State v. Gulley , 2011 Ohio 4123 ( 2011 )

[Cite as State v. Gulley, 2011-Ohio-4123.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96161
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BOBBY E. GULLEY
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-537948
BEFORE: Rocco, J., Kilbane, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: August 18, 2011
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ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Vincent I. Pacetti
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} After pleading guilty to charges of felonious assault and domestic
violence, defendant-appellant Bobby E. Gulley appeals from his convictions
and sentences.
{¶ 2} Gulley presents one assignment of error. He claims the trial
court erred in failing to merge his convictions pursuant to R.C. 2941.25(A).
The state concedes Gulley’s argument has merit.
{¶ 3} During the time this appeal was pending, moreover, the Ohio
Supreme Court issued its opinion in State v. Damron, Slip Op. No.
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2011-Ohio-2268. Damron compels resentencing. In addition, the record
reflects the trial court imposed sentence on a count to which Gulley had not
pleaded guilty.
{¶ 4} Gulley’s convictions and sentences, therefore, are vacated. This
case is remanded for application of Damron, citing State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The trial court also is ordered
to correct the judgment entry of Gulley’s plea to reflect that he pleaded guilty
to Count 3 of the indictment, rather than to Count 2.
{¶ 5} Gulley originally was indicted on six counts, charged with
attempted murder, two counts of felonious assault, domestic violence, and two
counts of kidnapping. Each charge related to a single event and named the
same victim.
{¶ 6} Gulley eventually accepted the state’s offer of a plea agreement.
In exchange for the state’s dismissal of the other four counts, Gulley
withdrew his not guilty pleas and entered guilty pleas to Count 3, felonious
assault in violation of R.C. 2903.11(A)(2), and to Count 4, domestic violence in
violation of R.C. 2919.25(A). The trial court accepted Gulley’s pleas. The
resulting journal entry, however, wrongly states that Gulley pleaded guilty to
“Count 2,” rather than to Count 3.
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{¶ 7} At the sentencing hearing, the trial court wrongly stated that
Gulley entered a guilty plea as to “Count 2” as well as to Count 4. The court
imposed a sentence of four years for Gulley’s felonious assault conviction, and
ordered it to be served concurrently with a sentence of eighteen months for
his conviction for domestic violence.
{¶ 8} Gulley filed an appeal of his convictions and the sentence
imposed; he presents the following assignment of error.
{¶ 9} “I. The trial court erred by ordering convictions and
sentences for domestic violence and felonious assault because the
offenses are allied offenses pursuant to R.C. 2941.25 and should have
been merged into a single conviction.”
{¶ 10} Gulley argues the trial court violated R.C. 2941.25(A) when it
convicted and sentenced him on both counts to which he pleaded guilty. The
state concedes the error, and this court agrees.
{¶ 11} As Twelfth District observed in State v. Craycraft, Clermont App.
Nos. CA2009-02-013 and CA2009-02-014, ¶15, it is possible to commit the
offenses of felonious assault and domestic violence with the same conduct.
Thus, if the defendant committed those offenses by way of a single act, with a
single state of mind, they are allied offenses pursuant to R.C. 2941.25(A). Id.,
at ¶20.
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{¶ 12} This court, then, is required to apply the supreme court’s opinion
in Damron to the facts of this case. Therein, the court stated in pertinent
part:
{¶ 13} “When a defendant has been found guilty of offenses that are
allied offenses, R.C. 2941.25 prohibits the imposition of multiple sentences.
[State v.] Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶12.
Therefore, a trial court must merge the crimes into a single conviction and
impose a sentence that is appropriate for the offense chosen for sentencing.
State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at
¶41–43. In this case, the sentencing court found Damron guilty of both
offenses and sentenced him on both. The imposition of concurrent sentences
is not the equivalent of merging allied offenses. As we explained in Whitfield,
for purposes of R.C. 2941.25, a ‘conviction’ is the combination of a guilt
determination and a sentence or penalty. Whitfield at ¶12. As the record
stands, Damron has been convicted of both felonious assault and domestic
violence.” (Emphasis added.)
{¶ 14} Based upon the foregoing, this court must “vacate the sentence
and remand for proper sentencing, including application of State v. Johnson,
128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.” Damron,
at ¶18. The trial court is reminded that, by the terms of the plea agreement
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and the plea hearing, Gulley pleaded guilty to Count 3, not to “Count 2,” as
set forth in the journal entry of his plea; therefore, the trial court also must
correct that journal entry.
{¶ 15} Gulley’s convictions and sentences are vacated, and this case is
remanded for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
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KENNETH A. ROCCO, JUDGE
MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR