State v. Mace

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[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. sentenced to a 13-year term. The defendant there had been 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. 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). 1 {¶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 State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. 2 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

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