[Cite as State v. Gilbert, 2014-Ohio-1976.]




                IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.    2013 CA 34

v.                                                     :            T.C. NO.    12CR421

JOSEPH N. GILBERT                                      :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                              ..........

                                              OPINION

                          Rendered on the        9th       day of         May       , 2014.

                                              ..........

JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, 201 W. Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee


SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, 703 Liberty Tower, 120 W. Second
Street, Dayton, Ohio 45402
        Attorney for Defendant-Appellant

                                              ..........

DONOVAN, J.

        {¶ 1}     On December 27, 2012, appellant entered not guilty pleas to one count of
                                                                                             2

rape (felony of the first degree) and one count of gross sexual imposition (felony of the third

degree). On January 25, 2013, appellant entered no contest pleas to both counts of his

indictment and was found guilty of both counts.

       {¶ 2}    Appellant waived his right to a pre-sentence investigation, and the trial court

sentenced appellant to 15 years to life on Count I and 5 years on Count II to be served

concurrent to the sentence in Count I. Furthermore, the court imposed a fine of $10,000 on

Count I.

       {¶ 3}    The appellant’s sole assignment of error states       “THE TRIAL COURT

COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO MERGE THE

SENTENCES IMPOSED ON THE TWO COUNTS OF THE INDICTMENT PURSUANT

TO O.R.C. §2941.25 WHEN THOSE WERE ALLIED OFFENSES OF SIMILAR IMPORT

AND THIS FAILURE AMOUNTED TO PLAIN ERROR.”

       {¶ 4}    The appellant argues that the trial court failed to conduct a hearing to

determine if the charges of Rape and Gross Sexual Imposition should be merged for

purposes of sentencing. He requests that “this matter be remanded to the trial court for

further proceedings to determine whether or not the charges against him should merge.” The

state has filed a brief in which it concedes error in regards to “the trial court failing to

determine whether the offenses are allied offenses of similar import under R.C. §2941.25.”

       {¶ 5}    “When the plea agreement is silent on the issue of allied offenses of similar

import the trial court is obligated under R.C. §2941.25 to determine whether the offenses are

allied, and if they are, to convict the defendant of only one offense.” State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 29. The trial court failed to do so and
                                                                                         3

absent a statement of facts and/or pre-sentence report we are unable to decide the issue of

merger. The State concedes error. The remedy is to remand the case to the trial court for a

hearing on the issue of merger. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061.

       {¶ 6}   This case is remanded for a hearing on the issue of merger.

                                       ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Janna L. Parker
Scott A. Ashelman
Hon. Christopher Gee
