[Cite as State v. Joseph,
2017-Ohio-7309.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
DAVID A. JOSEPH, SR. : Case No. 17-CA-28
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 16-CR-673
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 18, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CLIFFORD J. MURPHY JUSTIN M. FOX
20 North Second Street 5 East Long Street
4th Floor Suite 603
Newark, OH 43055 Columbus, OH 43215
Licking County, Case No. 17-CA-28 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, David Joseph, Sr., appeals his April 26, 2017
conviction and sentence of the Court of Common Pleas of Licking County, Ohio. Plaintiff-
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} After being released from prison after having served five years for passing
bad checks, appellant was arrested on March 14, 2016, for passing a bad check. On
March 24, 2016, the Licking County Grand Jury indicted appellant on one count of passing
a bad check in violation of R.C. 2913.11 (Case No. 2016CR00149). The victim was Pugh
Jewelers. A trial was held in July 2016 wherein appellant was found guilty. He was
sentenced to twelve months in prison.
{¶ 3} On November 3, 2016, the Licking County Grand Jury indicted appellant on
two counts of passing bad checks in violation of R.C. 2913.11 and one count of attempted
theft in violation of R.C. 2923.02 and 2913.02, the underlying case sub judice. The victims
were Granville Market, Bowman Tire and Repair Center, Washington Hardware, Dunkin's
Diamonds, Granville Milling & Feed, Plaza Pizza, and Ohio Tire Sales.
{¶ 4} On January 19, 2017, appellant filed a pro se motion to amend the
November indictment, claiming the two counts for passing bad checks should be merged
under R.C. 2913.11(E) because they alleged the same course of conduct between the
same dates.
{¶ 5} On January 20, 2017, appellant's appointed counsel filed a motion to
dismiss the November indictment, claiming police investigators were aware in early March
2016 of the victims of the November 2016 indictment, but the state chose to first indict
Licking County, Case No. 17-CA-28 3
appellant on the bad check involving Pugh Jewelers; therefore appellant's speedy trial
rights began in March and were violated.
{¶ 6} On April 25, 2017, a change of plea hearing was held. Prior to taking
appellant's plea, the trial court entertained arguments on the motion to dismiss for a
violation of speedy trial rights. The trial court denied the motion. Appellant then pled no
contest to the three counts in the indictment. The plea agreement indicated all three
counts merge for sentencing. Defense counsel argued the sentence imposed should be
merged with the sentence imposed out of the March indictment because all the counts
stemmed from the same common conduct during the same time period. Defense counsel
had also submitted this argument to the trial court via a sentencing memorandum filed
the morning of the plea hearing. By judgment of conviction and sentence filed April 26,
2017, the trial court found appellant guilty, merged the three counts for sentencing, and
sentenced appellant to ten months incarceration with jail time credit of 47 days.
{¶ 7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 8} "THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT WHEN IT FAILED TO MERGE ALL COUNTS OF
DEFENDANT'S PASSING BAD CHECKS."
{¶ 9} Preliminarily, we note this case is before this court on the accelerated
calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment
on appeal, provides in pertinent part: "The appeal will be determined as provided by
Licking County, Case No. 17-CA-28 4
App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the
reason for the court's decision as to each error to be in brief and conclusionary form."
{¶ 10} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158,
463 N.E.2d 655 (10th
Dist.1983).
{¶ 11} This appeal shall be considered in accordance with the aforementioned
rules.
I
{¶ 12} In his sole assignment of error, appellant claims the trial court violated the
Double Jeopardy Clause when it failed to merge all counts of passing bad checks. We
disagree.
{¶ 13} R.C. 2913.11 governs the offense of passing bad checks. Subsection (E)
states: "In determining the value of the payment for purposes of division (F) of this section,
the court may aggregate all checks and other negotiable instruments that the offender
issued or transferred or caused to be issued or transferred in violation of division (A) of
this section within a period of one hundred eighty consecutive days."
{¶ 14} Subsection (F) states in part:
Whoever violates this section is guilty of passing bad checks. Except
as otherwise provided in this division, passing bad checks is a misdemeanor
of the first degree. If … the check or checks or other negotiable instrument
Licking County, Case No. 17-CA-28 5
or instruments are issued or transferred to multiple vendors or persons for
the payment of one thousand five hundred dollars or more but less than
seven thousand five hundred dollars, passing bad checks is a felony of the
fifth degree.
{¶ 15} The November indictment alleged all the bad checks were passed between
March 1, 2016, and March 31, 2016. Appellant argues the sentence sub judice should
have merged with the sentence imposed in the Pugh Jewelers case because the passing
of the bad checks from March 1, 2016 to March 31, 2016, was a common course of
conduct, and the Pugh Jewelers check was written on March 5, 2016. In his brief at 7-8,
appellant argues "the State failed to aggregate all checks. And brought multiple
indictments at different times, by doing so the second indictment was multiplicitous." As
explained by our brethren from the First District in State v. Johnson, 1st Dist. Hamilton
Nos. C-0801195 & C-0801196, 2009-Ohio-6800, ¶ 19:
Multiplicity occurs when a single crime has been arbitrarily divided or
separated into two or more separate counts. The danger of a multiplicitous
indictment is that it may give rise to a double-jeopardy violation by resulting
in multiple sentences for a single offense, or that it may prejudice a
defendant by causing a guilty verdict on a given count solely on the strength
of evidence on the remaining counts.
Licking County, Case No. 17-CA-28 6
{¶ 16} In his sentencing memorandum filed April 25, 2017, defense counsel
argued the following:
Again, the aggregation provision of R.C. 2913.11 allows the court to
aggregate all checks within a period of 180 days; in this case that (sic) State
charged Defendant with a course of conduct that ranged from between
March 1 to March 31, 2016. As the State chose to charge Defendant under
the aggregation provision in lieu of charging misdemeanors for each
individual check, they were obligated to include all checks, including that to
Pugh Jewelers. The subsequent indictment included alleged victims who
were known to law enforcement and the State when he was indicted in the
first instance. Yet, the State waited until he was incarcerated on the original
case to charge the second case, for conduct that was within the same time
frame. (Emphasis sic.)
{¶ 17} During the sentencing phase of the change of plea hearing, defense
counsel argued under R.C. 2913.11(E), the court may aggregate all checks that occur
within 180 days, but the state only "aggregated some. I believe they were bound to
aggregate all." April 25, 2017 T. at 29.
{¶ 18} Nowhere in R.C. 2913.11 does it mandate that the state is bound or required
to aggregate all checks. Aggregation is permissible to bump individual misdemeanors to
a felony and is discretionary. Appellant's acts of passing multiple bad checks is not a
"single crime," but separate crimes relative to each separate victim.
Licking County, Case No. 17-CA-28 7
{¶ 19} Upon review, we do not find a violation of the Double Jeopardy Clause.
{¶ 20} The sole assignment of error is denied.
{¶ 21} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Delaney, P.J. and
Gwin, J. concur.
EEW/sg 724
