[Cite as State v. Delaney,
2025-Ohio-16.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 24COA019
:
ASHLEY DELANEY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Case No. 23-CRI-
339
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 2, 2025
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
ANDRES R. PEREZ CHRISTOPHER BAZELEY
110 COTTAGE STREET, 3RD FLOOR 9200 MONTGOMERY ROAD, SUITE 8A
ASHLAND, OHIO 44805 CINCINNATI, OHIO 45242
Ashland County, Case No. 24COA019 2
Delaney, P.J.
{¶1} Appellant Ashley Delaney appeals from the April 16, 2024 Entry of
conviction and sentence of the Ashland County Court of Common Pleas. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case originated in October 2022 when appellant drafted a letter, forged
the signature of one Kimberly Eberhart (nka Cook), and submitted it to the Ohio
Department of Job and Family Services. In the letter, Eberhart stated that she has
sufficient financial assets which ultimately caused her to be disqualified from receiving
her state medical benefits. Appellant is the girlfriend of Eberhart’s ex-husband. The letter
was apparently written out of spite and caused Eberhart to temporarily lose benefits
during a period of time when Eberhart had a surgery scheduled causing it be delayed.
Eberhart’s two minor children also lost benefits.
{¶3} Eberhart reported the incident to the Ashland County Police Department
and an investigation was conducted by the police.
{¶4} Ultimately Appellant entered pleas of guilty to one count of Forgery, a felony
of the fifth degree pursuant to R.C. 2913.31(A)(1) and 2913.31(C)(1)(b) (Count 1); one
court of Identity Fraud, a felony of the fifth degree pursuant to R.C. 2913.49(B)(2) and
2913.49(I)(2) (Count 2); and Attempted Tampering with Evidence, a felony of the fourth
degree pursuant to R.C. 2923.02, 2913.42(A)(1) and 2913.42(B)(4) (Count 3).
{¶5} Appellant was sentenced to 120 days of local incarceration on each count
to be served concurrently.
Ashland County, Case No. 24COA019 3
{¶6} Appellant now appeals from the trial court’s sentencing entry of April 16,
2024.
{¶7} Appellant raises two assignments of error.
ASSIGNMENTS OF ERROR
I
{¶8} “THE TRIAL COURT ABUSED ITS DISCRECTION WHEN IT IMPOSED A
CONDITION OF COMMUNITY CONTROL THAT DELANEY HAVE NO CONTACT WITH
THE CHILDREN.
II
{¶9} “THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE DELANEY’S
CONVICTIONS FOR SENTENCING PURPOSES.”
ANALYSIS
l
{¶10} On October 15, 2024, Appellant filed a motion to withdraw the first
assignment of error. This Court granted the motion and we will only address the second
assignment of error.
II
{¶11} Appellant claims the trial court erred in failing to make a determination on
the issue of allied offenses. Appellant concedes she did not raise the issue of merger
before the trial court.
{¶12} An accused’s failure to raise the issue of allied offenses of similar import in
the trial court forfeits all but plain error, and a forfeited error is not reversible unless it
affected the outcome of the proceedings and a reversal is necessary to correct a manifest
Ashland County, Case No. 24COA019 4
miscarriage of justice. State v. Dickinson, Jr.,
2024-Ohio-1487, ¶23. Accordingly, an
accused has the burden to demonstrate a reasonable probability the convictions are for
allied offenses of similar import committed with the same conduct and without a separate
animus.
Id. Absent such a showing, the accused cannot demonstrate the trial court’s
failure to inquire whether the convictions merge for purposes of sentencing are plain error.
Id.
{¶13} R.C. 2941.25 governs multiple counts and 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 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.
{¶14} The application of R.C. 2941.25 requires a review of the subjective facts of
the case in addition to the elements of the offense charged. State v. Hughes, 2016-Ohio-
880. The Supreme Court has directed that we ask three questions to determine whether
a defendant’s conduct supports multiple offenses: (1) were the offenses dissimilar in
import or significance? (2) were they committed separately? and (3) were they committed
with separate animus or motivation? An affirmative answer to any of the questions will
Ashland County, Case No. 24COA019 5
permit separate convictions. “The conduct, the animus, and the import must all be
considered.” State v. Ruff,
2015-Ohio-995. The evidence at trial or during a plea or
sentencing hearing will reveal whether the offenses have similar import. Id. at ¶26. When
a defendant’s conduct victimizes more than one person, the harm for each person is
separate and distinct, and therefore, the defendant can be convicted of multiple counts.
Id.
{¶15} Appellant argues on appeal that Counts I (Forgery), II (Identity Fraud) and
Count III (Attempted Tampering With Records) should have merged for purposes of
sentencing because the offenses were committed with a single act – drafting a letter,
forging Eberhart’s signature and submitting it the Ohio Department or Family Services,
and a single animus – to defraud Eberhart out her state benefits. Appellee contends
Appellant committed three different acts: (1) drafting a false letter (Forgery), (2) writing
Eberhart’s signature (Identity Fraud); and (3) submitting said fraudulent letter with
Eberhart’s signature to a government agency (Attempted Tampering With Records).
Appellee further contends there are two victims, Eberhart and the Ohio Department of
Family Services, therefore the offenses do not merge.
{¶16} The record before us consists of the indictment and transcripts of the
arraignment, bond, plea and sentencing hearings. In addition, the record has been
supplemented with the Presentence Investigation and the Victim Impact Statements, filed
under seal.
{¶17} Here, the record supports the Appellee’s position the counts do not merge
because the act of writing a false statement, the act of a writing another person’s signature
and then the act of sending the letter to a government agency are separate and distinct.
Ashland County, Case No. 24COA019 6
In addition, there is no dispute there are two victims in this case, Eberhart – who lost her
benefits and suffered from Appellant’s actions, and the Department of Family and Job
Services – who acted upon receiving the letter and then had to conduct an official
investigation into the matter once it was notified the letter was false. In fact, the Appellant
pled guilty to an enhanced tampering with records charge under R.C. 2913.42 (B)(4)
because the letter was “kept by or belonged to a local, state or federal governmental
entity”.
{¶18} Upon our de novo review, the trial court was not required to merge the
offenses and the record does not reflect plain error.
CONCLUSION
{¶19} Based on the foregoing, appellant’s second assignment of error is
overruled. The April 16, 2024 judgment of the Ashland County Court of Common Pleas
is affirmed.
By: Delaney, P.J.,
Gwin, J. and
Wise, J., concur.
