[Cite as State v. Mace, 2014-Ohio-3040.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100779




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           DAVID MACE

                                                           DEFENDANT-APPELLANT




                                    JUDGMENT:
                              AFFIRMED AND REMANDED


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

       BEFORE:          Jones, P.J., Blackmon, J., and E.T. Gallagher, J.

       RELEASED AND JOURNALIZED: July 10, 2014
ATTORNEYS FOR APPELLANT

Timothy Young
State Public Defender

BY: Kristopher A. Haines
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., P.J.:

       {¶1} 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.

       {¶2} 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.”

       {¶3} 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.

       {¶4} 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.’”                Id. at ¶ 5, quoting trial

court’s judgment.



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).
           {¶5} 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.

           {¶6} 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.

           {¶7} 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

 2
     State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
       postrelease control.

(Emphasis sic.)   Id. at ¶ 13-14.

       {¶8} 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.

       {¶9} 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.

       {¶10} 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.

       {¶11} 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.

       {¶12} Judgment affirmed; case remanded for further proceedings.

       It is ordered that appellant and appellee split the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR
