[Cite as State v. Maag, 2011-Ohio-1729.]




               IN THE COURT OF APPEALS OF OHIO
                   THIRD APPELLATE DISTRICT
                       HANCOCK COUNTY
__________________________________________________________________


STATE OF OHIO,

   PLAINTIFF-APPELLEE,                                   CASE NO. 5-10-23

  v.

WILLIAM A. MAAG,                                         OPINION

   DEFENDANT-APPELLANT.

__________________________________________________________________


                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2001 CR 00047

       Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                             Date of Decision: April 11, 2011

__________________________________________________________________



APPEARANCES:

        William A. Maag, Appellant

        Mark C. Miller for Appellee
Case No. 5-10-23


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, William A. Maag (“Maag”), pro se, appeals the

2001 decision of the Hancock County Court of Common Pleas denying his motion

to vacate his sentence and set aside his 2001 conviction.        On appeal, Maag

contends that his sentence should be deemed a “nullity and void” because the trial

court failed to properly impose postrelease control. For the reasons set forth

below, the judgment is affirmed in part and reversed in part.

       {¶2} In October 2001, a jury found Maag guilty of: (1) engaging in a

pattern of corrupt activity, (2) trafficking in marijuana, (3) possession of cocaine

(with a major drug offender specification), and (4) aggravated burglary, with the

latter two offenses being felonies of the first degree. In November 2001, the trial

court sentenced him to five years on count one, seventeen months on count two,

ten years on count three, and eight years on count four, with the sentences for

counts one and two to be served concurrently with each other, but to be served

consecutively with the consecutive sentences for counts three and four, for a total

prison term of twenty-three years. The trial court further imposed five years of

mandatory postrelease control. This Court affirmed the decision on appeal. See

State v. Maag, 3d Dist. No. 5-01-49, 2002-Ohio-3953.




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        {¶3} In March 2008,1 Maag filed a pro se motion for resentencing, alleging

that the trial court's November 2001 sentencing entry failed to comply with

Crim.R. 32(C) because the trial court was required to impose multiple terms of

postrelease control, due to his multiple felony convictions, instead of one term of

postrelease control for all convictions. The trial court overruled Maag's motion for

resentencing, finding that Maag was specifically advised of the mandatory five-

year term of postrelease control and that the trial court had complied with

applicable law. This Court affirmed the trial court’s decision, finding that Maag’s

motion was an untimely petition for post-conviction relief and that his petition was

also barred by res judicata. State v. Maag, 3d Dist. No. 5-08-35, 2009-Ohio-90.

Although we were not obligated to address the merits of Maag’s appeal, in the

interests of justice, we stated the following:

        [W]e summarily note that R.C. 2929.14(F)(1) and R.C.
        2967.28(B) do not permit the trial court to order a term of post-
        release control for each separate felony conviction. One term of
        postrelease control for multiple convictions is proper. See State
        v. Simpson, 8th Dist. No. 88301, 2007-Ohio-4301, ¶ 109 (“There
        is nothing in R.C. 2967.28 which permits a trial court to impose
        multiple periods of postrelease control for each felony
        conviction. When offenders are convicted of multiple first-
        degree felonies, courts shall impose ‘a mandatory term’ of
        postrelease control, set forth in R.C. 2967.28(B)(1), not multiple
        terms.”) As such, the trial court did not violate Crim.R. 32(C) in
        ordering one five-year term of postrelease control for all Maag's
        felony convictions.

Id. at ¶18.
1
 Procedurally, prior to this Maag also filed other post-conviction motions for a new trial and other matters
not pertinent to this appeal.

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       {¶4} On March 12, 2010, Maag filed a “Motion to Vacate Sentence and Set

Aside Judgment of Conviction.” Maag argued that his sentence was void pursuant

to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, because it

did not properly impose postrelease control.

       {¶5} On June 21, 2010, the trial court overruled Maag’s motion, stating that

it had reviewed the file as to the issue and had previously ruled on the issue in its

July 28, 2008 judgment entry.

       At that time, the Court found in reviewing the court reporter’s
       notes and a transcript of the defendant’s sentencing proceeding
       held on November 8, 2001, that this Court specifically advised
       the defendant that he was subject to a mandatory term of
       postrelease control of five (5) years pursuant to the Ohio statutes
       as made and provided.

(June 21, 2010 J.E.) Maag now appeals this decision, raising the following three

assignments of error for our review.

                            First Assignment of Error

       [Maag’s] sentence is void as the trial court did not comply with
       Crim.R. 32(C).

                          Second Assignment of Error

       The trial court is in error for making the erroneous decision that
       it could deny [Maag’s] ‘Motion to Vacate Sentence and Set Aside
       Judgment of Conviction’ by utilizing the court reporter’s notes
       and a transcript of the [Maag’s] sentencing proceeding held on
       November 8, 2001.




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                            Third Assignment of Error

       The trial court is in error when it sentenced [Maag] to a term of
       post release control for the first degree felonies. (Emphasis sic.)

       {¶6} In his first two assignments of error, Maag contends that his sentence

is “void” because his judgment entry of sentencing stated that “[t]he court has

notified the Defendant that post release control is mandatory in this case up to a

maximum of five (5) years ***.” (Nov. 8, 2001 J.E., p. 5.) Maag acknowledges

that he was notified that he would have a mandatory term of post release control.

What he contests is the “terminology that is used within the Judgment Entry”

stating that he would receive “up to” a maximum of five years of postrelease

control. Because a trial court “speaks only through its journal entries,” Maag

argues that the trial court’s reliance on the sentencing and transcript to determine

whether or not a proper sentence was imposed was improper.

       {¶7} At the sentencing hearing, the trial court correctly complied with the

law and properly advised Maag concerning postrelease control:

       Now I have to advise you as to postrelease control in this
       particular case. For the felonies of the first degree, it’s a
       required term of five (5) years of postrelease control sanctions.

(Nov. 8, 2001 Sentencing Hearing Tr., p. 33.) However, the judgment entry

erroneously used the words “up to,” even though Maag’s sentence included a

definitive term of five years of postrelease control. Maag is partially correct in his

assertion that his judgment entry of sentencing is not completely accurate.


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However, his entire sentence and conviction is not “void” and it does not have to

be vacated and remanded.

       {¶8} A recent decision by the Supreme Court of Ohio has modified the

holding in State v. Bezak and has clarified the extent of review that is required

when a trial court does not properly impose postrelease control. See State v.

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

control is not properly included in a sentence for a particular offense, the sentence

for that offense is void, but “only the offending portion of the sentence is subject

to review and correction.” Id. at ¶27. The doctrine of “res judicata still applies to

other aspects of the merits of a conviction, including the determination of guilt and

the lawful elements of the ensuing sentence.”        Id. at paragraph three of the

syllabus.

       {¶9} Therefore, any new sentencing hearing to which an offender might be

entitled to “is limited to proper imposition of postrelease control.” Id. at ¶29.

Furthermore, while a remand for new sentencing might be one option, “R.C.

2953.08(G)(2) also provides that an appellate court may ‘increase, reduce or

otherwise modify a sentence ***.’” (Emphasis sic.) Id. The Ohio Supreme Court

pointed out that “[c]orrecting a defect in a sentence without a remand is an option

that has been used in Ohio and elsewhere for years in cases in which the original

sentencing court, as here, had no sentencing discretion.” Id. Such a correction



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without remanding for resentencing “can provide an equitable, economical, and

efficient remedy for a void sentence.” Id. at ¶30.

       {¶10} Notwithstanding the invitation of the Supreme Court to the Court of

Appeals to issue an appellate judgment of partial sentencing, we elect to continue

what we believe to be the better practice of maintaining all aspects of the sentence

within a single judgment of sentence. Therefore, based on the authority of R.C.

2953.08(G)(2) and State v. Fischer, we hereby remand this case to the trial court

with instructions to modify the terminology in Maag’s November 8, 2001

Judgment Entry of Sentencing to state that his sentence includes five years of

mandatory postrelease control. The remaining sentencing terms are not affected

by this decision.

       {¶11} In his third assignment of error, Maag complains that the trial court

only imposed one term of postrelease control, even though his sentence included

two first-degree felonies.   Maag raised this exact same issue in his previous

appeal. See State v. Maag, 2009-Ohio-90, supra. Not only is the issue barred by

res judicata, again, but we did address the issue in the previous case and explained

why the single term of postrelease control is lawful. See id. at ¶18. Maag’s third

assignment of error is without merit and is overruled.

       {¶12} Accordingly, we affirm the judgment of the trial court denying

appellant’s motion to vacate sentence and set aside judgment of conviction. We

also remand this case to the trial court with instructions to modify the trial court’s

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sentencing judgment entry of November 8, 2011, to state that his sentence includes

five years of mandatory postrelease control.

                                                        Judgment Affirmed in Part,
                                             Reversed in Part and Cause Remanded


ROGERS, P.J., and SHAW, J., concur.




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