State v. Garvin ( 2012 )

[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