The State ex rel. McKinney, Appellant,
Schmenk, Judge, Appellee.
Submitted September 26, 2017
from the Court of Appeals for Defiance County, No. 4-17-03.
P. McKinney, pro se.
J. Murray, Defiance County Prosecuting Attorney, and Russell
R. Herman, Assistant Prosecuting Attorney, for appellee.
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,
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
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
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 ...