State v. McKinney, CASE NO. 4-11-01
| Court | United States Court of Appeals (Ohio) |
| Writing for the Court | PRESTON |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. DANIEL P. MCKINNEY, DEFENDANT-APPELLANT. |
| Docket Number | CASE NO. 4-11-01 |
| Decision Date | 18 July 2011 |
2011 Ohio 3521
STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DANIEL P. MCKINNEY, DEFENDANT-APPELLANT.
CASE NO. 4-11-01
COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
Date of Decision: July 18, 2011
APPEARANCES:
Daniel P. McKinney, Appellant
Russell R. Herman for Appellee
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PRESTON, J.
{¶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.
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{¶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 served
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consecutively 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.
ASSIGNMENT OF ERROR NO. I APPELLANT MCKINNEY WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAW, AS GUARANTEED BY THE OHIO CONSTITUTION AND THE
CONSTITUTION OF THE UNITED STATES, WHERE HE WAS DENIED THE PROTECTED LIBERTY INTEREST OF
AN EVIDENTIARY HEARING ON HIS PETITION FOR POST CONVICTION RELIEF UNDER R.C. §§ 2953.21 et seq [SIC].
ASSIGNMENT OF ERROR NO. II APPELLANT MCKINNEY WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF LAW, AS GUARANTEED BY THE OHIO CONSTITUTION AND THE CONSTITUTION OF THE UNITED STATES, WHERE HE WAS DENIED THE PROTECTED LIBERTY INTEREST OF JUDICIAL REVIEW
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OF HIS PETITION FOR POST CONVICTION RELIEF AS MANDATED BY R.C. § 2953.21(C).
{¶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...
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