COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60473 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANDRE WRIGHT : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-252007 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES HYMAN FRIEDMAN CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER MICHAEL O'SHEA, ASST. WARREN McCLELLAND, ASST. Justice Center - 8th Floor Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 J.F. CORRIGAN, J., - 2 - Appellant, Andre Wright, appeals from his convictions for theft and receiving stolen property. For the reasons set forth below, we affirm. I. Appellant was indicted by a Cuyahoga County Grand Jury for one count of burglary in violation of R.C. 2911.12, two counts of theft in violation of R.C. 2913.02, and one count of receiving stolen property in violation of R.C. 2913.51. Each of the counts contained a violence specification stemming from appellant's conviction for robbery in 1977. Counts two, three, and four additionally contained a furthermore clause referring to the same 1977 conviction. Appellant pled not guilty, and the matter proceeded to a bench trial on July 3, 1990. At the close of the state's case, appellant moved for and was granted acquittal on count one of the indictment, robbery. Appellant was found guilty of the remaining three counts. Appellant was sentenced to a term of two to five years incarceration for counts two and three. The trial court ordered the sentences to be served concurrently. Count four was merged with counts two and three for purposes of sentencing, as the court determined that they were allied offenses. Appellant now brings this delayed appeal. II. For his sole assignment of error appellant contends that: "THE ENHANCEMENT OF THE APPELLANT'S SENTENCE TWICE FOR THE SAME PRIOR CONVICTION WAS CRUEL - 3 - AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION." R.C. 2913.02 provides in pertinent part: "(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: "(1) Without the consent of the owner or person authorized to give consent; "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; "(3) By deception; "(4) By threat. "(B) Whoever violates this section is guilty of theft. If the value of the property or services stolen is less than three hundred dollars, a violation of this section is petty theft, a misdemeanor of the first degree. If the value of the property or services stolen is three hundred dollars or more and is less than five thousand dollars, or if the property stolen is any of the property listed in section 2913.71 of the Revised Code, or if the offender previously has been convicted of a theft offense, a violation of this section is theft, a felony of the fourth degree." (Emphasis added.) In the case sub judice, appellant was convicted of two counts of theft of credit cards. Credit cards are listed in R.C. 2913.71, therefore, appellant's alleged crime was a felony of the fourth degree. Appellant argues that the "furthermore" clause in his indictment was employed to elevate his conviction from a - 4 - misdemeanor to a fourth degree felony. While R.C. 2913.02 mandates that a previous conviction be used against a criminal defendant in such a manner, it is clear that in this case the conviction was elevated solely because of the nature of the goods stolen, i.e., credit cards. Finding appellant guilty of two fourth degree felonies, the trial court is empowered by R.C. 2929.11(7) to sentence appellant to a minimum term of eighteen months, two years, thirty months, or three years, to a maximum term of five years for each conviction. Appellant was given concurrent sentences of two to five years incarceration by the trial court. This sentence is plainly within the court's discretion for punishment of two fourth degree felonies. This is not, as appellant claims, a case of a former conviction being used to elevate a criminal defendant's sentence twice. Neither the "furthermore" clause nor the violence specification were needed to enhance either of appellant's sentences to a term of two to five years incarceration for his conviction. Appellant's crime, theft of credit cards, is a fourth degree felony in and of itself, and is punishable by such a term of incarceration. For these reasons we find that appellant's assignment of error is without merit. Judgment affirmed. - 5 - 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 Court of Common Pleas 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. DYKE, P.J., and ANN McMANAMON, J., CONCUR. JUDGE JOHN F. CORRIGAN 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. .