State v. Lewis

[Cite as State v. Lewis, 2011-Ohio-4069.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25661
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JEFFREY E. LEWIS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE Nos. CR 97 01 0011(C)
CR 09 08 2667
DECISION AND JOURNAL ENTRY
Dated: August 17, 2011
BELFANCE, Presiding Judge.
{¶1} Jeffrey Lewis appeals the trial court’s denial of his motion for sentencing. For the
reasons set forth below, we affirm.
I.
{¶2} In January 2010, Mr. Lewis pleaded guilty to trafficking in cocaine, a second-
degree felony, and the trial court sentenced him to four years in prison. Mr. Lewis did not appeal
his sentence, rather, eight months later, he filed a motion for sentencing, arguing that his
sentence was void because the trial court had failed to either find him indigent or to impose a
fine. The trial court denied his motion. He has appealed, raising two assignments of error for
review.
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II.
ASSIGNMENT OF ERROR I
“THE APPELLANT ASSERTS THAT THE TRIAL COURT ERRED TO THE
PREJUDICE OF THE APPELLANT BY DENYING HIS MOTION TO
VACATE [A] VOID JUDGMENT OF SENTENCE FOR LACK OF
COMPLIANCE WITH THE DICTATES FOUND IN [R.C.] 2929.18(B)(1) TO
(sic) WHICH DEPRIVED THE APPELLANT OF BOTH HIS RIGHTS UNDER
THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO
CONSTITUTION IN REGARDS TO HIS DUE COURSE AND DUE PROCESS
GUARANTEES.”
{¶3} Mr. Lewis argues that, because the trial court failed to impose a fine or to find
him indigent, it did not comply with the statutory sentencing requirements, and, therefore, his
sentence is void. Mr. Lewis pleaded guilty to a second-degree felony of trafficking cocaine in
violation R.C. 2925.03(A). R.C. 2925.03(D)(1) provides that:
“[i]f the violation of [R.C. 2925.03(A)] is a felony of the first, second, or third
degree, the court shall impose upon the offender the mandatory fine specified for
the offense * * * unless * * * the court determines that the offender is indigent.”
{¶4} After the parties filed their briefs, this Court decided State v. Jones, 9th Dist. No.
10CA0022, 2011-Ohio-1450. In Jones, the defendant argued that the sentences for his
convictions for possession of cocaine were void because the trial court had not imposed a fine or
found that he was indigent as required by R.C. 2925.11(E)(1)(a). Id. at ¶¶4-5. In concluding the
sentence in Jones was not void, we noted that, in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-
954, the Ohio Supreme Court had decided a similar issue wherein it determined that a failure to
impose court costs as required by statute did not render the sentence void. Jones at ¶7; see,
Joseph at ¶1 (“[A] court errs in imposing court costs without so informing a defendant in court
but that error does not void the defendant's entire sentence.”). In contrast to its reasoning in its
post-release control line of cases, the Ohio Supreme Court found that court costs differed from
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post-release control in three significant ways: “(1) they could be waived; (2) ‘[n]o other entity
derives its jurisdiction from the court's imposition of costs[;]’ and (3) ‘costs are not punishment,
but more akin to a civil judgment for money.’” Jones at ¶7, quoting Joseph at ¶¶18–20, quoting
State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, at ¶15.
{¶5} Based on the Ohio Supreme Court’s holding in Joseph, this Court concluded that,
“[while] the mandatory fine for a violation of [R.C. 2925.11(A)] is a punishment,
* * * it does share the other attributes that distinguish court costs from post-
release control. As with the court costs in Joseph, the trial court is required by
statute to impose the fine, but there exists a mechanism by which the fine may be
waived. See R.C. 2929.18(B)(1). Further, failure to impose a mandatory fine
does not affect the powers of other branches of government. Accordingly, while
the trial court erred in not imposing a mandatory fine, or making a finding of
indigency, this error does not render Mr. Jones’s sentences void.” Jones at ¶8.
{¶6} The language of R.C. 2925.03(D)(1) tracks the language in R.C.
2925.11(E)(1)(a). Thus, this Court’s reasoning in Jones is applicable to Mr. Lewis’s assignment
of error. Therefore, while the trial court erred when it failed to impose a fine, Mr. Lewis’s
sentence is not void. Jones at ¶8.
{¶7} Mr. Lewis’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE APPELLANT ASSERTS THAT THE TRIAL COURT FAILED TO
COMPLY BY THE DICTATES FOUND IN CRIMINAL RULE 32(C) IN
ORDER FOR THE JUDGMENT ENTRY TO BE A FINAL[,]
APPEALABLE ORDER[,] THUS[,] DEPRIVING THE APPELLANT
[OF] BOTH HIS RIGHTS TO DUE COURSE AND DUE PROCESS OF
LAW ACCORDING TO THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION
SIXTEEN OF THE OHIO CONSTITUTION.”
{¶8} While Mr. Lewis alleges that the trial court failed to comply with Crim.R. 32(C),
he merely reiterates his contention that his sentence is void. However, as discussed above, his
sentence is not void. Furthermore, “[a] judgment of conviction is a final appealable order under
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R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court
upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry
on the journal by the clerk of court.” State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, at
syllabus. As the trial court’s sentencing entry satisfied all of these requirements, it constituted a
final, appealable order.
{¶9} Mr. Lewis’s second assignment of error is overruled.
III.
{¶10} Mr. Lewis’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
DICKINSON, J.
CONCUR
APPEARANCES:
JEFFREY E. LEWIS, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.