State v. White (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. White, Slip Opinion No. 2019-Ohio-1215.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-1215
THE STATE OF OHIO, APPELLEE, v. WHITE, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. White, Slip Opinion No. 2019-Ohio-1215.]
Criminal law—Final, appealable orders—A trial court’s decision to exercise its
discretion not to impose a monetary or community-service sentence must be
clearly communicated in text of entry—Court of appeals’ dismissal of
appeal from judgment of conviction that was silent as to sentence affirmed.
(No. 2017-1292—Submitted January 9, 2019—Decided April 4, 2019.)
APPEAL from the Court of Appeals for Hamilton County, No. C-160403.
________________
O’CONNOR, C.J.
Introduction
{¶ 1} This appeal concerns appellant Gregory White’s conviction for failure
to maintain reasonable control of a vehicle, a minor misdemeanor under
R.C. 4511.202. The trial court had discretion to impose a financial sanction on
White, but the judgment of conviction was silent as to any sentence. The First
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District Court of Appeals subsequently dismissed White’s appeal on the ground
that the judgment of conviction was not a final, appealable order, because it did not
include a sentence.
{¶ 2} We agree that the judgment of conviction was not a final, appealable
order. For White to be able to appeal his conviction, the trial court must first issue
a judgment of conviction that clearly and explicitly meets the requirements of State
v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of
the syllabus. We therefore affirm the judgment of the First District.
Relevant Background
{¶ 3} White was involved in a multi-car accident in the early morning hours
of January 1, 2016. He was subsequently charged with three misdemeanors:
(1) driving under suspension, a first-degree misdemeanor under R.C. 4510.11,
(2) failure to stop after an accident, a first-degree misdemeanor under R.C. 4549.02,
and (3) failure to maintain reasonable control of a vehicle, a minor misdemeanor
under R.C. 4511.202. The driving-under-suspension charge was resolved through
a plea agreement. The other two charges proceeded to a bench trial, and White was
found guilty of both.
{¶ 4} Relevant to this appeal is the judgment of conviction entered for the
failure-to-maintain-control conviction. In sentencing White, the trial court had the
authority to impose a financial sanction, such as a fine of up to $150, or up to 30
hours of community service, but it was not required to impose either. See
R.C. 2929.28(A)(2)(a)(v) (“the court imposing a sentence upon an offender for a
misdemeanor, including a minor misdemeanor, may sentence the offender to any
financial sanction or combination of financial sanctions authorized under this
section. If the court in its discretion imposes one or more financial sanctions, the
financial sanctions that may be imposed pursuant to this section include, but are not
limited to * * * [a] fine in the following amount: * * * [f]or a minor misdemeanor,
not more than one hundred fifty dollars”); R.C. 2929.27(D) (permitting sentence of
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community service “in lieu of” all or part of a fine).1 The trial court was required
to order White to pay court costs, R.C. 2947.23, but this court has held that costs
are not part of a sentence, State v. Threatt, 108 Ohio St. 3d 277, 2006-Ohio-905,
843 N.E.2d 164, ¶ 15.
{¶ 5} The trial court ordered White to pay costs, but it did not impose a fine
or community-service obligation. The judgment of conviction stated the following:
FINDING GUILTY
LOCAL COSTS
[FINANCIAL RESPONSIBILITY ACT] NON-COMPLIANCE
STAY OF SENTENCE GRANTED PENDING APPEAL
CONT TO 5/11/16 @ 9:00 FOR REPORT / STATUS OF APPEAL
{¶ 6} White appealed this conviction, but the First District dismissed the
appeal for lack of a final, appealable order. It observed that under Crim.R. 32(C)
and Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E.2d 142, at paragraph
one of the syllabus, a judgment of conviction must contain the fact of conviction,
the sentence, the judge’s signature, and the time stamp indicating the entry upon
1. The concurring opinion would hold that R.C. 2929.28(A) does not permit the trial court to decline
to impose a fine or community service. We disagree. First, such an interpretation is contrary to the
plain language of the statute, which uses the permissive term “may” and reiterates that the sanction
is not required by including the conditional clause “[i]f the court in its discretion imposes one or
more financial sanctions.” The concurring opinion does not accept the ordinary meaning of “may,”
and it glides by the conditional clause without mentioning its conditional nature. Second, nothing
in the provisions stating that community service may be imposed “in lieu of” a financial sanction,
R.C. 2929.27(D) and 2929.28(B), alters the plain meaning of R.C. 2929.28(A) or suggests that
community service is required if a court chooses not to impose a financial sanction. Finally, the
concurring opinion’s argument that the key portion of the statute is its reference to the trial court
“imposing a sentence” is novel but unconvincing. It requires one to believe that in the remainder of
R.C. 2929.28(A) the legislature said one thing (“may sentence the offender to any financial
sanction”) when it really meant another (“may sentence the offender to either any financial sanction
or community service”). Viewing the statute as a whole, we accept the meaning stated plainly over
a meaning conveyed cryptically.
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the journal by the clerk of courts. It also noted that court costs are not considered
criminal punishment and are therefore not part of a sentence. As a result, “there
was no sentence imposed on [White] and thus, no conviction for the failure-to-
control charge, and therefore, no final appealable order.” Accordingly, the First
District held that it lacked subject-matter jurisdiction and dismissed the appeal.
{¶ 7} White appealed to this court, seeking review of one proposition of
law:
A final appealable order for a minor misdemeanor
conviction does not require a punishment; judgment of conviction
for a minor misdemeanor need only include the fact of conviction,
the imposition of court costs, the judge’s signature, and the entry
upon the journal by the clerk of courts.
{¶ 8} We accepted jurisdiction. 152 Ohio St. 3d 1405, 2018-Ohio-723, 92
N.E.3d 878.
Analysis
{¶ 9} We review the First District’s decision on subject-matter jurisdiction
de novo. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St. 3d 315,
2016-Ohio-478, 56 N.E.3d 913, ¶ 12.
{¶ 10} White argues that the First District’s decision means that a judgment
entry that fails to impose a fine for a minor misdemeanor is not a final judgment of
conviction and cannot be appealed. As a result, for a minor-misdemeanor
conviction to be appealable under the First District’s decision, a trial court must
impose a fine. This, he argues, is contrary to the terms of R.C. 2929.28(A), which
explicitly makes the imposition of a fine discretionary, providing that “the court
imposing a sentence * * * for * * * a minor misdemeanor[] may sentence the
offender to any financial sanction or combination of financial sanctions authorized
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under this section” (emphasis added). See also id. (“If the court in its discretion
imposes one or more financial sanctions, the financial sanctions that may be
imposed pursuant to this section include, but are not limited to,” certain enumerated
sanctions [emphasis added]).
{¶ 11} The state disagrees. According to the state, the First District’s
decision does not require a fine to be imposed. It requires simply that a trial court
include language in the judgment entry clearly establishing that it has decided how
to exercise its discretion concerning a sentence. For example, the state suggests
that if the court wishes to decline to impose a fine, it may include language such as
“$0 fine,” “no fine,” “waive fines,” or “remit fines.”
{¶ 12} White counters that the imposition of costs in the judgment entry
indicates that the trial court made a decision on a sentence and simply declined to
impose a fine. He further argues that requiring a trial court to specifically state “$0
fine” or similar language would be “frivolous” and that nothing in the Revised Code
or Crim.R. 32(C) requires any notation of what sentence the court chose not to
impose. Only an actual sentence must be stated.
{¶ 13} We agree with the state. When valid, a judgment of conviction is a
final order under R.C. 2505.02(B). State v. Jackson, 151 Ohio St. 3d 239, 2017-
Ohio-7469, 87 N.E.3d 1227, ¶ 11. Crim.R. 32(C) sets forth what must be contained
in a judgment of conviction for it to be valid; it provides that “[a] judgment of
conviction shall set forth the fact of conviction and the sentence” and that “[t]he
judge shall sign the judgment and the clerk shall enter it on the journal.”
Accordingly, we have held that “[a] judgment of conviction is a final order subject
to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the
sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon
the journal by the clerk.” Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E.2d
142, at paragraph one of the syllabus.
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{¶ 14} The issue here is what, if anything, a trial court is required to state in
the judgment of conviction when it chooses to exercise its discretion not to impose
a financial sanction or community service as a sentence. We recognize that the
judgment of conviction here imposed costs, omitted any reference to a fine or
community service, and stated that the sentence was stayed pending appeal.
Initially, there is the problem of ambiguity. The judgment’s reference to a stay—
“STAY OF SENTENCE GRANTED PENDING APPEAL”—is ambiguous. What
is stayed? Costs are not part of the sentence, but the court may have meant that the
payment of costs was stayed pending appeal. Additionally, the entry’s silence
regarding a monetary or community-service sentence may imply that the court had
exercised its discretion to decline to impose a sentence. But implication is not
enough. A trial court’s decision to exercise its discretion not to impose a sentence
should not be communicated in the judgment of conviction passively—let alone
ambiguously—through suggestion or by implication. Permitting such a practice
would undermine the purpose of Crim.R. 32(C), which we have recognized is “to
ensure that a defendant is on notice concerning when a final judgment has been
entered and the time for filing an appeal has begun to run,” Lester at ¶ 10. To
ensure that the defendant is on notice of when the time to appeal has begun to run,
and to avoid disputes regarding the same, clarity is required.
{¶ 15} We therefore reiterate our holding in Lester concerning the essential
elements of a final, appealable judgment of conviction, and we further hold that a
trial court’s decision to exercise its discretion not to impose a monetary or
community-service sentence must be clearly communicated in the text of the entry.
No magic words are required, and there is no requirement that a fine or other
sanction be imposed before it may be waived. The trial court’s decision not to
impose a sentence must simply be clear in the entry. For example, in this case, it
would have been sufficient for the trial court to state in the entry “no fine,” “fine
waived,” “$0 fine,” or similar language. See, e.g., State v. Jackson, 9th Dist.
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Summit No. 28625, 2018-Ohio-19, ¶ 6, 12-13 (holding that a judgment of
conviction was a final, appealable order when it stated that fines were waived
without first stating that fines were imposed, because the entry made clear that the
court had considered and fully resolved the convictions and sentence).
{¶ 16} White also makes a series of arguments concerning alleged
secondary harms or problems that could result from the First District’s decision.
For example, he argues that defendants will be unable to have their convictions
sealed unless they are fined and that defense counsel will be required to act against
their clients’ interests by requesting a fine, lest their clients be denied appellate
review. He also asserts that all defendants convicted of minor misdemeanors who
were not explicitly ordered to pay a fine will be able to claim that a valid sentence
has not yet been entered and that therefore, because of unreasonable delay in
sentencing, they are entitled to reimbursement of any money they paid in costs.
These arguments all fail for the same reason: they wrongly assume that the trial
court is effectively required to impose a fine for a minor-misdemeanor conviction.
As explained above, that is not correct. Furthermore, going forward, a court that
chooses not to impose a sentence for a minor misdemeanor need only make that
clear in the judgment of conviction; so long as it does so, none of these alleged
harms can arise.
{¶ 17} Consequently, the First District correctly dismissed White’s appeal
for lack of a final, appealable order.
Conclusion
{¶ 18} For these reasons, we affirm the judgment of the First District Court
of Appeals dismissing White’s appeal for lack of a final, appealable order.
Judgment affirmed.
FRENCH, WELBAUM, DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion.
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JEFFREY M. WELBAUM, J., of the Second District Court of Appeals, sitting
for FISCHER, J.
_________________
KENNEDY, J., concurring in judgment only.
{¶ 19} I agree with the majority’s conclusion that the trial court did not enter
a final, appealable order in this case, because the judgment of conviction failed to
impose a sentence. I write separately, however, because the majority’s assertion
that a trial court has the discretion not to impose a sentence for a minor
misdemeanor not only contradicts its own analysis regarding what constitutes a
final, appealable order but also cannot be squared with the plain language of the
applicable statute. For these reasons, I concur only in the judgment affirming the
dismissal of appellant Gregory White’s appeal.
{¶ 20} A judgment of conviction that does not include a sentence is not a
final, appealable order. State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958
N.E.2d 142, paragraph one of the syllabus; accord State v. Danison, 105 Ohio St. 3d
127, 2005-Ohio-781, 823 N.E.2d 444, ¶ 6 (“Generally, in a criminal case, the final
judgment is the sentence”), citing Columbus v. Taylor, 39 Ohio St. 3d 162, 165, 529
N.E.2d 1382 (1988); State v. Hunt, 47 Ohio St. 2d 170, 174, 351 N.E.2d 106 (1976);
State v. Chamberlain, 177 Ohio St. 104, 106-107, 202 N.E.2d 695 (1964).
Therefore, because White’s judgment of conviction for failure to maintain
reasonable control of his vehicle does not impose a sentence, the majority correctly
concludes that no final, appealable order was entered in this case.
{¶ 21} I part ways with the majority when it suggests that a trial court
sentencing a minor misdemeanant has the discretion not to impose a sentence for
the offense. It says, “In sentencing White, the trial court had the authority to impose
a financial sanction, such as a fine of up to $150, or up to 30 hours of community
service, but it was not required to impose either.” Majority opinion at ¶ 4. And
although the holding of this case is that a judgment of conviction lacking a sentence
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is not a final, appealable order, the majority confounds its own analysis when it
states that a trial court may “exercise its discretion not to impose a sentence”
(emphasis added), id. at ¶ 14, by “stat[ing] in the entry ‘no fine,’ ‘fine waived,’ ‘$0
fine,’ or similar language,” id. at ¶ 15. This declaration cannot be reconciled with
the plain language of the applicable statute.
{¶ 22} Judges do not have the inherent power to create sentences or to
impose any sentence so long as it is not prohibited by statute. State v. Anderson,
143 Ohio St. 3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10, 13. Rather, it is a
fundamental precept of our tripartite form of government that “the power to define
criminal offenses and prescribe punishment is vested in the legislative branch of
government.” State v. Williams, 148 Ohio St. 3d 403, 2016-Ohio-7658, 71 N.E.3d
234, ¶ 22. Therefore, courts may impose only a sentence that is authorized by
statute, Anderson at ¶ 13, and “[a] court has no power to substitute a different
sentence for that provided for by statute or one that is either greater or lesser than
that provided for by law,’ ” Williams at ¶ 20, quoting Colegrove v. Burns, 175 Ohio
St. 437, 438, 195 N.E.2d 811 (1964).
{¶ 23} For this reason, in determining the sentence that may be imposed for
an offense, we look only to the statute. This court’s duty in construing a statute is
to determine and give effect to the intent of the General Assembly as expressed in
the language it enacted. State v. J.M., 148 Ohio St. 3d 113, 2016-Ohio-2803, 69
N.E.3d 642, ¶ 7. R.C. 1.42 guides our analysis, providing that “[w]ords and phrases
shall be read in context and construed according to the rules of grammar and
common usage.” If the language of a statute is plain and unambiguous and conveys
a clear and definite meaning, then there is no need for this court to resort to the
rules of statutory interpretation; rather, we apply the statute as written. State v.
Kreischer, 109 Ohio St. 3d 391, 2006-Ohio-2706, 848 N.E.2d 496, ¶ 12.
{¶ 24} Important here is R.C. 2929.28(A): “In addition to imposing court
costs pursuant to section 2947.23 of the Revised Code, the court imposing a
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sentence upon an offender for a misdemeanor, including a minor misdemeanor,
may sentence the offender to any financial sanction or combination of financial
sanctions authorized under this section.” (Emphasis added.) The statute then
specifies which financial sanctions may be imposed by the court “in its discretion”
in sentencing a minor misdemeanant: (1) a “fine * * * not more than one hundred
fifty dollars,” R.C. 2929.28(A)(2)(a)(v); (2) a “state fine or cost as defined in
section 2949.111 of the Revised Code,” R.C. 2929.28(A)(2)(b); and (3)
reimbursement for the government’s costs to supervise the sanction, R.C.
2929.28(A)(3).
{¶ 25} But financial sanctions are not the only punishment that may be
imposed in sentencing a minor misdemeanant. Community service is a
“nonresidential sanction,” R.C. 2929.27(A)(3), and a term of community service
not to exceed 30 hours may be imposed “in lieu of or in addition to imposing a
financial sanction” on a minor misdemeanant, R.C. 2929.28(B); accord R.C.
2929.27(D). R.C. 2929.28 therefore provides that the court may impose financial
sanctions, a term of community service, or both.
{¶ 26} But contrary to the majority’s assumption that the trial court is not
required to impose either a financial sanction or community service, nothing in R.C.
2929.28(A) authorizes the court to impose no sanction at all. Rather, R.C.
2929.28(A) refers to a court “imposing a sentence.” “Sentence” is defined as “the
sanction or combination of sanctions imposed by the sentencing court on an
offender who is convicted of or pleads guilty to an offense,” R.C. 2929.01(EE), and
“sanction” means “any penalty imposed upon an offender who is convicted of or
pleads guilty to an offense, as punishment for the offense” and “includes any
sanction imposed pursuant to any provision of sections * * * 2929.24 to 2929.28 of
the Revised Code,” R.C. 2929.01(DD). It follows that a court cannot “impose a
sentence” for a minor misdemeanor without imposing a sanction.
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{¶ 27} Moreover, a court may suspend a sentence or waive payment of a
fine or other financial sanction only if authorized by statute. Anderson, 143 Ohio
St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, at ¶ 13; State v. Clevenger, 114 Ohio
St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 4 (“The common pleas courts do
not have power to suspend the execution of a sentence unless authorized by
statute”); State v. Moore, 135 Ohio St. 3d 151, 2012-Ohio-5479, 985 N.E.2d 432,
¶ 1 (a court lacks authority to waive a mandatory fine except as provided by statute).
However, contrary to the position of the majority, nothing in R.C. 2929.28(A)
authorizes the trial court to suspend a sentence or waive payment of a fine for a
minor misdemeanor.
{¶ 28} The General Assembly knows how to write a statute authorizing a
court to suspend a fine or waive payment of a fine imposed on an offender. See,
e.g., R.C. 2947.23(C) (“The court retains jurisdiction to waive, suspend, or modify
the payment of the costs of prosecution * * *”); R.C. 3517.993(B) (authorizing the
elections commission to “suspend all or part of a fine it imposes”); R.C. 5924.15(E)
(authorizing suspension of a fine imposed as nonjudicial punishment by a
commanding officer). It did not do so in the case of minor-misdemeanor
sentencing, and we may not usurp that authority by judicial fiat.
{¶ 29} And a $0 fine is not actually “[a] fine.” As this court has explained,
“the term ‘fine’ means a sum of money exacted of a person guilty of a misdemeanor,
or a crime, the amount of which may be fixed by law or left in the discretion of the
court.” Toledo, Columbus & Ohio River R.R. Co. v. Miller, 108 Ohio St. 388, 396-
398, 140 N.E. 617 (1923) (distinguishing between a fine and a civil penalty). That
is, a fine is an actual amount of money. So when R.C. 2929.28(A)(2)(a)(v) permits
the trial court to impose a fine of “not more than one hundred fifty dollars,” it means
that any fine imposed must be in an amount greater than $0 or else it is not a fine.
{¶ 30} Rather than authorizing the suspension or waiver of a fine or other
financial sanction, the General Assembly gave trial courts one alternative; the court
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may impose a term of community service on a minor misdemeanant not to exceed
30 hours “in lieu of” a fine or other financial sanction. R.C. 2929.27(D) and
2929.28(B). The phrase “in lieu of” means “[i]nstead of or in place of.” Black’s
Law Dictionary 907 (10th Ed.2014). If the offender is indigent, the court may
impose a term of community service “in lieu of imposing a financial sanction or
court costs.” R.C. 2929.28(B). And if the offender is not indigent, the court may
impose a term of community service “in lieu of or in addition to imposing a
financial sanction.” Id. The majority’s conclusion that a court is not required to
impose either a financial sanction or community service founders against the plain
language of the statute.
{¶ 31} Accordingly, R.C. 2929.28 does not give a trial court the option to
suspend, waive, or not impose a sanction in the sentence. Although a court may
decide that a minor misdemeanant’s crime warrants only a de minimis fine or a de
minimis term of community service as an alternative to imposing a financial
sanction, it lacks discretion to impose no punishment at all.
{¶ 32} A trial court that fails to impose a sentence has not entered a final,
appealable order. Therefore, while the majority is correct that the trial court did
not issue a final, appealable order in this case, its determination that the trial court
could have waived or withheld imposition of any fine without imposing a term of
community service is unsupported by the statutory text or precedent. For this
reason, I concur only in the judgment affirming the judgment of the court of
appeals.
_________________
Paula Boggs-Muething, Cincinnati City Solicitor, Natalia S. Harris, City
Prosecutor, and Christopher Liu, Assistant City Prosecutor, for appellee.
Raymond T. Faller, Hamilton County Public Defender, and Joshua A.
Thompson and Julie Kahrs Nessler, Assistant Public Defenders, for appellant.
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Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski,
Assistant Public Defender, urging reversal for amicus curiae, Office of the Ohio
Public Defender.
_________________
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