State v. Kavanagh ( 2021 )

[Cite as State v. Kavanagh, 2021-Ohio-4368.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-21-07
v.
DEREK TODD KAVANAGH, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20202139
Judgment Reversed and Cause Remanded
Date of Decision: December 13, 2021
APPEARANCES:
Michael B. Kelley for Appellant
McKenzie J. Klinger for Appellee
Case No. 6-21-07
SHAW, J.
{¶1} Defendant-Appellant, Derek Todd Kavanagh (“Kavanagh”), appeals a
judgment of the Hardin County Court of Common Pleas sentencing him upon his
convictions for endangering children and voyeurism; both sentences to be served
concurrently but consecutively to a potential sentence not yet imposed in another
Hardin County case, with these aggregated sentences to be served consecutively to
a Logan County sentence Kavanagh is currently serving.
Procedural History
{¶2} On November 16, 2020, Kavanagh was indicted in a nine-count
indictment on two counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies of
the first degree; two counts of sexual battery in violation of R.C. 2907.03(A)(5),
felonies of the second degree; two counts of gross sexual imposition in violation of
R.C. 2907.05(A)(4), felonies of the third degree; one count of gross sexual
imposition in violation of R.C. 2907.05(B), a felony of the third degree; one count
of voyeurism in violation of R.C. 2907.08(A), a misdemeanor of the first degree;
and one count of voyeurism in violation of R.C. 2907.08(C), a felony of the fifth
degree. Kavanagh entered a plea of not guilty upon arraignment.
{¶3} On May 17, 2021, Kavanagh withdrew his previously tendered not
guilty plea and entered an Alford plea of guilty (pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970)) to an amended Count Three, which changed the offense
to endangering children, a third degree felony, and Count Eight of misdemeanor
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voyeurism. In exchange for Kavanagh entering the Alford plea, the State agreed to
dismiss all remaining counts. The trial court accepted the plea, found Kavanagh
guilty, and ordered a presentence investigation.
{¶4} The trial court then held a sentencing hearing on June 3, 2021.
Following the hearing, the trial court sentenced Kavanagh to a prison term of 30
months for endangering children and 180 days of local incarceration for voyeurism,
to be served concurrently with the prison term pursuant to statute. The trial court
specifically ordered the 30 months prison term herein “to be served consecutively
to the 24 months prison term in Hardin County Common Pleas Court case number
CRI 20202061, should it be imposed, for a non-mandatory aggregated prison term
of 54 months.” June 4, 2021 Entry of Sentence, p. 5. The trial court further ordered
the non-mandatory aggregated prison term of 54 months to be served consecutively
to the prison term imposed in Logan County Common Pleas Court case number CR
17 09 0296, which Kavanagh is currently serving. The trial court also ordered
Kavanagh to register as a Tier I sex offender.
{¶5} From this judgment, Kavanagh appeals and raises the following
assignment of error for review:
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN SENTENCING
APPELLANT AS THE RECORD DOES NOT SUPPORT
CONSECUTIVE SENTENCES, AND/OR THE CONSECUTIVE
SENTENCES ARE CONTRARY TO LAW.
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{¶6} Kavanagh raises three arguments under this assignment of error, as
follows: the record does not support the trial court’s imposition of consecutive
sentences, or any sentence greater than the minimum allowed; the trial court did not
make all of the required findings to impose consecutive sentences; and the trial court
was not permitted to make his sentences consecutive to a “tolled” sentence of
supervision in another Hardin County case.
{¶7} We begin with Kavanagh’s argument that the trial court was not
permitted to order the sentences herein to be served consecutively to a sentence not
yet imposed in another case because it is dispositive of this appeal. R.C.
2929.14(C)(4) affords a trial court discretion to order consecutive sentences by
providing, “[i]f multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively * * *.” This Court has held that when a trial court orders a sentence
to run consecutively to sentences that had not yet been imposed, the trial court has
exceeded the authority granted to it by statute. State v. Ferguson, 3d Dist. Union
No. 14-02-14, 2003-Ohio-866, ¶ 24; State v. Sears, 3d Dist. Wyandot No. 16-02-
07, 2002-Ohio-6257, ¶ 6. In so deciding, this Court relied on the Ohio Supreme
Court’s guidance set forth in State v. White, 18 Ohio St.3d 340, 342 (1985):
“[T]he grant of discretion to a trial court concerning the
imposition of a consecutive sentence is based upon the premise
that the other sentence is either one being imposed by the trial
court at that time or is a sentence previously imposed, even if by
another court, and is not a sentence in futuro. * * * When a trial
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court imposes a sentence and orders it to be served consecutively
with any future sentence to be imposed, * * * such a sentence
interferes with the discretion granted the second trial judge to
fashion an appropriate sentence or sentences pursuant to the
provisions of the Revised Code.” State v. White (1985), 18 Ohio
St.3d 340, 342.
Ferguson at ¶ 23.
{¶8} Thus, the trial court in this case imposed a sentence which exceeded the
scope of its authority under the statute by ordering Kavanagh’s sentences to run
consecutively with a sentence that had not yet been imposed in Hardin County.
{¶9} R.C. 2953.08(G)(2) grants appellate courts the authority to increase,
reduce, or otherwise modify a sentence that is appealed or vacate the sentence and
remand to the trial court sentences that are contrary to law. R.C. 2953.08(G)(2)(b);
Sears at ¶ 7. As we observed in Sears, in vacating the entirety of the trial court’s
sentence, “the trial court will be afforded the discretion to fashion an appropriate
sentence.” Sears at ¶ 7. “We find this outcome comports with the discretion
afforded to each court sentencing or potentially sentencing [an] Appellant.” Id. For
the same reasons, we elect to vacate the entirety of the trial court’s sentence in this
case.
{¶10} For the foregoing reasons, we sustain Kavanagh’s assignment of error.
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{¶11} Having found prejudicial error to Kavanagh herein, in the particulars
assigned and argued, we reverse the decision of the trial court and the matter is
remanded for further proceedings in accordance with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, P.J. and MILLER, J., concur.
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