[Cite as State v. Bobst, 2014-Ohio-660.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
DOUGLAS W. BOBST, JR.                        :       Case No. CT2013-0046
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CR2013-0083




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    February 24, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

RON WELCH                                            WILLIAM T. CRAMER
27 North Fifth Street                                470 Olde Worthington Road
Zanesville, OH 43701                                 Suite 200
                                                     Westrville, OH 43082
Muskingum County, Case No. CT2013-0046                                                     2

Farmer, J.

       {¶1}   On April 10, 2013, the Muskingum County Grand Jury indicted appellant,

Douglas Bobst, Jr., on one count of burglary in violation of R.C. 2911.12, one count of

theft in violation of R.C. 2913.02, and one count of grand theft of a firearm in violation of

R.C. 2913.02. Appellant had stolen electronics and gun parts from his parents' home

while they were out of town.

       {¶2}   On June 24, 2013, appellant pled guilty as charged. At sentencing, the

trial court merged the theft count with the burglary count, but did not merge the grand

theft of a firearm count.    By sentencing entry filed August 21, 2013, the trial court

sentenced appellant to an aggregate term of twenty-four months in prison.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶4}   "THE TRIAL COURT VIOLATED PRINCIPLES OF DOUBLE JEOPARDY

AND R.C. 2941.25 BY FAILING TO MERGE GRAND THEFT OF A FIREARM AND

BURGLARY."

                                             II

       {¶5}   "APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE

ASSISTANCE        OF    COUNSEL        UNDER      THE     SIXTH     AND     FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO

CONSTITUTION,        ARTICLE      I,   SECTION     10,   WHEN      DEFENSE       COUNSEL

ERRONEOUSLY CONCEDED THAT GRAND THEFT OF A FIREARM AND

BURGLARY DID NOT MERGE UNDER R.C.2941.25."
Muskingum County, Case No. CT2013-0046                                                       3


                                               I

        {¶6}   Appellant claims the trial court erred in failing to merge the grand theft of a

firearm count with the burglary count in violation of the principles of double jeopardy and

R.C. 2941.25 (allied offenses).

        {¶7}   In its appellate brief at 1, the state concedes the issue, stating: "[t]he State

does not dispute the validity of defendant's argument in Assignment of Error Number

One."

        {¶8}   Based upon the foregoing, we find the trial court erred in failing to merge

the grand theft of a firearm count with the burglary count.

        {¶9}   Assignment of Error I is granted. Based upon this decision, Assignment of

Error II is moot.
Muskingum County, Case No. CT2013-0046                                            4


       {¶10} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 214
