State v. McGee

2012 Ohio 1829

• Court: Ohio Court of Appeals
• Decided: April 25, 2012
• Docket: 96688
• Status: Published

Opinion

[Cite as State v. McGee, 2012-Ohio-1829.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96688

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RICHARD MCGEE DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-507434 Application for Reopening Motion No. 451603

RELEASE DATE: April 25, 2012 2

FOR APPELLANT

Richard McGee, Pro Se No. A552481 P.O. Box 8107 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. Cuyahoga County Prosecutor By: Katherine Mullin, Esq. Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 3

JAMES J. SWEENEY, J.:

{¶1} On January 24, 2012, the applicant, Richard McGee, pursuant to App.R.

26(B), applied to reopen this court’s judgment in State v. McGee, 8th Dist. No. 96688,

2011-Ohio-6433 in which this court affirmed McGee’s seven year sentence for two

counts of aggravated robbery. McGee argues that his appellate counsel was ineffective

for not arguing that the provisions of H.B. 86 should be applied to his case. The state

of Ohio filed its brief in opposition on February 14, 2012, and McGee filed a reply brief

on February 27, 2012. For the following reasons, this court denies the application.

{¶2} In State v. McGee, Cuyahoga Cty. C.P. No. CR-507434 in August 2008, a

jury found McGee guilty of two counts of aggravated robbery and two counts of

kidnapping. The trial judge sentenced McGee to seven years on each of the aggravated

robbery counts concurrent but consecutive to five years on each of the kidnapping counts

which were to be served concurrent to each other. Thus, the judge imposed a total

sentence of 12 years for CR-507434. Additionally, the judge ordered that this sentence

would be consecutive to McGee’s sentence in CR-507845.

{¶3} On appeal, this court ruled that the counts for kidnapping should be merged

into the aggravated robbery counts as allied offenses. State v. McGee, 8th Dist. No.

92019, 2010-Ohio-2081. In March 2011, the trial judge resentenced McGee to seven 4 years on each of the aggravated robbery counts, concurrent with each other but

consecutive to the sentence in CR-507845.

{¶4} Am.Sub.H.B. No. 86 became effective on September 30, 2011. It

re-enacted various provisions of R.C. 2929.14, under which, McGee claims, he would

have been sentenced to the minimum term for aggravated robbery and would not have

been sentenced to consecutive sentences. He further claims that because the General

Assembly merely revived the old provisions of R.C. 2929.14, his appellate counsel should

have argued that these soon-to-be-effective provisions apply to McGee.

{¶5} However, McGee’s argument is meritless. This court has ruled that the

provisions do not apply if the defendant, such as McGee, was sentenced before the

effective date of Am.Sub.H.B. 86. See, e.g., State v. Lindsey, 8th Dist. No. 96601,

2012-Ohio-804, ¶ 34, fn.1; State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28;

State v. Ward, 8th Dist. No. 97219, 2012-Ohio-1199, ¶ 5. See also State v. Fields, 5th

Dist. No. CT11-0037, 2011-Ohio-6044, ¶ 2 (affirming the denial of defendant-appellant’s

“motion for sentence modification, claiming his sentence should be reduced pursuant to

H.B. No. 86”); and State ex rel. Favors v. Cuyahoga Cty. Court of Common Pleas, 8th

Dist. No. 97710, 2012-Ohio-1648. Appellate counsel properly rejected a meritless

proposition.

{¶6} Accordingly, this court denies the application. 5

JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and MARY J. BOYLE, J., CONCUR