State v. McKinney
| Decision Date | 18 July 2011 |
| Docket Number | CASE NO. 4-11-01 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. DANIEL P. MCKINNEY, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Appeal from Defiance County Common Pleas Court
Judgment Affirmed
APPEARANCES:
Daniel P. McKinney, Appellant
Russell R. Herman for Appellee
{¶1} Petitioner-appellant, Daniel P. McKinney (hereinafter "McKinney"), pro se, appeals the judgment of the Defiance County Court of Common Pleas denying his petition for post-conviction relief. For the reasons that follow, we affirm.
{¶2} On July 7, 2003, the Defiance County Grand Jury returned an indictment against McKinney, charging him with the following five counts: robbery, a felony of the second degree, in violation of R.C. 2911.02(A)(2); aggravated theft, a felony of the third degree, in violation of R.C. 2913.02(A)(1) and (4); receiving stolen property, a felony of the fourth degree, in violation of R.C. 2913.51(A); failure to comply with order or signal of police officer, a felony of the third degree, in violation of R.C. 2921.331(C)(5)(a)(ii); and failure to comply with an order or signal of police officer, a felony of the fourth degree, in violation of R.C. 2921.331(C)(4).
{¶3} On January 20, 2004, the matter was heard by a jury. During the trial, McKinney moved for two judgments of acquittal, which were both denied. After four days of trial testimony, the jury retired on January 23, 2004. Later that evening, the jury found him guilty on all five counts. McKinney subsequently filed a motion for a new trial, which was denied.
{¶4} On March 15, 2004, a sentencing hearing was held, at which time, the trial court sentenced McKinney to the following: eight (8) years imprisonment on count one; four (4) years imprisonment on count two; one and a half (1½) years imprisonment on count three; five (5) years imprisonment on count four; and one and a half (1½) years imprisonment on count five. All sentences were ordered to run consecutively to one another, for a total of twenty (20) years imprisonment.
{¶5} McKinney appealed his conviction and sentence to this Court. On October 18, 2004, this Court found that McKinney's conviction for an additional charge of receiving stolen property was not supported by sufficient evidence. State v. McKinney, 3d Dist. No. 4-04-12, 2004-Ohio-5518, ¶¶51-59. As a result, we reversed and remanded the case to the trial court for purposes of re-sentencing McKinney without the additional receiving stolen property conviction. Id. at ¶64.
{¶6} On December 20, 2004, McKinney filed a petition for post-conviction relief. On January 11, 2005, the State filed its response in opposition and a motion to dismiss McKinney's petition for post-conviction relief. On January 24, 2005, McKinney filed his response to the State's motions.
{¶7} On January 27, 2005, McKinney was re-sentenced to the following: eight (8) years imprisonment on count one; four (4) years imprisonment on count two; five (5) years imprisonment on count four; and one and a half (1/) years imprisonment on count five. All sentences were ordered to be servedconsecutively to one another, for a total of eighteen and a half (18/) years imprisonment.
{¶8} On February 23, 2005, the trial court denied the post-conviction petition without a hearing, finding that it was barred by res judicata and that it failed to otherwise demonstrate substantive grounds for relief.
{¶9} On February 10, 2011, McKinney filed his notice of appeal on the trial court's denial of his petition for post-conviction relief.
{¶10} McKinney now appeals and raises the following two assignment of error. For ease of our discussion, we elect to address his assignments of error together.
{¶11} Under his first and second assignments of error, McKinney argues that he was entitled to an evidentiary hearing on his petition for post-conviction relief. McKinney also argues that the trial court erred in not properly "adjudicating" the merits of his motion.
{¶12} In response, the State first argues that McKinney failed to comply with App.R. 4(A), and thus, this Court lacks jurisdiction to review the case. In addition, the State claims that even if we were to find that we have jurisdiction, McKinney's arguments are barred by the doctrine of res judicata. As a final matter, the State also asserts that the trial court did not err and properly reviewed and adjudicated McKinney's motion for post-conviction relief.
{¶13} As an initial matter, we note that it appears that McKinney's petition for post-conviction relief may have been untimely. However, neither party nor the trial court addressed this particular issue, and given the passage of time and the issues concerning the record, which we will discuss in further detail below, we find that we are unable to accurately determine whether McKinney's petition was, in fact, untimely. As such, we will address the merits of McKinney's appeal.
{¶14} The first issue that was presented before this Court on appeal is whether, as the State asserts, this Court lacks jurisdiction to hear McKinney'sappeal because McKinney filed this appeal several years after the trial court denied his petition for post-conviction relief. App.R. 4(A) provides:
A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure.
A party's failure to comply with App.R. 4(A)'s thirty-day filing deadline deprives this Court of jurisdiction. Advantage Bank v. Waldo Pub, L.L.C., 3d Dist. No. 908-67, 2009-Ohio-2816, ¶62, citing State ex rel. Pendell v. Adams County Bd. of Elections (1988), 40 Ohio St.3d 58, 531 N.E.2d 713. See, also, State v. Byrd, 3d Dist. Nos. 4-05-17, 4-05-18, 2005-Ohio-5613.
{¶15} At first glance, it would appear that McKinney's appeal is time barred since the trial court denied McKinney's petition for post-conviction relief on February 23, 2005, but McKinney did not file his appeal until February 10, 2011. However, in McKinney's uncontroverted affidavit to this Court, he argues that the time for filing his appeal under App.R. 4 was tolled because he was never served with the trial court's judgment entry denying his petition for post-conviction relief. McKinney states that, at the time he filed his petition for post-conviction relief, he was incarcerated at the Lebanon Correctional Institution, but that the clerk of court erroneously recorded that he was at the Ohio Department of Rehabilitation and Corrections in Orient, Ohio. McKinney argues that the recordclearly shows that service of the judgment entry denying his petition for post-conviction relief was sent to the correctional facility at Orient, Ohio, and not the Lebanon Correctional Institution.
{¶16} Civ.R. 58(B) provides:
When the court signs a judgment, the court shall endorse thereon a direction to the clerk to serve upon all parties not in default for failure to appear notice of the judgment and its date of entry upon the journal. Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ. R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete. The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App. R. 4(A).
(emphasis added). The Ohio Supreme Court has stated:
"In those cases in which both Civ.R. 58(B) and App.R. 4(A) are applicable, if service of the notice of judgment and its entry is made within the three-day period of Civ.R. 58(B), the appeal period begins on the date of judgment, but if the appellants are not served with timely notice, the appeal period is tolled until the appellants have been served. In re Anderson (2001), 92 Ohio St.3d 63, 67, 748 N.E.2d 67. Consequently, App.R. 4(A) "tolls the time period for filing a notice of appeal * * * if service is not made within the three-day period of Civ.R. 58(B)."
State ex rel. Sautter v. Grey, 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶16, quoting State ex rel. Hughes v. Celeste (1993), 67 Ohio St.3d 429, 431, 619 N.E.2d 412. {¶l7} The record in this case shows that McKinney was never properly served with the judgment entry denying his petition for post-conviction relief. McKinney's last known address was at the Lebanon Correctional Institution. We note that several pleadings were filed by McKinney prior to the trial court's denial of his petition, which list McKinney's address as Lebanon Correctional Institution. However, the docket reflects that service of this judgment entry was attempted at the Corrections Center of Northwest Ohio, not the Lebanon Correctional Institution. Consequently, even though the trial court ruled on McKinney's petition for post-conviction relief in February 2005, because McKinney was never served with notice of its decision, we conclude that McKinney's appeal is timely, and that we have jurisdiction to hear the matter.
{¶l8} With respect to the merits of...
To continue reading
Request your trial