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

Read the analysis of the oral argument in this case here.

On May 23, the Supreme Court of Ohio will hear 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.” 

In 2009, Robert Moore pled guilty to drug trafficking with a firearm specification. The trial court waived the mandatory fine required by 2929.18(B)(1), noting in the sentencing entry that an affidavit of indigency “ was being filed.”  In a separate case, Moore was convicted of drug possession, drug trafficking and carrying concealed weapons. In its entry, the trial court again noted the affidavit of indigency “was being filed” and again waived the mandatory fine. As part of the agreed-upon sentence, Moore waived his appellate rights.

Moore tried to appeal in September 2009, but both of his appeals were dismissed because of the waiver of appellate rights. A year later, Moore moved to vacate and void the sentence in both cases, arguing that the sentences were void because his lawyer never filed the affidavit of indigency, so the trial court was required to impose the mandatory fine. Thus, Moore argued that the trial court should void the sentences, re-sentence him de novo and restore his appellate rights. The trial court denied the request.

The Eighth District Court of Appeals agreed with Moore in part. It explained that the trial court had relied on Moore’s attorney’s assurances that he would file an affidavit of indigency. But because no affidavit was filed before the entry of the sentencing decision, the trial court was required to impose the statutorily mandated fine. Its failure to do so rendered void that part of the sentence waiving the fine. The Court of Appeals vacated that part of the sentence and remanded for resentencing in part. The Court noted a conflict with the Ninth District’s decision in State v. Deloach, 2006-Ohio-4409.

 The State concedes that the trial court did not strictly follow R.C. 2929.18(B)(1), but first argues that no part of Moore’s sentence is void. The trial court’s actions were not an attempt to disregard statutory requirements (which would render the sentence void). If the Court finds that a waiver of the mandatory fine without the filing of  the affidavit of indigency is error, that error does not render the entire sentence void—only the portion of the sentence involving the fine.

Moore argues for a strict reading of the statute, which requires an affidavit of indigency be filed with the court prior to sentencing. Because no such affidavit was filed, the trial court had no discretion  to waive the fine, and the fine was mandatory. The failure to impose a mandatory part of a criminal sentence renders that sentence entirely void, not just partially void.

Student Contributor: Greg Kendall