[Cite as State v. McCrory, 2022-Ohio-942.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 110202 

 v. : 

 

JAMES MCCRORY, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 24, 2022 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case Nos. CR-20-647931-A and CR-20-650375-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Mary Court Weston, Assistant Prosecuting 

Attorney, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

John T. Martin, Assistant Public Defender, for appellant. 

FRANK DANIEL CELEBREZZE, III, P.J.: 

Appellant James McCrory (“appellant”) appeals his sentence by the 

Cuyahoga County Court of Common Pleas for charges of rape and burglary. 

Appellant contends that the trial court erred because it mistakenly believed that the 
sentence it imposed was not mandatory. After a thorough review of the facts and 

applicable law, we affirm the judgment of the court. 

I. Factual and Procedural History 

The substantive facts of this case are not relevant to the issue raised in 

the instant appeal. Appellant was originally charged with one count of rape 

involving a child under 13 years of age and two counts of gross sexual imposition 

stemming from an incident in 2001. 

While the rape case was pending, appellant was charged with a new case 

consisting of charges of burglary, with accompanying notice of prior conviction and 

repeat violent offender specifications, theft, petty theft, and criminal damaging. 

Appellant and the state entered into a plea agreement wherein 

appellant pled guilty to an amended count of rape that carried a possible prison 

sentence of three to ten years, and an amended count of burglary that carried a 

possible sentence of one to five years in prison. 

In exchange for appellant’s plea of guilty to rape, the state removed the 

“furthermore” language, which reduced the penalty from life imprisonment to a 

term of prison of three to ten years. Additionally, as part of the plea, the state 

dismissed both counts of gross sexual imposition in Counts 2 and 3 (which did not 

merge and would have added a potential additional ten years in prison). 

Further, in exchange for appellant’s plea of guilty to burglary, the state 

amended the burglary charge to remove the specifications and nolled the remaining 

counts. 
The state outlined the plea offer on the record, including the fact that 

by pleading guilty, appellant could not receive probation and would not be eligible 

for judicial release. 

Appellant was represented by counsel and informed at the plea hearing 

that he was facing the above prison sentence ranges for each charge. The trial court 

further advised appellant of his rights under Crim.R. 11 and determined that he 

understood and intended to waive them. At the end of the plea colloquy, appellant 

pled guilty to the 2001 rape charge and the 2020 burglary charge. 

At the plea hearing, the court stated as follows: 

Based upon the statements of the prosecuting attorney, as well as your 

lawyer, I believe it’s your intention in Case No. 647931 to plead guilty 

to the amended Count 1, rape. That is a felony of the first degree. And 

because it occurred in 2001, it is my understanding that you are 

electing to go forward under the sentencing guidelines that were in 

place at that time pursuant to Senate Bill 2 and the penalties at that 

time are 3 to 11 years in prison. 

[APPELLANT’S COUNSEL]: It’s ten, Judge. The time is three to ten. 

THE COURT: Say it again? 

[APPELLANT’S COUNSEL]: It was three to ten at that time, your 

Honor. 

THE COURT: That’s what I just said. 

[APPELLANT’S COUNSEL]: You said 11. 

THE COURT: I thought I said three to ten. Okay. Sorry. 

[APPELLANT’S COUNSEL]: I’m sorry to interrupt you. 

THE COURT: Did I say 3 to 11? 
THE REPORTER: You did. 

THE COURT: Okay. My bad. All right. Three to eleven[1 sic] years in 

prison and a fine of up to $20,000. And you would also be considered 

a sexually-oriented offender. 

Appellant pled guilty, and the court sentenced him to a prison term of 

ten years on the rape count and one year on the burglary count, to run concurrently 

for an aggregate prison term of ten years. Appellant appealed his sentence, raising 

one assignment of error for our review: 

The trial court sentenced the defendant under the mistaken belief that 

the prison term imposed was not mandatory. 

II. Law and Analysis 

In his sole assignment of error, appellant argues that the trial court 

erred in mistakenly believing that the prison term imposed was not mandatory. 

Appellant contends that the trial court imposed a sentence that was longer than it 

believed it was imposing and points to the following statements by the court at the 

sentencing hearing: 

Unless you are serving a prison term that cannot be reduced under the 

law, defendant may be eligible to earn one or five days credit towards 

his sentence for each completed month during which the defendant 

participates in educational or other programming. In addition, the 

defendant may earn up to five days credit towards his sentence for 

successful completion of a second such program. This earned credit is 

not automatic but must be earned by the defendant. 

1 While the court ultimately stated the incorrect sentencing range of three to eleven 

years rather than three to ten, appellant does not cite the misstatement as error, and it 

has no bearing on the issue raised in this appeal. 
Appellant maintains that the trial court believed that its sentence 

could be reduced by the earned credit provisions, and that the plea colloquy, the 

sentencing hearing, and the journal entry all reflected that the trial court was not 

aware that the sentence being imposed was mandatory. Appellant asserts that the 

sentence must be vacated and the matter remanded for a new sentence. 

R.C. 2953.08(G)(2) provides, in part, that when reviewing felony 

sentences, the appellate court’s standard is not whether the sentencing court abused 

its discretion; rather, if this court “clearly and convincingly” finds that (1) “the record 

does not support the sentencing court’s findings under” R.C. Chapter 2929; or (2) 

“the sentence is otherwise contrary to law,” then we may conclude that the court 

erred in sentencing. See also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 

59 N.E.3d 1231. 

A sentence is not clearly and convincingly contrary to law “where the 

trial court considers the purposes and principles of sentencing under R.C. 2929.11 

as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly 

applies postrelease control, and sentences a defendant within the permissible 

statutory range.” State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, 

¶ 10. 

In the case sub judice, appellant does not argue that his sentence is 

contrary to law. Rather, he surmises that, by mentioning the potential application 

of earned credit to his sentence, that the trial court imposed a sentence longer than 

what it believed it was imposing. This assertion does not fall under our permitted 
review of appellant’s sentence. Regardless of what the trial court may have believed, 

it imposed a proper sentence that was not contrary to law. While it is true that 

earned credit would not apply to appellant’s sentence and therefore had no place 

being mentioned, we cannot find any error in appellant’s sentence. 

Finally, the state appears to have construed appellant’s appeal to argue 

that the trial court failed to advise him that he was not subject to early release. This 

argument was not asserted by appellant, and therefore, we need not address it. 

III. Conclusion 

Appellant’s sentence was not contrary to law. His sole assignment of 

error is overruled, and the judgment of the trial court is 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. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE 

EILEEN T. GALLAGHER, J., and 

CORNELIUS J. O’SULLIVAN, JR., J., CONCUR