State v. Fuller
2013 Ohio 3274
Ohio Ct. App.2013Background
- John Fuller was convicted on multiple counts: felonious assault, two kidnappings, two aggravated robberies (all with firearm specifications), and having weapons while under a disability. Aggregate sentence originally totaled 17 years, including 3 years for merged firearm specifications.
- On direct appeal this court held Counts 2 (kidnapping) and 4 (aggravated robbery) were allied offenses and ordered them merged and the sentence adjusted.
- On remand the trial court merged Count 2 into Count 4 and resentenced Fuller: concurrent five-year terms on Counts 1 and 4, consecutive five years on Count 3, consecutive four years on Count 6, and a concurrent three-year term on Count 5, plus a consecutive three-year firearm specification — yielding the same 17-year aggregate term.
- At resentencing Fuller’s counsel filed an affidavit of indigency and requested waiver of court costs; the court declined to waive costs after stating it found Fuller had at least a future ability to pay (prison pay, prior work history, and good health).
- Fuller appealed, arguing (1) the trial court abused its discretion by reimposing the same total sentence after merger and remand, and (2) the court erred by denying the costs waiver without a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by reimposing the same 17-year aggregate sentence after this court ordered merger of allied offenses | State: Trial court complied with remand by merging the offenses and adjusting individual counts; reimposition of a total sentence is within discretion | Fuller: Merger should have reduced overall punishment; reimposition of same total suggests the court ignored merger and abused discretion | Court: No abuse — merger was carried out, concurrent terms do not equal merger, and remand required only merger and adjustment which was done |
| Whether the trial court erred by denying waiver of court costs without an evidentiary hearing | State: Trial court has discretion to impose or waive costs and may deny waiver after considering circumstances | Fuller: Request for waiver (affidavit of indigency) required the court to consider present/future ability to pay and to receive evidence before imposing costs | Court: No error — R.C. requires costs be imposed absent waiver, trial court may waive but is not required to; court need not follow R.C. 2929.19 financial-sanction procedure for court costs and denial without hearing was not an abuse of discretion |
Key Cases Cited
- State v. Damron, 129 Ohio St.3d 86 (trial court’s imposition of concurrent sentences does not equal merger of allied offenses)
- State v. Jones, 78 Ohio St.3d 12 (appellate duty to reverse unmerged allied-offense convictions even if concurrent sentences were imposed)
- State v. Joseph, 125 Ohio St.3d 76 (trial court may waive court costs but is not required to)
- State v. White, 103 Ohio St.3d 580 (R.C. requires imposition of court costs on convicted defendants)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157 (abuse-of-discretion/sound-reasoning-process standard for reviewing discretionary decisions)