[Cite as State v. Dendinger, 2023-Ohio-4255.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
CASE NO. 13-23-11
PLAINTIFF-APPELLEE,
v.
KELCEY M. DENDINGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 22 CR 0197
Judgment Affirmed
Date of Decision: November 27, 2023
APPEARANCES:
Michael H. Stahl for Appellant
Angela M. Boes for Appellee
Case No. 13-23-11
WILLAMOWSKI, J.
{¶1} Defendant-appellant Kelcey M. Dendinger (“Dendinger”) appeals the
judgment of the Seneca County Court of Common Pleas, arguing that her
convictions should have merged at sentencing; that the imposition of consecutive
sentences was disproportionate to the offenses; and that she did not receive effective
assistance of counsel. For the reasons set forth below, the judgment of the trial court
is affirmed.
Facts and Procedural History
{¶2} Dendinger was ordered to complete the PIVOT Drug Recovery
Program. On September 2, 2022, Dendinger failed to attend an Aftercare Support
Group. She informed her caseworker that she was absent due to illness. On
September 22, 2022, Dendinger appeared at a hearing on this matter. She not only
testified at this hearing but also submitted a medical excuse into evidence that stated
she had sought treatment at an Urgent Care on September 2, 2022.
{¶3} After this hearing, Dendinger signed a release of medical information
for her records at Urgent Care. Law enforcement then called the phone number on
the medical excuse that Dendinger had submitted. While the personnel at Urgent
Care had no record of Dendinger receiving treatment from them on September 2,
2022, they indicated that Dendinger had received a medical excuse from their
facility for a telehealth appointment that she had on September 10, 2022.
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{¶4} The personnel at Urgent Care further indicated that the date on the
medical excuse from the telehealth appointment appeared to have been altered from
September 10, 2022 to September 2, 2022. They also pointed out that the
designation “Dr.” had been added in front of the name of the nurse practitioner who
had signed the medical excuse.
{¶5} On October 22, 2022, Dendinger was indicted on one count of
tampering with evidence in violation of R.C. 2921.12(A)(2), a felony of the third
degree, and one count of perjury in violation of R.C. 2921.11(A), a felony of the
third degree. Dendinger entered pleas of guilty to both of the charges against her.
On April 12, 2023, the trial court issued its judgment entry of sentencing and ordered
Dendinger to serve the two prison terms consecutively.
{¶6} Dendinger filed her notice of appeal on May 10, 2023. On appeal, she
raises the following three assignments of error:
First Assignment of Error
Plain error occurred, and Mrs. Dendinger’s rights against double
jeopardy under the Ohio and United States Constitutions were
violated, when the trial court failed to merge the Tampering with
Evidence Charge Count 1 with the Perjury Charge Count 2.
Second Assignment of Error
In this case the trial court’s findings that consecutive services of
the two sentences ‘is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct’
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are not supported by the record, and the aggregate sentence is
disproportionate to the offense.
Third Assignment of Error
Trial counsel did not object to the failure of the trial court to
merge Counts 1 & 2 and thereby provided ineffective assistance
of counsel under the Ohio and United State’s [sic] Constitutions.
First Assignment of Error
{¶7} Dendinger argues that her convictions for tampering with evidence and
perjury should have merged at sentencing.
Legal Standard
{¶8} The Fifth Amendment to the United States Constitution and Article I,
Section 10 of the Ohio Constitution provide protections against double jeopardy.
State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 2.
Under both Constitutions, the Double Jeopardy Clause protects
against three abuses: (1) a second prosecution for the same offense
after acquittal, (2) a second prosecution for the same offense after
conviction, and (3) multiple punishments for the same offense.
State v. Miller, 2d Dist. Montgomery No. 27725, 2018-Ohio-2221, ¶ 14. In Ohio,
“R.C. 2941.25 codifies the protections of the Double Jeopardy Clause * * *,
prohibit[ing] multiple punishments for the same offense.” State v. Underwood, 124
Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 27. R.C. 2941.25 reads:
(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.
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(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.
R.C. 2941.25. Under Ohio law, if a defendant is convicted of allied offenses of
similar import the “trial court is required to merge [these convictions] at
sentencing.” Underwood at ¶ 27.
{¶9} To determine “whether two offenses are * * * subject to merger under
R.C. 2941.25, the conduct of the accused must be considered.” State v. Ruff, 143
Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16, quoting State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.
[A] defendant charged with multiple offenses may be convicted of all
the offenses if any one of the following is true: (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows that
the offenses were committed separately, or (3) the conduct shows that
the offenses were committed with separate animus.
Ruff at ¶ 13. Appellate courts generally apply a de novo standard of review in
determining whether offenses are subject to merger under R.C. 2941.25. State v.
Bailey, 171 Ohio St.3d 486, 2022-Ohio-4407, 218 N.E.3d 858, ¶ 6.
{¶10} However, if a defendant fails to raise an objection over the issue of
merger before the trial court, all but plain error is waived on appeal. Bailey at ¶ 7.
Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” Crim.R. 52(B).
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“Under the plain error standard, the appellant must demonstrate that there is a
reasonable probability that, but for the trial court’s error, the outcome of the
proceeding would have been otherwise.” State v. Bradshaw, 2023-Ohio-1244, 213
N.E.3d 117, ¶ 21 (3d Dist.). Appellate courts take “[n]otice of plain error * * * with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus.
Legal Analysis
{¶11} Dendinger concedes that plain error standard of review applies to this
challenge. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 3. In this case, she was convicted of tampering with evidence and perjury.
R.C. 2921.12(A)(2) defines the offense of tampering with evidence as follows:
(A) No person, knowing that an official proceeding or investigation is
in progress, or is about to be or likely to be instituted, shall do any of
the following:
***
(2) Make, present, or use any record, document, or thing, knowing it
to be false and with purpose to mislead a public official who is or may
be engaged in such proceeding or investigation, or with purpose to
corrupt the outcome of any such proceeding or investigation.
In turn, R.C. 2921.11(A) defines the offense of perjury as follows:
No person, in any official proceeding, shall knowingly make a false
statement under oath or affirmation, or knowingly swear or affirm the
truth of a false statement previously made, when either statement is
material.
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Dendinger contends that she did not “present” the falsified medical excuse within
the meaning of R.C. 2921.12(A)(2) until the moment in which she authenticated this
document through her perjured testimony at the hearing. Based on this argument,
she asserts these two offenses were committed with the same act.
{¶12} However, Dendinger has failed to identify any legal authority that
would suggest that the word “present” in R.C. 2921.12(A)(2) should be interpreted
as the equivalent of authenticating a document under oath. Further, R.C.
2921.12(A)(2) defines tampering with evidence as including the acts of making and
using. In this appeal, Dendinger only raises arguments about the act of presenting
the falsified medical excuse at the hearing. She provides no argument as to why her
actions before she testified at the hearing should not qualify as making or using the
falsified medical excuse within the meaning of R.C. 2921.12(A)(2).
{¶13} The evidence in the record indicates that the acts associated with
falsifying this medical excuse occurred before she was placed under oath and gave
rise to the offense of tampering with evidence.1 The acts that gave rise to the offense
of perjury occurred after she was placed under oath at the hearing. In her brief,
Dendinger states that “[s]he forged a doctor’s note and used it to support this false
claim.” (Appellant’s Brief, 6). This statement acknowledges that she falsified a
1
At oral arguments, Dendinger conceded that she altered the doctor’s note in the bathroom before she
appeared in the courtroom. No evidence in the record suggests that she falsified the note while she was
testifying under oath in the courtroom.
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medical excuse in addition to giving a false claim. Since these “offenses were
committed separately,” Dendinger could be convicted of tampering with evidence
and perjury without running afoul of R.C. 2941.25. Ruff, supra, at ¶ 13.
{¶14} On appeal, Dendinger also directs our attention to the federal case law
interpreting the Double Jeopardy Clause of the United States Constitution.
With respect to cumulative sentences imposed in a single trial, the
Double Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature
intended.
Tetak v. Forshey, 6th Cir. No. 22-3783, 2023 WL 2530825, *2 (Jan. 31, 2023),
quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535
(1983). For this reason,
[w]here the legislature intended ‘to impose multiple punishments,
imposition of such sentences does not violate the Constitution.’
[Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67
L.Ed.2d 275 (1981)]. ‘Thus, determining the permissibility of
imposing multiple punishments for one course of conduct is a matter
of discerning the legislature’s intent.’ United States v. Patel, 370 F.3d
108, 114 (1st Cir. 2004).
Sanchez-Rengifo v. Caraway, 798 F.3d 532, 537 (7th Cir. 2015). In Blockburger v.
United States, the United States Supreme Court set forth a test to aid courts in
ascertaining whether Congress intended to authorize cumulative punishments:
‘where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.’
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Volpe v. Trim, 708 F.3d 688, 696 (6th Cir. 2013), quoting Blockburger v. United
States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test
“is a rule of statutory construction and is not controlling where there is a clear
indication of legislative intent.” State v. Bickerstaff, 10 Ohio St.3d 62, 461 N.E.2d
892, fn. 1 (1984). United States v. Nielsen, 640 Fed.Appx. 224, 230 (4th Cir. 2016),
quoting Albernaz at 340; United States v. Turner, 11th Cir. No. 19-13704, 2022 WL
4137756, *4 (Sept. 13, 2022).
{¶15} On appeal, Dendinger asserts that her two convictions do not pass the
Blockburger test. However, the United States Constitution does not require
state courts to apply Blockburger to resolve the double jeopardy
claim. What determines whether the constitutional prohibition against
multiple punishments has been violated is the state legislature’s intent
concerning punishment.
Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014). Since the General Assembly
expressed its intentions regarding multiple punishments by passing R.C. 2941.25,
Ohio courts apply this provision to determine the state legislature’s intent. Ruff,
supra, at ¶ 12. Jackson at 212. See also State v. McKnight, 2022-Ohio-591, 185
N.E.3d 1148, ¶ 32-33 (10th Dist.).
{¶16} In our prior analysis, we applied R.C. 2941.25 and concluded that
perjury and tampering with evidence were not allied offenses of similar import in
this case. As Dendinger’s “offenses were not allied under state law, * * * there was
no double jeopardy violation,” and we are “not required to apply Blockburger.”
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Tetak at *3. See also Pettus v. Warden, Franklin Medical Center, S.D. Ohio No.
1:20-CV-00187, 2023 WL 6290065, *6 (Sept. 27, 2023). For these reasons, we
conclude that Dendinger has not established plain error with her arguments based
upon R.C. 2941.25 or Blockburger. Accordingly, her first assignment of error is
overruled.
Second Assignment of Error
{¶17} Dendinger argues that the trial court’s decision to impose her prison
terms consecutively is not supported by the evidence in the record.
Legal Standard
{¶18} R.C. 2929.14(C)(4) sets forth several findings that a trial court must
make prior to imposing consecutive sentences.
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
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the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4). Thus, the trial court must find (1) that consecutive sentences
are necessary to protect the public or punish the offender (“the necessity finding”);
(2) that consecutive sentences are not disproportionate to the seriousness of the
offense (“the proportionality finding”); and (3) that one of the three factors listed in
R.C. 2929.14(C)(4)(a-c) is applicable. State v. Rodriquez, 3d Dist. Hancock Nos.
5-19-40, 5-19-41, 2020-Ohio-2987, ¶ 6.
{¶19} Thus, “[t]he record must contain a basis upon which a reviewing court
can determine that the trial court made the findings required by R.C. 2929.14(C)(4)
before it imposed consecutive sentences.” State v. Wilson, 2022-Ohio-504, 185
N.E.3d 176, ¶ 148, quoting State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, ¶ 28. However, “no statute directs a sentencing court to give or state
reasons supporting imposition of consecutive sentences.” Bonnell at ¶ 27.
{¶20} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
‘only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam No. 12-16-15,
2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
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1002, 59 N.E.3d 1231, ¶ 1. “Clear and convincing evidence is that measure or
degree of proof * * * which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” State v. Taflinger, 3d Dist.
Logan No. 8-17-20, 2018-Ohio-456, ¶ 12, quoting Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118, paragraph three of the syllabus (1954).
Legal Analysis
{¶21} On appeal, Dendinger limits her challenge to arguing that the
seriousness and proportionality findings are unsupported by the record. At
sentencing, the trial court stated that it had considered the contents of the
presentence investigation report in addition to having “a five-year history” with
Dendinger since her first indictment in 2018. (Sentencing Tr. 15). The trial court
then described this history as follows:
Ms. Dendinger was granted intervention in lieu of conviction. And
she was placed on a three-year period of rehabilitation. She violated
terms of her rehabilitation plan. It was revoked. And she was placed
on community control. This Court is now revoking her community
control * * *.
(Sentencing Tr. 16-17). The trial court also heard arguments from the parties. At
sentencing, the Defense admitted that Dendinger “did not do well in the PIVOT
program * * *.” (Sentencing Tr. 9). The State pointed to the fact that, in 2018,
Dendinger’s conviction was for illegal processing of drug documents and was a
crime of dishonesty like the offenses in the instant case. The State also argued that
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Dendinger “consistently chose to forgo any insight into her behaviors and help that
she was being offered in PIVOT.” (Sentencing Tr. 6).
{¶22} In conclusion, the trial court made the findings that are required to
impose consecutive sentences in this case and incorporated these findings into its
judgment entry. Having examined the materials in the record, we do not conclude
that the trial court’s consecutive sentence findings are clearly and convincingly
unsupported by the record. For these reasons, her second assignment of error is
overruled.
Third Assignment of Error
{¶23} Dendinger argues that she was denied her right to the effective
assistance of counsel when no objection was raised over the issue of merger at
sentencing.
Legal Standard
{¶24} “In order to prove an ineffective assistance of counsel claim, the
appellant must carry the burden of establishing (1) that his or her counsel’s
performance was deficient and (2) that this deficient performance prejudiced the
defendant.” State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24,
quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). To establish deficient performance, the appellant must demonstrate that
trial “counsel made errors so serious that counsel was not functioning as the
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‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. Howton, 3d
Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting Strickland at 687. A trial
attorney is not required to “raise meritless issues or even all arguably meritorious
issues.” State v. Mayse, 88 N.E.3d 1208, 2017-Ohio-1483, ¶ 24 (3d Dist.). Further,
to establish prejudice, “the defendant must show a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different.” State
v. Bibbs, 2016-Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.).
Legal Analysis
{¶25} Dendinger essentially asserts that defense counsel performed
deficiently at sentencing for failing to raise the same arguments about merger that
are set forth under the first assignment of error. However, we have already
concluded that these arguments are without merit. The failure to raise meritless
arguments does not constitute deficient performance. State v. Norville, 3d Dist.
Seneca No. 13-18-14, 2018-Ohio-4467, ¶ 26. Further, we also do not conclude that
the outcome of this proceeding “would have been different if * * * defense counsel
had raised a challenge before the trial court that has since failed on appeal.” State
v. Lewis, 3d Dist. Van Wert No. 15-20-04, 2020-Ohio-6894, ¶ 86. Since Dendinger
has failed to carry the burden of establishing an ineffective assistance of counsel
claim, her third assignment of error is overruled.
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Conclusion
{¶26} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of Seneca County Court of Common Pleas is
affirmed.
Judgment Affirmed
MILLER, P.J. and ZIMMERMAN, J., concur.
/hls
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