[Cite as State v. Maag, 2011-Ohio-1729.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY __________________________________________________________________
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-10-23
v.
WILLIAM A. MAAG, OPINION
DEFENDANT-APPELLANT.
__________________________________________________________________
Appeal from Hancock County Common Pleas Court Trial Court No. 2001 CR 00047
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: April 11, 2011
__________________________________________________________________
APPEARANCES:
William A. Maag, Appellant
Mark C. Miller for Appellee Case No. 5-10-23
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, William A. Maag (“Maag”), pro se, appeals the
2001 decision of the Hancock County Court of Common Pleas denying his motion
to vacate his sentence and set aside his 2001 conviction. On appeal, Maag
contends that his sentence should be deemed a “nullity and void” because the trial
court failed to properly impose postrelease control. For the reasons set forth
below, the judgment is affirmed in part and reversed in part.
{¶2} In October 2001, a jury found Maag guilty of: (1) engaging in a
pattern of corrupt activity, (2) trafficking in marijuana, (3) possession of cocaine
(with a major drug offender specification), and (4) aggravated burglary, with the
latter two offenses being felonies of the first degree. In November 2001, the trial
court sentenced him to five years on count one, seventeen months on count two,
ten years on count three, and eight years on count four, with the sentences for
counts one and two to be served concurrently with each other, but to be served
consecutively with the consecutive sentences for counts three and four, for a total
prison term of twenty-three years. The trial court further imposed five years of
mandatory postrelease control. This Court affirmed the decision on appeal. See
State v. Maag, 3d Dist. No. 5-01-49, 2002-Ohio-3953.
2 Case No. 5-10-23
{¶3} In March 2008,1 Maag filed a pro se motion for resentencing, alleging
that the trial court's November 2001 sentencing entry failed to comply with
Crim.R. 32(C) because the trial court was required to impose multiple terms of
postrelease control, due to his multiple felony convictions, instead of one term of
postrelease control for all convictions. The trial court overruled Maag's motion for
resentencing, finding that Maag was specifically advised of the mandatory five-
year term of postrelease control and that the trial court had complied with
applicable law. This Court affirmed the trial court’s decision, finding that Maag’s
motion was an untimely petition for post-conviction relief and that his petition was
also barred by res judicata. State v. Maag, 3d Dist. No. 5-08-35, 2009-Ohio-90.
Although we were not obligated to address the merits of Maag’s appeal, in the
interests of justice, we stated the following:
[W]e summarily note that R.C. 2929.14(F)(1) and R.C. 2967.28(B) do not permit the trial court to order a term of post- release control for each separate felony conviction. One term of postrelease control for multiple convictions is proper. See State v. Simpson, 8th Dist. No. 88301, 2007-Ohio-4301, ¶ 109 (“There is nothing in R.C. 2967.28 which permits a trial court to impose multiple periods of postrelease control for each felony conviction. When offenders are convicted of multiple first- degree felonies, courts shall impose ‘a mandatory term’ of postrelease control, set forth in R.C. 2967.28(B)(1), not multiple terms.”) As such, the trial court did not violate Crim.R. 32(C) in ordering one five-year term of postrelease control for all Maag's felony convictions.
Id. at ¶18. 1 Procedurally, prior to this Maag also filed other post-conviction motions for a new trial and other matters not pertinent to this appeal.
3 Case No. 5-10-23
{¶4} On March 12, 2010, Maag filed a “Motion to Vacate Sentence and Set
Aside Judgment of Conviction.” Maag argued that his sentence was void pursuant
to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, because it
did not properly impose postrelease control.
{¶5} On June 21, 2010, the trial court overruled Maag’s motion, stating that
it had reviewed the file as to the issue and had previously ruled on the issue in its
July 28, 2008 judgment entry.
At that time, the Court found in reviewing the court reporter’s notes and a transcript of the defendant’s sentencing proceeding held on November 8, 2001, that this Court specifically advised the defendant that he was subject to a mandatory term of postrelease control of five (5) years pursuant to the Ohio statutes as made and provided.
(June 21, 2010 J.E.) Maag now appeals this decision, raising the following three
assignments of error for our review.
First Assignment of Error
[Maag’s] sentence is void as the trial court did not comply with Crim.R. 32(C).
Second Assignment of Error
The trial court is in error for making the erroneous decision that it could deny [Maag’s] ‘Motion to Vacate Sentence and Set Aside Judgment of Conviction’ by utilizing the court reporter’s notes and a transcript of the [Maag’s] sentencing proceeding held on November 8, 2001.
4 Case No. 5-10-23
Third Assignment of Error
The trial court is in error when it sentenced [Maag] to a term of post release control for the first degree felonies. (Emphasis sic.)
{¶6} In his first two assignments of error, Maag contends that his sentence
is “void” because his judgment entry of sentencing stated that “[t]he court has
notified the Defendant that post release control is mandatory in this case up to a
maximum of five (5) years ***.” (Nov. 8, 2001 J.E., p. 5.) Maag acknowledges
that he was notified that he would have a mandatory term of post release control.
What he contests is the “terminology that is used within the Judgment Entry”
stating that he would receive “up to” a maximum of five years of postrelease
control. Because a trial court “speaks only through its journal entries,” Maag
argues that the trial court’s reliance on the sentencing and transcript to determine
whether or not a proper sentence was imposed was improper.
{¶7} At the sentencing hearing, the trial court correctly complied with the
law and properly advised Maag concerning postrelease control:
Now I have to advise you as to postrelease control in this particular case. For the felonies of the first degree, it’s a required term of five (5) years of postrelease control sanctions.
(Nov. 8, 2001 Sentencing Hearing Tr., p. 33.) However, the judgment entry
erroneously used the words “up to,” even though Maag’s sentence included a
definitive term of five years of postrelease control. Maag is partially correct in his
assertion that his judgment entry of sentencing is not completely accurate.
5 Case No. 5-10-23
However, his entire sentence and conviction is not “void” and it does not have to
be vacated and remanded.
{¶8} A recent decision by the Supreme Court of Ohio has modified the
holding in State v. Bezak and has clarified the extent of review that is required
when a trial court does not properly impose postrelease control. See State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. When postrelease
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[Cite as State v. Maag, 2011-Ohio-1729.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY __________________________________________________________________
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-10-23
v.
WILLIAM A. MAAG, OPINION
DEFENDANT-APPELLANT.
__________________________________________________________________
Appeal from Hancock County Common Pleas Court Trial Court No. 2001 CR 00047
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: April 11, 2011
__________________________________________________________________
APPEARANCES:
William A. Maag, Appellant
Mark C. Miller for Appellee Case No. 5-10-23
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, William A. Maag (“Maag”), pro se, appeals the
2001 decision of the Hancock County Court of Common Pleas denying his motion
to vacate his sentence and set aside his 2001 conviction. On appeal, Maag
contends that his sentence should be deemed a “nullity and void” because the trial
court failed to properly impose postrelease control. For the reasons set forth
below, the judgment is affirmed in part and reversed in part.
{¶2} In October 2001, a jury found Maag guilty of: (1) engaging in a
pattern of corrupt activity, (2) trafficking in marijuana, (3) possession of cocaine
(with a major drug offender specification), and (4) aggravated burglary, with the
latter two offenses being felonies of the first degree. In November 2001, the trial
court sentenced him to five years on count one, seventeen months on count two,
ten years on count three, and eight years on count four, with the sentences for
counts one and two to be served concurrently with each other, but to be served
consecutively with the consecutive sentences for counts three and four, for a total
prison term of twenty-three years. The trial court further imposed five years of
mandatory postrelease control. This Court affirmed the decision on appeal. See
State v. Maag, 3d Dist. No. 5-01-49, 2002-Ohio-3953.
2 Case No. 5-10-23
{¶3} In March 2008,1 Maag filed a pro se motion for resentencing, alleging
that the trial court's November 2001 sentencing entry failed to comply with
Crim.R. 32(C) because the trial court was required to impose multiple terms of
postrelease control, due to his multiple felony convictions, instead of one term of
postrelease control for all convictions. The trial court overruled Maag's motion for
resentencing, finding that Maag was specifically advised of the mandatory five-
year term of postrelease control and that the trial court had complied with
applicable law. This Court affirmed the trial court’s decision, finding that Maag’s
motion was an untimely petition for post-conviction relief and that his petition was
also barred by res judicata. State v. Maag, 3d Dist. No. 5-08-35, 2009-Ohio-90.
Although we were not obligated to address the merits of Maag’s appeal, in the
interests of justice, we stated the following:
[W]e summarily note that R.C. 2929.14(F)(1) and R.C. 2967.28(B) do not permit the trial court to order a term of post- release control for each separate felony conviction. One term of postrelease control for multiple convictions is proper. See State v. Simpson, 8th Dist. No. 88301, 2007-Ohio-4301, ¶ 109 (“There is nothing in R.C. 2967.28 which permits a trial court to impose multiple periods of postrelease control for each felony conviction. When offenders are convicted of multiple first- degree felonies, courts shall impose ‘a mandatory term’ of postrelease control, set forth in R.C. 2967.28(B)(1), not multiple terms.”) As such, the trial court did not violate Crim.R. 32(C) in ordering one five-year term of postrelease control for all Maag's felony convictions.
Id. at ¶18. 1 Procedurally, prior to this Maag also filed other post-conviction motions for a new trial and other matters not pertinent to this appeal.
3 Case No. 5-10-23
{¶4} On March 12, 2010, Maag filed a “Motion to Vacate Sentence and Set
Aside Judgment of Conviction.” Maag argued that his sentence was void pursuant
to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, because it
did not properly impose postrelease control.
{¶5} On June 21, 2010, the trial court overruled Maag’s motion, stating that
it had reviewed the file as to the issue and had previously ruled on the issue in its
July 28, 2008 judgment entry.
At that time, the Court found in reviewing the court reporter’s notes and a transcript of the defendant’s sentencing proceeding held on November 8, 2001, that this Court specifically advised the defendant that he was subject to a mandatory term of postrelease control of five (5) years pursuant to the Ohio statutes as made and provided.
(June 21, 2010 J.E.) Maag now appeals this decision, raising the following three
assignments of error for our review.
First Assignment of Error
[Maag’s] sentence is void as the trial court did not comply with Crim.R. 32(C).
Second Assignment of Error
The trial court is in error for making the erroneous decision that it could deny [Maag’s] ‘Motion to Vacate Sentence and Set Aside Judgment of Conviction’ by utilizing the court reporter’s notes and a transcript of the [Maag’s] sentencing proceeding held on November 8, 2001.
4 Case No. 5-10-23
Third Assignment of Error
The trial court is in error when it sentenced [Maag] to a term of post release control for the first degree felonies. (Emphasis sic.)
{¶6} In his first two assignments of error, Maag contends that his sentence
is “void” because his judgment entry of sentencing stated that “[t]he court has
notified the Defendant that post release control is mandatory in this case up to a
maximum of five (5) years ***.” (Nov. 8, 2001 J.E., p. 5.) Maag acknowledges
that he was notified that he would have a mandatory term of post release control.
What he contests is the “terminology that is used within the Judgment Entry”
stating that he would receive “up to” a maximum of five years of postrelease
control. Because a trial court “speaks only through its journal entries,” Maag
argues that the trial court’s reliance on the sentencing and transcript to determine
whether or not a proper sentence was imposed was improper.
{¶7} At the sentencing hearing, the trial court correctly complied with the
law and properly advised Maag concerning postrelease control:
Now I have to advise you as to postrelease control in this particular case. For the felonies of the first degree, it’s a required term of five (5) years of postrelease control sanctions.
(Nov. 8, 2001 Sentencing Hearing Tr., p. 33.) However, the judgment entry
erroneously used the words “up to,” even though Maag’s sentence included a
definitive term of five years of postrelease control. Maag is partially correct in his
assertion that his judgment entry of sentencing is not completely accurate.
5 Case No. 5-10-23
However, his entire sentence and conviction is not “void” and it does not have to
be vacated and remanded.
{¶8} A recent decision by the Supreme Court of Ohio has modified the
holding in State v. Bezak and has clarified the extent of review that is required
when a trial court does not properly impose postrelease control. See State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. When postrelease
control is not properly included in a sentence for a particular offense, the sentence
for that offense is void, but “only the offending portion of the sentence is subject
to review and correction.” Id. at ¶27. The doctrine of “res judicata still applies to
other aspects of the merits of a conviction, including the determination of guilt and
the lawful elements of the ensuing sentence.” Id. at paragraph three of the
syllabus.
{¶9} Therefore, any new sentencing hearing to which an offender might be
entitled to “is limited to proper imposition of postrelease control.” Id. at ¶29.
Furthermore, while a remand for new sentencing might be one option, “R.C.
2953.08(G)(2) also provides that an appellate court may ‘increase, reduce or
otherwise modify a sentence ***.’” (Emphasis sic.) Id. The Ohio Supreme Court
pointed out that “[c]orrecting a defect in a sentence without a remand is an option
that has been used in Ohio and elsewhere for years in cases in which the original
sentencing court, as here, had no sentencing discretion.” Id. Such a correction
6 Case No. 5-10-23
without remanding for resentencing “can provide an equitable, economical, and
efficient remedy for a void sentence.” Id. at ¶30.
{¶10} Notwithstanding the invitation of the Supreme Court to the Court of
Appeals to issue an appellate judgment of partial sentencing, we elect to continue
what we believe to be the better practice of maintaining all aspects of the sentence
within a single judgment of sentence. Therefore, based on the authority of R.C.
2953.08(G)(2) and State v. Fischer, we hereby remand this case to the trial court
with instructions to modify the terminology in Maag’s November 8, 2001
Judgment Entry of Sentencing to state that his sentence includes five years of
mandatory postrelease control. The remaining sentencing terms are not affected
by this decision.
{¶11} In his third assignment of error, Maag complains that the trial court
only imposed one term of postrelease control, even though his sentence included
two first-degree felonies. Maag raised this exact same issue in his previous
appeal. See State v. Maag, 2009-Ohio-90, supra. Not only is the issue barred by
res judicata, again, but we did address the issue in the previous case and explained
why the single term of postrelease control is lawful. See id. at ¶18. Maag’s third
assignment of error is without merit and is overruled.
{¶12} Accordingly, we affirm the judgment of the trial court denying
appellant’s motion to vacate sentence and set aside judgment of conviction. We
also remand this case to the trial court with instructions to modify the trial court’s
7 Case No. 5-10-23
sentencing judgment entry of November 8, 2011, to state that his sentence includes
five years of mandatory postrelease control.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
ROGERS, P.J., and SHAW, J., concur.