State v. Davis

[Cite as State v. Davis, 2012-Ohio-4112.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 11-MA-53
)
LAWRENCE DAVIS, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 05CR193
JUDGMENT: Affirmed in part
Remanded in part
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Lawrence Davis, Pro-se
#494-988
Grafton Correctional Institution
2500 S. Avon-Belden Rd.
Grafton, Ohio 44044
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: September 5, 2012
[Cite as State v. Davis, 2012-Ohio-4112.]
DONOFRIO, J.
{¶1} Defendant-appellant, Lawrence Davis, appeals from a Mahoning
County Common Pleas Court judgment overruling his motion to vacate his conviction
and for a de novo sentencing hearing.
{¶2} Appellant was convicted of five counts of drug trafficking and sentenced
to 11 years in prison. He appealed. This court vacated appellant’s convictions on
two of the five counts and accordingly reduced appellant’s sentence to eight years.
State v. Davis, 7th Dist. No. 05-MA-235, 2007-Ohio-7216. We affirmed the
remainder of appellant’s convictions and sentences. Id.{¶3} Appellant next filed an application with this court to reopen his appeal,
which we denied. State v. Davis, 7th Dist. No. 05-MA-235, 2008-Ohio-2927. We
later affirmed the trial court’s dismissal of appellant’s petition for postconviction relief.
State v. Davis, 7th Dist. No. 08-MA-16, 2008-Ohio-6211.
{¶4} On February 17, 2011, appellant filed a “motion to vacate and void
judgment of sentence and for court to conduct a de novo resentencing hearing as
though sentence never occurred.” He argued that his conviction was void because
the trial court failed to impose a mandatory fine and driver’s license suspension at
sentencing. The trial court overruled this motion.
{¶5} Appellant filed a timely notice of appeal on March 29, 2011. He
proceeds with this appeal pro se.
{¶6} Appellant raises two assignments of error, which assert the same basic
argument. Therefore, we will address them together:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT FAILED TO IMPOSE THE STATUTORILY MANDATED FINE
AND DRIVER’S LICENSE SUSPENSION PURSUANT TO R.C.
2925.03(D)(1), (D)(2), AND 2929.18(B)(1).
THE TRIAL COURT ABUSE[D] ITS DISCRETION WHEN IT
OVERRULED MR. DAVIS’ MOTION TO VACATE AND VOID
JUDGMENT OF SENTENCE AND FOR COURT TO CONDUCT A DE
NOVO RESENTENCING HEARING AS THOUGH SENTENCE NEVER
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OCCURRED FOR FAILING TO IMPOSE THE STATUTORILY
MANDATED SANCTIONS.
{¶7} Appellant argues that his sentence is void because the trial court failed
to include a statutorily mandated fine and driver’s license suspension. Consequently,
he argues the trial court should have granted his motion to vacate and void judgment
of sentence and conducted a new sentencing hearing.
{¶8} Under the doctrine of res judicata, a final judgment of conviction bars
the defendant from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that the defendant
raised or could have raised at the trial which resulted in that judgment of conviction or
on an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d
104 (1967). Thus, it would seem that appellant should have raised the issues with
his sentence in his direct appeal or be barred from raising them.
{¶9} However, appellant alleges that his sentence is void. Consequently, we
will address the merits of his argument. This is because the doctrine of res judicata
does not apply to a void sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, paragraph three of the syllabus.
{¶10} Appellant was ultimately convicted of three counts of violating R.C.
2925.03(A)(1). One count was a second-degree felony, one count was a third-
degree felony, and one count was a fourth-degree felony. Pursuant to R.C.
2929.18(B)(1):
For 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 of at least one-
half of, but not more than, the maximum statutory fine amount
authorized for the level of the offense pursuant to division (A)(3) of this
section. If an offender alleges in an affidavit filed with the court prior to
sentencing that the offender is indigent and unable to pay the
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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.
(Emphasis added.)
{¶11} There is no indication in the record that appellant filed an affidavit with
the court prior to sentencing alleging that he was indigent and unable to pay a
mandatory fine. Thus, the trial court should have imposed a mandatory fine on
appellant.
{¶12} R.C. 2925.03(D)(1) provides that for an offender who violates R.C.
2925.03(A), in addition to any prison term or other sanctions, the trial court “shall
suspend the driver's or commercial driver's license or permit of the offender in
accordance with division (G) of this section.”
{¶13} The trial court did not impose any type of license suspension on
appellant. The state concedes that the trial court erred in failing to impose a
suspension.
{¶14} Thus, we must determine whether the trial court’s failure to impose the
above sanctions was an error that now requires reversal.
{¶15} In support of his argument, appellant cites to State v. Fields, 183 Ohio
App.3d 647, 918 N.E.2d 204 (1st Dist.), and State v. Harris, 8th Dist. No. 95128,
2010-Ohio-5374.
{¶16} Fields was convicted of and sentenced on cocaine possession and
having a weapon while under a disability. His convictions were affirmed on appeal
and a postconviction petition was denied. Fields filed a second postconviction
petition alleging that his cocaine possession sentence was void because the court
failed to impose a mandatory fine. The trial court denied the petition. On appeal, the
First District found that Fields’s cocaine possession sentence was void because the
trial court did not include the statutorily mandated fine. Id. at ¶4. It stated that R.C.
2925.11(E) and 2929.18(B)(1) required the trial court to impose the mandatory fine
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upon Fields's cocaine possession conviction. Id. at ¶5. The court vacated Fields’s
sentence and concluded that the proper remedy was a remand to the trial court for a
new sentencing hearing. Id. at ¶10-11.
{¶17} Harris was convicted of drug trafficking and sentenced to prison. But
the trial court failed to impose the mandatory driver’s license suspension. The Eighth
District reversed Harris’s sentence and remanded the matter for resentencing, finding
the entire sentence to be void. Harris, 2010-Ohio-5374, at ¶3.
{¶18} Harris, supra, was certified to the Ohio Supreme Court on the question
of whether the failure to include a mandatory driver's license suspension in a criminal
sentence renders the sentence void.
{¶19} The Court held: “The failure to include a mandatory driver’s license
suspension as part of an offender’s sentence renders that part of the sentence void.
Resentencing of the offender is limited to the imposition of the mandatory driver’s
license suspension.” State v. Harris, Slip Opinion 2012-Ohio-1908, paragraph one of
the syllabus. The Court reasoned that, like postrelease control, a mandatory license
suspension is required by law to be a part of an offender’s sentence. Id. at ¶14. If
the trial court fails to include such a mandatory term, the executive branch is without
the authority to impose the sanction once an offender leaves prison. Id. The remedy
for a trial court’s failure to include a mandatory driver’s license suspension is
resentencing only for the limited purpose of imposing the license suspension. Id. at
¶18.
{¶20} Based on Harris, we must conclude that the trial court erred in failing to
include the mandatory driver’s license suspension. Likewise, because a statutorily-
mandated fine is akin to a statutorily-mandated driver’s license suspension, it follows
that the trial court also erred in failing to include the statutorily mandated fine.
{¶21} Accordingly, appellant’s assignments of error have merit.
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{¶22} For the reasons stated above, this matter is remanded to the trial court
on the limited basis of imposing the statutorily-mandated fine and driver’s license
suspension. Appellant’s sentence is affirmed in all other respects.
Vukovich, J., concurs.
Waite, P.J., concurs.