State v. McGee

[Cite as State v. McGee, 

.]


                 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,

 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, 

.      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,

; State v. Calliens, 8th Dist. No. 97034, 

;

State v. Ward, 8th Dist. No. 97219, 

. See also State v. Fields, 5th

Dist. No. CT11-0037, 

 (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, 

.      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