[Cite as State v. McGraw, 2012-Ohio-174.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96606

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JOHN A. MCGRAW

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-534815 

BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: January 19, 2012 
ATTORNEY FOR APPELLANT

Regis E. McGann 

600 Standard Building 

1370 Ontario Street 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Kevin R. Filiatraut 

Kristin Karkutt 

Assistant Prosecuting Attorneys 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 

KATHLEEN ANN KEOUGH, J.: 

{¶ 1} Defendant-appellant, John A. McGraw (“McGraw”), appeals his 

sentence and the trial court’s judgment denying his post-sentencing motion to 

withdraw his guilty plea. For the reasons that follow, we affirm. 
{¶ 2} In March 2010, McGraw was indicted under a seven-count 

indictment pertaining to a homicide and high speed chase that occurred 

thereafter. Count 1 charged McGraw with aggravated murder (prior 

calculation and design), in violation of R.C. 2903.01(A); Count 2 charged 

aggravated murder (felony murder, kidnapping), in violation of R.C. 

2903.01(B); and Count 3 charged aggravated murder (felony murder, 

aggravated burglary), in violation of R.C. 2903.01(B). All of the aggravated 

murder counts contained three death penalty specifications. 

{¶ 3} Count 4 charged McGraw with kidnapping in violation of R.C. 

2905.01(A)(3); Count 5 charged aggravated burglary in violation of R.C. 

2911.11(A)(1); and Counts 6 and 7 charged failure to comply with order or 

signal of police, in violation of R.C. 2921.331(B). 

{¶ 4} The case proceeded to a capital jury trial where, on the fourth day 

of jury selection, McGraw entered into a plea agreement. Pursuant to the 

plea agreement, the State dismissed all of the capital specifications attendant 

to Count 1, aggravated murder. McGraw pled guilty to Count 1, aggravated 

murder; Count 5, aggravated burglary; and Count 7, failure to comply with 

order or signal of police. The State nolled all other counts. On February 18, 

2011,1 the trial court sentenced McGraw to 30 years to life on the aggravated 

 1

The statutes and applicable law cited herein are those that were in effect on March 1, 2010 

and February 18, 2011 when McGraw committed the offenses and was sentenced. They do not 
murder charge, 10 years on the aggravated burglary charge, and 5 years on 

the failure to comply count, all to be served consecutively, for a total 

aggregate term of 45 years to life in prison. 

{¶ 5} McGraw, pro se, filed his notice of appeal on March 30, 2011. 

Subsequently, on May 25, 2011, McGraw moved to withdraw his guilty plea, 

which the trial court denied on June 6, 2011. No notice of appeal was taken 

from the judgment entry denying McGraw’s post-conviction motion. 

I. 

{¶ 6} In his first assignment of error, McGraw contends that the trial 

court abused its discretion when it imposed consecutive sentences without 

adequate justification and that the sentence is contrary to law because the 

record does not reflect that the court considered the seriousness and 

recidivism factors. 

{¶ 7} Appellate courts must apply a two-step approach when reviewing a 

defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 

896 N.E.2d 124, ¶ 4. “First, they must examine the sentencing court’s 

compliance with all applicable rules and statutes in imposing the sentence to 

determine whether the sentence is clearly and convincingly contrary to law. 

 

reflect any modifications that may have occurred as a result of House Bill 86, effective September 20, 

2011. See R.C. 1.58. 
If this first prong is satisfied, the trial court’s decision shall be reviewed 

under an abuse-of-discretion standard.” Id. 

{¶ 8} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 

470, the Ohio Supreme Court held that trial courts “have full discretion to 

impose a prison sentence within the statutory range and are no longer 

required to make findings or give their reasons for imposing maximum, 

consecutive, or more than the minimum sentences.” Id. at ¶ 100. Indeed, 

Foster severed those sections of the Revised Code that required trial courts to 

make findings of fact before sentencing an offender to maximum or 

consecutive sentences. Id. at paragraphs one and three of the syllabus. The 

Supreme Court recently upheld Foster in State v. Hodge, 128 Ohio St.3d 1, 

2010-Ohio-6320, 941 N.E.2d 768. 

{¶ 9} McGraw does not challenge that he received a term of 

imprisonment, but challenges that consecutive sentences lacked justification. 

 We find that McGraw’s sentence was within the statutory range for his 

convictions; thus, in light of Kalish, no findings or reasons for imposing a 

consecutive sentence were required. 

{¶ 10} In Kalish, the Supreme Court explained that “[a]lthough Foster 

eliminated mandatory judicial fact-finding for upward departures from the 

minimum, it left intact R.C. 2929.11 and 2929.12. The trial court must still 
consider these statutes.” Id. at ¶ 13, citing State v. Mathis, 109 Ohio St.3d 

54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. 

{¶ 11} R.C. 2929.11 and 2929.12 “are not fact-finding statutes.” Kalish

at ¶ 17. “Instead, they serve as an overarching guide for trial judges to 

consider in fashioning an appropriate sentence. In considering these statutes 

in light of Foster, the trial court has full discretion to determine whether the 

sentence satisfies the overriding purpose of Ohio’s sentencing structure. 

Moreover, R.C. 2929.12 explicitly permits a trial court to exercise its 

discretion in considering whether its sentence complies with the purposes of 

sentencing.” Id. “Therefore, assuming the trial court has complied with the 

applicable rules and statutes, the exercise of its discretion in selecting a 

sentence within the permissible statutory range is subject to review for abuse 

of discretion pursuant to Foster.” Id. 

{¶ 12} In Kalish, the Supreme Court also made clear that even after 

Foster, “where the trial court does not put on the record its consideration of 

R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper 

consideration to those statutes.” Id. at fn. 4, citing State v. Adams, 37 Ohio 

St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus. 

{¶ 13} R.C. 2929.11(A) provides that when a trial court sentences an 

offender for a felony conviction it must be guided by the “overriding purposes 

of felony sentencing.” Those purposes are “to protect the public from future 
crime by the offender and others and to punish the offender.” R.C. 

2929.11(B) states that a felony sentence “must be reasonably calculated to 

achieve the purposes set forth under R.C. 2929.11(A), commensurate with 

and not demeaning to the seriousness of the crime and its impact on the 

victim, and consistent with sentences imposed for similar crimes committed 

by similar offenders.” And R.C. 2929.12 sets forth factors concerning the 

seriousness of the offense and recidivism factors. 

{¶ 14} Although the court is no longer required to make findings on the 

record to justify its sentence, the record in this case demonstrates that the 

court considered the applicable factors and principles contained in R.C. 

2929.11 and 2929.12, including recidivism factors and the need to punish the 

offender. 

{¶ 15} At sentencing, the trial court received a sentencing memoranda 

from the State, heard statements from the victim’s family, and considered 

mitigation arguments by McGraw’s attorney and father. Additionally, the 

trial court also considered McGraw’s allocution, which included statements of 

remorse, acceptance of responsibility, and an apology to the victim’s family. 

{¶ 16} In sentencing McGraw, the trial judge stated that he considered 

all the factors, finding that the crime was horrific, but recognizing and giving 

credence to McGraw’s military service to this country. The record before this 
court demonstrates that the trial court weighed all the factors; therefore, 

McGraw’s sentence was not contrary to law or an abuse its discretion. 

{¶ 17} Accordingly, McGraw’s first assignment of error is overruled. 

II. 

{¶ 18} In his second assignment of error, McGraw contends that the trial 

court abused its discretion and erred when it denied his motion to withdraw 

his post-sentencing plea. 

{¶ 19} A party seeking to appeal must timely file a proper notice of 

appeal to invest the court of appeals with jurisdiction to review a final 

judgment or order of the trial court. Richards v. Indus. Comm., 163 Ohio St. 

439, 127 N.E.2d 402 (1955), paragraph two of the syllabus. App.R. 3(D) 

states, in relevant part, that “[t]he notice of appeal shall specify the party or 

parties taking the appeal; shall designate the judgment, order or part thereof 

appealed from; and shall name the court to which the appeal is taken.” If a 

party seeks to include additional judgments or orders subsequently decided 

by the trial court in the same proceeding, App.R. 3(F) permits the party to 

amend his or her appeal to add such judgments or orders. See State v. West, 

2d Dist. No. 2000CA56, 2001 WL 43110 (Jan. 19, 2001). 

{¶ 20} An appellate court “is without jurisdiction to review a judgment or 

order that is not designated in the appellant’s notice of appeal.” Slone v. Bd. 

of Embalmers & Funeral Directors of Ohio, 123 Ohio App.3d 545, 548, 704 
N.E.2d 633 (8th Dist. 1997); Schloss v. McGinness, 16 Ohio App.3d 96, 97-98, 

474 N.E.2d 666 (8th Dist. 1984). This promotes the purpose of App.R. 3(D): 

“to notify potential appellees of an appeal and advise them as to what orders 

the appellant is appealing from.” Maunz v. Eisel, 6th Dist. No. L-02-1379, 

2003-Ohio-5197, 2003 WL 22233859, ¶ 32, citing Parks v. Baltimore & Ohio 

RR., 77 Ohio App.3d 426, 428, 602 N.E.2d 674 (8th Dist. 1991). 

{¶ 21} In this case, McGraw moved to withdraw his guilty plea after he 

filed his notice of appeal to this court. The record indicates that McGraw did 

not file a new notice of appeal or seek to amend his prior notice of appeal to 

include this judgment. See App.R. 3(F). Accordingly, this court lacks the 

authority to address McGraw’s second assignment of error. See Regan v. 

Paxton, 6th Dist. No. L-01-1205, 2002-Ohio-383, 2002 WL 126077 (concluding 

that the appellate court did not have jurisdiction to hear the appeal, as the 

appellant failed to file a new notice of appeal or amend his previously filed 

appeal to include the subsequent judgment). 

{¶ 22} Accordingly, we lack jurisdiction to consider McGraw’s second 

assignment of error. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. 

Case remanded to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 

MELODY J. STEWART, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR