MCINTYRE v. HOOKS, WARDEN.
No. 2019-0042
SUPREME COURT OF OHIO
July 2, 2020
Slip Opinion No. 2020-Ohio-3529
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as McIntyre v. Hooks, Slip Opinion No. 2020-Ohio-3529.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. Habeas corpus—Sentencing errors are not jurisdictional and are not cognizable in habeas corpus—Writ denied. Submitted March 10, 2020. IN HABEAS CORPUS.
{¶ 1} Petitioner, Lewis Leroy McIntyre Jr., an inmate at the Ross Correctional Institution (“RCI“), filed a petition for a writ of habeas corpus. We ordered respondent, Mark Hooks, the warden at RCI, to file a return of writ. 155 Ohio St.3d 1403, 2019-Ohio-943, 119 N.E.3d 432. In response, Hooks filed a motion to dismiss. For the reasons that follow, we deny the motion to dismiss and also deny the petition for a writ of habeas corpus on the merits.
The facts in the record
{¶ 2} In August 1991, McIntyre was convicted of aggravated burglary in violation of former
{¶ 3} In December 2007, McIntyre was granted parole and released. In July 2009, however, his parole was revoked after he was convicted of tampering with evidence, petty theft, tampering with records, and obstructing justice. He was sentenced to an aggregate prison term of four years. State v. McIntyre, Summit C.P. No. CR 09 03 0647 (July 22, 2009). The Ninth District Court of Appeals remanded that case so that the trial court could conduct an allied-offense analysis, and the trial court merged the tampering-with-records conviction with the tampering-with-evidence conviction. McIntyre was resentenced to an aggregate prison term of three years. The record does not indicate whether that sentence was ordered to be served consecutively or concurrently with his other prison term.
{¶ 4} In 2015, this court granted McIntyre a writ of mandamus because his 1991 sentencing order did not comply with
The issue presented
{¶ 5} In 1991, when McIntyre was convicted and sentenced for aggravated burglary and felonious assault, the maximum prison term for an aggravated felony of the first degree was 25 years and the maximum prison term for an aggravated felony of the second degree was 15 years. See former
{¶ 6} The issue this case presents is which law governs McIntyre‘s sentence—the sentencing statutes in effect in 1991 and 1992 or the sentencing statutes in effect in 2016. According to McIntyre, if he is subject to a maximum term of 46 years, then he will not complete his maximum sentence until 2037. On the other hand, if he is subject to a maximum term of 25 years, then, according to McIntyre, he “has served all of this time and more.”
Procedural history and the motion to dismiss
{¶ 7} McIntyre filed a petition for a writ of habeas corpus in this court on January 11, 2019. After we ordered a return of writ, Hooks filed a
{¶ 8} For this reason, we deny the motion to dismiss and proceed to consider the case on the merits.
The merits of McIntyre‘s claims
{¶ 9} To be entitled to a writ of habeas corpus, a petitioner must show that he is being unlawfully restrained of his liberty and that he is entitled to immediate release from prison or confinement.
{¶ 10}
{¶ 11} McIntyre claims that no sentence was imposed upon him in 1991 or in 1992. According to McIntyre:
An invalid entry means an invalid sentence because a sentence cannot be officially imposed until the written entry, constituting the final appealable order disposing [of] the criminal case, is signed by the judge and filed with the clerk.
McIntyre therefore contends that he was not sentenced for his 1991 and 1992 convictions until the trial court issued the 2016 entry. And he argues that in 2016, the trial court should have sentenced him under the statutes that were in effect on that date.
{¶ 12} In short, McIntyre argues that there is a sentencing error in the 2016 entry. But “‘sentencing errors are not jurisdictional and are not cognizable in habeas corpus.‘” State ex rel. Sneed v. Anderson, 114 Ohio St.3d 11, 2007-Ohio-2454, 866 N.E.2d 1084, ¶ 7, quoting Majoros v. Collins, 64 Ohio St.3d 442, 443, 596 N.E.2d 1038 (1992). In Wills v. Turner, 150 Ohio St.3d 379, 2017-Ohio-6874, 81 N.E.3d 1252, ¶ 6, we affirmed the dismissal of a habeas corpus petition that claimed that the trial court had erroneously sentenced the defendant under the law applicable at the time of his indictment, rather than the law in effect at the time of his
Conclusion
{¶ 13} Based on the foregoing, we deny Hooks‘s motion to dismiss and McIntyre‘s request for a writ of habeas corpus.
Writ denied.
FRENCH, FISCHER, DEWINE, and STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only.
DONNELLY, J., dissents, with an opinion.
O‘CONNOR, C.J., not participating.
DONNELLY, J., dissenting.
{¶ 14} Petitioner, Lewis Leroy McIntyre Jr., was convicted in 1991 of felonious assault, a violation of former
{¶ 15} On May 22, 1992, McIntyre pleaded guilty to aggravated assault under the same case number and was sentenced to a concurrent 18-month prison term. But that entry likewise failed to address the amended felonious-assault charge on which the jury had failed to reach a verdict.
{¶ 16} On June 27, 2012, the prosecuting attorney filed a memorandum giving notice that the state was not going to retry McIntyre on the amended felonious-assault charge from 1991. On June 28, 2012, the trial court dismissed the felonious-assault charge, although the order apparently dismissed the charge as indicted and not as amended.
{¶ 17} In State ex rel. McIntyre v. Summit Cty. Court of Common Pleas, 144 Ohio St.3d 589, 2015-Ohio-5343, 45 N.E.3d 1003, we issued a peremptory writ of mandamus directing the trial court to issue a final, appealable order that properly disposed of all the charges against McIntyre. Id. at ¶ 11.
{¶ 18} On February 3, 2016, in the apparent absence of the parties, the trial court issued what I assume for purposes of this discussion was a final, appealable order. Based on the sentencing laws in 1991, the trial court again sentenced McIntyre to a term of 8 to 15 years for the felonious-assault conviction, 8 to 25 years for the aggravated-burglary conviction, and 3-year terms for the firearms specifications. McIntyre‘s aggregate prison term remained 22 to 46 years.2
{¶ 19} According to our decision in State v. Craig, __ Ohio St.3d __, 2020-Ohio-455, __ N.E.3d __, ¶ 21, “a conviction on
{¶ 20} In short, McIntyre was ostensibly ordered on September 9, 1991, to serve an aggregate prison sentence of 22 to 46 years and was presumably delivered into the custody of the designated state correctional institution at that time pursuant to
{¶ 21} In my view, ordering an offender to serve over 24 years in prison before he obtains the legal right to appeal his conviction and sentence is not a mere sentencing error. To the contrary, it would at least seem to raise very serious questions of due process and equal protection. See Craig at ¶ 41 (Kennedy, J., concurring in judgment only).
{¶ 22} This case is not like Wills v. Turner, 150 Ohio St.3d 379, 2017-Ohio-6874, 81 N.E.3d 1252, in which the petitioner objected to having been sentenced under the law in effect at the time of his 1988 indictment rather than under the law in effect at the time of his 2004 guilty plea. Id. at ¶ 5. McIntyre served over 24 years in prison before his judgment was subject to lawful appellate review. The inchoate nature of McIntyre‘s criminal-case proceedings distinguishes the allegations in his petition for a writ of habeas corpus from some mere pedestrian challenge to a prison sentence.
{¶ 23} Moreover, the inordinate delay in rendering a final, appealable order in this case has an additional consequence. As I have noted, the prosecuting attorney gave notice on June 27, 2012, that the state was not going to retry McIntyre on the felonious-assault charge. The trial court signed an entry on June 28, 2012, dismissing that charge and a final, appealable order was not journalized until February 3, 2016.
{¶ 24} By the time any of those events occurred, however, the General Assembly enacted substantial changes to Ohio‘s felony-sentencing scheme by means of Am.Sub.H.B. No. 86 (“H.B. 86“), effective September 30, 2011. Under H.B. 86, the maximum sentence for a second-degree felony was 8 years. See former
{¶ 25} The unresolved felonious-assault charge prevented the trial court‘s September 9, 1991 sentencing entry from being a final, appealable judgment. See Craig, 2020-Ohio-455, at ¶ 21. McIntyre did not have a final, appealable judgment until February 3, 2016, well after the effective date of H.B. 86.
{¶ 26}
{¶ 27} Through no fault of McIntyre, his 1991 case was not finally resolved until 2016. Consequently, McIntyre should have been present on February 3, 2016, and sentenced in accordance with H.B. 86. And under H.B. 86, McIntyre‘s sentence would have expired in 2018. Yet McIntyre still remains in state custody. A writ of habeas corpus is the appropriate remedy when a petitioner‘s maximum sentence has expired and he is being held unlawfully. See Leyman v. Bradshaw, 146 Ohio St.3d 522, 2016-Ohio-1093, 59 N.E.3d 1236, ¶ 8.
{¶ 28} Because I believe that McIntyre is being held in state custody beyond the expiration of his maximum sentence, I would deny the motion to dismiss filed by respondent Mark Hooks and would grant McIntyre a petition for a writ of habeas corpus. I dissent.
Stephen P. Hanudel, for petitioner.
Dave Yost, Ohio Attorney General, and Maura O‘Neill Jaite, Senior Assistant Attorney General, for respondent.