McIntyre v. Hooks (Slip Opinion)

[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.

SLIP OPINION NO. 2020-OHIO-3529

MCINTYRE v. HOOKS, WARDEN.

[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.]

Habeas corpus—Sentencing errors are not jurisdictional and are not cognizable in

habeas corpus—Writ denied.

(No. 2019-0042—Submitted March 10, 2020—Decided July 2, 2020.)

IN HABEAS CORPUS.

________________

Per Curiam.

{¶ 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.

SUPREME COURT OF OHIO

The facts in the record

{¶ 2} In August 1991, McIntyre was convicted of aggravated burglary in

violation of former R.C. 2911.11(A)(2) and (A)(3), an aggravated felony of the first

degree, Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136 (“S.B. 2”), and felonious

assault in violation of former R.C. 2903.11(A)(2), an aggravated felony of the

second degree, S.B. 2. He was also convicted of a firearm specification on each

count. He was sentenced to an aggregate prison term of 22 to 46 years. State v.

McIntyre, Summit C.P. No. CR 91 01 0135 (Sept. 9, 1991).1

{¶ 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2009, however, his parole was revoked after he was convicted of tampering with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 Crim.R. 32(C) and the “one-document”

rule that this court established in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-

3330, 893 N.E.2d 163, ¶ 17 (only one document may constitute a final, appealable

order), and was therefore not a final, appealable order. State ex rel. McIntyre v.

Summit Cty. Court of Common Pleas, 144 Ohio St.3d 589, 2015-Ohio-5343, 45

N.E.3d 1003, ¶ 10 (plurality opinion). On February 3, 2016, the trial court issued

1. In 1992, McIntyre was convicted of aggravated assault under the same case number and

sentenced to a prison term of 18 months. But because he was ordered to serve that sentence

concurrently with the 1991 sentences, the 1992 conviction is not relevant to the present analysis.

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January Term, 2020

a new sentencing entry for the 1991 and 1992 convictions (“the 2016 entry”), again

imposing an aggregate 22-to-46-year prison sentence.

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 R.C.2929.11(B)(1) and (2),

143 Ohio Laws, Part I, 1433; S.B. 2. McIntyre received the maximum prison term

on both counts. However, when the trial court issued the 2016 entry, 2011

Am.Sub.H.B. No. 86 (“H.B. 86”) had been enacted, and it established different

maximum penalties for these offenses. Specifically, the maximum penalty for a

first-degree felony was 11 years, former R.C. 2929.14(A)(1), and the maximum

penalty for a second-degree felony was 8 years, former R.C. 2929.14(A)(2).

{¶ 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 Civ.R. 12(B)(6)

motion to dismiss for failure to state a claim. When a custodian is ordered to file a

return on a petition for a writ of habeas corpus, he must state in writing whether he

has the prisoner in custody, R.C. 2725.14(A), and “the authority, and the true and

whole cause, of such imprisonment and restraint, with a copy of the writ, warrant,

or other process upon which the prisoner is detained,” R.C. 2725.14(B). We may

treat a motion to dismiss as a return of writ. See Hammond v. Dallman, 63 Ohio

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St.3d 666, 667, 590 N.E.2d 744 (1992). And in habeas cases in which we treat a

motion to dismiss as a return of writ, we decide the case on the merits rather than

on the pleadings. Id.

{¶ 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. R.C. 2725.01; State ex rel. Cannon, 155 Ohio

St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. “A writ of habeas corpus is

generally ‘available only when the petitioner’s maximum sentence has expired and

he is being held unlawfully.’ ” Leyman v. Bradshaw, 146 Ohio St.3d 522, 2016-

Ohio-1093, 59 N.E.3d 1236, ¶ 8, quoting Heddleston v. Mack, 84 Ohio St.3d 213,

214, 702 N.E.2d 1198 (1998). Habeas corpus is not available when there is an

adequate remedy in the ordinary course of law. Billiter v. Banks, 135 Ohio St.3d

426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 8.

{¶ 10} R.C. 1.58(B) provides: “If the penalty, forfeiture, or punishment for

any offense is reduced by a reenactment or amendment of a statute, the penalty,

forfeiture, or punishment, if not already imposed, shall be imposed according to the

statute as amended.” (Emphasis added.) Thus, a person who is not sentenced until

after the effective date of H.B. 86 must be sentenced under the lesser penalties from

the amended statute, even if the crime was committed prior to the effective date.

State v. Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496, ¶ 17; State

v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 20. Accordingly,

a person who received a penalty or punishment prior to the effective date of H.B.

86 is not eligible to receive an H.B. 86 lesser penalty or punishment. See, e.g., State

v. Clay, 12th Dist. Madison No. CA2011-12-016, 2012-Ohio-5011, ¶ 16.

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January Term, 2020

{¶ 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 guilty plea. As in Wills, McIntyre’s allegations do not challenge the jurisdiction

of the trial court and are therefore not cognizable in habeas corpus.

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.

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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 R.C. 2903.11(A)(2), Am.Sub.S.B. No. 2,

146 Ohio Laws, Part IV, 7136 (“S.B. 2”), a felony of the second degree, and

aggravated burglary, a violation of former R.C. 2911.11(A)(2) and (A)(3), S.B. 2,

a felony of the first degree. He was also convicted of a firearm specification on

each count. The jury was unable to reach a verdict on an additional felonious-

assault charge that had been amended before trial. On September 9, 1991, the trial

court filed a sentencing entry that ostensibly sentenced McIntyre to a term of 8 to

15 years for felonious assault and 8 to 25 years for aggravated burglary, plus 3-year

prison terms for each of the firearm specifications. The trial court ordered the terms

to be served consecutively, for an aggregate prison sentence of 22 to 46 years. The

sentencing entry did not, however, address the amended felonious-assault charge

on which the jury failed to reach a verdict.

{¶ 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

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January Term, 2020

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 one count of a multicount

indictment is not a final, appealable order when other counts remain pending after

a mistrial.” The failure to resolve the hanging charge is not a mere clerical error

but rather is a fundamental failure to fully determine the action that will generally

prevent the defendant from appealing until that charge is resolved. Id. at ¶ 17.3

{¶ 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 R.C. 2949.12. But McIntyre did not have a final, appealable order to contest his

convictions and sentence until February 3, 2016, over 24 years later.

{¶ 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

2. The Ninth District Court of Appeals affirmed the trial court’s judgment in a two-to-one decision.

State v. McIntyre, 9th Dist. Summit No. 28125, 2018-Ohio-2001. This court declined to accept

jurisdiction in McIntyre’s discretionary appeal. State v. McIntyre, 157 Ohio St.3d 1484, 2019-Ohio-

4600, 134 N.E.3d 203.

3. In Craig, however, the trial court’s subsequent finding that Craig was incompetent to stand trial

on the pending charge operated as a de facto severance of that count. Id. at ¶ 2.

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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

R.C. 2929.14(A)(2). The maximum sentence for a first-degree felony was 11 years.

See former R.C. 2929.14(A)(1). H.B. 86 did not affect McIntyre’s prison terms for

the firearm specifications. So, if McIntyre had been sentenced under H.B. 86, his

maximum sentence would have been 25 years and he would have been released, at

the latest, in 2018 (25 years from the time of his 1991 conviction, plus 2 years to

reflect the time he had been out on parole).

{¶ 25} The unresolved felonious-assault charge prevented the trial court’s

September 9, 1991 sentencing entry from being a final, appealable judgment. See

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January Term, 2020

Craig, __ Ohio St.3d __, 2020-Ohio-455, __ N.E.3d __, at ¶ 21. McIntyre did not

have a final, appealable judgment until February 3, 2016, well after the effective

date of H.B. 86.

{¶ 26} R.C. 1.58(B) states: “If the penalty, forfeiture, or punishment for any

offense is reduced by a reenactment or amendment of a statute, the penalty,

forfeiture, or punishment, if not already imposed, shall be imposed according to the

statute as amended.” Here, because no de jure punishment had been “already

imposed,” McIntyre qualified to be sentenced under H.B. 86. Indeed, had the

prosecuting attorney elected to retry McIntyre in 2012, and had the prosecuting

attorney been successful in that prosecution, McIntyre’s sentence clearly would

have been governed by H.B. 86, even though his offenses had been committed at a

time when Ohio law authorized the imposition of indefinite prison sentences. See

State v. Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496, ¶ 18

(Thomas, who was convicted in 2014 for crimes that he had committed in 1993,

was entitled to be sentenced under H.B. 86).

{¶ 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.

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Dave Yost, Ohio Attorney General, and Maura O’Neill Jaite, Senior

Assistant Attorney General, for respondent.

_________________

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