under Hampton's second assignment of error, this argument lacks merit. Accordingly,
Hampton's first assignment of error is overruled.
{¶ 15} Assignment of Error No. 3:
{¶ 16} THE TRIAL COURT ABUSED ITS DISCRETION AND IMPOSED A CRUEL
AND UNUSUAL PRISON SENTENCE IN VIOLATION OF THE EIGHTH AMENDMENT TO
THE UNITED STATES CONSTITUTION.
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{¶ 17} In his third assignment of error, Hampton argues the trial court abused its
discretion by sentencing him to serve a total of six years in prison and that such a sentence
constitutes cruel and unusual punishment. However, as recently noted by the Ohio Supreme
Court, "appellate courts may not apply the abuse-of-discretion standard in sentencing-term
challenges." State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 10. Moreover, as this
court has stated previously, a sentence within statutory range is generally "not excessive and
does not violate the constitutional prohibition against cruel and unusual punishment." State
v. Bosman, 12th Dist. Butler No. CA2001-05-101,
2002 WL 42887, *1 (Jan. 14, 2002).
{¶ 18} We also find nothing disproportionate about the aggregate six-year prison
sentence imposed in this case that would shock the moral sense of the community. State v.
Accorinti, 12th Dist. Butler Nos. CA2012-10-205 and CA2012-11-221, 2013-Ohio-4429, ¶ 21.
This is particularly true here considering Hampton's lengthy criminal history that consists of
over 40 separate misdemeanor and felony offenses, as well as the fact that Hampton was
subject to community control sanctions at the time he committed each of the offenses at
issue here. Therefore, because this court may not apply an abuse-of-discretion standard in
sentencing-term challenges, and because the aggregate six-year prison sentence imposed in
this case does not amount to cruel and unusual punishment, Hampton's third assignment of
error is overruled.
{¶ 19} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.
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