[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, 
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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 201⁄2 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 11⁄2 years, respectively, for the two 

failure-to-comply convictions. The trial court ordered him to serve the sentences 

consecutively, for an aggregate term of 181⁄2 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 141⁄2 

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). 
January Term, 2020 

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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 
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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 
January Term, 2020 

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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. 

_________________