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

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O

. 2020-O HIO -4785

M C K INNEY , A PPELLANT , v . H AVILAND , W ARDEN , A PPELLEE

. [Until this opinion appears in t he Ohio Official Reports advanc e 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 appe als’ dismissal of petition affirmed. (No. 2020-0286—Submitted July 7, 2020—Decided October 7, 2020.)

A PPEAL from the Court of Appeals fo r Allen County, No. 1-19-68.

________________ Per Curiam. {¶ 1} Appellant, Daniel P. McKinney, a n inmate at the Allen-Oakwood Correctional Institution, appeals the judgment of the Third Dis trict Court of Appeals dismissing his petition for a writ of habeas corpus aga inst appellee, James Haviland, the institution’ s warden. We affirm. Background {¶ 2} In July 2003, a grand jury in Defia nce County indicted McKinney on five felony counts: (1) robbery, (2) aggravated theft, (3) rece iving stolen property,S UPREME C OURT OF O HIO

2 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 te rm of 201⁄2 years in prison. {¶ 3} The court of appeals reversed his conviction for receiving stol en 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 t he following prison sentences: 8 years for robbery, 4 years for aggravated theft, and 5 years and 11⁄2 years, respect ively, for the two failure-to-comply convictions. T he 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 fa iled to make the findings required by R.C. 2929.14(C) before imposing consecutiv e sentences. According to McKinney, because the trial court failed to make t he mandatory findings, he is entitled to “a presumption in favor of concurre nt sentences.” Thus, he concludes, his 4-year senten ce for aggravated theft should h ave 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 conten ds that

he is entitled to immediate release. {¶ 5} The court of appeals granted Haviland’s motion to dismiss, concluding that McKinney’s comp laint did not state a claim cogn izable in habeas corpus. McKinney has appealed. Legal analysis {¶ 6} To be entitled to a writ of habeas corpus, a petitioner must sh ow 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

3 155 Ohio St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. Habe as 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 n ovo 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 sentenc es for most felony offenses. R.C. 2929.41(A). A trial court may over come this presumption by making three stat utory findings described in R.C . 2929.14(C)(4).

State v. Bonnell , 140 Ohio St .3d 209, 2014-Ohio-3 177, 16 N.E.3d 659, ¶ 37 . Fir st, the court must find that requiring the sentences to be served c onsecutively 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 crim inal conduct

demonstrates that consecutive se ntences are necessary to protec t the public from future crime by the offender.” R.C. 2929.14(C)(4)(c). The tri al 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 t hree findings required under R.C. 2929.14(C) at his initial sentenci ng hearing and in the initial sentencing entry. And there is no question that the tr ial-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 “approac hes the worstS UPREME C OURT OF O HIO

4 form of the particular offenses ,” thereby satisfying the propor tionality requirement. And the entry includes the following language in support of a f inding under R.C. 2929.14(C)(4)(c): “The Court furthe r finds that the Defendant i s a danger to the community based upon his past conduct and criminal behavior [and] that maximum terms of imprisonment are required to protect the publi c 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 t rial-court judge stated:

The Court finds that the sentencing factors which compel the imposition of terms of imprisonment previously stated still app ly

and the Court would reite rate those findings. * * * * * * The Court, again, based upon the evidence and information previously provide d reiterates its finding that consecutive terms are necessary to protect the public; that

concurrent terms would demean the seriousness of the offense; t hat consecutive terms in this instance are not disproportionate to the

harm or risk that the offe nder presents to the public.

Although the trial-court judge repeated the findings he had mad e 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 s entencing hearing on remand enti tles him to a presumption that the sentences r un concurrently and that he is therefore entitled to immediate release. But McKinney cites no authority for the pro position that a trial court that has previously made findings cannot simply readopt t hose findings byJanuary Term, 2020

5 reference at a resentencing hearing. And regardless, McKinney’ s argument that the trial court failed to make the necessary findings under R.C. 29 29.14(C)(4) raises an alleged sentencing error, for whi ch McKinney had an adequate re medy 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 sen tences because the relator had an adequate remedy through direct appeal). Acc ordingly, relief is unavailable in habeas corpus. {¶ 11} For these reasons, the court of appeals was correct to dismiss McKinney’s petition for failure t o state a claim in habeas corp us. Judgment affirmed.

O’C ONNOR , C.J., and K ENNEDY , F RENCH , F ISCHER , D E W INE , D ONNELLY , and S TEWART , JJ., concur.

_________________ Daniel P. McKinney, pro se. Dave Yost, Attorney General, and Maura O’Neill Jaite, Assistant Attorney General, for appellee.

_________________