[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, 2014ATTORNEYS 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 44113LARRY 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 c ourt 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 speci fic period of post-releas e control imposed. We agree with the panel that such a judgment entry is void. Further, the en try cannot be corrected after the appellant has completed service of his se ntence. 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., CONCURAppendix 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 pr ison term for 24 counts of gross sexual imposition and two counts of atte mpted 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 sent ence 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 a ssignment 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 judg ment 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.’”

1 The purpose of an accelerated appeal is to allow the appellate court to render a brief and conclusory 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 defenda nt 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 subj ect to postrelease control. Th e 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 contro l 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 complete d 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 s ubject 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. Becau se 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 postrel ease 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 senten cing judgment entry similar to the advisement given in this case. There, as he re, the defendants did not make the sentencing transcript part of the record on appeal and th is court did hold that, in the absence of the sentencing transcript, re gularity is presumed.

In Peterson , because the defendant had finished se rving 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 de fendant’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 tria l court’s judgment is affirme d, 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.