[Cite as State v. Moore,

.]

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,

,

,

, 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.”

; see, also, State v. Mock,

Mahoning App. No. 08 MA 94,

.

{¶ 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.

paragraph one of the

syllabus; see, also, State v. Shepard, Cuyahoga App. No. 95433,

, 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,

,

,

. 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),

,

, 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,

. 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,

, “‘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),

,

,

citing Colegrove v. Burns (1964),

,

. ‘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,

,

,

(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,

,

,

, ¶10, superceded by statute on other grounds as stated in

State v. Singleton,

,

,

.

{¶ 17} In State v. Fischer,

,

,

, 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