State v. McGee
2017 Ohio 1363
Ohio Ct. App.2017Background
- Belvin McGee was convicted in December 1999 of multiple sexual offenses against his five children and stipulated to a sexual-predator classification at original sentencing.
- He has pursued multiple postconviction and appellate challenges over many years; some relief was granted previously (e.g., resentencing in 2007–2008 on postrelease-control issues).
- On May 20, 2008, the trial court resentenced McGee; a 2015 nunc pro tunc entry clarified he was advised of five years mandatory postrelease control.
- McGee filed a March 30, 2016 motion to vacate void sentences and remand for resentencing; the trial court denied the motion on May 9, 2016.
- McGee appealed, arguing (1) lack of jurisdiction/actual innocence regarding sexually violent predator specifications, (2) due process violations under R.C. provisions relating to sentencing, (3) improper Tier III classification under the Adam Walsh Act, and (4) that the 2015 nunc pro tunc entry violated State v. Holdcroft.
- The court affirmed denial of the motion except it remanded solely to vacate the Tier III classification and reinstate the former sexual-predator classification automatically applicable to offenses committed before the 2007 changes.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McGee) | Held |
|---|---|---|---|
| 1. Jurisdiction/sexually violent predator specification | Specifications were not outstanding; the plea deleted specifications and McGee stipulated to sexual-predator status | Trial court lacked jurisdiction to find sexually violent predator; R.C. 2971.01(H)(1) required prior sexually violent conviction | Overruled for McGee: no jurisdictional defect; issue is plea-related and barred by res judicata |
| 2. Due process re: R.C. 2971.03 & 2907.02(B) | McGee was properly sentenced; statutes invoked do not apply retroactively to offenses before Jan. 2, 2007 | Sentencing violated due process because trial court ignored statutory requirements in effect at resentencing | Overruled: statutes cited do not authorize relief; life sentence not unauthorized |
| 3. Tier III classification under Adam Walsh Act | State concedes Tier III was erroneous for pre-2007 offenses but opposes full resentencing | McGee argues Tier III is invalid and seeks resentencing | Sustained in part: Tier III classification vacated; remanded to reinstate former sexual-predator classification; no resentencing hearing required |
| 4. Validity of 2015 nunc pro tunc re: postrelease control (Holdcroft) | Nunc pro tunc entry conforms to R.C. 2967.28(G)(4)(c); postrelease periods run concurrently | Nunc pro tunc entry violates Holdcroft and should be vacated | Overruled: five-year postrelease control remains applicable and concurrent; Holdcroft does not invalidate the entry in this context |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (court explains narrow scope of motions to correct void sentences)
- State v. Smith, 104 Ohio St.3d 106 (interpreting sexually violent predator statutory requirements)
- State v. Williams, 129 Ohio St.3d 344 (Adam Walsh Act classification invalid for pre-2007 offenses)
- State v. Perry, 10 Ohio St.2d 175 (res judicata bars claims that were or could have been raised on direct appeal)
- State v. Holdcroft, 137 Ohio St.3d 526 (postrelease-control issues addressed)
- State v. Reynolds, 79 Ohio St.3d 158 (motion to correct sentence may be treated as post-conviction relief)