State v. Moore

2012 Ohio 5479, 985 N.E.2d 432, 135 Ohio St. 3d 151
CourtOhio Supreme Court
DecidedNovember 29, 2012
Docket2011-1664
StatusPublished
Cited by69 cases

This text of 2012 Ohio 5479 (State v. Moore) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moore, 2012 Ohio 5479, 985 N.E.2d 432, 135 Ohio St. 3d 151 (Ohio 2012).

Opinions

Cupp, J.

{¶ 1} In this certified conflict, we consider whether a trial court’s failure to impose the fine required by R.C. 2925.11(E)(1)(a) and 2929.18(B)(1), when no affidavit of indigency has been filed with the court prior to the trial court’s journal entry of sentencing, renders void the part of the sentence waiving the fine. For the reasons that follow, we conclude that a trial court’s failure to impose the required fine under these circumstances renders void the part of the sentence waiving the fine. Resentencing of the offender is limited to the imposition of the mandatory fine. We accordingly affirm the judgment of the court of appeals in resolving the certified conflict.

I. Facts and Procedural History

{¶ 2} In July 2009, appellee, Robert Moore III, was convicted by a jury of drug possession, drug trafficking, carrying a concealed weapon, and possessing criminal tools, some with certain specifications. The trial court sentenced Moore to an agreed-upon prison term of 13 years, and Moore waived his right to appeal. The trial court’s sentencing entry stated, “Based on [Moore’s] affidavit of indigency being filed; [sic] fine and costs are waived including mandatory fines.” The affidavit of indigency was not filed prior to the filing of the sentencing entry.

[152]*152{¶ 3} In another case, in August 2009, Moore pled guilty to drug trafficking with a firearm specification. The trial court sentenced him to an agreed-upon prison sentence of nine years, and Moore waived his right to appeal. The trial court’s sentencing entry stated, “Affidavit of indigency being filed; [sic] fine and costs are waived including mandatory fine.” Again, the affidavit of indigency was not filed prior to the filing of the sentencing entry.

{¶ 4} Moore timely filed a notice of appeal in each. The court of appeals dismissed both appeals because Moore had waived his appellate rights.

{¶ 5} In September 2010, Moore filed a motion in each case arguing that his sentences were void. Specifically, Moore noted that R.C. 2925.11(E)(1)(a) and 2929.18(B)(1) mandate that the trial court impose a fine unless an affidavit of indigency is filed. Moore asserted that the trial court failed to impose the mandatory fine even though his counsel did not file the affidavits. Accordingly, Moore maintained that each sentence was void and that the trial court should resentence him de novo and restore his appellate rights. The trial court denied the motions.

{¶ 6} Moore timely appealed to the Eighth District Court of Appeals. The appellate court held that the trial court’s failure to impose the mandatory fine without a filing of an affidavit of indigency rendered void only the part of Moore’s sentence waiving that fine. State v. Moore, 8th Dist. Nos. 96111 and 96112, 2011-Ohio-4246, 2011 WL 3806152, at ¶ 18. The appellate court vacated the part of Moore’s sentences that waived the fine and remanded both cases for resentencing consistent with R.C. 2929.18(B)(1). Id.

{¶ 7} Thereafter, the court of appeals found its judgment in this case to be in conflict with the holding of State v. DeLoach, 5th Dist. No. 05CA008858, 2006-Ohio-4409, 2006 WL 2466200. That case held under similar facts that waiving the fine without the filing of the affidavit of indigency does not render any of that sentence void and that any error should have been addressed on direct appeal. The Eighth District Court of Appeals then certified the record to this court for review and final determination. We recognized that a conflict exists on the following issue: “Whether a trial court’s failure to impose the statutorily mandated fine required by R.C. 2925.11(E) and 2929.18(B)(1) when no affidavit of indigency is filed with the clerk of court prior to the filing of the trial court’s journal entry of sentencing renders that part of the sentence waiving the fine void.” State v. Moore, 130 Ohio St.3d 1474, 2011-Ohio-6124, 957 N.E.2d 1167.

II. Relevant Statutes

A. R.C. 2929.18(B)(1) — Financial Sanctions

[153]*153For a first, second, or third degree felony violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine * * *. If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.

B. R.C. 2925.11(E)(1)(a) — Possession of Drugs

In addition to any prison term or jail term * * *, the court that sentences an offender who is convicted of or pleads guilty to a violation of division (A) of this section shall * * * impose upon the offender the mandatory fine specified for the offense under division (B)(1) of section 2929.18 of the Revised Code unless, as specified in that division, the court determines that the offender is indigent.

III. Analysis

{¶ 8} Our recent decision in State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, is instructive in resolving the current issue. In that case, Mario Harris had pled guilty to drug trafficking. In the sentencing entry, the trial court had imposed a prison sentence of five years, but had failed to impose a mandatory driver’s license suspension and fine as required by R.C. 2925.03(D)(2) and (G).1 Id. at ¶ 3-4. Harris argued that this failure rendered his entire sentence void. Id. at ¶ 30.

[154]*154{¶ 9} In Harris, we determined that a mandatory driver’s license suspension was analogous to postrelease control. Id. at ¶ 14. At the completion of an offender’s prison sentence, the executive branch cannot impose either postrelease control or a driver’s license suspension if the trial court failed to properly impose either term in the sentence. Id., citing State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 17. Moreover, both postrelease control and suspension of a driver’s license are criminal sanctions, and both are mandated by statute. Id. at ¶ 14. A trial court has a statutorily mandated duty to notify an offender of postrelease control at the sentencing hearing and to incorporate that notice into the journal entry imposing the sentence. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 9, 23. Similarly, R.C. 2925.03(D)(2) and (G) require a trial court to impose a driver’s license suspension as part of an offender’s sentence. Harris at ¶ 14.

{¶ 10} We concluded in Harris that our holdings as to the effect of the failure to properly impose postrelease control apply to the driver’s license suspension. Id. Because a driver’s license suspension is a statutorily mandated term, the sentence is void in part when the trial court fails to include the term in sentencing. Id. at ¶ 16, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. Resentencing is limited to the imposition of the mandatory driver’s license suspension. Id. at ¶ 18.

{¶ 11} We also explained why our decision in Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, did not control. In

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Cite This Page — Counsel Stack

Bluebook (online)
2012 Ohio 5479, 985 N.E.2d 432, 135 Ohio St. 3d 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-ohio-2012.