Merit Decision. Re-Sentencing After Failing to Include a Mandatory Provision. State v. Moore.

On November 29, 2012, the Supreme Court handed down a merit decision in State v. Moore, 2012-Ohio-5479.  The case was argued May 23, 2012.  In a 6-1 decision authored by Justice Cupp, the Court held that the failure to include a mandatory fine in a sentence when an affidavit of indigency was not filed before the sentencing entry was journalized renders that part of the sentence void, and resentencing is limited to imposing the fine.  Justice Lanzinger dissented. 

Case background

Robert Moore was convicted of a number of felony offenses in two different cases. In both, the trial court sentenced Moore to agreed-upon prison terms, and Moore waived his right to appeal in both cases.  In both cases, the trial court’s sentencing entry stated that an affidavit of indigency having been filed, the mandatory fine was waived.  But in neither case was any affidavit of indigency filed before the sentencing entry was journalized.

Moore filed a timely notice of appeal in both cases.  The Eighth District Court of appeals dismissed both appeals because Moore had waived his appellate rights. Then Moore filed a motion in each case arguing his sentences were void because of the failure to impose the mandatory fine even though his lawyer did not file the indigency affidavits.  Moore argued both sentences were void, and the trial court should sentence him de novo and restore his appellate rights. The trial court denied the motions. The Eighth District Court of Appeals reversed in part, holding that only that portion of the sentence waiving the fine was void, and remanded the cases for resentencing in accordance with law. Read the oral argument preview of this case here, and the analysis of the oral argument here.

The Certified Conflict

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.” 

Short answer: yes.

Useful Precedent in Understanding this Decision

State v. DeLoach, 2006-Ohio-4409 (6th Dist.)

This is the case with which Moore conflicts. The appeals court held that waiving a fine without the filing of an affidavit of indigency does not render any part of that sentence void, and any error should have been addressed on direct appeal.

State v. Joseph, 2010-Ohio-954

The Supreme Court held that while the failure to notify the defendant in open court that the trial court was imposing court costs was error, it was not an error that voided the sentence because ordering payment of court costs is discretionary, not mandatory, and because court costs are civil, not criminal in nature. 

State v. Fischer, 2010-Ohio-6238,

The Supreme Court held that a sentence that fails to include post release control is void, but only the offending portion of the sentence is subject to review and correction.

State v. Harris, 2012-Ohio-1908

The Supreme 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.

State v. Billiter,  2012-Ohio-5144

The Court held that when a criminal defendant is improperly sentenced to post release control, res judicata does not bar the defendant from collaterally attacking his conviction for escape due to an earlier post release-control sentencing error.  

Position of the Parties in Moore

The prosecution argued that none of Moore’s sentence was void, but if the Court were to find 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.

The defense argued Moore’s entire sentence was void and the case had to be sent back for a complete de novo re-sentencing.

The Court agreed with the prosecution.

Moore Analysis

At oral argument, Justice McGee Brown asked right off the bat why this case wasn’t controlled by State v. Harris (which she authored and which was released just a few weeks before Moore was argued.) And Chief Justice O’Connor had commented, in what I had pegged as the key exchange of the day, that 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. Wasn’t it appropriate for the Court to incrementally extend Fischer in more situations as they are brought to the Court’s attention? And then Justice Stratton summed it all up when she comment 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.

Justice Cupp pretty much played off all this when he wrote that the Court had determined in Harris that a mandatory driver’s license suspension was analogous to post release control, in that both were criminal sanctions mandated by statute, and that the mandatory fine in Moore more closely resembled the failure to impose the driver’s license suspension in Harris and the failure to impose post release control in Fisher than the failure to impose court costs in Joseph. Fischer mandated that when a judge failed to impose a statutorily mandated requirement, only that part of the sentence was void.  Harris extended this rule to the imposition of a mandatory driver’s license suspension, and the Court held “we see no reason why it does not again control with respect to the statutorily mandated fine.” End of story.

Justice Lanzinger’s Dissent

In her dissent in Moore, Justice Lanzinger relied on her separate opinion in Billitier, to criticize what she described as “the quagmire created in the void/voidable line of cases.” She would find that mistakes in imposing sentence make the sentence merely voidable, meaning subject to reversal on direct appeal.

 Case syllabus

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. Resentencing is limited to the imposition of the mandatory fine.

 Concluding Observations

 As I wrote at the time, I thought the outcome to this case was foreordained. I wrote “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. “  And so it went.

 

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