Man wins appeal, won’t have to serve remainder of sentence

Staff report

YOUNGSTOWN

A Mahoning County man will not have to serve the remaining 347 days of his drunken-driving sentence because of being turned away from the Mahoning County jail because of overcrowding.

The 7th District Court of Appeals ruled Thursday in favor of Daniel P. McCarthy, now 46, in part because it has been more than five years since the incident occurred in 2010. He lived on Woodgate Street in Austintown at the time.

He was convicted in May 2010 in the county area court in Austintown of his third drunken-driving offense and was sentenced to 365 days in jail, with 114 days suspended, plus a fine and five years’ probation.

He served 18 days of his sentence before being sent home because of jail overcrowding. He tried multiple times over the next year to serve the rest of his sentence without success, the ruling says.

Four years later, he was charged with a probation violation for failing to serve the remainder of his sentence.

He also filed a motion at that time seeking to have the balance of his sentence suspended on the grounds that he had complied with the other terms of his probation and demonstrated a commitment to sobriety.

Furthermore, sending him to jail now would be a hardship to the people who work for him, the motion said.

McCarthy’s appeal put the order for him to finish his jail sentence on hold.

The appeals court said Judge David D’Apolito abused his discretion in ordering McCarthy to complete his sentence “by failing to consider the mitigating factors,” including successful completion of drug court, his paying of restitution and “exemplary conduct while on probation.”