[Cite as State v. Garvin, 2014-Ohio-1726.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100165
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH GARVIN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-10-543309-A
BEFORE: Keough, P.J., E.A. Gallagher, J., and McCormack, J.
RELEASED AND JOURNALIZED: April 24, 2014
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Norman Schroth
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Kenneth Garvin, appeals the trial court’s decision not to
conduct a full evidentiary hearing on allied offenses or a de novo resentencing. For the
reasons that follow, we affirm the trial court’s decision.
{¶2} In 2010, Garvin was charged with kidnapping with a sexual motivation
specification (Count 1), rape with a sexually violent predator specification (Count 2), and
gross sexual imposition with a sexually violent predator specification (Count 3). In
March 2011, Garvin pled guilty to Count 2 as amended, sexual battery without any
specification, and also to Count 3 as amended, gross sexual imposition without
specification. Count 1 was nolled.
{¶3} In April 2011, Garvin was sentenced to five years on Count 2 to be served
consecutively to an 18-month sentence on Count 3. Following a delayed appeal in this
matter, this court summarily reversed the case and remanded the matter to the trial court
to conduct a hearing on whether the offenses were allied. State v. Garvin, 8th Dist.
Cuyahoga No. 96819, 2012-Ohio-179 (“Garvin I”).
{¶4} On remand, the trial court conducted a hearing for the limited purposes of
determing whether Count 2, sexual battery, and Count 3, gross sexual imposition were
allied offenses of similar import for purposes of sentencing. The trial court expressly
stated that Garvin was not entitled to a new sentencing, which defense counsel agreed.
Additionally, the court denied Garvin’s request to put forth witnesses for the purposes of
determining whether the offenses were allied. Specifically, Garvin requested that the
victim testify.
{¶5} After hearing arguments from both the state and defense, the trial court
determined that the offenses were not allied. It is from this order that Garvin appeals,
raising two assignments of error.
I. Allied Offenses Evidentiary Hearing
{¶6} In his first assignment of error, Garvin contends that the trial court acted
contrary to law when it failed to conduct an allied offenses hearing. Specifically, Garvin
argues that the trial court was required to conduct a full evidentiary hearing where each
party has the opportunity to present evidence, including calling witnesses.
{¶7} In support of his argument, Garvin relies on State v. Lawson, 12 Ohio St.2d 9,
230 N.E.2d 650 (1967), where the Ohio Supreme Court held that “a hearing certainly
contemplates that each party have an opportunity to introduce evidence.” Id. at 9.
However, in Lawson, the procedural nature of the case is glaringly different than Garvin’s
case. In Lawson, the trial court was considering a petition for postconviction relief, and
because neither the defendant nor his defense counsel were present, the court stated that
the trial court did not conduct a hearing. Id.
{¶8} In this case, the trial court heard arguments from both the defense counsel
and the state.
{¶9} At the hearing, the state argued that sexual battery and gross sexual
imposition were not allied offenses because they were committed with separate animuses.
The state maintained that Garvin’s act of touching the victim’s breasts qualified as gross
sexual imposition. The state then argued that while two men kept the victim in the
basement, two other men, including Garvin, left the residence. When they returned, the
men including Garvin, sexually assaulted the victim by holding her legs down and forcing
oral sex. The state maintained this act constituted sexual battery. Because these acts
were committed at different times, the state maintained they were not allied.
{¶10} Garvin maintained at the hearing that the offenses could be allied, and
because the victim gave inconsistent statements to the police, especially about who left
the basement, the best evidence would be to have the victim testify in court at the allied
offenses hearing. Garvin argued that the offenses of sexual battery and gross sexual
imposition could have occurred at the same time, after the men returned from the store
and that “any GSI was incidental to the sexual battery.” According to Garvin, the
purpose of having the victim testify at the allied offenses hearing was to “clear up the
discrepancies.”
{¶11} The trial court denied Garvin’s request and determined that sexual battery
and gross sexual imposition were not allied because the offenses occurred during two
different encounters; that there was a break in the sequence of events.
{¶12} “When deciding whether to merge multiple offenses at sentencing pursuant
to R.C. 2941.25, a court must review the entire record, including arguments and
information presented at the sentencing hearing, to determine whether the offenses were
committed separately or with a separate animus.” State v. Washington, 137 Ohio St.3d
427, 2013-Ohio-4982, 999 N.E.2d 661, syllabus. Accordingly, the issue before this court
is what is the scope of the allied offenses hearing on remand.
{¶13} In Washington, the Supreme Court recognized that a majority of the cases
are “resolved by entry of guilty pleas,” and “the sentencing hearing may be the only
source of information relating to merger.” Id. at ¶ 19. The court further noted,
[n]othing in Ohio’s felony-statutes prohibits the litigation of merger at
sentencing. To the contrary, R.C. 2929.19(B)(1) states that the trial court
“shall consider * * * any information presented” by the defense or the
prosecution at the sentencing hearing. (Emphasis added.) Further, R.C.
2929.19(A) allows the state and the defendant to “present information
relevant to the imposition of sentence in the case.” On appeal from a
felony sentence, the reviewing court “shall review the record,’ R.C.
2953.08(G)(2), which includes more than the evidence and arguments
presented at trial. R.C. 2953.08(F)(3) provides that the record to be
reviewed shall include “[a]ny oral or written statements made to or by the
court at the sentencing hearing.” See also App.R. 9(A) (defining what
constitutes the “record on appeal in all cases”). (Emphasis sic.)
Id. at ¶ 20.
{¶14} However, the trial court is not required to conduct a full evidentiary hearing
on remand. In State v. Rogers, 2013-Ohio-3235, 994 N.E.2d 499 (8th Dist.), this court
explained that a trial court’s determination of allied offenses does not need to be an
involved process. Any allied offenses proceedings conducted by a trial court “does not
have to involve long or complicated hearings or witnesses.” Id. at ¶ 45.
Historically, merger of offenses has always been viewed as a part of the sentencing
process. Thus, “the sentencing process is less exacting than the process of establishing
guilt.” State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d
Dist), citing Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d
745 (1994). Therefore, this process can easily be satisfied by a brief recitation of facts or
circumstances by the prosecutor to aid the trial court in its determination. Nothing more
should be required.
Id. “An evidentiary hearing, while permissible in a trial court’s discretion, is not
required since merger of offenses is part of the sentencing process and is therefore not
subject to the rules of evidence. Evid.R. 10[1](C)(3).” State v. Whitaker,
2013-Ohio-4434, 999 N.E.2d 278, ¶ 62 (12th Dist.).
{¶15} Accordingly, the trial court, in its discretion, can decide the scope of the
allied offenses hearing. The underlying consideration is whether sufficient facts exist in
the record or are presented by the parties to allow the court to make a determination
whether the offenses are allied.
{¶16} In this case, the trial court considered arguments from both sides. In the
court’s discretion, it determined that having the victim testify at the allied offenses
hearing was not necessary. The record before this court demonstrates that sufficient
facts existed in the record and were presented at the hearing on remand to allow the court
to make a determination that the offenses were not allied. Accordingly, a full evidentiary
hearing was not required.
{¶17} We note that Garvin is not challenging on appeal the trial court’s
determination that the offenses were not allied. However, and assuming arguendo that
the court was required to conduct a full evidentiary hearing, under our de novo review of
allied offenses, we find that Garvin’s convictions of sexually battery and gross sexual
imposition are not allied and do not merge.
{¶18} The facts contained in the record, specifically in the bill of particulars, and
the recitation of facts at the allied offenses hearing on remand, indicate that Garvin’s
conduct was committed with a separate animus. His act of touching the victim’s breasts,
which constituted gross sexual imposition, was a separate act than that of the sexual
battery offense where the victim was forced to perform oral sex on Garvin. The record
supports that these acts occurred during two separate encounters.
{¶19} Accordingly, we find that the trial court did not err in failing to conduct a
full evidentiary hearing on the issue of allied offenses. Garvin’s first assignment of error
is overruled.
II. De Novo Resentencing
{¶20} In his second assignment of error, Garvin contends that the trial court acted
contrary to law when it failed to conduct a de novo sentencing hearing.
{¶21} In Garvin I, this court did not vacate Garvin’s sentence; rather, it remanded
the case for the sole purpose of conducting a hearing to determine whether the offenses
were allied. Moreover, on remand defense counsel admitted that he did not “think there
needs to be a full resentencing hearing.” Accordingly, the trial court was not required to
conduct a new sentencing hearing. However, we do note that if the court found that the
offenses were allied, it would have necessarily required Garvin to be resentenced.
{¶22} The assignment of error is overruled.
{¶23} Judgment affirmed.
It is ordered that appellee recover from 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
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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR