The Supreme Court has ruled that when a trial court waives a mandatory fine from a defendant's criminal sentence based on a claim of indigency, but the defendant fails to file an affidavit of indigency before his sentence is journalized, the part of the sentence waiving the fine is void and the defendant must be resentenced to impose the mandatory fines.

The Supreme Court has ruled that when a trial court waives a mandatory fine from a defendant's criminal sentence based on a claim of indigency, but the defendant fails to file an affidavit of indigency before his sentence is journalized, the part of the sentence waiving the fine is void and the defendant must be resentenced to impose the mandatory fines.

The Supreme Court of Ohio held today that when a trial court sentencing a criminal offender waives a mandatory fine based on the offender’s claim of indigency, but the offender does not file an affidavit of indigency before the court records his sentence in its journal, the part of the offender’s sentence waiving the mandatory fine is void and resentencing is required, with the resentencing  limited to imposition of the mandatory fine.

The court’s 6-1 decision, written by Justice Robert R. Cupp, affirmed a ruling by the Eighth District Court of Appeals and resolved a conflict between decisions of the Fifth and Eighth appellate districts.

In two separate 2009 cases before the Cuyahoga County Common Pleas Court, Robert Moore was convicted of felony counts of drug trafficking and other charges. He was sentenced to prison terms totaling 13 years in the first case and nine years in the second, and in each case waived his right to appeal. Under R.C. 2925.11,  courts sentencing defendants found guilty of certain felonies including drug trafficking are required to include in the defendant’s sentence a mandatory fine specified in R.C. 2929.18, unless “prior to sentencing” the defendant files an affidavit of indigency stating that he or she is unable to pay the fine and the court affirms that the defendant is indigent.

At each of Moore’s sentencing hearings, his attorney told the court that Moore was indigent and unable to pay the mandatory fines for his offenses, and stated that an affidavit of indigency would be filed with the court.  In its sentencing orders for both cases, the court stated that court costs and fines, including mandatory fines, were waived “based on defendant’s affidavit of indigency being filed.” In both cases the court proceeded to journalize its sentencing orders omitting the mandatory fines despite the fact that Moore’s attorney had not filed an affidavit of indigency

In September 2010, Moore filed motions in the trial court seeking to vacate his sentences in both cases. He asserted that those sentences were void as a matter of law because the court had  omitted an essential element (the mandatory fine) despite the absence of an affidavit of indigency.  Accordingly, Moore argued that he was entitled to a complete new sentencing hearing and restoration of his appellate rights in each case.   The trial court denied the motions.

On review, the Eighth District Court of Appeals ruled that the trial court’s failure to impose the legally required fines without the filing of an affidavit of indigency rendered void only the part of Moore’s sentences waiving the mandatory fines, and remanded both cases for resentencing to impose the fines that had been improperly omitted.  The Eighth District later certified that its ruling in this case was in conflict with a 2006 decision, State v. DeLoach, in which the Fifth District held that the omission of a required fine from a defendant’s sentences should have been challenged on direct appeal, and that failure to immediately raise that error barred the defendant from any subsequent attack on the validity of his sentence.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the court in today’s decision, Justice Cupp agreed with the Eighth District’s conclusion that the statutory language requiring imposition of a fine for offenses like Moore’s except under specific circumstances rendered any sentence improperly omitting such a fine partially void, and required a limited resentencing.

Justice Cupp wrote: “(T)he fine is a statutorily mandated term pursuant to R.C. 2929.18(B)(1).  If the affidavit of indigency is not filed, the court ‘shall impose upon the offender a mandatory fine.’ ... However, 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.” 

“Because the fine is a statutory punishment, the trial court’s failure to impose the fine when an affidavit of indigency is not filed with the court prior to the filing of the trial court’s journal entry of sentencing renders that part of the sentence void. ... It is a long-standing principle that an offender’s sentence that does not properly include a statutorily mandated term is contrary to law.”

In determining the appropriate scope of relief for sentences that fail to include a mandatory fine, Justice Cupp cited with approval the Supreme Court’s recent holdings in State v. Fischer (2010) addressing a sentence that omitted a mandatory term of postrelease control, and State v. Harris (2012), addressing a sentence that omitted  a mandatory driver license suspension.

Justice Cupp noted that in both Fischer and Harris the court held that a defendant was not entitled to a complete resentencing, but only to limited resentencing to impose the omitted mandatory element. He wrote: “Therefore, we resolve this certified conflict by holding that a trial court’s failure to include the mandatory fine required by R.C. 2925.11(E)(1)(a) and 2929.18(B)(1) when an affidavit of indigency is not filed with the court prior to the filing of the trial court’s journal entry of sentencing renders that part of the sentence void. We further hold that resentencing of the offender is limited to the imposition of the mandatory fine.” 

Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, and Yvette McGee Brown. 

Justice Judith Ann Lanzinger entered a dissent reiterating her disagreement with recent decisions in which the court has held that omission of a required element from a criminal sentence renders that sentence “void” rather than merely “voidable” if a party raises a timely challenge to the omission on direct appeal.

Justice Lanzinger wrote:  “Yet again, the majority ignores its own limitation that State v. Fischer ... applies to ‘a discrete vein of cases:  those in which a court does not properly impose a statutorily mandated period of postrelease control.’ ... Now the majority holds that the failure to impose the mandatory fine required by R.C. 2925.11(E) and 2929.18(B)(1) when an affidavit of indigency was not filed with the court before the court journalized its sentencing entry rendered that part of the sentence void.  When will this end?  For the reasons recently expressed in my separate opinion in State v. Billiter,  I dissent.”

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2011-1664. State v. Moore, Slip Opinion No. 2012-Ohio-5479.
Cuyahoga App. Nos. 96111 and 96112, 2011-Ohio-4246. Judgment affirmed.
O’Connor, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Cupp, and McGee Brown, JJ., concur.
Lanzinger, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-5479.pdf

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