[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.”