[Cite as State v. McCarthy, 2016-Ohio-1249.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO 

 PLAINTIFF-APPELLEE 

VS. 

DANIEL P. MCCARTHY 

 DEFENDANT-APPELLANT 

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CASE NO. 14 MA 0107 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from County Court No. 

4 of Mahoning County, Ohio 

Case No. 10 TR C 1471 A-B 

JUDGMENT: Reversed. Sentence vacated. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Paul Gains 

Mahoning County Prosecutor 

Attorney Ralph Rivera 

Assistant Prosecutor 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Mark DeVicchio 

3680 Starr Centre Drive 

Canfield, Ohio 44406 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: March 24, 2016 
[Cite as State v. McCarthy, 2016-Ohio-1249.]

DeGENARO, J. 

{¶1} Defendant-Appellant, Daniel P. McCarthy, appeals the judgment of the 

Mahoning County Court No. 2, ordering him to serve the balance of his jail term from 

a 2010 conviction that he had not fully served due to jail overcrowding. The trial court 

erred by ordering McCarthy to serve the balance of the jail sentence because the 

five-year period for executing a misdemeanor sentence as prescribed by State v. 

Zucal, 82 Ohio St.3d 215, 219, 694 N.E.2d 1341 (1998), has expired. Accordingly, 

the judgment of the trial court is reversed, and McCarthy's sentence is vacated. 

{¶2} On March 9, 2010, McCarthy, while intoxicated and alluding police in 

his vehicle, crashed into a residence causing damage to the structure, but no 

personal injury. During an inventory search of McCarthy's vehicle, police discovered 

illegal prescription painkillers. McCarthy was issued citations for: a third-offense OVI, 

driving under a suspended license, hit/skip, and failure to control, all misdemeanors, 

ranging from unclassified to first degree. 

{¶3} McCarthy entered into a plea agreement; he pled guilty to the thirdoffense OVI charge, and in exchange the State dismissed the DUS, hit/skip and 

failure to control charges. The trial court sentenced McCarthy to 365 days in jail, with 

114 days suspended, to run consecutive to the sentence for his probation violation in 

his second OVI conviction case. The trial court also imposed a $1,000 fine and 

ordered that McCarthy be subject to 60 months of reporting community control and 

that he pay restitution to the property owner. McCarthy did not file a direct appeal 

from this judgment. 

{¶4} McCarthy served 18 days in jail before being furloughed as a result of 

jail overcrowding. McCarthy made attempts for over a year to serve the remainder of 

his jail sentence; however, he was turned away due to overcrowding. 

{¶5} Just over four years after he was sentenced, a notice of hearing for 

violation of probation was issued, due to McCarthy's failure to serve the remainder of 

his jail term. The hearing was scheduled and McCarthy entered a not guilty plea to 

the probation violation. An entry memorializing his not guilty plea alleges that 

McCarthy failed to serve 365 days in jail, but notes that he "has 114 days of jail time 
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suspended." 

{¶6} McCarthy also filed a motion to reconsider jail sentence/suspend the 

balance of days to serve. Therein he argued that he had complied with all the terms 

of his probation and demonstrated a commitment to sobriety, and that this reasonably 

demonstrated that he had been rehabilitated. He asserted that requiring him to serve 

the remainder of his jail sentence was no longer necessary as he had been 

adequately punished during the probation period and that jailing him would cause 

disruption to his corporation and subject his employees and their families to financial 

hardship. He noted that in his nearly 50 months on probation he had: 1) reported to 

jail and served 18 consecutive days; 2) successfully completed the drug court 

program, resulting in the dismissal of the companion felonies charged in the same 

incident giving rise to the misdemeanor third-offense OVI in this case; 3) completed 

inpatient and intensive outpatient rehabilitation programs at Glenbeigh; 4) 

consistently and timely reported to the probation department as scheduled; 5) paid all 

fines and costs; 6) resolved all disputes, financial and otherwise with the homeowner; 

7) maintained his sobriety and strengthened family relationships. For those reasons, 

McCarthy urged the trial court to suspend the balance of his jail sentence. 

{¶7} The probation violation was called for hearing, and the trial court noted 

that they were there for a "community control violation; the basis being that the 

defendant has failed to serve a 347-day jail sentence that was imposed on March 19 

of 2010." The trial court stated it was its "understanding that your lawyer does not 

agree to stipulate to a violation, which I understand, but regardless, you owe this 

court 347 days in jail." 

{¶8} Defense counsel then conceded that "* * *obviously * * * it's the 

sentence that currently stands." He continued: "That is the sentence. We understand 

that the Court has a difficult position. We ask -- I have prepared a notice of appeal 

and motion to stay execution of a sentence. We would like to take up this issue, and 

it's -- it's a difficult issue – to the Court of Appeals for some - - [.]" 

{¶9} The following then transpired: 
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THE COURT: I'm going to go off the record for just one second. 

(A recess was taken.) 

THE COURT: Yeah, for the record, we did have some conversation off 

the record, and the defendant understands the situation, and he is 

going to -- just so we're clear, accept the Court's order of 347 days to 

be served in the county jail. I'm going to start that sentence on August 

11, 2014 at 9:00 a.m. And I understand that there will be a notice of 

appeal filed immediately, and -- and a stay of the sentence so that the 

Court of Appeals can decide this issue. 

And if I didn't say, sir, for the record, the basis of the defendant 

not serving jail sentence is that he had been furloughed by the jail. He 

did commence his sentence back in 2010. He served 18 days of that 

sentence. 

{¶10} It appears that defense counsel then attempted to argue the motion to 

suspend the balance of the jail sentence, noting that McCarthy had made attempts 

for over a year to serve his jail sentence and that he continued to report to probation 

every other month and that all fines costs and restitution had been paid. The trial 

court failed to consider this motion, instead ordering McCarthy to serve the 347 days 

in jail, failing to account for the 114 days the trial court had originally suspended from 

McCarthy's sentence. From that entry, McCarthy filed a timely notice of appeal, and 

the trial court granted McCarthy's motion to stay sentence pending appeal. 

{¶11} McCarthy asserts in his three assignments of error: 

Due to the amendment to Ohio Criminal Rule 5, the trial court 

judge abused his discretion by re-imposing the balance of the maximum 

sentence on misdemeanor charges which arose from the same act 

involving a felony. The felony was definitively settled by a judicial 
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decision after Appellant's successful completion of felony drug court. 

The trial court judge abused his discretion by failing to consider 

the mitigating factors raised in Appellant's motion including but not 

limited to Appellant's successful completion of drug court, restitution 

paid by Appellant to third parties, length of Appellant's probation and 

exemplary conduct while on probation together with the harm that will 

be imposed upon innocent third parties as a result of Appellant's 

incarceration. 

The trial court judge abused his discretion by ordering Appellant 

to serve the remaining 347 days of a maximum sentence in jail after the 

Appellant completed his sentence on accompanying felony charges. 

The jail time imposed exceeds the balance of time remaining on the 

Appellant's maximum probation term. In consideration of the totality of 

circumstances, the trial court's abuse of discretion amounts to cruel and 

unusual punishment, in violation of the Eighth Amendment to the 

Constitution of the United States. 

{¶12} The delay in execution of McCarthy's 2010 misdemeanor sentence, an 

issue that McCarthy touches on in his third assignment of error, is dispositive of this 

appeal and renders our consideration of the balance of his assignments of error 

moot. 

{¶13} In State v. Vince, 7th Dist. No. 08 MA 214, 2009-Ohio-4635, we 

considered whether a 16-month delay in the imposition of the defendant's sentence 

due to jail overcrowding deprived the court of jurisdiction, and violated the defendant 

of his rights to due process and to the protection from cruel and unusual punishment. 

While "the general rule in Ohio law is that a delay in the execution of a sentence does 

not render the sentence unenforceable[,] * * * it is possible for a delay in the 

execution of a sentence to become so unreasonable that it raises constitutional 
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issues." Vince at ¶16, citing, inter alia, State v. Zucal, 82 Ohio St.3d 215, 219, 694 

N.E.2d 1341 (1998). In Zucal, the Ohio Supreme Court drew that line at five years, 

stating in paragraph one of the syllabus: "In convictions involving misdemeanor 

offenses, a delay in execution of sentence resulting from jail overcrowding that 

exceeds five years from the date that sentence is imposed is unlawful." 

{¶14} In Zucal, the Court discussed the impact jail overcrowding had on the 

commencement of offenders' sentences, noting that the "growing societal problem, 

jail overcrowding, * * * has become increasingly difficult to remedy." Id. at 218. It 

further held that an "equitable remedy * * * that balances the criminal offender's 

liberty interests against the state's interest in the proper administration of justice" was 

necessary to prevent "unreasonable, burdensome, and unlawful restriction of 

appellant's freedom" and violations of due process. Id. at 219. The Court chose to 

make a bright-line rule of five years since that is the maximum term of community 

control. Id., citing R.C. 2951.07. See also R.C. 2929.24(A)(2) which codifies the five 

year limit. 

{¶15} In Zucal, the defendant was convicted of an OVI offense and sentenced 

in March of 1990, but she was unable to serve her jail term due to overcrowding. 

Over six years passed and she filed a motion to vacate her sentence, which was 

denied by the trial court and affirmed by the court of appeals. The Ohio Supreme 

Court reversed and vacated her sentence: 

We believe that it would be manifestly unfair, if not 

unconstitutional, to subject appellant, as well as others similarly 

situated, to restraints on her liberty beyond the maximum permissible 

period of probation provided for in R.C. 2951.07. The delay in execution 

of sentence in this case has required appellant to indefinitely place her 

life on hold for a period of over six years, subject to the availability of 

adequate jail space. Such a lengthy delay is an unlawful deprivation of 

appellant's liberty. There comes a point in time when such a delay 

becomes unreasonable and fails to comport with traditional notions of 
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fair play and substantial justice. 

Id. at 220. 

{¶16} Here, when the trial court ordered McCarthy serve the remainder of his 

jail term, just over four years had passed from the original date of sentence. Now, 

through no fault of McCarthy's, more than five years have elapsed. The Zucal Court 

clearly held that "[a]ny sentence resulting from a conviction of a misdemeanor 

offense that is not completed within five years from the date of sentencing must be 

vacated." Zucal, paragraph two of the syllabus (emphasis added). 

{¶17} Thus, McCarthy's third assignment of error is meritorious in part. This 

renders the first and second assignments of error moot, and we need not address 

them. App.R. 12(A)(1)(c). Because the five-year Zucal period has expired, the 

judgment of the trial court is reversed, and McCarthy's sentence is vacated. 

Waite, J., concurs 

Robb, J., concurs