COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61289 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : RICHARD A. MALESKY : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-242629. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Hyman Friedman, Esq. Public Defender 1276 West Third Street Cleveland, OH 44113 -2- PER CURIAM: This appeal arises out of the Cuyahoga County Court of Common Pleas which accepted appellant's guilty plea to fifteen counts of forgery and one count of aggravated theft. Appellant appeals the court's convictions and sentencing, arguing that his offenses were allied offenses of similar import. The court finds no error, and affirms the judgment of the trial court. STATEMENT OF THE CASE On December 20, 1989, defendant-appellant, Richard A. Malesky, was indicted by the Cuyahoga County Grand Jury for twenty-five counts of forgery in violation of R.C. 2913.91 and one count of aggravated theft in violation of R.C. 2913.02. The alleged victim of all counts was Commerce Steel, Inc. On January 17, 1990, appellant Malesky was arraigned. Appellant pled not guilty to all the charges. On May 29, 1991, appellant Malesky changed his plea to guilty to fifteen counts of forgery and one count of aggravated theft. The remaining counts were nolled pursuant to a plea agreement. On June 26, 1990 appellant Malesky was sentenced to a term of eighteen months in each of the fifteen counts of forgery and five to fifteen years on the count of aggravated theft, sentences to run concurrently. On February 7, 1991, appellant Malesky filed a motion for delayed appeal and appointment of counsel. -3- On February 25, 1991, this court appointed the Public Defender as counsel for appeal. The appeal now follows. ASSIGNMENT OF ERROR I "THE TRIAL COURT VIOLATED MR. MALESKY'S CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY BY ORDERING SEPARATE SENTENCES FOR FORGERY AND AGGRAVATED THEFT WHEN THE OFFENSES WERE ALLIED OFFENSES PURSUANT TO R.C. 2941.25." Appellant argues in his first assignment of error that the trial court erred by ordering separate sentences for forgery and aggravated theft. Specifically, appellant argues that the two offenses were allied offenses of similar import. This assignment of error is not well taken. ISSUE: WHETHER APPELLANT WAS PROPERLY CONVICTED AND SENTENCED FOR FORGERY AND GRAND THEFT Herein, appellant Malesky was charged with fifteen counts of forgery and one count of aggravated theft. Both counts involve the alleged victim, Commerce Steel, Inc. We note that at the trial court, defense counsel did not object to the sentencing for both offenses, nor did defense counsel object to the convictions pursuant to argument that they were allied offenses of similar import. The Ohio Supreme Court has held that failure to object to such convictions and sentencing at the trial court waives such argument on appeal pursuant to the holding in State v. Comen, (1990), 50 Ohio St. 3d 206. In Comen, the Supreme Court of Ohio held that: -4- "Notwithstanding the fact that appellant raised this issue [(i.e.) that pursuant to R.C. 2941.25, aggravated burglary, R.C. 2911.11, and receiving stolen property, R.C. 2913.51, are 'allied offenses of similar import' and, therefore, the trial court should not have convicted him on both offenses] before the court of appeals, this court need not address this proposition of law as appellant failed to object to the convictions or sentencing at the trial level. Appellant's failure to raise this issue in the trial court constitutes a waiver of the error claimed. See, State v. Williams (1977), 51 Ohio St. 2d 11, 116-117, 364 N.E. 2d 1364, 1367, vacated in part or other grounds, Williams v. Ohio (1978), 438 U.S. 911, State v. Broom (1988), 40 Ohio St. 277, 288-289 ***." (Emphasis and insertions in original.) Comen, at 211. In State v. Kent (1980), 68 Ohio App. 2d 151, 153, the court concluded that "[i]n reality, the allied offense statute is a sentencing vehicle." In Kent, the court held that the trial court should have conducted a voir dire hearing on the issue whether the offenses of rape and kidnapping were offenses of similar import. The Kent court held that prejudicial error was committed. In Kent the appellant was sentenced to consecutive sentences for the offenses of rape and kidnapping. Herein, appellant Malesky was sentenced concurrently for the two offenses of forgery and grand theft. Therefore, we distinguish Kent and find harmless error within, notwithstanding appellant's failure to object and preserve for review pursuant to Comen, supra. Accordingly, Assignment of Error I is without merit. ASSIGNMENT OF ERROR II "RICHARD MALESKY WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE -5- OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO OBJECT TO HIS MULTIPLE SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT." Appellant in his second assignment of error argues that he was deprived of effective assistance of counsel at hearing. Specifically, appellant argues that counsel deprived him of his constitutional right to avoid double jeopardy when counsel failed to object to appellant's multiple sentences for allied offenses of similar import. This assignment of error is not well taken. ISSUE: WHETHER APPELLANT WAS DEPRIVED OF INEFFECTIVE ASSISTANCE OF COUNSEL Appellant Malesky's argument that his counsel was ineffective is without merit. In order to substantiate a claim of ineffective assistance of counsel, the appellant upon appeal is required to demonstrate that he was deprived of a fair trial. The appellant must affirmatively demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient, and 2) the result of the appellant's trial would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. In reviewing a claim of ineffective assistance of counsel, this court is usually required to first examine whether the performance of counsel was seriously flawed and deficient; then this court can proceed to an analysis as to whether the claimed deficient performance was prejudicial to the outcome of the -6- trial. This standard of review has recently been truncated by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St. 3d 136. In Bradley, supra, the court established that it is not always necessary to first examine the deficient performance prong of the Strickland test. In fact, the state court reasoned that the inability of the appellant to demonstrate the prejudicial effect of defense counsel's alleged deficient conduct would ipso facto result in the failure of the claim of ineffective assistance of counsel. "Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. 'An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 (1981).' Strickland, supra, at 691. To warrant reversal, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, supra, at 694. *** "*** we note Strickland's admonition that it might not always be necessary to engage in an analysis of both counsel's effectiveness and the prejudicial impact of any of counsel's errors: "'Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the -7- defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure the ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.'" Id. at 142. In the within case, appellant contends that he was prejudiced by counsel's failure to object to his multiple sentences for allied offenses of similar import. We find these contentions of ineffective assistance of counsel meritless when applying the Bradley standard to the case at bar. Assuming arguendo, that defense counsel had objected to appellant's multiple sentences arguing that the offenses of forgery and grand theft were allied offenses of similar import, the court submits that the outcome of the plea sentencing would not have been different. This court has consistently held that forgery and grand theft are not allied offenses. See State v. Carter (Cuyahoga Cty., 1987), No. 52158, unreported, in which the court held: "*** we find that there is an insufficient correspondence between the statutory elements of receiving stolen property, forgery, and theft by deception to render the crimes allied offenses. Although all three offenses could result from a continuous course of conduct, each offense would be complete at a point in time prior -8- to the commencement of the next offense. Since the crimes are successive in nature, there is no material overlap in the conduct supporting the essential elements of each offense. "We note that our decision is in accord with past decisions of this court. See, e.g., State v. Hunter (1983), 12 Ohio St. 3d 75, 78 (forgery and grand theft); State v. Perkins (Jan. 16, 1986), Cuyahoga App. No. 50146, unreported (receiving stolen property and grand theft); cf. State v. Banks (May 8, 1986), Cuyahoga App. No. 50575, unreported (receiving stolen property and uttering)." Therefore, appellant, in the within case, has not met the second prong of Bradley, to wit, to show prejudice to the outcome of the case by virtue of ineffective assistance of counsel. Accordingly, and for the foregoing reasons, Assignment of Error II is without merit. Accordingly, the trial court is affirmed. -9- It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLANCHE KRUPANSKY, CHIEF JUSTICE DAVID T. MATIA, JUDGE ANN MC MANAMON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .