State v. Moore

[Cite as State v. Moore, 2011-Ohio-4246.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 96111 and 96112
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT MOORE, III
DEFENDANT-APPELLANT
JUDGMENT:
SENTENCE VACATED IN PART;
REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-525878 and CR-521078
BEFORE: Keough, J., Kilbane, A.J., and Jones, J.
RELEASED AND JOURNALIZED: August 25, 2011
FOR APPELLANT
Robert Moore, III, pro se
Inmate No. 572-298
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} In these consolidated appeals, defendant-appellant, Robert
Moore, III, pro se, appeals from the trial court’s judgments denying his
motions to vacate his sentences. For the reasons that follow, we vacate
Moore’s sentences in part and remand with instructions to the trial court to
resentence Moore in accord with R.C. 2929.18(B)(1).
I
{¶ 2} In August 2009, Moore pled guilty in Case No. CR-525878 to drug
trafficking in violation of R.C. 2925.03(A)(1), a second degree felony, with a
one-year firearm specification. The trial court sentenced him to an
agreed-upon sentence of nine years incarceration. In its sentencing entry,
the trial court noted “affidavit of indigency being filed” and, hence, the court
waived the mandatory fine required under R.C. 2929.18(B)(1).
{¶ 3} Likewise, in Case No. CR-521078, Moore was convicted in
August 2009 after a jury trial of drug possession in violation of R.C. 2925.11
with firearm and forfeiture specifications; drug trafficking in violation of R.C.
2925.03 with firearm and forfeiture specifications; and carrying concealed
weapons in violation of R.C. 2923.12. The trial court sentenced Moore to an
agreed sentence of 13 years incarceration. The trial court’s journal entry
stated that Moore had waived his appellate rights; it further stated that
“based on defendant’s affidavit of indigency being filed, fine and costs are
waived including mandatory fines.”
{¶ 4} In September 2009, Moore filed timely notices of appeal in both
cases; this court subsequently dismissed the appeals because the trial court’s
sentencing entry indicated that as part of the agreed-upon sentences, Moore
had waived his appellate rights.
{¶ 5} Nearly a year later, on September 3, 2010, Moore filed a “motion
to vacate and void sentence” in both cases. In his motion, Moore argued that
his sentence in each case was void because the trial court had not imposed the
mandatory fine required by R.C. 2925.11(E) and 2929.18(B), and counsel had
never filed the affidavit of indigency that would have allowed Moore to avoid
the fine. Thus, Moore contended that his sentence in each case should be
vacated in its entirety and the trial court should resentence him de novo and
restore his appellate rights. The trial court denied Moore’s motions.
{¶ 6} Moore filed separate notices of appeal and merit briefs in both
cases. This court sua sponte consolidated the appeals for purposes of hearing
and disposition because the merits briefs are identical and raise the same
assignment of error and issues of law.
II
{¶ 7} R.C. 2925.11 directs a trial court to impose all mandatory fines
specified for a particular crime, unless the court determines that the
defendant is indigent. R.C. 2929.18(B)(1) provides, in relevant part:
{¶ 8} “For a first, second, or third degree felony violation of any
provision of Chapter 2925, * * * the sentencing court shall impose upon the
offender a mandatory fine * * *. If an offender alleges in an affidavit filed
with the court prior to sentencing that the offender is indigent and unable to
pay the 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.”
{¶ 9} In State v. Gipson, 80 Ohio St.3d 626, 1998-Ohio-659, 687 N.E.2d
750, the Supreme Court found that “R.C. 2929.18(B)(1) clearly requires that a
sentencing court shall impose a mandatory fine upon an offender unless (1)
the offender alleges in an affidavit filed with the court prior to sentencing
that the offender is indigent and unable to pay the mandatory fine, and (2)
the court determines that the offender is in fact an indigent person and is
unable to pay the mandatory fine.” Id. at 631; see, also, State v. Mock,
Mahoning App. No. 08 MA 94, 2010-Ohio-2747, ¶60.
{¶ 10} The Gipson Court further found that although the phrase “prior
to sentencing” suggests that a defendant must file his affidavit prior to the
sentencing hearing to invoke the statutory procedure for avoiding the
mandatory fine, an affidavit of indigency may be properly filed with the clerk
of court and time stamped at any time prior to the filing of the trial court’s
journal entry reflecting the sentencing decision. Id., paragraph one of the
syllabus; see, also, State v. Shepard, Cuyahoga App. No. 95433,
2011-Ohio-2525, ¶8, citing Gipson.
{¶ 11} In his single assignment of error, Moore argues that although
defense counsel asserted at sentencing that Moore had signed an affidavit of
indigency and counsel would file a motion to waive the mandatory fine, he
never signed such an affidavit and no affidavit of indigency was ever filed
with the court. Therefore, Moore contends that the trial court was required
to impose the mandatory fine under R.C. 2925.11(E) and 2929.18(B)(1), and
the trial court’s failure to follow the statutory requirements renders his entire
sentence void.
{¶ 12} Moore asks us to follow the reasoning adopted by the First
District in State v. Fields, 183 Ohio App.3d 647, 2009-Ohio-4187, 918 N.E.2d
204. Fields was convicted upon guilty pleas to cocaine possession and having
a weapon under a disability and sentenced to five years incarceration. On
appeal, the court held that his sentence for cocaine possession was void
because the trial court did not include the statutorily mandated fine in the
sentence. The appellate court found that Fields had not filed an affidavit of
indigency and the trial court had made no finding concerning Fields’s
indigency or his ability to pay. Thus, the court held that “R.C. 2925.11(E)
and 2929.18(B)(1) required the trial court to impose the fine.” Id., ¶7, citing
Gipson, supra.
{¶ 13} The First District found that “[a]ny attempt by a court to
disregard statutory requirements when imposing a sentence renders the
attempted sentence a nullity or void,” Id., ¶8, citing State v. Beasley (1984),
14 Ohio St.3d 74, 75, 471 N.E.2d 774, and that Fields’s sentence was
therefore void because it did not contain the statutorily mandated fine. The
court vacated Fields’s sentence and remanded the case for a new sentencing
hearing. Moore suggests that this court do the same here.
{¶ 14} The State, on the other hand, concedes that an affidavit of
indigency was never filed in either case, despite counsel’s assurances that he
would do so, but argues that Moore’s sentences are not void. The State asks
us to adopt the reasoning of the Ninth District in State v. DeLoach, Lorain
App. No. 05CA008858, 2006-Ohio-4409. In DeLoach, the defendant entered
a guilty plea to various drug charges. The trial court imposed and then
suspended the mandatory drug fines. Nearly eight years later, after it
learned that the sheriff’s office was holding approximately $3000 that
belonged to the defendant, the State filed a motion to reinstate the mandatory
fines. The trial court denied the motion, finding that it lacked jurisdiction to
address the issue. Id., ¶2-3.
{¶ 15} On appeal, the State argued that the trial court erred in denying
the motion because DeLoach’s sentence was void because the trial court failed
to impose the mandatory fines where an affidavit of indigency had not been
filed, and a trial court has jurisdiction to correct a void sentence. The Ninth
District rejected this argument. It agreed that the trial court had erred in
suspending the mandatory fine because DeLoach had not filed an affidavit of
indigency, but held that such error did not render the sentence void. Id., ¶5.
It further held that any error in the procedure utilized by the trial court for
imposing the fine was a matter for direct appeal, and to hold otherwise would
allow the State to exploit the trial court’s error nearly eight years after it was
committed. Id., ¶6. This court believes the reasoning set forth in Fields is
the better approach. In light of Gipson, it is clear that an affidavit of
indigency must be filed prior to the filing of the trial court’s journal entry of
sentencing. Here, no such affidavit was ever filed in either case.
Accordingly, under R.C. 2925.11(E) and 2929.18(B)(1), the trial court was
required to impose the mandatory fine and its failure to do so rendered that
part of Moore’s sentence waiving the fine void.
{¶ 16} As this court stated in State v. Lisboa, Cuyahoga App. No. 89283,
2008-Ohio-571, “‘Crimes are statutory, as are the penalties therefor, and the
only sentence which a trial judge may impose is that provided for by statute *
* *. A court has no power to substitute a different sentence for that provided
for by law.’ State v. Beasley (1984), 14 Ohio St.3d 74, 75, 471 N.E.2d 774,
citing Colegrove v. Burns (1964), 175 Ohio St. 437, 195 N.E.2d 811. ‘Any
attempt by a court to disregard statutory requirements when imposing a
sentence renders the attempted sentence a nullity or void.’ Id.” See, also,
State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶10
(sentence is void when it does not contain a statutorily mandated term). “A
trial court’s judgment over a criminal case is limited after it renders
judgment, but it retains jurisdiction to correct a void sentence and is
authorized to do so.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197,
884 N.E.2d 568, ¶10, superceded by statute on other grounds as stated in
State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.
{¶ 17} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, the Ohio Supreme Court clarified that when an appellate court
concludes that a sentence imposed by a trial court is void in part, only the
portion that is void may be vacated or otherwise amended. Id., ¶28. Moore
challenges only that part of his sentence in each case waiving the mandatory
fine and we find error only with respect to that part of his sentence. Thus,
Moore’s assertion that his sentence in each case should be vacated in toto due
to the trial court’s sentencing error regarding the mandatory fine is without
merit. Likewise, any assertion that his appellate rights should be restored
upon resentencing is without merit.
{¶ 18} The trial court denied Moore’s motions to vacate his sentence
because, it stated, “[t]his court was not attempting to disregard a statutory
requirement and relied on defense counsel to follow through with what he
promised to do on the record.” Hence, it apparently concluded that despite
its failure to impose the statutorily required fine, that part of Moore’s
sentence waiving the fine was not void. We agree that in waiving the
mandatory fine, the trial court relied on defense counsel’s assurance that he
would file an affidavit of indigency. Nevertheless, no such affidavit was filed
prior to entry of the trial court’s sentencing decision, and therefore, under
R.C. 2929.18(B)(1), the trial court was required to impose the statutorily
mandated fine. Because it did not do so, that part of Moore’s sentence
waiving the mandatory fine is void. Accordingly, we vacate the part of
Moore’s sentence waiving the mandatory fine and remand for resentencing in
both cases consistent with R.C. 2929.18(B)(1).
{¶ 19} Moore’s assignment of error is sustained in part; sentence vacated
in part; remanded for resentencing in part.
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 issue out of this court directing the
common pleas 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, J., CONCUR