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State of Ohio v. Jermaine Mckinney

December 24, 2012

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JERMAINE MCKINNEY, DEFENDANT-APPELLANT.



Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 05 CR 948.

The opinion of the court was delivered by: Cynthia Westcott Rice, J.

Cite as

State v. McKinney,

OPINION

Judgment: Affirmed.

{¶1} Appellant, Jermaine McKinney, pro se, appeals the judgment of the Trumbull County Court of Common Pleas denying his motion to "discharge" him from his obligation to pay court costs. Appellant argues the trial court erred by failing to properly impose court costs. This is appellant's fourth appeal (and sixth post-conviction proceeding) challenging his conviction of two counts of aggravated murder and multiple first-degree felonies. For the reasons that follow, we affirm.

{¶2} On November 6, 2006, following a jury trial, appellant was found guilty of aggravated murder of his girlfriend Rebecca Cliburn in the commission of a felony, with specifications of aggravating circumstances of multiple murders, aggravated burglary, aggravated robbery, kidnapping, and aggravated arson. He was also found guilty of aggravated murder of Rebecca's elderly mother Wanda Rollyson in the commission of a felony, with the same specifications of aggravating circumstances, except for the kidnapping specification. In addition, he was found guilty of aggravated burglary, aggravated robbery, kidnapping of Rebecca, and aggravated arson.

{¶3} On November 29, 2006, the trial court held a sentencing hearing. The court sentenced appellant to serve two terms of life imprisonment without parole on the two counts of aggravated murder; ten years for aggravated burglary; ten years for aggravated robbery; ten years for kidnapping; and eight years for aggravated arson, all sentences to be served consecutively. At the sentencing hearing, the trial court also advised appellant, "You will pay costs." Following this notice, appellant did not ask the court to waive costs at his sentencing.

{¶4} One week later, on December 6, 2006, the trial court entered its judgment on sentence in which the court imposed the foregoing sentence. The trial court also included the following order in its judgment entry: "The Defendant shall pay the cost of prosecution taxed in the amount of $______ costs for which execution is awarded."

{¶5} Appellant filed a direct appeal, in which he asserted 16 assignments of error. Appellant did not challenge the court's imposition of costs as part of this appeal. On June 27, 2008, this court affirmed appellant's conviction in State v. McKinney, 11th Dist. No. 2007-T-0004, 2008-Ohio-3256 ("McKinney I"). Appellant did not appeal this court's decision to the Supreme Court of Ohio.

{¶6} Thereafter, appellant filed a motion to reopen his direct appeal, pursuant to App.R. 26(B), arguing his appellate counsel was ineffective for failing to challenge the sufficiency of the evidence on appeal. This court denied that motion.

{¶7} On July 27, 2009, appellant filed a motion in the trial court for resentencing, challenging the court's imposition of consecutive sentences. The trial court denied the motion. Appellant appealed the court's ruling, but, due to his failure to file an appellate brief, this court dismissed his appeal in State v. McKinney, 11th Dist. No. 2009-T-0093 ("McKinney II").

{¶8} On October 23, 2009, appellant filed a motion to vacate his conviction and for a new sentencing, arguing his sentence was void because the trial court did not impose the mandatory term of post-release control with respect to the first-degree felonies of which he was convicted. The trial court denied the motion. Appellant appealed the trial court's ruling. In State v. McKinney, 11th Dist. No. 2010-T-0011, 2010-Ohio-6445 ("McKinney III"), this court affirmed appellant's conviction, but reversed in part and remanded for the trial court to properly impose post-release control. The trial court complied with this court's mandate, and, on March 11, 2011, following a hearing, the court issued a nunc pro tunc entry in which the court repeated its original sentence and properly imposed post-release control. That entry also repeated the court's award of costs, stating, "The Defendant shall pay the cost of prosecution taxed in the amount of $______ costs for which execution is awarded." Appellant did not appeal this judgment entry.

{ΒΆ9} Further, between December 29, 2010, and January 18, 2011, appellant filed a series of motions in the trial court, each of which requested that the trial court issue a final order of conviction pursuant to Crim.R. 32(C). The trial court denied each of these motions in a single judgment entry, dated February 17, 2011, finding that appellant's motions were in effect petitions for post-conviction relief and untimely pursuant to R.C. 2953.21(A)(2). Appellant failed to appeal this ruling and, instead, filed a petition for a writ of mandamus and/or procedendo. In State ex re. McKinney v. McKay, 11th Dist. No. 2011-T-0039, 2011-Ohio-3756, judgment aff'd by Ohio Supreme Court at 131 Ohio St.3d 19, 2011-Ohio-6397 (McKinney IV"), this court held that the trial court had already entered a final, ...


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