State v. Bobst

2014 Ohio 660

Opinion

[Cite as State v. Bobst, 2014-Ohio-660.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : DOUGLAS W. BOBST, JR. : Case No. CT2013-0046 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2013-0083

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: February 24, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH WILLIAM T. CRAMER 27 North Fifth Street 470 Olde Worthington Road Zanesville, OH 43701 Suite 200 Westrville, OH 43082 Muskingum County, Case No. CT2013-0046 2

Farmer, J.

{¶1} On April 10, 2013, the Muskingum County Grand Jury indicted appellant,

Douglas Bobst, Jr., on one count of burglary in violation of R.C. 2911.12, one count of

theft in violation of R.C. 2913.02, and one count of grand theft of a firearm in violation of

R.C. 2913.02. Appellant had stolen electronics and gun parts from his parents' home

while they were out of town.

{¶2} On June 24, 2013, appellant pled guilty as charged. At sentencing, the

trial court merged the theft count with the burglary count, but did not merge the grand

theft of a firearm count. By sentencing entry filed August 21, 2013, the trial court

sentenced appellant to an aggregate term of twenty-four months in prison.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE TRIAL COURT VIOLATED PRINCIPLES OF DOUBLE JEOPARDY

AND R.C. 2941.25 BY FAILING TO MERGE GRAND THEFT OF A FIREARM AND

BURGLARY."

II

{¶5} "APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE

ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO

CONSTITUTION, ARTICLE I, SECTION 10, WHEN DEFENSE COUNSEL

ERRONEOUSLY CONCEDED THAT GRAND THEFT OF A FIREARM AND

BURGLARY DID NOT MERGE UNDER R.C.2941.25." Muskingum County, Case No. CT2013-0046 3

{¶6} Appellant claims the trial court erred in failing to merge the grand theft of a

firearm count with the burglary count in violation of the principles of double jeopardy and

R.C. 2941.25 (allied offenses).

{¶7} In its appellate brief at 1, the state concedes the issue, stating: "[t]he State

does not dispute the validity of defendant's argument in Assignment of Error Number

One."

{¶8} Based upon the foregoing, we find the trial court erred in failing to merge

the grand theft of a firearm count with the burglary count.

{¶9} Assignment of Error I is granted. Based upon this decision, Assignment of

Error II is moot. Muskingum County, Case No. CT2013-0046 4

{¶10} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.

SGF/sg 214