[Cite as State v. Webb,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 14 CA 85 BURKE W. WEBB, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 73R

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 17, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BAMBI COUCH PAGE CASSANDRA J. M. MAYER PROSECUTING ATTORNEY 452 Park Avenue West 38 South Park Street Mansfield, Ohio 44906 Mansfield, Ohio 44902 Richland County, Case No. 14 CA 85 2

Wise, J.

{¶1} Appellant Burke Webb, Jr. appeals the October 7, 2014, Judgment Entry

of the Richland County Court of Common Pleas denying the waiver of the mandatory

fine.

{¶2} Appellee is State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On January 24, 2014, Appellant Burke Webb was charged with Trafficking

in Drugs, a felony of the third degree, in the Mansfield Municipal Court. Appellant

waived his right to a preliminary hearing and the case was bound over to the Richland

County Common Pleas Court on February 7, 2014.

{¶4} On March 7, 2014, Appellant was indicted by the Grand Jury and the

indictment was filed with the Court.

{¶5} On June 25, 2014, Appellant, through counsel, agreed to a plea

agreement and changed his plea to guilty to the second count of the indictment. The

entry reflecting that change of plea was filed with the Court on June 27, 2014.

{¶6} On August 6, 2014, at approximately 1:00 p.m., the trial court sentenced

Appellant.

{¶7} At approximately 2:25 p.m. on August 6, 2014, after the trial court had

concluded Appellant's sentencing hearing, Appellant filed a Financial Disclosure/

Affidavit of Indigency form with the Clerk of Courts.

{¶8} The Judgment Entry through which the sentence was imposed was filed

by the Clerk of Courts on August 7, 2014. Richland County, Case No. 14 CA 85 3

{¶9} No appeal was taken from that Judgment Entry until a Motion for Delayed

Appeal was filed with this Court.

{¶10} On September 17, 2014, Appellant filed a Motion for Judicial Release and

a Motion to Waive Mandatory Fine.

{¶11} On September 26, 2014, the State filed its response to Appellant’s

Motions.

{¶12} By Judgment Entry filed October 7, 2014, the trial court denied

Appellant's request in each of them.

{¶13} On November 7, 2014, Appellant filed his Request for Delayed Appeal

and Notice of Appeal with this Court based upon the trial court denying the waiver of the

mandatory fine.

{¶14} Appellant raises the following error for review:

ASSIGNMENT OF ERROR

{¶15} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A MANDATORY

FINE OF $5,000.00, AS DEFENDANT DEMONSTRATED HIS INDIGENCE WITH AN

AFFIDAVIT FILED WITH THE COURT AT THE TIME OF SENTENCING AND THE

COURT FURTHER ERRED WHEN COURT COSTS WERE ORDERED TO BE PAID

IN THE SENTENCING ENTRY WHEN SAME WAS NOT ORDERED ON THE

RECORD.”

I.

{¶16} In his sole Assignment of Error, Appellant argues that the trial court erred

in imposing a mandatory fine and costs as part of his sentence. We disagree.

{¶17} R.C. §2929.18(B) governs mandatory fines. R.C. §2929.18(B)(1) states Richland County, Case No. 14 CA 85 4

that “[f]or a first, second, or third degree felony violation of any provision of Chapter

2925 * * * of the Revised Code, the sentencing court shall impose upon the offender a

mandatory fine of at least one-half of, but not more than, the maximum statutory fine

amount authorized for the level of the offense pursuant to division (A)(3) of this section.”

The maximum fine for a felony of the third degree is $5,000.00.

{¶18} R.C. §2929.18(B)(1) further states 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. State v. Gipson,

,

(1998).

{¶19} In the present case, Appellant did not file his affidavit of indigency prior to

sentencing. The record does not show the trial court determined Webb was an indigent

person and was unable to pay the mandatory fine based on an affidavit of indigency

filed prior to sentencing.

{¶20} In State v. Slagle, 5th Dist. Richland No. 12CA62, 2013–Ohio–230, this

Court held that it was error for a trial court to vacate a mandatory fine based on an

affidavit of indigency filed after sentencing. We determined the issue of the mandatory

fine was res judicata.because the appellant in Slagle, unlike the Appellant herein, did

not appeal his sentence that imposed the mandatory fine. We relied upon State v.

Perry,

, 176 to find Appellant's claim was barred by res judicata:

Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and Richland County, Case No. 14 CA 85 5

litigating in any proceeding except an appeal from that judgment, any

defense or any claimed lack of due process that was raised or could have

been raised by the defendant at the trial, which resulted in that judgment

of conviction, or on an appeal from that judgment.

{¶21} We further held in Slagle the trial court was without jurisdiction to vacate

its own valid final judgment. Slagle at ¶ 9. The exceptions to that rule are to (1) correct a

void sentence or (2) to correct a clerical error. Id. at ¶ 9.

{¶22} Here, at the time of sentencing, the trial court's imposition of the

mandatory fine was valid because Appellant failed to file an affidavit of indigency prior to

sentencing pursuant to R.C. §2929.18(B)(1).

{¶23} Further, Ohio law does not prohibit a court from imposing a fine on an

“indigent” defendant. That is, the filing of an affidavit of indigency does not automatically

entitle a defendant to a waiver of a mandatory fine. State v. Knox, 8th Dist. Cuyahoga

Nos. 98713 and 98805, 2013–Ohio–1662, ¶ 36. Under Ohio law, a trial court must

impose a mandatory fine unless (1) the offender files an affidavit of indigency prior to

sentencing, and (2) “the trial court finds that the offender is an indigent person and is

unable to pay the mandatory fines.” State v. Gipson,

,

(1998). In making its indigency determination, the court must consider both

the offender's present and future ability to pay the fine. R.C. §2929.19(B)(5).

{¶24} Additionally, the trial court need not make an “affirmative finding that an

offender is able to pay a mandatory fine.” Id. at 635. Instead, “the burden is upon the

offender to affirmatively demonstrate that he or she is indigent and is unable to pay the

mandatory fine.” Id. We review the trial court's decision to impose a fine on an indigent Richland County, Case No. 14 CA 85 6

defendant for an abuse of discretion. State v. Ficklin, 8th Dist. Cuyahoga No. 99191,

2013–Ohio–3002, ¶ 5. An abuse of discretion implies that the trial court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶25} Appellant's sole Assignment of Error is not well-taken and hereby overrule

same.

{¶26} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

JWW/d 0730