[Cite as State v. Mace, 2014-Ohio-5036.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                           EN BANC
                                          No. 100779



                                           STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                             DAVID MACE

                                                       DEFENDANT-APPELLANT




                                           EN BANC OPINION



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-03-438520-A

        BEFORE:          En Banc Court

        RELEASED AND JOURNALIZED:                 November13, 2014
ATTORNEYS FOR APPELLANT

Timothy Young
State Public Defender

Kristopher A. Haimes
Assistant Public Defender
Ohio Public Defender’s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Diane Smilanick
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State Univ., 120

Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court determined that a conflict existed

between the panel decision in this case, State v. Mace, 8th Dist. Cuyahoga No. 100779,

2014-Ohio-3040, and State v. Hill, 8th Dist. Cuyahoga No. 96923, 2010-Ohio-1874, on the

question whether a sentencing journal entry that states that the appellant is subject to postrelease

control for the “maximum period allowed” for that felony is void, even if the court informed the

defendant at the sentencing hearing of the specific period of post-release control imposed. We

agree with the panel that such a judgment entry is void. Further, the entry cannot be corrected

after the appellant has completed service of his sentence. Therefore, the appellant here is not

subject to post-release control sanctions.

       {¶2} Having applied the law adopted by the en banc court here, the panel opinion released

July 10, 2014, stands as the decision of the court. The text of that opinion is appended to this en

banc decision. We overrule all prior decisions of this court that are inconsistent with our

holding here, including State v. Hill, 8th Dist. Cuyahoga No. 96923, 2012-Ohio-2306 and State v.

Bailey, 8th Dist. Cuyahoga No. 93994, 2010-Ohio-1874.




LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, A.J.,
PATRICIA ANN BLACKMON, J.,
FRANK D. CELEBREZZE, JR., J.,
EILEEN A. GALLAGHER, J.,
EILEEN T. GALLAGHER, J.,
SEAN C. GALLAGHER, J.,
KATHLEEN ANN KEOUGH, J.,
MARY EILEEN KILBANE, J.,
TIM McCORMACK, J.,
MELODY J. STEWART, J., and
KENNETH A. ROCCO, J., CONCUR
                                              Appendix

State v. Mace, 8th Dist. Cuyahoga No. 100779, 2014-Ohio-3040 (panel decision journalized July
10, 2014):

LARRY A. JONES, SR., P.J.:

       In this accelerated appeal, 1 defendant-appellant David Mace appeals from the trial

court’s November 2013 judgment denying his motion to terminate postrelease control. We

affirm, but remand for further proceedings.

       In 2003, Mace was sentenced to a ten-year prison term for 24 counts of gross sexual

imposition and two counts of attempted gross sexual imposition. The sentencing judgment

entry stated the following in regard to postrelease control: “Post release control is part of this

prison sentence for the maximum period allowed for the above felony(s) under R.C. 2967.28.”

       In March 2013, Mace finished serving his sentence in this case. In August 2013, he

filed a motion to terminate postrelease control, which the trial court denied.   He challenges that

denial in his sole assignment of error.

       Mace cites State v. Douse, 8th Dist. Cuyahoga No. 98249, 2013-Ohio-254, in support of

his contention that the trial court erred in denying his motion to terminate postrelease control.

In Douse, this court reversed the trial court’s judgment denying the defendant’s motion to vacate

postrelease control.   The defendant there had been sentenced to a 13-year term. In regard to

postrelease control, the sentencing entry stated the following:     “‘Postrelease control is part of

this prison sentence for the maximum period allowed for the above felony under ORC 2967.28.’”



The purpose of an accelerated appeal is to allow the appellate court to render a brief and conclusory
1



opinion. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist.1983); App.R. 11.1(E).
    Id. at ¶ 5, quoting trial court’s judgment.

           After serving his 13-year term, the defendant was released from prison and placed on

postrelease control.      He filed a motion to vacate the postrelease control, contending that it was

void because the trial court failed to state the specific time (five years) in the sentencing

judgment that he would be subject to postrelease control. The trial court denied the motion.

           This court reversed, stating the following:

           The trial court’s imposition of postrelease control was invalid because the court
           failed to order the postrelease control for the mandatory five years. State v.
           Stallings, 8th Dist. [Cuyahoga] No. 97480, 2012-Ohio-2925 (postrelease control
           void because trial court failed to impose five-year mandatory sentence in journal
           entry). “[I]n the absence of a proper sentencing entry imposing postrelease
           control, the parole board’s imposition of postrelease control cannot be enforced.”
           State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254.

Id. at ¶ 8.

           But this court further held that, because the defendant had already served his sentence, the

error could not be corrected:

           It is well settled that once the sentence for the offense that carries postrelease
           control has been served, the court can no longer correct sentencing errors by
           resentencing. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d
           961, ¶ 18, rev’d in part on other grounds by, Fischer;2 Hernandez v. Kelly, 108
           Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 32; State v. Simpkins, 117
           Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568.


           Thus, because Douse has already completed his sentence, he “cannot be subjected
           to another sentencing hearing to correct the trial court’s flawed imposition of
           postrelease control.” Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909
           N.E.2d 1254, at ¶ 70. * * * Accordingly, we sustain the sole assigned error and
           reverse the trial court’s decision. Douse’s postrelease control is vacated, and this
           case is remanded for the trial court to note on its record that Douse cannot be
           resentenced and thus is not subject to postrelease control.



2
    State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
(Emphasis sic.) Id. at ¶ 13-14.

       The state contends, however, that an oral advisement of the specific term for postrelease

control made at sentencing is sufficient.    Because Mace has not made the sentencing transcript

part of the record on appeal, the state contends that we must presume regularity; that is, that

Mace was advised at sentencing of the specific period of postrelease control. To support its

position, the state cites this court’s decisions in State v. Hill, 8th Dist. Cuyahoga No. 96923,

2012-Ohio-2306 and State v. Peterson, 8th Dist. Cuyahoga No. 96958, 2012-Ohio-87.

       Hill and Peterson involved advisements in the sentencing judgment entry similar to the

advisement given in this case. There, as here, the defendants did not make the sentencing

transcript part of the record on appeal and this court did hold that, in the absence of the

sentencing transcript, regularity is presumed.

       In Peterson, because the defendant had finished serving his sentence and, therefore, could

not be subject to resentencing for correction of the imposition of postrelease control, this court

held that the trial court properly denied the defendant’s motion to vacate the sentencing journal

entry and judgment of conviction. This court ordered, however, that

       [n]onetheless, in order that its record may be complete, the trial court is instructed
       to note on the record of [defendant’s] sentence that because he has completed the
       prison term for the [convictions], he will not be subjected to post-release control
       pursuant to our decision.

Id. at ¶ 14-15, citing State v. Brown, 8th Dist. Cuyahoga No. 95086, 2011-Ohio-345.

       In light of the above, the trial court’s judgment is affirmed, but the case is remanded so

that the trial court can put forth an entry stating that Mace is not subject to postrelease control.

       Judgment affirmed; case remanded for further proceedings.
