[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2009, however, his parole was revoked after he was convicted of tampering with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.




                                                2
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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




                                         3
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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.




                                          4
                                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.




                                          5
                             SUPREME COURT OF OHIO




       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




                                          6
                                     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.




                                                 7
                             SUPREME COURT OF OHIO




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




                                         8
                               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.




                                         9
                           SUPREME COURT OF OHIO




       Dave Yost, Ohio Attorney General, and Maura O’Neill Jaite, Senior
Assistant Attorney General, for respondent.
                              _________________




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