[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
McKinney v. Haviland, Slip Opinion No. 2020-Ohio-4785.]




                                        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-4785
          MCKINNEY, APPELLANT, v. HAVILAND, WARDEN, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as McKinney v. Haviland, Slip Opinion No. 2020-Ohio-4785.]
Habeas corpus—Inmate had adequate remedy in ordinary course of law to raise
        alleged sentencing error—Court of appeals’ dismissal of petition affirmed.
      (No. 2020-0286—Submitted July 7, 2020—Decided October 7, 2020.)
        APPEAL from the Court of Appeals for Allen County, No. 1-19-68.
                                  ________________
        Per Curiam.
        ¶ 1 Appellant, Daniel P. McKinney, an inmate at the Allen-Oakwood
Correctional Institution, appeals the judgment of the Third District Court of
Appeals dismissing his petition for a writ of habeas corpus against appellee, James
Haviland, the institution’s warden. We affirm.
                                      Background
        ¶ 2 In July 2003, a grand jury in Defiance County indicted McKinney on
five felony counts: (1) robbery, (2) aggravated theft, (3) receiving stolen property,
                                 SUPREME COURT OF OHIO




and (4) two counts of failing to comply with a signal or order of a police officer.
He was convicted of all counts and sentenced to an aggregate term of 20½ years in
prison.
          ¶ 3 The court of appeals reversed his conviction for receiving stolen
property, affirmed in all other respects, and remanded the case for a new sentencing
hearing. State v. McKinney, 3d Dist. Defiance No. 4-04-12, 2004-Ohio-5518. On
remand, the trial court imposed the following prison sentences: 8 years for robbery,
4 years for aggravated theft, and 5 years and 1½ years, respectively, for the two
failure-to-comply convictions. The trial court ordered him to serve the sentences
consecutively, for an aggregate term of 18½ years.
          ¶ 4 In October 2019, McKinney filed a petition for a writ of habeas corpus
in the Third District. He alleged that the sentencing judge failed to make the
findings required by R.C. 2929.14(C) before imposing consecutive sentences.
According to McKinney, because the trial court failed to make the mandatory
findings, he is entitled to “a presumption in favor of concurrent sentences.” Thus,
he concludes, his 4-year sentence for aggravated theft should have run concurrently
with his 8-year sentence for robbery, resulting in an aggregate sentence of only 14½
years.1 Because he has now served more than 16 years, McKinney contends that
he is entitled to immediate release.
          ¶ 5 The court of appeals granted Haviland’s motion to dismiss,
concluding that McKinney’s complaint did not state a claim cognizable in habeas
corpus. McKinney has appealed.
                                        Legal analysis
          ¶ 6 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 v. Mohr,

1. By statute, the sentences for the failure-to-comply charges must be served consecutively to any
other prison terms. R.C. 2921.331(D).




                                                2
                               January Term, 2020




155 Ohio St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. Habeas corpus is
generally available only when the petitioner’s maximum sentence has expired and
he is being held unlawfully. Heddleston v. Mack, 84 Ohio St.3d 213, 214, 702
N.E.2d 1198 (1998). Habeas corpus is not available when there is or was an
adequate remedy in the ordinary course of the law. Billiter v. Banks, 135 Ohio
St.3d 426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 8. We review de novo the dismissal
of a habeas corpus petition for failure to state a claim. Rock v. Harris, 157 Ohio
St.3d 6, 2019-Ohio-1849, 131 N.E.3d 6, ¶ 6.
       ¶ 7 In Ohio, there is a statutory presumption of concurrent sentences for
most felony offenses.     R.C. 2929.41(A).     A trial court may overcome this
presumption by making three statutory findings described in R.C. 2929.14(C)(4).
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. First,
the court must find that requiring the sentences to be served consecutively is
necessary to protect the public or to punish the offender. R.C. 2929.14(C)(4).
Second, the court must find that consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender poses to
the public. Id. As for the third requirement, a number of different findings will
suffice, one of which is that “[t]he offender’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from
future crime by the offender.” R.C. 2929.14(C)(4)(c). The trial court must make
the three findings both at the sentencing hearing and in the sentencing entry.
Bonnell at ¶ 37.
       ¶ 8 McKinney does not dispute that the trial-court judge made the three
findings required under R.C. 2929.14(C) at his initial sentencing hearing and in the
initial sentencing entry. And there is no question that the trial-court judge made
the three necessary findings in the sentencing entry on remand. The entry states
that consecutive sentences were necessary to protect the public from future harm.
The entry also observes that each of McKinney’s crimes “approaches the worst




                                         3
                              SUPREME COURT OF OHIO




form of the particular offenses,” thereby satisfying the proportionality requirement.
And the entry includes the following language in support of a finding under R.C.
2929.14(C)(4)(c): “The Court further finds that the Defendant is a danger to the
community based upon his past conduct and criminal behavior [and] that
maximum terms of imprisonment are required to protect the public from future
harm by the Defendant * * *.”
        ¶ 9 McKinney’s argument turns on the trial-court judge’s failure to make
the third required finding at McKinney’s resentencing hearing. According to the
hearing transcript, the trial-court judge stated:


                The Court finds that the sentencing factors which compel the
        imposition of terms of imprisonment previously stated still apply
        and the Court would reiterate those findings. * * *
                * * * The Court, again, based upon the evidence and
        information previously provided reiterates its finding that
        consecutive terms are necessary to protect the public; that
        concurrent terms would demean the seriousness of the offense; that
        consecutive terms in this instance are not disproportionate to the
        harm or risk that the offender presents to the public.


Although the trial-court judge repeated the findings he had made at the initial
sentencing hearing as to the first two requirements, he did not expressly repeat his
finding under R.C. 2929.14(C)(4)(a) through (c).
        ¶ 10 McKinney contends that the trial-court judge’s failure to make all
the necessary findings at the sentencing hearing on remand entitles him to a
presumption that the sentences run concurrently and that he is therefore entitled to
immediate release. But McKinney cites no authority for the proposition that a trial
court that has previously made findings cannot simply readopt those findings by




                                           4
                                January Term, 2020




reference at a resentencing hearing. And regardless, McKinney’s argument that the
trial court failed to make the necessary findings under R.C. 2929.14(C)(4) raises an
alleged sentencing error, for which McKinney had an adequate remedy in the
ordinary course of the law. See State ex. rel. Heston v. Judges of the Richland Cty.
Court of Common Pleas, 5th Dist. Richland No. 2019 CA 0098, 2019-Ohio-5399,
¶ 4-5 (dismissing mandamus petition challenging consecutive sentences because
the relator had an adequate remedy through direct appeal). Accordingly, relief is
unavailable in habeas corpus.
       ¶ 11 For these reasons, the court of appeals was correct to dismiss
McKinney’s petition for failure to state a claim in habeas corpus.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                                _________________
       Daniel P. McKinney, pro se.
       Dave Yost, Attorney General, and Maura O’Neill Jaite, Assistant Attorney
General, for appellee.
                                _________________




                                         5