State v. McDay
2012 Ohio 3786
Ohio Ct. App.2012Background
- McDay was convicted in 1999 of engaging in a pattern of corrupt activity and conspiracy, with an eleven-year total sentence.
- A 2004 judicial release led to two years of community control; violations resulted in a 2007 guilty plea and reimposition of the remaining sentence.
- An April 27, 1999 entry sentenced McDay for robbery, but he was never indicted for robbery in this case.
- McDay did not appeal the April 27 sentencing entry and later sought resentencing in 2010, challenging post-release control and requesting consolidation/merger of offenses.
- The trial court conducted a de novo resentencing, addressing post-release control and reinstating sentences for corrupt activity counts, while not vacating the April 27 robbery entry.
- This court reviewed the de novo resentence, the allied offenses claim, and the validity of the April 27, 1999 robbery entry, sustaining some aspects and vacating others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether de novo resentencing was proper | McDay contends de novo resentencing exceeded trial court authority. | McDay argues the court could only correct post-release control, not reimpose full sentences. | Partial sustained: de novo resentencing improper; only post-release control correction valid. |
| Whether allied offenses were properly considered | McDay argues the offenses were allied and should have been merged. | McDay asserts they are not allied offenses of similar import for merger. | Partially sustained: res judicata bars review; the merger issue is not to be reconsidered. |
| Whether the April 27, 1999 robbery entry was void for lack of indictment | Robbery sentence lacked proper indictment; entry is void ab initio. | No substantive argument provided beyond lack of subject matter jurisdiction. | Sustained: April 27, 1999 robbery entry vacated for lack of indictment. |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (defective post-release control yields partially void sentence; limit resentencing to post-release control)
- State v. West, 2011-Ohio-4941 (9th Dist. No. 25748) (trial court’s resentencing limited to post-release control issues)
- State v. Stiggers, 2011-Ohio-4225 (9th Dist. No. 25486) (de novo resentencing errors are nullities beyond post-release control correction)
- State v. Wrenn, 2011-Ohio-5640 (9th Dist. No. 25616) (vacate improper portions of resentencing; preserve post-release control)
- State v. Culgan, 2010-Ohio-2992 (9th Dist. No. 09CA0060-M) (lack of subject-matter jurisdiction may be raised at any stage)
- State v. Hobbs, 2011-Ohio-3192 (9th Dist. No. 25379) (indictment must charge the offense; sentencing without indictment void)
- Click v. Eckle, 174 Ohio St. 88 (1962) (felony jurisdiction requires proper indictment by grand jury)