A Franklin County appellate panel upheld a court's refusal to grant a North Central Correctional Institution inmate release from prison and shock probation.

The 10th District Court of Appeals found the Franklin County Court of Common Pleas had ruled correctly to deny the motion filed by Howard McCardle is appealing from the trial court's refusal as a consequence of the man's five rape convictions.

McCardle entered guilty pleas to five charges of rape, one charge of attempted rape and six charges of aggravated burglary in 1983. He received consecutive sentences of incarceration which totaled 82 to 290 years, according to case summary.

He filed a motion seeking release from prison on shock probation in July 2009. The trial court judge assigned to his case overruled his motion, summary detailed. In his entry, the judge referenced the current statute governing shock probation, R.C. 2929.20 which was enacted in 1996.

The inmate assigned the following sole assignment of error:

"The trial court clearly erred to the prejudice of the defendant-appellant by applying the wrong statute to the defendant's case, R.C. 2929.20, instead of the proper statute, R.C. 2947.061, and failing to grant relief requested."

"McCardle is correct that any motion he filed seeking shock probation should have been considered under the statute in effect when he entered his guilty pleas," Presiding Judge Gary Tyack wrote for the 3-0 court. "However, McCardle has never been eligible for shock probation because of his five convictions for rape.

"McCardle spends a good deal of time in his appellate brief arguing about good-time credit as formerly allowed under R.C. 2967.19. However, good-time credit is an issue for the prison authorities and the Ohio Adult Parole Authority, not the Franklin County Court of Common Pleas."

The appellate panel found the lower court had not erred by it refusal to release the man on shock probation, overruling his assignment of error.

Franklin County Prosecutor Ron O'Brien suggested had not the issue been raised by a pro se prisoner, it likely would not have been presented for appeal as it is a well settled point with minimal precedential value.

"It was clear to both the trial and appellate court that under both former and current Ohio law, a person convicted of five rapes is not eligible for 'shock probation' or early release," O'Brien said of the decision.

Fellow 10th District judges Susan Brown and Judith French joined Tyack to form the majority.

The case is cited as State v. McCardle, 2010-Ohio-748.