Five Years Later And The Jailer Still Won’t Take Me: How A Delay In Execution Of Sentence Due Jail Overcrowding Vacates The Original Sentence

Good ole Groucho Marx once said, “When you’re in jail, a good friend will be trying to bail you out.  A best friend will be in the cell next to you saying, ‘Damn, that was fun’.”  I, for one, believe there is a lot of truth to that quote!  However, I don’t think there are too many friends out there that would want to try to get back into jail after being released.  That my friends is what Daniel McCarthy tried to accomplish over the course of five years in order to complete his jail sentence.

In State v. McCarthy, 2016-Ohio-1249, Dan McCarthy started his night off right by driving while intoxicated, alluding police in his vehicle, and crashing into a residence.  Due to McCarthy’s night on the town, he was cited for OVI (Third offense within six years), driving under a suspended license, hit/skip, and failure to control.  Through plea negotiations, McCarthy pled guilty to the OVI and was sentenced to 365 days in jail with 144 days of jail suspended.  In addition, McCarthy was placed on 60 months of community control, fines, and restitution.

And that was that!  Nothing crazy and nothing out of the ordinary…..yet.  On McCarthy’s 18th day of his 221 day jail bit, the jailer walked up to McCarthy’s jail cell and told him he was free to go.  Well, sort of free to go.  Due to jail overcrowding, McCarthy was furloughed and had to keep checking back with the jail to see if they could house him to finish his sentence.  McCarthy tried for over a year to serve the remainder of his jail sentence, but the jailer kept turning McCarthy away due to jail overcrowding.

Probably saying the hell with it, McCarthy moved on in his life and worked his community control sanctions.  In fact, McCarthy 1) successfully completed a drug court program; 2) completed inpatient and intensive outpatient rehabilitation programs; 3) consistently and timely reported to the probation department as scheduled; 4) paid all fines and court costs; 5) resolved restitution; and 6) maintained his sobriety and strengthened family relationships.  On top of all of the above, McCarthy also owned a successful business with several employees.  All in all, McCarthy was doing exactly what the court wanted him to complete…except that jail sentence!

Four years later, good ole McCarthy gets a notice in the mail saying that he is in violation of his probation because he has failed to execute his jail sentence.  Whiskey Tango Foxtrot over!  McCarthy shows up to court and raised the bullshit flag as part of his defense.  Not wanting to hear it, the trial court ordered McCarthy to finish his jail sentence.  The trial court, however, stayed McCarthy’s probation violation to allow him to appeal the decision.

Looking to State v. Zucal, 82 Ohio St.3d 215, the appellate court sided with McCarthy.  In Zucal, the Ohio Supremes found that it is “manifestly unfair, if not unconstitutional, to subject appellant, as well as others similarly situated, to restraints on [his] liberty beyond the maximum permissible period of probation.  Such a lengthy delay is 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 fair play and substantial justice.”

Speaking of point in time, the Ohio Supremes went on to hold that, “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.”

But McCarthy’s probation violation was four years later not five years later…right?!?  That is correct, but by the time McCarthy’s appeal was finalized five years had elapsed.  Thus, the appellate court held that McCarthy’s sentenced was vacated.

McCarthy’s attorney deserves a high-five and a fist bump for making sure McCarthy passed that five year threshold.  Well played sir!


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