[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.