[Cite as State v. Gillepsie, 2013-Ohio-4917.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99553

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JOHN GILLEPSIE

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-568400 

BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Blackmon, J. 

RELEASED AND JOURNALIZED: November 7, 2013 
ATTORNEY FOR APPELLANT

Susan J. Moran 

55 Public Square 

Suite 1616 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Alison Foy 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., P.J.: 

{¶1} Defendant-appellant, John Gillepsie, appeals the sentence imposed by the 

common pleas court. After a careful review of the record and relevant case law, we 

affirm appellant’s sentence. 

I. Factual and Procedural History

{¶2} On November 9, 2012, appellant was indicted on one count of kidnapping in 

violation of R.C. 2905.01(A)(2); three counts of aggravated robbery in violation of R.C. 

2911.01(A)(1) and (A)(3); four counts of felonious assault in violation of R.C. 

2903.11(A)(1) and (A)(2); one count of discharge of a firearm on or near a prohibited 

premises in violation of R.C. 2923.161(A)(3); and one count of receiving stolen property 

in violation of R.C. 2913.51(A). Counts 1 through 9 of the indictment contained oneand three-year firearm specifications. 

{¶3} Prior to the commencement of trial, appellant agreed to enter into a plea 

agreement whereby he pled guilty to one count of aggravated robbery in violation of R.C. 

2911.01(A)(1), as amended in Count 2 of the indictment, with one- and three-year firearm 

specifications; two counts of felonious assault in violation of R.C. 2903.11(A)(2), as 

amended in Counts 5 and 6 of the indictment, with a one-year firearm specification 

attached to each count; and one count of receiving stolen property, as charged in Count 

10 of the indictment. 

{¶4} Prior to sentencing, the victims, Nadra Henen and Gerhard Herbst, addressed 

the court and provided an account of appellant’s actions in this matter. Henen and 

Herbst were working at the Convenient Food Mart located at West 61st Street and Detroit 
Avenue in Cleveland, Ohio, on the evening of October 24, 2012. At approximately 

10:40 p.m., appellant entered the store brandishing a firearm and ordered Henen to give 

him everything in the cash register. Henen stated that she immediately closed the cash 

register drawer and yelled at appellant to leave the store. Herbst, who was standing next 

to Henen, stepped forward toward appellant, at which point appellant struck Herbst over 

the head with his firearm. When Henen attempted to stop appellant, she was also struck 

over the head with the firearm. Appellant then ran out of the store, firing a shot as he 

fled. Both Henen and Herbst suffered substantial injuries as a result of the attack. The 

following day, detectives from the Cleveland Police Department went to an address where 

appellant was known to reside and discovered the weapon used during the commission of 

the offense as well as the hat worn by appellant at the time of the robbery. The weapon 

recovered was later found to have been reported stolen. 

{¶5} On January 31, 2013, the trial court imposed a prison sentence of 12 years. 

Appellant’s sentence included four years on the aggravated robbery charge, two years 

each on the felonious assault charges, and six months on the receiving stolen property 

charge. The trial court ordered the sentences for the aggravated robbery and felonious 

assault charges to run consecutively to each other, but concurrently with the sentence for 

the receiving stolen property charge, for a total of 8 years on the underlying charges. 

The trial court further merged the one-year firearm specifications attached to the 

felonious assault charges, but ordered the remaining one-year specification to be served 

consecutively to the three-year specification attached to the aggravated robbery charge. 
The trial court ordered the remaining four years of firearm specifications to be run prior 

and consecutive to the underlying charges. 

{¶6} Appellant now brings this timely appeal, raising two assignments of error for 

review: 

I. The trial court erred in convicting and consecutively sentencing allied 

crimes of similar import which resulted in cumulative punishments 

violating the Double Jeopardy Clause of the Fifth Amendment to the United 

States Constitution, as applied to the states through the Fourteenth 

Amendment, and Section 10, Article 1 of the Ohio Constitution. 

II. The trial court committed reversible error when it failed to merge all 

firearm specifications contained in the indictment in violation of O.R.C. 

2929.14(D)(1)(b) and in violation of the Fifth, Sixth, and Fourteenth 

Amendments to the United States Constitution. 

II. Law and Analysis

A. Allied Offenses

{¶7} In his first assignment of error, appellant argues that the trial court erred in 

failing to merge Count 2, aggravated robbery, with Counts 5 and 6, felonious assault. 

Appellant alleges that these offenses were committed with the same animus, and failure to 

merge the sentences for these three offenses constituted a violation of his Fifth 

Amendment rights. 

{¶8} Initially, we note that, in an effort to avoid allied offenses arguments made 

after a valid plea was entered into, we reiterate a relevant statement made by this court 

over 30 years ago in State v. Kent, 68 Ohio App.2d 151, 155, 428 N.E.2d 453 (8th 

Dist.1980), fn.1. In Kent, Judge Alvin Krenzler stated: 

When there is a probability that the allied offense issue may arise in 

a case, the prosecutor and defense counsel would be well advised to 

squarely confront the issue in any plea bargaining that takes place. By 
resolving this question at the plea bargaining stage and incorporating the 

resolution of the allied offense issue in the plea bargain to be placed on the 

record, the prosecutor and defense counsel will act to avoid later problems 

in the validity of the plea bargain, in the entering of the plea, in the 

acceptance of the plea, in the judgment of conviction, and any appeal of the 

case. 

{¶9} Our review of an allied offenses question is de novo. State v. Webb, 8th 

Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d 

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. The Ohio Supreme Court has established 

a two-step test to determine whether offenses are allied offenses of similar import under 

R.C. 2941.25(A). First, we must examine “whether it is possible to commit one offense 

and commit the other with the same conduct.” State v. Johnson, 128 Ohio St.3d 153, 

2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48. If the answer is yes, we must then determine 

“whether the offenses were committed by the same conduct, i.e., ‘a single act, committed 

with a single state of mind.’” Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 

2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). 

{¶10} In addressing the first step, we find that in either case it is possible to 

commit both offenses with the same conduct. An examination of the elements reveals 

that aggravated robbery under R.C. 2911.01(A)(1) prohibits the use of a deadly weapon 

while committing a theft offense, and felonious assault under R.C. 2903.11(A)(2) 

prohibits knowingly causing or attempting to cause physical harm by means of a deadly 

weapon. Thus, the single act of striking a person with a deadly weapon to effectuate a 

theft could constitute both offenses. See State v. Sanders, 8th Dist. Cuyahoga No. 

97383, 2012-Ohio-3566, ¶ 23; State v. Pope, 6th Dist. Lucas No. L-12-1168, 

2013-Ohio-4091, ¶ 20-21. 
{¶11} We must now turn our attention to whether the offenses in this case were 

actually committed by the same conduct. We hold that they were not. Here, the 

aggravated robbery occurred at the moment appellant brandished his weapon and ordered 

Henen to empty the cash register. However, once Henen shut the register drawer, 

thereby preventing appellant from successfully completing the theft offense, appellant’s 

state of mind immediately shifted. At the time appellant struck Henen and Herbst over 

their heads with his weapon, he was no longer attempting to commit the robbery. Rather, 

the record reflects that the assaults were committed out of frustration due to the victims’ 

reluctance to comply with appellant’s demands. Moreover, the victims’ statements at 

sentencing indicate that the felonious assaults were also caused to further appellant’s 

ability to flee the scene of the thwarted robbery. Thus, the ultimate physical attack on 

Henen and Herbst was not “slavishly tied to that initial criminal goal,” but was made once 

the robbery did not go according to plan. See State v. Shields, 1st Dist. Hamilton No. 

C-100362, 2011-Ohio-1912, ¶ 18, citing State v. Williams, 8th Dist. Cuyahoga No. 94616, 

2011-Ohio-925, ¶ 75 (S. Gallagher, J., concurring). 

{¶12} For these reasons, we find that the trial court did not err in failing to merge 

the aggravated robbery and felonious assault convictions because they were committed 

with a separate animus, against separate victims. 

{¶13} Appellant’s first assignment of error is overruled. 

B. Merger of Firearm Specifications

{¶14} In his second assignment of error, appellant argues that the trial court erred 

in failing to merge all firearm specifications contained in the indictment in violation of 
R.C. 2929.14(B)(1)(b). Appellant contends that because he committed his crimes as part 

of a single criminal objective, the firearm specifications should have merged. For the 

following reasons, we disagree. 

{¶15} Ordinarily, the court is forbidden from imposing sentence on multiple 

firearm specifications for “felonies committed as part of the same act or transaction.” 

R.C 2929.14(B)(1)(b). However, this section applies only to the extent that R.C. 

2929.14(B)(1)(g) does not apply, which states: 

If an offender is convicted of or pleads guilty to two or more 

felonies, if one or more of those felonies are aggravated murder, murder, 

attempted aggravated murder, attempted murder, aggravated robbery, 

felonious assault, or rape, and if the offender is convicted of or pleads guilty 

to a specification of the type described under division (B)(1)(a) of this 

section in connection with two or more of the felonies, the sentencing court 

shall impose on the offender the prison term specified under division 

(B)(1)(a) of this section for each of the two most serious specifications of 

which the offender is convicted or to which the offender pleads guilty and, 

in its discretion, also may impose on the offender the prison term specified 

under that division for any or all of the remaining specifications. 

{¶16} Thus, regardless of whether appellant’s crimes were committed as part of a 

single transaction, R.C. 2929.14(B)(1)(g) specifically states that when a defendant is 

sentenced to more than one felony, including a count of aggravated robbery or felonious 

assault, the sentencing court “shall impose” the two most serious gun specifications and 

then may, in its discretion, impose additional sentences for additional firearm 

specifications. E.g., State v. Isreal, 12th Dist. Warren No. CA2011-11-115, 

2012-Ohio-4876, ¶ 69-72 (recognizing that R.C. 2929.14(B)(1)(g) “serves as an 

exception to the rule that multiple firearm specifications must be merged for purposes of 

sentencing when the predicate offenses were committed as a single criminal transaction”). 
{¶17} In the case at hand, appellant pled guilty to more than one felony, including 

one count of aggravated robbery and two counts of felonious assault. Appellant also pled 

guilty to firearm specifications in connection with three felonies, under R.C. 2941.141(A) 

and R.C. 2941.145(A). Both of these firearm specification provisions are listed under 

R.C. 2929.14(B)(1)(a). Accordingly, R.C. 2929.14(B)(1)(g) applies, and the trial court 

properly imposed the prison terms associated with each of the two most serious firearm 

specifications. Because the trial court could not merge the firearm specifications, 

appellant’s argument that the trial court should have done so is without merit. See State 

v. Murphy, 8th Dist. Cuyahoga No. 98124, 2013-Ohio-2196; State v. Sheffey, 8th Dist. 

Cuyahoga No. 98944, 2013-Ohio-2463. 

{¶18} Appellant’s second assignment of error is overruled. 

{¶19} Judgment affirmed. 

It is ordered that appellee recover from 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. 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. 

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

EILEEN A. GALLAGHER, J., and 

PATRICIA A. BLACKMON, J., CONCUR