State v. Macksyn ( 2017 )

[Cite as State v. Macksyn, 2017-Ohio-9120.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2017CA00158
DELANOR L. MACKSYN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Common
Pleas Court, Case No. 2011CR1494
JUDGMENT: Affirmed in part, Reversed and
Remanded for New Sentencing Entry
DATE OF JUDGMENT ENTRY: December 18, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DELANOR L. MACKSYN, PRO SE
Prosecuting Attorney, Inmate No. A630-192
Stark County, Ohio Marion Correctional Institution
P.O. Box 57
By: KATHLEEN O. TATARSKY Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702
Stark County, Case No. 2017CA00158 2
Hoffman, P.J.
{¶1} Appellant Delanor L. Macksyn appeals the judgment entered by the Stark
County Common Pleas Court overruling his motion for reconsideration of sentence.
Appellee is the State of Ohio.
STATEMENT OF THE CASE1
{¶2} In 2012, Appellant was convicted of three counts of unlawful sexual conduct
with a minor (R.C. 2907.04(A)(B)(3)) following jury trial in the Stark County Common
Pleas Court. He was sentenced to sixty months incarceration on each count, to be served
consecutively, for a total of 180 months (fifteen years). His convictions were affirmed by
this Court on direct appeal. State v. Macksyn, 5th Dist. Stark No. 2012CA00140, 2013-
Ohio-1649.
{¶3} On July 28, 2017, Appellant filed a motion for reconsideration of his
sentence. He argued the trial court failed to inform him of his right to appeal; failed to
inform him of postrelease control, the consequences of violating postrelease control, and
failed to incorporate the imposition of postrelease control into the sentencing entry; failed
to make findings to support the imposition of consecutive sentences; and improperly
sentenced him on a count on which he was acquitted. The court summarily overruled the
motion. Appellant prosecutes his appeal from this August 1, 2017 judgment of the court,
assigning as error:
1
A rendition of the facts is unnecessary for our disposition of this appeal.
Stark County, Case No. 2017CA00158 3
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN
IT FAILED TO NOTIFY APPELLANT OF HIS RIGHTS TO APPEAL CRIM.
R. 32(B) VIOLATING HIS DUE PROCESS.
II. THE TRIAL JUDGE VIOLATED THE APPELLANT’S DUE
PROCESS OF LAW WHEN IMPOSING MAXIMUM AND CONSECUTIVE
SENTENCES WITHOUT THE AUTHORITY TO ACT.
III. THE TRIAL COURT ERRED IN IMPROPERLY IMPOSING
POST-RELEASE CONTROL AT THE SENTENCING HEARING AND FAIL
[SIC] TO INCORPORATE POST-RELEASE CONTROL INTO ITS
SENTENCING ENTRY THUS VIOLATING APPELLANT’S DUE
PROCESS.
IV. THE APPELLANT WAS DENIED DUE PROCESS AND
PROTECTION FROM DOUBLE JEOPARDY WHEN THE INDICTMENT
FAILED TO DIFFERENTIATE WHICH INCIDENTS PLACED TO WHICH
COUNTS AS CHARGED.
I.
{¶4} Appellant argues the court erred in failing to notify him of his right to appeal.
Appellant prosecuted a direct appeal of his conviction and sentence to this Court, and
any failure to notify him of his right to appeal is thereby rendered moot.
{¶5} The first assignment of error is overruled.
II.
Stark County, Case No. 2017CA00158 4
{¶6} Appellant argues the court failed to make proper findings to impose
consecutive and maximum sentences, and the record does not support the imposition of
maximum and consecutive sentences.
{¶7} Pursuant to the doctrine of res judicata, a final judgment of conviction bars
a defendant who was represented by counsel from raising and litigating in any proceeding
except an appeal from that judgment, any defense or any claimed lack of due process
which was raised or could have been raised by the defendant at the trial which resulted
in the judgment of conviction, or on an appeal from the judgment. State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus (1967). Because Appellant
could have raised this issue on direct appeal, it is now barred by res judicata.
{¶8} The second assignment of error is overruled.
III.
{¶9} In his third assignment of error, Appellant argues the court erred in the
imposition of postrelease control.
{¶10} When the court fails to properly impose statutorily mandated postrelease
control as part of a defendant's sentence, the postrelease control sanction is void, and
may be reviewed at any time, on direct appeal or by collateral attack. State v. Holdcroft,
137 Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7 (2013).
{¶11} Appellant first argues the court erred in imposing a “lump sum” of five years
postrelease control, citing State v. Powell, 4th Dist. Athens Nos. 14CA31 & 14CA45,
2017-Ohio-2068. However, Powell is distinguishable from the instant case, as it dealt
with the failure to enter a sentence as to each count, and instead lumping all counts
Stark County, Case No. 2017CA00158 5
together for sentencing. In the instant case, Appellant was sentenced independently as
to each count to five years incarceration.
{¶12} Appellant argues he was not properly informed of postrelease control. The
court stated at the sentencing hearing:
THE COURT: Brings in the issue of post-release control. You violate
the terms of adult parole authority, they will impose a prison term not to
exceed nine months. If there is multiple violations, a prison term not to
exceed one half of your original sentence. That will be a mandatory period
of five years on all three counts. You can apply for earned credit. That will
be – it cannot exceed 8 percent.
{¶13} Pursuant to R.C. 2967.28(B)(1), Appellant was subject to a mandatory
period of postrelease control of five years for a felony sex offense. Further, “Periods of
post-release control shall be served concurrently and shall not be imposed consecutively
to each other.” R.C. 2967.28(F)(4)(c). Therefore, the trial court accurately informed
Appellant he was subject to a mandatory period of five years postrelease control on all
three counts.
{¶14} Appellant also argues the court failed to include his postrelease control
sanction in the sentencing entry. We agree. However, when the notification of
postrelease control was properly given at the sentencing hearing, the essential purpose
of notice has been fulfilled and there is no need for a new sentencing hearing. State v.
Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 24. The court can
Stark County, Case No. 2017CA00158 6
correct the original sentencing entry to reflect what actually took place at the sentencing
hearing through a nunc pro tunc entry, as long as the correction is accomplished prior to
the defendant's completion of his prison term. Id. Because Appellant was properly
notified of postrelease control at the sentencing hearing, the trial court can correct the
original sentencing entry to include imposition of postrelease control through a nunc pro
tunc entry.
{¶15} The third assignment of error is sustained only as to the trial court’s failure
to include postrelease control in the sentencing entry, and the remainder is otherwise
overruled.
IV.
{¶16} In his fourth assignment of error, Appellant argues the indictment failed to
differentiate which incidents related to which counts as charged. Appellant could have
raised this issue on direct appeal, and it is therefore barred by res judicata. Perry, supra.
{¶17} The fourth assignment of error is overruled.
Stark County, Case No. 2017CA00158 7
{¶18} The judgment of the Stark County Common Pleas Court is reversed as to
the failure to include postrelease control in the sentencing entry. The judgment is affirmed
in all other respects. This case is remanded for correction of the sentencing entry in
accordance with this opinion.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur