[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 

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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. 
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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