[Cite as State v. Wallace, 2012-Ohio-812.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97069 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JAMES WALLACE

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-547340 

BEFORE: Rocco, J., Stewart, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: March 1, 2012 

-i-
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ATTORNEY FOR APPELLANT

Laura Kramer Rubadue 

701 City Club Building 

850 Euclid Avenue 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Kristin Karkutt 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
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KENNETH A. ROCCO, J.: 

{¶1} In this appeal assigned to the accelerated calendar pursuant to App.R. 11.1 

and Loc.App.R. 11.1, defendant-appellant James Wallace appeals from his convictions 

and the sentences imposed after he entered guilty pleas to one count of kidnapping and 

one count of felonious assault. 

{¶2} The purpose of an accelerated appeal is to permit this court to render a brief 

and conclusory opinion. Crawford v. Eastland Shopping Mall Assoc., 11 Ohio App.3d 

158, 463 N.E.2d 655 (10th Dist. 1983); App.R. 11.1(E). 

{¶3} Wallace presents two assignments of error. He asserts first that he entered 

guilty pleas to allied offenses that should have been merged pursuant to R.C. 2941.25(A). 

 He also argues in his second assignment of error that the trial court should have 

conducted a hearing on this issue before sentencing him for both convictions. 

{¶4} Because the record reflects the trial court did conduct a hearing prior to 

making its decision that Wallace entered his pleas to separate offenses, and because the 

trial court’s decision is supported in the record, both of his assignments of error are 

overruled. 

{¶5} Wallace originally was indicted in this case along with several co-defendants 

and was charged with kidnapping, aggravated robbery, two counts of felonious assault, 

and domestic violence. All of the crimes were alleged to have been committed on the 

same date and all named a single victim. 
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{¶6} Wallace eventually entered into a plea agreement with the state, whereby he 

would plead guilty to only Counts 2 and 3, viz., kidnapping and felonious assault in 

violation of R.C. 2903.11(A)(1) (knowingly causing serious physical harm) in exchange 

for the state’s dismissal of the other three counts. After conducting a thorough colloquy 

with Wallace, which included warning him that the offenses might not be subject to 

merger, the trial court accepted his pleas. 

{¶7} When Wallace’s case was called for sentencing, both the prosecutor and 

defense counsel argued their respective positions on the merger issue. The prosecutor’s 

recitation of facts follows. 

{¶8} Wallace went to the victim’s home with four accomplices. Once inside, 

Wallace “punched” the victim in the face, directed the others to help tie the victim up in 

the dining room, and then went into the victim’s kitchen. There Wallace appropriated a 

knife, turned one of the stove’s gas burners, and heated the knife’s blade before he 

returned to the dining room. Wallace then placed the blade onto the victim’s face and 

burned him in at least three places. 

{¶9} Wallace’s defense counsel argued there was no separation of the sequence of 

events; he contended the acts were committed “simultaneously.” The record reflects the 

trial court viewed photographs of the victim’s injuries, but the photos were not included 

in the record on appeal. 
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{¶10} Based upon the foregoing, the record thus belies Wallace’s contention in his 

second assignment of error, viz., that the trial court erred in failing to conduct a hearing 

before determining the two offenses were separate for purposes of R.C. 2941.25. State v. 

Ruby, 6th Dist. No. S-10-028, 2011-Ohio-4864 (victims described circumstances of 

crimes at sentencing hearing); compare State v. Hopkins, 10th Dist. No. 10-AP-11, 

2011-Ohio-1591 (prosecutor’s recitation of facts given at plea hearing); but see State v. 

Snuffer, 8th Dist. Nos. 96480-96483, 2011-Ohio-6430, ¶ 10 (factual inquiry appropriate 

only at sentencing hearing). It is, accordingly, overruled. 

{¶11} Wallace’s first assignment of error also is overruled. According to the 

record, which Wallace did not seriously dispute, the events did not occur at one time. 

Rather, Wallace first “punched” the victim to incapacitate him before tying up the victim, 

and Wallace thereafter directed his cohorts to keep the victim restrained. Wallace then 

took additional time to find a weapon and to heat its deadly portion. 

{¶12} While the victim remained restrained, Wallace subsequently returned, 

whereupon he applied the heated blade to that part of the victim’s skin where it would be 

most noticeable. On these facts, the record failed to support Wallace’s argument that the 

incident was a “continuous” series of acts that occurred “simultaneously.” Ruby, 6th 

Dist. No. S-10-028, 2011-Ohio-4864; Hopkins, 10th Dist. No. 10-AP-11, 

2011-Ohio-1591. 
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{¶13} This is not a case in which Wallace’s cohorts held the victim captive as 

Wallace struck him. As outlined by the prosecutor, the facts demonstrated that Wallace’s 

cohorts watched the victim while Wallace went to another room in order to find and then 

to prepare the weapon he used to deface the victim. 

{¶14} Unlike the factual situation that presented itself in State v. Hicks, 8th Dist. 

No. 95169, 2011-Ohio-2780, ¶ 18, therefore, the felonious assault in this case did not 

“last the duration of the restraint, or vice versa, depending upon one’s perspective.” 

Instead, there was a “significant disconnect between the restraint and the assault.” 

{¶15} Wallace’s convictions and sentences are 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. The defendant’s convictions having 

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

for execution of sentences. 

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

the Rules of Appellate Procedure. 

______________________________ 

KENNETH A. ROCCO, JUDGE 

MELODY J. STEWART, P.J., and 
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LARRY A. JONES, SR., J., CONCUR