[Cite as State v. Dunne, 2014-Ohio-3323.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100460
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KEVIN DUNNE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574027
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: July 31, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Adam M. Chaloupka
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Kevin Dunne appeals from the trial court’s imposition of prison time for the
charge of escape and for violating the conditions of postrelease control. Dunne argues
the dual sentencing for a single act, i.e., failure to report to his parole officer, violates the
constitutional protections of double jeopardy. Finding no merit to the instant appeal, we
affirm the decision of the trial court.
{¶2} On May 6, 2013, the Cuyahoga County Grand Jury indicted Dunne with one
count of escape after he failed to report to his parole officer on an underlying attempted
felonious assault conviction. Dunne pleaded guilty, was referred for a presentence
investigation report and the trial court scheduled sentencing for August 6, 2013 and set a
personal bond because Dunne had a pending case in Lorain County. Dunne failed to
appear for sentencing on the appointed date and a capias was issued for his arrest.
{¶3} On August 30, 2013, a sentencing hearing was held and the trial court
stated that it had intended to place Dunne on probation but given the fact that he failed to
appear for his presentence investigation interview as well as his originally scheduled
sentencing, he would be going to prison. Dunne was sentenced to 12 months in prison
for the charge of escape. Additionally, the trial court invoked R.C. 2929.141, terminated
Dunne’s postrelease control in Cuyahoga C.P. No. CR-09-524006 and sentenced him to
18 months in prison for the remaining time Dunne possessed on postrelease control.
The court ordered those sentences to be served consecutively for a total prison term of 30
months.
{¶4} Dunne appeals, raising the following assigned error:
Mr. Dunne cannot be twice punished for failing to report on post-release
control by being sentenced to prison for escape under R.C. 2921.34 and also
being sentenced to prison for committing a felony while under post-release
control under R.C. 2929.141.
{¶5} Dunne’s argument mirrors that of the appellant in Birdsall v. Miller, 7th
Dist. Belmont No. 13 BE 10, 2013-Ohio-2957, wherein the defendant argued that being
convicted and sentenced for escape and using that same conduct to punish him for
violating parole violated his rights under the Double Jeopardy Clause. Id. at ¶ 9. As
noted by the Seventh District in Miller, this issue is controlled by the Ohio Supreme
Court’s decision in State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d
250, ¶ 7-8, wherein the court explained:
The Double Jeopardy Clause of the United States Constitution, contained in
the Fifth Amendment, provides that no “person [shall] be subject for the
same offence to be twice put in jeopardy of life or limb.” Section 10, Article
I of the Ohio Constitution similarly provides, “No person shall be twice put
in jeopardy for the same offense.” The protections afforded by the two
Double Jeopardy Clauses are coextensive.
It has long been recognized that double jeopardy principles do not prohibit
the imposition of every additional sanction that could be labeled
“punishment” in common parlance. Rather, double jeopardy principles
protect “only against the imposition of multiple criminal punishments for
the same offense * * * and then only when such occurs in successive
proceedings.”
(Emphasis deleted and citations omitted.)
{¶6} In Martello, the court held that there is no double jeopardy violation where
“a person released on postrelease control who violates conditions of that postrelease
control faces a term of incarceration for the violation as well as criminal prosecution for
the conduct that was the subject of the violation as a felony in its own right.” Id. at ¶ 27.
The Martello court reasoned that punishment imposed due to a violation of postrelease
control was civil in nature and amounted to nothing more than the reinstatement of
punishment already imposed as part of the original criminal prosecution.1 Id. at ¶ 19, 26.
Therefore, double jeopardy did not attach. The court explained that the longstanding
rule in both Ohio and in federal courts was that a criminal defendant could be convicted
of the new charge of escape regardless of any decision by a parole authority to reinstate
the original sentence or impose additional administrative sanctions for the parole
violation. Id. at ¶ 38.
{¶7} Consistent with Martello, Dunne’s sole assignment of error is overruled.
{¶8} The judgment of the trial court is affirmed.
It is ordered that appellee recover of 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 conviction having
1
The Martello court reasoning relied upon language in R.C. 2967.28(F)(4) that the legislature
has since deleted from that statute but replaced with a substantially similar provision in R.C.
2929.141(A)(1).
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., CONCURS (WITH SEPARATE OPINION)
FRANK D. CELEBREZZE, JR., P.J., CONCURRING:
{¶9} I concur with the majority’s application of the law, but write separately to
express my sincere desire that the Cuyahoga County Court of Common Pleas develop a
veterans court in order to address many of the factors discussed in appellant’s Mitigation
Evaluation Report, including his mental health and its impact on his criminal history.
{¶10} Similar to other specialty dockets operated by the courts in Cuyahoga
County, cases involving veterans involve unique and individual circumstances that
require specialized considerations. It is an unfortunate truth that many veterans return to
civilian life with significant physical and mental traumas that often contribute to their
involvement in the criminal justice system. It saddens this judge to observe the
repeat-offender nature of many of our veterans who struggle with their mental health
issues or alcohol and drug addictions — which far too often derive from their service to
our country.
{¶11} In order to increase a veteran’s chances for rehabilitation, this county must
take responsibility for ensuring that veterans receive the treatment they need and deserve.
As recognized by the Veterans Treatment Docket implemented by the Cleveland
Municipal Court, facilitating access to various treatment programs and fostering
interaction with other veterans helps to ensure that those who have served in our military
forces receive the services necessary to lead a healthy and law-abiding life.
{¶12} Thus, I hope that in the near future, the common pleas court will take
actions to emulate the Cleveland Municipal Court Veterans Treatment Docket, which
focuses on the vision of “Leaving no Veteran behind.”