State v. Garvin

2012 Ohio 179

• Court: Ohio Court of Appeals
• Decided: January 19, 2012
• Docket: 96819
• Status: Published

Opinion

[Cite as State v. Garvin, 2012-Ohio-179.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96819

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

KENNETH GARVIN

DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-543309 BEFORE: Stewart, P.J., Cooney, J., Kilbane, J.

RELEASED AND JOURNALIZED: January 19, 2012 ATTORNEY FOR APPELLANT

James E. Valentine 323 Lakeside Avenue, Suite 450 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: John R. Kosko Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113

MELODY J. STEWART, P.J.:

{¶ 1} Defendant-appellant, Kenneth Garvin, appeals from his guilty plea

on single counts of sexual battery and gross sexual battery. His sole

assignment of error is that the court erred by imposing consecutive sentences

for those counts without first determining whether they were allied offenses

of similar import. The state concedes the merit of Garvin’s assignment of

error and asks that we sustain the assigned error and remand for an allied

offense hearing and a resentencing. {¶ 2} Our review of the sentencing confirms the state’s concession. We

summarily sustain the assignment of error and remand for a hearing at

which the court must determine whether the counts of sexual battery and

gross sexual imposition are allied offenses of similar import. See State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 47.

{¶ 3} This cause is reversed and remanded for proceedings consistent

with this opinion.

It is ordered that appellant recover of appellee his costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of Common

Pleas 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.

MELODY J. STEWART, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., AND MARY EILEEN KILBANE, J., CONCUR