State v. McCreery
2011 Ohio 5885
Ohio Ct. App.2011Background
- McCreery pled guilty to three counts of burglary and one count of resisting arrest in January 2010; sentences were four years per burglary consecutive and 30 days for resisting, to run concurrently.
- The January 20 sentence misstated post-release-control terms, omitting mandatory three-year post-release control for the second-degree felonies.
- The February 4 judgment memorialized the sentence with the post-release-control error still unresolved, prompting an appeal.
- A resentencing hearing occurred on April 8, 2010, where the court properly informed McCreery of post-release-control conditions.
- On appeal, McCreery argued the trial court erred by resentencing without vacating the prior judgment and claimed ineffective assistance of counsel.
- The appellate court held the non-post-release-control portion of the sentence remained valid and only the post-release-control portion was void, which was corrected at the April 8 resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resentencing without vacating the prior judgment was valid | McCreery | McCreery | Resentencing valid; only void portion corrected |
| Whether counsel was ineffective in light of the guilty plea | McCreery | McCreery | No ineffective-assistance shown; plea voluntary and informed |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238 (Ohio Supreme Court, 2010) (only the void portion of a sentence is reviewable when post-release control is misapplied)
- In re Sturm, 4th Dist. No. 05CA35, 2006-Ohio-7101 (Ohio Fourth Dist. 2006) (standard for ineffective assistance of counsel in guilty-plea cases)
- State v. Wright, 4th Dist. No. 00CA39, 2001-Ohio-2473 (Ohio Fourth Dist. 2001) (strong presumption of reasonable professional assistance)
- State v. Parker, 4th Dist. No. 96CA35, 1998 (Ohio Fourth Dist. 1998) (prejudice standard for guilty-plea ineffective-assistance claims)
- State v. Martin, 4th Dist. No. 06CA3110, 2007-Ohio-4258 (Ohio Fourth Dist. 2007) (guilty-plea context for ineffective-assistance analysis)
- State v. King, 2011-Ohio-1079 (Ohio Supreme Court (discussed in dissent)) (continuing jurisdiction to correct void sentences (dissenting view))