A Mahoning County man released from jail because of overcrowding after serving 18 days of a 251-day jail sentence can’t be sent back to jail now, an Ohio appeals court ruled.

The Seventh District Court of Appeals ruled that the Ohio Supreme Court dealt with the issue of local jail overcrowding by imposing a strict five-year rule on the amount of time that can lapse between a jail sentence and the time an offender is made to serve the sentence.

While intoxicated and alluding police in March 2010, Daniel P. McCarthy lost control of his vehicle and crashed into a residence damaging the structure but causing no physical injuries. The police discovered illegal prescription drugs and charged McCarthy with a third offense of operating a vehicle while under the influence (OVI), driving with a suspended license, hit/skip and failure to control, all misdemeanors.

He pled guilty to a third OVI offense in exchange for the state dropping the other charges and was sentenced to 365 days in jail, with 114 days suspended, subjected to five years of community control, and ordered to pay a $1,000 fine and restitution to the property owner. He served 18 days in jail before being furloughed as a result of overcrowding. The Seventh District noted he made attempts during the year to serve the remainder of his time, but was turned away.

More than four years after his sentence, he received a notice of probation violation due to failure to serve his jail sentence, and he pled not guilty to the charge. He sought a suspension of the balance of his time remaining noting he completed all the terms of his probation, graduated from a drug court program, finished all his required rehabilitation programs, and resolved all financial issues with the homeowner.

At the hearing, the trial court judge spoke to McCarthy’s lawyer and indicated he was going to impose the 347 days remaining on the original jail sentence, which included removing the 114-day suspension and only crediting him with the actual 18 days served. The judge sentenced McCarthy to jail, but did not immediately start his time to begin serving it with the understanding his ruling would be appealed to the Seventh District.

Writing for the Seventh District, Judge Mary DeGenaro cited the Supreme Court’s 1998 State v. Zucal decision where a woman was convicted of a misdemeanor offense in 1990 but was not able to serve it because of jail overcrowding. Local authorities attempted to enforce the jail sentence six years later.

Judge DeGenaro stated the Supreme Court in Zucal “drew that line at five years,” by concluding that in convictions for misdemeanor offenses, a delay in execution of the sentence resulting from jail overcrowding that exceeds five years is unlawful. She explained the high court found it “manifestly unfair, if not unconstitutional” to subject an offender to that long of a delay.

Judge DeGenaro noted that not only had more than four years passed between McCarthy’s original sentence and the time the trial judge ordered him to serve the remainder of the sentence, but also the judge built in time more time to further consider the matter.

“Now, through no fault of McCarthy’s, more than five years have elapsed,” she wrote. “Because the five-year ZucaI period expired, the judgment of the trial court is reversed, and McCarthy’s sentence is vacated.”

Judges Cheryl L. Waite and Carol Ann Robb concurred in the decision.

State v. McCarthy, 2016-Ohio-1249
http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2016/2016-Ohio-1249.pdf
Criminal Appeal from: Mahoning County Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: March 24, 2016

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