[Cite as State v. Macksyn, 2017-Ohio-9120.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 2017CA00158
DELANOR L. MACKSYN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Common
                                              Pleas Court, Case No. 2011CR1494


JUDGMENT:                                     Affirmed in part, Reversed and
                                              Remanded for New Sentencing Entry

DATE OF JUDGMENT ENTRY:                       December 18, 2017

APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOHN D. FERRERO                               DELANOR L. MACKSYN, PRO SE
Prosecuting Attorney,                         Inmate No. A630-192
Stark County, Ohio                            Marion Correctional Institution
                                              P.O. Box 57
By: KATHLEEN O. TATARSKY                      Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702
Stark County, Case No. 2017CA00158                                                         2

Hoffman, P.J.

          {¶1}   Appellant Delanor L. Macksyn appeals the judgment entered by the Stark

County Common Pleas Court overruling his motion for reconsideration of sentence.

Appellee is the State of Ohio.

                                    STATEMENT OF THE CASE1

          {¶2}   In 2012, Appellant was convicted of three counts of unlawful sexual conduct

with a minor (R.C. 2907.04(A)(B)(3)) following jury trial in the Stark County Common

Pleas Court. He was sentenced to sixty months incarceration on each count, to be served

consecutively, for a total of 180 months (fifteen years). His convictions were affirmed by

this Court on direct appeal. State v. Macksyn, 5th Dist. Stark No. 2012CA00140, 2013-

Ohio-1649.

          {¶3}   On July 28, 2017, Appellant filed a motion for reconsideration of his

sentence. He argued the trial court failed to inform him of his right to appeal; failed to

inform him of postrelease control, the consequences of violating postrelease control, and

failed to incorporate the imposition of postrelease control into the sentencing entry; failed

to make findings to support the imposition of consecutive sentences; and improperly

sentenced him on a count on which he was acquitted. The court summarily overruled the

motion. Appellant prosecutes his appeal from this August 1, 2017 judgment of the court,

assigning as error:




1
    A rendition of the facts is unnecessary for our disposition of this appeal.
Stark County, Case No. 2017CA00158                                                           3


              I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN

       IT FAILED TO NOTIFY APPELLANT OF HIS RIGHTS TO APPEAL CRIM.

       R. 32(B) VIOLATING HIS DUE PROCESS.

              II.    THE TRIAL JUDGE VIOLATED THE APPELLANT’S DUE

       PROCESS OF LAW WHEN IMPOSING MAXIMUM AND CONSECUTIVE

       SENTENCES WITHOUT THE AUTHORITY TO ACT.

              III.   THE TRIAL COURT ERRED IN IMPROPERLY IMPOSING

       POST-RELEASE CONTROL AT THE SENTENCING HEARING AND FAIL

       [SIC] TO INCORPORATE POST-RELEASE CONTROL INTO ITS

       SENTENCING        ENTRY       THUS     VIOLATING        APPELLANT’S        DUE

       PROCESS.

              IV.    THE APPELLANT WAS DENIED DUE PROCESS AND

       PROTECTION FROM DOUBLE JEOPARDY WHEN THE INDICTMENT

       FAILED TO DIFFERENTIATE WHICH INCIDENTS PLACED TO WHICH

       COUNTS AS CHARGED.



                                                  I.

       {¶4}   Appellant argues the court erred in failing to notify him of his right to appeal.

Appellant prosecuted a direct appeal of his conviction and sentence to this Court, and

any failure to notify him of his right to appeal is thereby rendered moot.

       {¶5}   The first assignment of error is overruled.



                                                 II.
Stark County, Case No. 2017CA00158                                                       4


       {¶6}   Appellant argues the court failed to make proper findings to impose

consecutive and maximum sentences, and the record does not support the imposition of

maximum and consecutive sentences.

       {¶7}   Pursuant to the doctrine of res judicata, a final judgment of conviction bars

a defendant who was represented by counsel from raising and litigating in any proceeding

except an appeal from that judgment, any defense or any claimed lack of due process

which was raised or could have been raised by the defendant at the trial which resulted

in the judgment of conviction, or on an appeal from the judgment. State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus (1967). Because Appellant

could have raised this issue on direct appeal, it is now barred by res judicata.

       {¶8}   The second assignment of error is overruled.



                                                III.

       {¶9}   In his third assignment of error, Appellant argues the court erred in the

imposition of postrelease control.

       {¶10} When the court fails to properly impose statutorily mandated postrelease

control as part of a defendant's sentence, the postrelease control sanction is void, and

may be reviewed at any time, on direct appeal or by collateral attack. State v. Holdcroft,

137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7 (2013).

       {¶11} Appellant first argues the court erred in imposing a “lump sum” of five years

postrelease control, citing State v. Powell, 4th Dist. Athens Nos. 14CA31 & 14CA45,

2017-Ohio-2068. However, Powell is distinguishable from the instant case, as it dealt

with the failure to enter a sentence as to each count, and instead lumping all counts
Stark County, Case No. 2017CA00158                                                        5


together for sentencing. In the instant case, Appellant was sentenced independently as

to each count to five years incarceration.

       {¶12} Appellant argues he was not properly informed of postrelease control. The

court stated at the sentencing hearing:



                THE COURT: Brings in the issue of post-release control. You violate

       the terms of adult parole authority, they will impose a prison term not to

       exceed nine months. If there is multiple violations, a prison term not to

       exceed one half of your original sentence. That will be a mandatory period

       of five years on all three counts. You can apply for earned credit. That will

       be – it cannot exceed 8 percent.



       {¶13} Pursuant to R.C. 2967.28(B)(1), Appellant was subject to a mandatory

period of postrelease control of five years for a felony sex offense.   Further, “Periods of

post-release control shall be served concurrently and shall not be imposed consecutively

to each other.” R.C. 2967.28(F)(4)(c). Therefore, the trial court accurately informed

Appellant he was subject to a mandatory period of five years postrelease control on all

three counts.

       {¶14} Appellant also argues the court failed to include his postrelease control

sanction in the sentencing entry.       We agree.     However, when the notification of

postrelease control was properly given at the sentencing hearing, the essential purpose

of notice has been fulfilled and there is no need for a new sentencing hearing. State v.

Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 24. The court can
Stark County, Case No. 2017CA00158                                                         6


correct the original sentencing entry to reflect what actually took place at the sentencing

hearing through a nunc pro tunc entry, as long as the correction is accomplished prior to

the defendant's completion of his prison term. Id. Because Appellant was properly

notified of postrelease control at the sentencing hearing, the trial court can correct the

original sentencing entry to include imposition of postrelease control through a nunc pro

tunc entry.

       {¶15} The third assignment of error is sustained only as to the trial court’s failure

to include postrelease control in the sentencing entry, and the remainder is otherwise

overruled.



                                                IV.

       {¶16} In his fourth assignment of error, Appellant argues the indictment failed to

differentiate which incidents related to which counts as charged. Appellant could have

raised this issue on direct appeal, and it is therefore barred by res judicata. Perry, supra.

       {¶17} The fourth assignment of error is overruled.
Stark County, Case No. 2017CA00158                                                        7


       {¶18} The judgment of the Stark County Common Pleas Court is reversed as to

the failure to include postrelease control in the sentencing entry. The judgment is affirmed

in all other respects. This case is remanded for correction of the sentencing entry in

accordance with this opinion.



By: Hoffman, P.J.

Wise, John, J. and

Baldwin, J. concur
