State v. McShepard
2011 Ohio 6752
Ohio Ct. App.2011Background
- McShepard was indicted in two Lorain County cases (04CR066836 and 05CR067231) and the cases were consolidated for trial.
- Jury convicted McShepard of felonious assault on a police officer, weapons while under disability, three counts of receiving stolen property, trafficking in marijuana, possession of cocaine, possession of criminal tools, and possession of drug paraphernalia, plus multiple firearm specifications.
- Initial sentencing on September 18, 2006 imposed a 20-year total prison term without post-release control reference.
- A July 30, 2008 resentencing corrected post-release control, resulting in an 11-year total sentence; a separate appeal followed.
- On May 23, 2011, McShepard appealed contending the sentence was unlawful and violated due process; this Court consolidated and affirmed resilience of the lower court’s judgment.
- The court held that the motions to correct an unlawful sentence were properly denied and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resentencing authority was properly limited to post-release control | McShepard | State argued Fischer limits resentencing to post-release control; not properly before the court | Not reviewed; Fischer distinguished; remand required for original sentencing elements |
| Whether the sentence was unlawfully imposed given the verdict form | McShepard | State relied on Pelfrey; verdict form adequate | Res judicata barred review of the issue; assignments overruled |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238 (Ohio 2010) (limits resentencing authority to post-release control)
- State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256 (Ohio 2007) (jury verdict form sufficiency arguments)
- State v. Perry, 10 Ohio St.2d 175, 1967 (Ohio 1967) (doctrine of res judicata)