What’s on Their Minds: What is the Effect of a Waiver of a Fine in a Sentence for an Offense with a Mandatory Fine if no Affidavit of Indigency is Filed Prior to Sentencing? State v. Moore.

Update: On November 29, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On May 23, the Supreme Court of Ohio heard oral argument in the case of State v. Robert Moore, 2011-1664. The Court accepted the case on conflict certification. The certified question is “whether a trial court’s failure to impose the statutorily mandated fine required by R.C. 2925.11(E) and 2929.18(B)(1) when no affidavit of indigency is filed with the clerk of court prior to the filing of the trial court’s journal entry of sentencing renders that part of the sentence waiving the fine void.” 

The felony offenses to which Moore pled guilty required the imposition of a mandatory fine.  Relying on defense counsel’s representation that an affidavit of indigency was going to be filed, the Court waived the mandatory fine.  No affidavit of indigency was ever filed before the sentencing entry was journalized. Moore argued this voided his entire sentence, and he should be sentenced de novo.  The trial court disagreed.  The Eighth District Court of Appeals reversed in part, holding that only that portion of the sentence waiving the fine was void. Read the oral argument preview of this case here.

The Oral Argument

There really wasn’t much to this. At times, the state’s argument was quite confusing.  Essentially, the prosecutor argued that  none of Moore’s sentence was void, but if the Court finds that a waiver of the mandatory fine without the filing of the affidavit of indigency is error, the entire sentence is not void, but only the portion of the sentence involving the fine. When the prosecutor opened his argument with the line that the issue in the case was whether the improper waiver of a mandatory fine makes a sentence void or voidable, the justices began to laugh, but told the prosecutor not to worry, it was an inside joke. I’m guessing the Court has gone round and round on that question recently.

Moore’s attorney argued that the entire sentence was void, and the case must be sent back for a complete de novo resentencing. She asked the Court not to follow its line of cases voiding only the incorrect portion of a sentence, because a totally void sentence allows for more complete appellate review and encourages courts to take into account all relevant factors and to impose mandatory conditions at the first opportunity.

Recent Precedent

Two  recent Ohio Supreme Court cases will likely determine the outcome of this one.

In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Court held that a sentence that fails to include postrelease control is void, but  only the offending portion of the sentence is subject to review and correction.  And in State v. Harris, 2012-Ohio-1908 , just decided May 3, the Court held that when a trial court fails to include a mandatory driver’s license suspension as part of an offender’s sentence, that part of the sentence is void, and  resentencing is limited to the imposition of the  mandatory driver’s license suspension.

What Was on Their Minds

 Justice Stratton really summed it all up when she commented that the current line of cases in this area of law have pretty well clarified that only the offending portion of a sentence would be void, and sent back for resentencing.  Defense counsel said she did not entirely agree with this, because Fischer was limited only to post release control, and Harris did not overrule Fischer.

The Affidavit of Indigency

Was one ever filed in this case, Justice Stratton asked.

Chief Justice O’Connor asked whether the state would have any objection to the trial court considering such an affidavit if the case is remanded, instead of considering it initially at sentencing? (answer-no objection) (Presumably the affidavit would be properly filed before re-sentencing this time). 

Isn’t this case controlled by State v. Harris?

Asked Justice McGee Brown (who wrote  Harris), right off the bat,  Later, Justice O’Donnell asked the same thing, and  asked whether there was anything to write in this case, or  should the Court just send it back to consider in light of Harris. Justice Stratton noted if the court were to void the sentence in this case, under Harris only the portion of the sentence regarding the mandatory fine need be voided.

And How About Fischer?

In the key exchange of the day, Chief Justice O’Connor asked, if the Court were simply to extend Fischer to mandatory fines, wouldn’t such a decision be in keeping with the line of cases that had developed since Fischer. Isn’t it appropriate for the Court to incrementally extend Fischer in more situations as they are brought to the Court’s attention? Isn’t that what courts do?

How it Looks from the Bleachers

When the Court decided Harris just a few weeks ago, it wrote “we find the same logic in Fischer to be controlling when it comes to other statutorily mandatory terms.”  I think the outcome here is foreordained.  I think the Court will extend and apply the holdings in Fischer and Harris to statutory mandatory fines–void only the part of the sentence that’s bad and correct only that part on resentencing.  

Student Contributor Greg Kendall disagrees.  He thinks the Court seemed confused about how to apply all the case law. The justices seemed less sympathetic to the State’s view and will probably hold, as Justice O’Connor explained, that the imposition of the fine here was mandatory without the affidavit, and therefore the entire sentence is void.





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