[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.’” 

 

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 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.