[Cite as State v. McCarthy, 2016-Ohio-1249.]



                           STATE OF OHIO, MAHONING COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO                                   )
                                                )
        PLAINTIFF-APPELLEE                      )
                                                )           CASE NO. 14 MA 0107
VS.                                             )
                                                )                  OPINION
DANIEL P. MCCARTHY                              )
                                                )
        DEFENDANT-APPELLANT                     )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from County Court No.
                                                4 of Mahoning County, Ohio
                                                Case No. 10 TR C 1471 A-B

JUDGMENT:                                       Reversed. Sentence vacated.

APPEARANCES:
For Plaintiff-Appellee                          Attorney Paul Gains
                                                Mahoning County Prosecutor
                                                Attorney Ralph Rivera
                                                Assistant Prosecutor
                                                21 West Boardman Street, 6th Floor
                                                Youngstown, Ohio 44503

For Defendant-Appellant                         Attorney Mark DeVicchio
                                                3680 Starr Centre Drive
                                                Canfield, Ohio 44406



JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                Dated: March 24, 2016
[Cite as State v. McCarthy, 2016-Ohio-1249.]
DeGENARO, J.

        {¶1}    Defendant-Appellant, Daniel P. McCarthy, appeals the judgment of the
Mahoning County Court No. 2, ordering him to serve the balance of his jail term from
a 2010 conviction that he had not fully served due to jail overcrowding. The trial court
erred by ordering McCarthy to serve the balance of the jail sentence because the
five-year period for executing a misdemeanor sentence as prescribed by State v.
Zucal, 82 Ohio St.3d 215, 219, 694 N.E.2d 1341 (1998), has expired. Accordingly,
the judgment of the trial court is reversed, and McCarthy's sentence is vacated.
        {¶2}    On March 9, 2010, McCarthy, while intoxicated and alluding police in
his vehicle, crashed into a residence causing damage to the structure, but no
personal injury. During an inventory search of McCarthy's vehicle, police discovered
illegal prescription painkillers. McCarthy was issued citations for: a third-offense OVI,
driving under a suspended license, hit/skip, and failure to control, all misdemeanors,
ranging from unclassified to first degree.
        {¶3}    McCarthy entered into a plea agreement; he pled guilty to the third-
offense OVI charge, and in exchange the State dismissed the DUS, hit/skip and
failure to control charges. The trial court sentenced McCarthy to 365 days in jail, with
114 days suspended, to run consecutive to the sentence for his probation violation in
his second OVI conviction case. The trial court also imposed a $1,000 fine and
ordered that McCarthy be subject to 60 months of reporting community control and
that he pay restitution to the property owner. McCarthy did not file a direct appeal
from this judgment.
        {¶4}    McCarthy served 18 days in jail before being furloughed as a result of
jail overcrowding. McCarthy made attempts for over a year to serve the remainder of
his jail sentence; however, he was turned away due to overcrowding.
        {¶5}    Just over four years after he was sentenced, a notice of hearing for
violation of probation was issued, due to McCarthy's failure to serve the remainder of
his jail term. The hearing was scheduled and McCarthy entered a not guilty plea to
the probation violation. An entry memorializing his not guilty plea alleges that
McCarthy failed to serve 365 days in jail, but notes that he "has 114 days of jail time
                                                                               -2-


suspended."
       {¶6}    McCarthy also filed a motion to reconsider jail sentence/suspend the
balance of days to serve. Therein he argued that he had complied with all the terms
of his probation and demonstrated a commitment to sobriety, and that this reasonably
demonstrated that he had been rehabilitated. He asserted that requiring him to serve
the remainder of his jail sentence was no longer necessary as he had been
adequately punished during the probation period and that jailing him would cause
disruption to his corporation and subject his employees and their families to financial
hardship. He noted that in his nearly 50 months on probation he had: 1) reported to
jail and served 18 consecutive days; 2) successfully completed the drug court
program, resulting in the dismissal of the companion felonies charged in the same
incident giving rise to the misdemeanor third-offense OVI in this case; 3) completed
inpatient and intensive outpatient rehabilitation programs at Glenbeigh; 4)
consistently and timely reported to the probation department as scheduled; 5) paid all
fines and costs; 6) resolved all disputes, financial and otherwise with the homeowner;
7) maintained his sobriety and strengthened family relationships. For those reasons,
McCarthy urged the trial court to suspend the balance of his jail sentence.
       {¶7}    The probation violation was called for hearing, and the trial court noted
that they were there for a "community control violation; the basis being that the
defendant has failed to serve a 347-day jail sentence that was imposed on March 19
of 2010." The trial court stated it was its "understanding that your lawyer does not
agree to stipulate to a violation, which I understand, but regardless, you owe this
court 347 days in jail."
       {¶8}    Defense counsel then conceded that "* * *obviously * * * it's the
sentence that currently stands." He continued: "That is the sentence. We understand
that the Court has a difficult position. We ask -- I have prepared a notice of appeal
and motion to stay execution of a sentence. We would like to take up this issue, and
it's -- it's a difficult issue – to the Court of Appeals for some - - [.]"
       {¶9}    The following then transpired:
                                                                                 -3-


       THE COURT: I'm going to go off the record for just one second.

              (A recess was taken.)

       THE COURT: Yeah, for the record, we did have some conversation off
       the record, and the defendant understands the situation, and he is
       going to -- just so we're clear, accept the Court's order of 347 days to
       be served in the county jail. I'm going to start that sentence on August
       11, 2014 at 9:00 a.m. And I understand that there will be a notice of
       appeal filed immediately, and -- and a stay of the sentence so that the
       Court of Appeals can decide this issue.

              And if I didn't say, sir, for the record, the basis of the defendant
       not serving jail sentence is that he had been furloughed by the jail. He
       did commence his sentence back in 2010. He served 18 days of that
       sentence.

       {¶10} It appears that defense counsel then attempted to argue the motion to
suspend the balance of the jail sentence, noting that McCarthy had made attempts
for over a year to serve his jail sentence and that he continued to report to probation
every other month and that all fines costs and restitution had been paid. The trial
court failed to consider this motion, instead ordering McCarthy to serve the 347 days
in jail, failing to account for the 114 days the trial court had originally suspended from
McCarthy's sentence. From that entry, McCarthy filed a timely notice of appeal, and
the trial court granted McCarthy's motion to stay sentence pending appeal.
       {¶11} McCarthy asserts in his three assignments of error:

              Due to the amendment to Ohio Criminal Rule 5, the trial court
       judge abused his discretion by re-imposing the balance of the maximum
       sentence on misdemeanor charges which arose from the same act
       involving a felony. The felony was definitively settled by a judicial
                                                                                 -4-


        decision after Appellant's successful completion of felony drug court.

              The trial court judge abused his discretion by failing to consider
        the mitigating factors raised in Appellant's motion including but not
        limited to Appellant's successful completion of drug court, restitution
        paid by Appellant to third parties, length of Appellant's probation and
        exemplary conduct while on probation together with the harm that will
        be imposed upon innocent third parties as a result of Appellant's
        incarceration.

              The trial court judge abused his discretion by ordering Appellant
        to serve the remaining 347 days of a maximum sentence in jail after the
        Appellant completed his sentence on accompanying felony charges.
        The jail time imposed exceeds the balance of time remaining on the
        Appellant's maximum probation term. In consideration of the totality of
        circumstances, the trial court's abuse of discretion amounts to cruel and
        unusual punishment, in violation of the Eighth Amendment to the
        Constitution of the United States.

        {¶12} The delay in execution of McCarthy's 2010 misdemeanor sentence, an
issue that McCarthy touches on in his third assignment of error, is dispositive of this
appeal and renders our consideration of the balance of his assignments of error
moot.
        {¶13} In State v. Vince, 7th Dist. No. 08 MA 214, 2009-Ohio-4635, we
considered whether a 16-month delay in the imposition of the defendant's sentence
due to jail overcrowding deprived the court of jurisdiction, and violated the defendant
of his rights to due process and to the protection from cruel and unusual punishment.
While "the general rule in Ohio law is that a delay in the execution of a sentence does
not render the sentence unenforceable[,] * * * it is possible for a delay in the
execution of a sentence to become so unreasonable that it raises constitutional
                                                                                    -5-


issues." Vince at ¶16, citing, inter alia, State v. Zucal, 82 Ohio St.3d 215, 219, 694
N.E.2d 1341 (1998). In Zucal, the Ohio Supreme Court drew that line at five years,
stating in paragraph one of the syllabus: "In convictions involving misdemeanor
offenses, a delay in execution of sentence resulting from jail overcrowding that
exceeds five years from the date that sentence is imposed is unlawful."
       {¶14} In Zucal, the Court discussed the impact jail overcrowding had on the
commencement of offenders' sentences, noting that the "growing societal problem,
jail overcrowding, * * * has become increasingly difficult to remedy." Id. at 218. It
further held that an "equitable remedy * * * that balances the criminal offender's
liberty interests against the state's interest in the proper administration of justice" was
necessary to prevent "unreasonable, burdensome, and unlawful restriction of
appellant's freedom" and violations of due process. Id. at 219. The Court chose to
make a bright-line rule of five years since that is the maximum term of community
control. Id., citing R.C. 2951.07. See also R.C. 2929.24(A)(2) which codifies the five
year limit.
       {¶15} In Zucal, the defendant was convicted of an OVI offense and sentenced
in March of 1990, but she was unable to serve her jail term due to overcrowding.
Over six years passed and she filed a motion to vacate her sentence, which was
denied by the trial court and affirmed by the court of appeals. The Ohio Supreme
Court reversed and vacated her sentence:

              We believe      that   it   would   be   manifestly   unfair,   if   not
       unconstitutional, to subject appellant, as well as others similarly
       situated, to restraints on her liberty beyond the maximum permissible
       period of probation provided for in R.C. 2951.07. The delay in execution
       of sentence in this case has required appellant to indefinitely place her
       life on hold for a period of over six years, subject to the availability of
       adequate jail space. Such a lengthy delay is an unlawful deprivation of
       appellant's liberty. There comes a point in time when such a delay
       becomes unreasonable and fails to comport with traditional notions of
                                                                               -6-


       fair play and substantial justice.

Id. at 220.
       {¶16} Here, when the trial court ordered McCarthy serve the remainder of his
jail term, just over four years had passed from the original date of sentence. Now,
through no fault of McCarthy's, more than five years have elapsed. The Zucal Court
clearly held that "[a]ny sentence resulting from a conviction of a misdemeanor
offense that is not completed within five years from the date of sentencing must be
vacated." Zucal, paragraph two of the syllabus (emphasis added).
       {¶17} Thus, McCarthy's third assignment of error is meritorious in part. This
renders the first and second assignments of error moot, and we need not address
them. App.R. 12(A)(1)(c). Because the five-year Zucal period has expired, the
judgment of the trial court is reversed, and McCarthy's sentence is vacated.

Waite, J., concurs

Robb, J., concurs
