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The State ex rel. McKinney v. Schmenk

Supreme Court of Ohio

December 27, 2017

The State ex rel. McKinney, Appellant,
v.
Schmenk, Judge, Appellee.

          Submitted September 26, 2017

         Appeal from the Court of Appeals for Defiance County, No. 4-17-03.

          Daniel P. McKinney, pro se.

          Morris J. Murray, Defiance County Prosecuting Attorney, and Russell R. Herman, Assistant Prosecuting Attorney, for appellee.

          Per Curiam.

         {¶ 1} Appellant, Daniel P. McKinney, appeals the judgment of the Third District Court of Appeals dismissing his petition for a writ of mandamus. For the reasons below, we affirm.

         Background

         {¶ 2} For purposes of reviewing a decision granting a motion to dismiss, we must accept the following allegations in McKinney's petition as true. See Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).

         {¶ 3} In 2004, McKinney was convicted of five counts arising from a single event: robbery, aggravated theft, receiving stolen property, and two counts of failing to comply with a police officer's order. See Defiance C.P. No. 03 CR 8624. The trial court sentenced him to consecutive prison terms totaling 20.5 years.

         {¶ 4} McKinney appealed, arguing that the robbery and theft counts were allied offenses of similar import, as were the two counts for failing to comply. The court of appeals rejected this argument, and McKinney's other arguments, but reversed his conviction for receiving stolen property and remanded for resentencing. State v. McKinney, 3d Dist. Defiance No. 4-04-12, 2004-Ohio-5518, ¶ 38-44, 64. In 2005, the trial court resentenced McKinney to consecutive prison terms totaling 18.5 years.

         {¶ 5} More than ten years later, McKinney filed two motions with the trial court: a "Motion to Correct Void Allied Convictions/Sentences" and a motion for a resentencing hearing.

         {¶ 6} In March 2017, before the appellee, Judge Joseph Schmenk, ruled on either motion, McKinney filed a petition for a writ of mandamus in the Third District Court of Appeals. He sought an order compelling Judge Schmenk to merge the convictions that he claimed were for allied offenses and argued that until the judge does so, there is no final, appealable order in his criminal case.

         {¶ 7} In April 2017, the court of appeals granted Judge Schmenk's motion to dismiss ...


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