[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
