[Cite as State v. Gray, 2012-Ohio-3796.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   Sheila G. Farmer, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2011-CA-112
                                               :
                                               :
MARION E. GRAY, JR.                            :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Richland
                                                    County Court of Common Pleas Case
                                                    No. 2007CR0560D

JUDGMENT:                                           Dismissed

DATE OF JUDGMENT ENTRY:                             August 22, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JAMES J. MAYER, JR.                                 JEFFERY R STIFFLER
Richland County Prosecutor                          Badnell & Dick Co., L.P.A.
Richland County, Ohio                               21 North Walnut Street
                                                    Mansfield, Ohio 44902
BY: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
[Cite as State v. Gray, 2012-Ohio-3796.]


Edwards, J.

        {¶1}     Appellant, Marion Gray, Jr., appeals a judgment of the Richland County

Common Pleas Court resentencing him to a term of incarceration of 15 years to life for

one count of felony murder (R.C. 2903.02(B)). Appellee is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     In 2007, appellant was convicted of felony murder, felonious assault and

two counts of robbery following jury trial in the Richland County Common Pleas Court.

Appellant punched the victim, James Malone, two times in the head. The victim fell

backwards, hitting his head on the pavement. Mr. Malone died as a result of his injuries.

A doctor testified that Mr. Malone died as a result of blunt force trauma to the head, and

the injuries to the victim's brain were consistent with the victim being punched very hard

in the head area and then falling backward and cracking his skull on the pavement.

        {¶3}     This Court affirmed appellant’s convictions in State v. Gray, 5th Dist. No.

2007–CA–0064, 2008-Ohio-6345. However, we granted reconsideration in light of the

Ohio Supreme Court’s ruling in State v. Colon, 119 Ohio St.3d 204, 893 N.E.2d 169,

2008-Ohio-3749.          On reconsideration, we vacated appellant’s robbery convictions

because the indictments failed to state the necessary mens rea for each crime. State v.

Gray, 5th Dist. No. 2007-CA-0064, 2009-Ohio-455. On remand, the trial court vacated

appellant’s convictions for both counts of robbery and sentenced appellant to a term of

incarceration of 15 years to life for felony murder and seven years for the predicate

offense of felonious assault. Sentences were to run concurrently.

        {¶4}     Appellant appealed again, arguing that felony murder and felonious

assault were allied offenses of similar import. We agreed and again remanded the case
Richland County App. Case No. 2011-CA-112                                               3

to the trial court for resentencing. State v. Gray, 5th Dist. No. 09-CA-50, 2010-Ohio-

1139.

        {¶5}   Appellant was again resentenced and received a sentence of 15 years to

life on the felony murder conviction. The court did not impose an additional sentence on

the felonious assault conviction because it is an allied offense of felony murder. This

resentencing hearing was held via video conference. Appellant again appealed, and

this Court held that his constitutional rights were violated when the trial court held the

resentencing hearing by video conference over appellant’s objections and without

obtaining a waiver. State v. Gray, 5th Dist. No. 2010-CA-0089, 2011-Ohio-4570.

        {¶6}   Appellant was once again resentenced on October 18, 2011. Appellant

was sentenced to 15 years to life on the felony murder charge. The entry also ordered

appellant to pay $9,261.25 in restitution for the funeral expenses of James Malone.

This sentencing entry is the first to include a dollar amount of restitution.   Appellant

assigns three errors on appeal:

        {¶7}   “I. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY

ON THE LESSER-INCLUDED OFFENSES OF ASSAULT AND INVOLUNTARY

MANSLAUGHTER.

        {¶8}   “II. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF BOTH HIS STATE AND FEDERAL CONSTITUTIONAL

RIGHTS, AT THE TRIAL LEVEL.

        {¶9}   “III. THE TRIAL COURT FAILED TO COMPLY WITH CRIM. R. 32 IN

THAT THE SENTENCING ENTRY DID NOT CONTAIN THE CONVICTION FOR THE

UNDERLYING FELONY, FELONIOUS ASSAULT.”
Richland County App. Case No. 2011-CA-112                                                4


      {¶10} We first address the issue of whether the entry appellant has appealed is

a final, appealable order. The entry states only that appellant was convicted of murder,

in violation of R.C. 2903.02(B).    The entry then goes on to state that appellant is

sentenced to 15 years to life on count one, and to no additional sentence on count four

because it is an allied offense. However, the entry does not state the offense of which

appellant was convicted in count four.

      {¶11} Because R.C. 2941.25(A) protects a defendant only from being punished

for allied offenses, the determination of the defendant's guilt for committing allied

offenses remains intact, both before and after the merger of allied offenses for

sentencing, and the trial court should not vacate or dismiss the guilt determination.

State v. Whitfield, 124 Ohio St.3d 319, 325, 922 N.E.2d 182, 188-189, 2010-Ohio-2.

The trial court’s entry in the instant case recognizes that appellant will not be sentenced

on count four without stating the offense of which appellant was convicted on count four.

      {¶12} The Ohio Supreme Court has recently held that Crim. R. 32(C) requires

that the entry include the offenses of which the defendant was convicted as well as the

sentence before the entry is final and appealable:

       {¶13} “We further observe that Crim.R. 32(C) clearly specifies the substantive

requirements that must be included within a judgment entry of conviction to make it final

for purposes of appeal and that the rule states that those requirements ‘shall’ be

included in the judgment entry of conviction. These requirements are the fact of the

conviction, the sentence, the judge's signature, and the entry on the journal by the clerk.

All of these requirements relate to the essence of the act of entering a judgment of

conviction and are a matter of substance, and their inclusion in the judgment entry of
Richland County App. Case No. 2011-CA-112                                               5


conviction is therefore required. Without these substantive provisions, the judgment

entry of conviction cannot be a final order subject to appeal under R.C. 2505.02. A

judgment entry of conviction that includes the substantive provisions places a defendant

on notice that a final judgment has been entered and the time for the filing of any appeal

has begun. Tripodo at 127, 4 O.O.3d 280, 363 N.E.2d 719; App.R. 4(A).” State v.

Lester, 130 Ohio St.3d 303, 958 N.E.2d 142, 2011-Ohio-5204, ¶11.

      {¶14} The order appealed from does not include the fact of the conviction on

Count Four as required by Crim. R. 32(C) and thus, pursuant to Lester, supra, is not a

final appealable order.

      {¶15} The appeal is dismissed.




By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/r0604
[Cite as State v. Gray, 2012-Ohio-3796.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
MARION E. GRAY, JR.                               :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-112




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Richland County Court of Common Pleas is dismissed. Costs assessed

to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
