State v. Wolford

2014 Ohio 1082

Opinion

[Cite as State v. Wolford, 2014-Ohio-1082.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100227

STATE OF OHIO PLAINTIFF-APPELLANT

vs.

RICHARD WOLFORD DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-570710

BEFORE: Rocco, J., S. Gallagher, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: March 20, 2014 -i-

ATTORNEYS FOR APPELLANT

Timothy J. McGinty Cuyahoga County Prosecutor BY: Katherine Mullin Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113

ATTORNEY FOR APPELLEE

A. Alek El-Kamhawy 14837 Detroit Avenue Suite 227 Lakewood, OH 44107 KENNETH A. ROCCO, J.:

{¶1} This appeal stems from the trial court’s order waiving defendant-appellee

Richard Wolford’s fine. The state of Ohio argues that the fine was mandatory and that

the trial court could not waive it without an affidavit of indigency. We agree and so we

reverse the trial court’s final judgment and remand for a limited resentencing.

{¶2} On May 23, 2013, Wolford entered a guilty plea to one count of drug

possession, a felony of the third degree, with an accompanying forfeiture specification.

On July 9, 2013, Wolford appeared for sentencing. The state requested that a fine and

court costs be imposed if Wolford was placed on community control sanctions.

Wolford’s attorney stated that he and Wolford were “okay with the state’s position on the

court costs and the fines.” Tr. 3. Wolford’s attorney also noted that Wolford was

working full time.

{¶3} The trial court sentenced Wolford to community control sanctions and

ordered forfeiture in the amount of $1,154 cash and a cell phone. Because of the

forfeiture, the trial court waived the fine, over the state’s objection.

{¶4} The state filed a notice of appeal from this sentence. In it’s sole

assignment of error, the state asserts that the trial court erred by waiving Wolford’s fine

without a filed affidavit of indigency. We sustain the assignment of error. We must

reverse a sentence if we clearly and convincingly find that the sentence is contrary to law. R.C. 2953.08(G)(2)(b). In this case, the law is clear that the trial court was required to

impose a fine. Because the trial court waived the fine, the sentence was contrary to law.

{¶5} Wolford pleaded guilty to one count of violating R.C. 2925.11(A), a

third-degree felony. R.C. 2925.11(E)(1)(a) requires a trial court to impose a fine upon

an individual who commits a third-degree felony violation under R.C. 2925.11(A). The

fine imposed for such a violation must be between $5,000-$10,000. R.C. 2929.18(A)(3)

and (B)(1).

{¶6} Although an exception exists in the case of indigency, that exception does not

apply in this case. Under R.C. 2929.18(B)(1), if an offender files an affidavit of

indigency prior to sentencing, and the court finds that the offender is indigent and unable

to pay the required fine, then the court shall not impose the mandatory fine. Wolford did

not file an affidavit of indigency. To the contrary, his counsel indicated that Wolford

was “okay” with the fine, and that Wolford was employed on a full-time basis.

{¶7} The Ohio Supreme Court held that a trial court’s failure to impose a

mandatory fine, when an affidavit of indigency is not filed with the court prior to the

filing of the sentencing entry, renders that part of a defendant’s sentence void. State v.

Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, syllabus, citing R.C.

2925.11(E)(1)(a); R.C. 2929.18(B)(1). The court determined that the proper remedy

was to conduct a limited resentencing to impose the mandatory fine. Id. Applying

Moore to the instant case, we void that portion of Wolford’s sentence that waived the

mandatory fine and remand for a limited resentencing consistent with Moore. {¶8} The trial court’s judgment is reversed.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

__________________________________________ KENNETH A. ROCCO, JUDGE

SEAN C. GALLAGHER, P.J., and EILEEN T. GALLAGHER, J., CONCUR