STATE OF OHIO v. DAVID MACE
No. 100779
Cоurt of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 13, 2014
[Cite as State v. Mace, 2014-Ohio-5036.]
LARRY A. JONES, SR., J.
JOURNAL ENTRY AND OPINION EN BANC. Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-03-438520-A. BEFORE: En Banc Court. RELEASED AND JOURNALIZED: November 13, 2014
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
{¶1} Pursuant to
{¶2} Having applied the law аdopted by the en banc court here, the panel opinion released July 10, 2014, stands as the decision of the court. Thе text of that opinion is appended to this en banc decision. We overrule all prior decisions of this court that аre 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.,
MARY EILEEN KILBANE, J.,
TIM MCCORMACK, J.,
MELODY J. STEWART, J., and
KENNETH A. ROCCO, J., CONCUR
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 Novеmber 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
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 dеnied. 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 mоtion 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 tо 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
After serving his 13-year term, the defendant was releаsed 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 postrеlease 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 cannоt be enforced.” State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254.
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, becаuse Douse has already completed his sentence, he “cannot be subjected to another sentencing heаring 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.
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 Mаce was advised at sentencing of the specific period of postrelease control. To support its рosition, 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 sеrving his sentence and, therefore, could not be subject to resentencing for correction of the imposition of рostrelease control, this court held that the trial court properly denied the defendant‘s motion to vacatе 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 becаuse he has completed the prison term for the [convictions], he will not be subjected to post-release cоntrol 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 cоurt can put forth an entry stating that Mace is not subject to postrelease control.
Judgment affirmed; case remanded for further proceedings.