When a trial court decides not to impose a sentence  for a minor misdemeanor, it must clearly state in the judgment of conviction that no sentence is imposed before the convicted person can file an appeal, the Ohio Supreme Court ruled today.

The Supreme Court ruled on a Hamilton County trial court’s issuance of a judgment of conviction that imposed court costs but omitted any reference to a fine or other sanction. The case concerned a man convicted of failure to maintain reasonable control of his vehicle. The Court decided the decision could not be appealed because the trial court’s ambiguously worded order did not include a reference its decision not to impose a sentence.

Writing for the Court majority, Chief Justice Maureen O’Connor stated that when a trial court decides not to impose a sentence for a minor misdemeanor, a judgment of conviction cannot be appealed unless it contains a statement indicating that no sentence would be imposed.

Justices Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the chief justice’s opinion. Second District Court of Appeals Judge Jeffrey M. Welbaum, sitting for Justice Patrick F. Fischer, also joined the opinion. Justice Sharon L. Kennedy concurred in judgment only, arguing that state law requires a trial judge to impose a financial penalty or community service for a minor misdemeanor.

Appeal Stems from Car Accident
Gregory White was involved in a multi-car accident in the early morning hours of Jan. 1, 2016, and was charged with three misdemeanors. One first-degree misdemeanor — driving under suspension — was resolved by a plea agreement. He also was found guilty of first-degree misdemeanor failure to stop after an accident, and the minor misdemeanor of failure to control.

For the failure-to-control conviction, the trial court had the authority to impose a financial sanction, such as a fine of up to $150, and to order up to 30 hours of community service. It also had discretion not to impose any sanction. The judgment of conviction included several short statements: “finding guilty,” “local costs,” and “stay of sentence granted pending appeal.” White appealed his convictions. Because White’s conviction for failure to stop after an accident was contained in a separate judgment of conviction, White’s appeal of that conviction was separate from his appeal of the failure-to-control conviction.

The First District Court of Appeals dismissed his failure-to-control appeal, finding that the judgment of conviction did not impose any sentence, so there was no final, appealable order. It noted that in established law a judgment of conviction that can be appealed must include four items: the fact of the conviction, the sentence, the judge’s signature, and a time stamp indicating the conviction entry in the clerk of courts’ journal. The First District noted that court costs are not considered criminal punishment and are not part of a sentence.

White appealed to the Supreme Court, which agreed to hear the case.

Implications of Costs-Only Ruling Expressed
White argued that under the failure-to-control statute a court is not required to impose any sentence, so it should not be required to do so for its ruling to be considered final and appealable. White also pointed to several secondary harms that would allegedly result if the First District’s ruling stands, such as defendants being unable to have the records of their convictions sealed  and defendants seeking recovery of court costs.

Prosecutors for the state argued that trial courts must follow Criminal Rule of Procedure 32(C) and the Ohio Supreme Court’s 2011 State v. Lester decision, both of which require a judgment of conviction to include a statement concerning the sentence for the judgment to final and appealable. The prosecutors agreed with White that no financial sanction had to be imposed under the statute at issue here, but the state took the position that where the court decided not to impose any sentence, the judgment of conviction had to make that clear. For example, the judgment of conviction could state “$0 fine,” “no fine,” or “waived fine.”

Citing Lester, the Supreme Court sided with the state and affirmed the First District. The Court found the statements made in the judgment of conviction were ambiguous. The Court noted that costs are not part of the sentence, and regarding the “pending appeal” language, the court stated the trial judge may have meant the payment of the court costs were stayed pending White’s appeal.

“Additionally the entry’s silence regarding a monetary or community-service sentence may imply that the court had exercised its discretion not to impose a sentence. But implication is not enough. A trial court’s decision to exercise its discretion should not be communicated in the judgment of conviction passively — let alone ambiguously — through suggestion or implication,” the opinion stated.

The Court stated that ambiguous wording undermines the purpose of Crim.R. 32(C), which is to ensure a defendant is on notice that the judgment of conviction has been entered and the time to file an appeal has begun. The Court wrote that “no magic words” are required to express the court’s decision not to impose a fine or sanction, but the court must be clear in its entry. The Court cited the examples suggested by the prosecutors, such as “no fine” or “fined waived.”

Concurrence Finds Sanction Required
In her concurring opinion, Justice Kennedy agreed that a judgment of conviction that does not include a sentence cannot be appealed but determined that under R.C. 2929.28, the trial court lacks discretion not to impose a sentence for a minor misdemeanor.

She explained that judges have the power to impose only a sentence that is authorized by statute, but no statute has authorized the court to waive or suspend the fine imposed for a minor misdemeanor. And although R.C. 2929.28 permits the trial court to impose “any financial sanction or combination of financial sanctions,” she continued, it also states that community service may be imposed “in lieu of or in addition to imposing a financial sanction.” Because “in lieu of” means “in place of,” she reasoned that “the court may impose financial sanctions, a term of community service, or both.”

The concurrence pointed out that a “sentence” is a “sanction or combination of sanctions,” so that by definition a court cannot impose a sentence if it does not impose a sanction. Justice Kennedy therefore concluded that the statute requires the court to impose some amount of fine greater than zero or it may as an alternative order community service, but it “lacks discretion to impose no punishment at all.”

2017-1292. State v. White, Slip Opinion No. 2019-Ohio-1215.

View oral argument video of this case.

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