[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
