State v. McGee

[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
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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
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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
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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.
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JAMES J. SWEENEY, JUDGE
MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR