[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