August 14, 2013
Mandatory Fines and Sentencing

by Justice Paul E. Pfeifer

In July 2009, Robert Moore III was convicted by a jury of drug possession, drug trafficking, carrying a concealed weapon, and possessing criminal tools. The trial court sentenced Moore to an agreed-upon prison term of 13 years, and Moore waived his right to appeal.

When the trial court entered the sentence into the journal, it stated that because Moore had filed an affidavit that indicated he was indigent, all the mandatory fines and costs would be waived. But the affidavit of indigency was not filed prior to the filing of the sentencing entry.

In another case the following month, Moore pled guilty to drug trafficking with a firearm specification. In that case, the trial court sentenced him to an agreed-upon nine-year prison term, and Moore waived his right to appeal. Once again, the sentencing entry stated, “Affidavit of indigency being filed,” the fine and costs “will be waived.” And, once again, the affidavit of indigency was not filed prior to the filing of the sentencing entry.

In September 2010, Moore filed a motion in each case arguing that his sentences were void. Specifically, Moore noted that state sentencing laws mandate that the trial court impose a fine unless an affidavit of indigency is filed.  Moore maintained that the trial court failed to impose the mandatory fine even though his attorney did not file the affidavits.

Accordingly, Moore argued that each sentence was void and that the trial court should resentence him and restore his right to appeal. But the trial court denied his motions. After that, Moore appealed to the Eighth District Court of Appeals.

The court of appeals determined 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. The court of appeals therefore vacated the part of his sentences that waived the fine and sent both cases back for resentencing consistent with the state sentencing law.

In reaching that decision, the Eighth District found its judgment to be in conflict with a holding by the Fifth District Court of Appeals in a similar case. In that other case, the Fifth District ruled 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.

When such conflicts arise between appellate courts, the matter comes before us – the Supreme Court of Ohio – for a final resolution.

There are two laws at the heart of this issue. The first states that for a felony violation, the sentencing court shall “impose upon the offender a mandatory fine.” If the offender “alleges in an affidavit filed with the court prior to the sentencing that the offender is indigent and unable to pay the mandatory fine,” and if the court determines the offender is indeed indigent and unable to pay, “the court shall not impose the mandatory fine.”

The second law has to do with drug possession. It states, “In addition to any prison term ... the court that sentences an offender who is convicted of or pleads guilty to a violation” of possessing drugs shall “impose upon the offender” the mandatory specified fine, unless “the court determines that the offender is indigent.”

Last year, our court issued a decision in a case that is instructive in helping to resolve the issue in this case. In the 2012 case, a man named 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.  Harris argued that this failure rendered his entire sentence void.

In the Harris case, our court determined that a mandatory driver’s license suspension was analogous to postrelease control. At the completion of an offender’s prison sentence, the executive branch of the government cannot impose postrelease control – or a driver’s license suspension – if the trial court failed to properly impose either term in the sentence.

A trial court has a duty – mandated by law – to notify an offender of postrelease control at the sentencing hearing and to incorporate that notice into the journal entry imposing the sentence. Similarly, the law requires a trial court to impose a driver’s license suspension as part of an offender’s sentence.

We concluded that the failure to impose a mandatory fine – as in Moore’s case – closely resembles the failure to impose a driver’s license suspension and postrelease control.

We reached that conclusion because the fine is mandated by the law. If an affidavit of indigency is not filed, the court “shall impose upon the offender a mandatory fine.” But, if the affidavit is timely filed and the court determines that the offender is indigent, the court “shall not impose the mandatory fine upon the offender.” Therefore, the trial court has no discretion in deciding whether to impose the fine.

What is the appropriate relief in a situation such as Moore’s? In a case from 2010, our court concluded that when a judge fails to impose mandated postrelease control as part of a sentence, that part of the sentence is void and must be set aside.

In the 2012 case involving Mario Harris, we determined that this logic also applies when the trial court fails to properly impose the mandatory driver’s license suspension. In Moore’s case, we saw no reason why the same logic should not again control with respect to the mandated fine.

Therefore, by a six-to-one vote, we resolved the conflict between the appellate courts by concluding that a trial court’s failure to include the mandatory fine – when an affidavit of indigency is not filed with the court prior to the filing of the trial court’s sentencing – renders that part of the sentence void.

EDITOR'S NOTE: The case referred to is State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479. Case No. 2011-1664. Decided November 29, 2012. Majority opinion written by Justice Robert R. Cupp.