[Cite as State v. Mace,

.]

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.,

,

,

, this court determined that a conflict existed

between the panel decision in this case, State v. Mace, 8th Dist. Cuyahoga No. 100779,

, and State v. Hill, 8th Dist. Cuyahoga No. 96923,

, 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,

and State v.

Bailey, 8th Dist. Cuyahoga No. 93994,

.

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,

(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,

, 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.,

,

(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,

(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,

,

,

.

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,

,

,

, rev’d in part on other grounds by, Fischer;2 Hernandez v. Kelly,

,

,

; State v. Simpkins,

,

,

.

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,

,

,

. * * * 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,

,

,

. (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,

and State v. Peterson, 8th Dist. Cuyahoga

.

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,

.

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.