[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. 

 

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). 
{¶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