[Cite as State v. Brady, 2011-Ohio-1797.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 92510



                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                        ERIC BRADY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-516655

        BEFORE:              Boyle, P.J., S. Gallagher, J., and Jones, J.

        RELEASED AND JOURNALIZED:                          April 14, 2011
                                             2

ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} This appeal arises from our granting a limited reopening under App.R. 26(B).

State v. Brady, Cuyahoga App. No. 92510, 2010-Ohio-242, reopening granted in part,

2010-Ohio-6014.

       {¶ 2} “In State v. Brady, Cuyahoga County Court of Common Pleas Case No.

CR-516655, applicant, Eric Brady, was convicted of R.C. 2923.161(A)(1), improperly

discharging a firearm at or into habitation with one-year and three-year firearm specifications.

 The trial court merged the firearm specifications and imposed a three-year sentence on the
                                                 3

firearm specifications, as well as an additional three years on the base charge.           This court

affirmed that judgment in State v. Brady, Cuyahoga App. No. 92510, 2010-Ohio-242.”

2010-Ohio-6014, ¶1.
                       1




       {¶ 3} In his pro se application for reopening, Brady contended “that his appellate

counsel failed to assign as error that Brady could not be convicted of the firearm specification

because use of a firearm is also an element of improperly discharging a firearm at or into

habitation.”   Id. at ¶2.   In support of his argument, Brady relied on State v. Elko, Cuyahoga

App. No. 83641, 2004-Ohio-5209, in which “this court agreed with the argument of the

defendant-appellant that the trial court erred by convicting and sentencing him on the

three-year firearm specification in a count of improperly discharging a firearm into

habitation.”   Id. at ¶4.

       {¶ 4} The state acknowledged that Brady’s appellate counsel was ineffective.

“Nevertheless, the state argue[d] that this court should overrule Elko and adopt the holding of

the Fifth District Court of Appeals in State v. Ford, Licking App. No. 2008 CA 158,

2009-Ohio-6725, at ¶48-65 (overruling appellant’s assignment of error that ‘the court erred in

sentencing him consecutively on the offense of discharging a firearm at or into a habitation

and on the firearm specification, as the offenses are allied offenses of similar import and


            Appellant’s counsel quoted this paragraph at page 1 of appellant’s brief and assignments of
       1


error, but without attribution.
                                                 4

consecutive sentencing, therefore, constitutes double jeopardy,’ at ¶48).”         Id. at ¶5.
                                                                                                2




       {¶ 5} We granted Brady’s application for reopening, but limited the reopened appeal

“to one assignment of error that deals with the issue of whether the trial court properly

convicted and sentenced Brady on the three-year firearm specification.”               Id. at ¶7.    The

clerk supplemented the record, and the parties filed briefs.

       {¶ 6} Appellant argues that this court should apply Elko.              The state acknowledges
                                                                          3




Elko but urges this court to overrule Elko and adopt the holding of the Fifth District in Ford.

       {¶ 7} Ford appealed the decision of the Fifth District, and the Supreme Court affirmed

in State v. Ford, Slip Opinion No. 2011-Ohio-765.             A jury found Ford guilty of several

charges including discharging a firearm at or into a habitation under R.C. 2923.161(A)(1) and

a three-year firearm specification under R.C. 2941.145.

       {¶ 8} “The criminal offense of discharging a firearm at or into a habitation as defined

in R.C. 2923.161 and a firearm specification as defined in R.C. 2941.145 are not allied

offenses of similar import as defined in R.C. 2941.25, because a firearm specification is a

penalty enhancement, not a criminal offense.”          Ford, 2011-Ohio-765, paragraph one of the



           The correct citation for the Fifth District’s decision in Ford is: 2009-Ohio-6724.
       2




         Appellant assigned one error: “The trial court erred in convicting and sentencing for allied
       3


crimes of similar import which resulted in cumulative punishments violating the Double Jeopardy
Clause of the Fifth Amendment of the United States Constitution, as applied to the states through the
Fourteenth Amendment, and Section 10, Article I of the Ohio Constitution.”
                                              5

syllabus.

       {¶ 9} As was the case in Ford, Brady was convicted of improperly discharging a

firearm at or into a habitation under R.C. 2923.161(A)(1) with a three-year firearm

specification under R.C. 2941.145.    Ford and Brady also received the same sentence:       three

years on the firearm specification to be served prior to and consecutively to the three years for

improperly discharging a firearm at or into a habitation.    This case is, therefore, on all fours

with Ford.   In light of the Supreme Court’s holding in Ford, the trial court did not err by

sentencing Brady on the firearm specification to a three-year term to be served prior to and

consecutive to the three-year term on the base charge of     improperly discharging a firearm at

or into a habitation. Ford requires that we overrule Brady’s assignment of error.

       Judgment affirmed.

       It is ordered that appellee recover of appellant 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.         The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
                                 6




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
LARRY A. JONES, J., CONCUR
