[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

                                               -i-
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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.
                                      3

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.



________________________________
KENNETH A. ROCCO, JUDGE

MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR
