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

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsDELANOR L. MACKSYN 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Craig R. Baldwin, J. 

Case No. 2017CA00158 

O P I N I O N 

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