State v. Moore
2011 Ohio 4246
Ohio Ct. App.2011Background
- Moore pled guilty in Case No. CR-525878 to drug trafficking with a one-year firearm specification; trial court imposed nine years under an agreed sentence.
- Moore was also convicted in Case No. CR-521078 of drug possession, trafficking, and carrying concealed weapons; an agreed sentence of 13 years was imposed.
- The sentencing entries stated that Moore waived appellate rights and that fines were waived due to an affidavit of indigency, though no affidavit was filed.
- Moore timely appealed in both cases; this court dismissed the appeals because the sentences appeared to include a waiver of appellate rights.
- Moore moved to vacate his sentences in September 2010, arguing the mandatory fines under R.C. 2925.11(E) and 2929.18(B) were not imposed and no indigency affidavit was filed; the trial court denied the motions.
- The court vacated the portion of the sentences waiving the mandatory fines and remanded for resentencing consistent with R.C. 2929.18(B)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to impose the mandatory fines voids the sentence | Moore argues no affidavit was filed and fines were not imposed, rendering the sentence void | State concedes no affidavit was filed but contends the sentence is not entirely void | Partial voiding; void only the portion waiving the mandatory fine, remanded for resentencing |
| Whether an indigency affidavit must be filed before sentencing to avoid fines | Moore contends no indigency affidavit existed, so fines should have been imposed | State asserts nothing to impose fines is procedurally permissible if irreparable error occurred | Affidavit must be filed prior to the journal entry; absence renders the fine-imposing requirement void |
| Whether only the void portion should be vacated under Fischer | Moore seeks total vacation of sentences | State relies on DeLoach and related cases for permissible correction | Only the void portion (mandatory fine waiver) vacated; remainder of sentence affirmed and remanded for resentencing |
| Whether appellate rights should be restored upon resentencing | Moore seeks restoration of appellate rights after resentencing | State argues no restoration due to partial voiding | Appellate rights not restored; focus on correcting the void sentencing component |
| Whether the court can correct the sentence without voiding the entire judgment | Moore emphasizes a complete voiding is warranted | State argues targeted correction suffices | Correct approach per Fischer: only void portion remanded for targeted resentencing |
Key Cases Cited
- State v. Gipson, 80 Ohio St.3d 626 (1998-Ohio-659) (affidavit of indigency prior to sentencing required to avoid mandatory fines)
- State v. Mock, 2010-Ohio-2747 (2010-Ohio-2747) (indigency determination and timing considerations for fines)
- State v. Fields, 183 Ohio App.3d 647 (2009-Ohio-4187) (void sentence where statutorily mandated fines not imposed due to lack of indigency affidavit)
- State v. Lisboa, 2008-Ohio-571 (2008-Ohio-571) (statutory penalties cannot be overridden; void sentence if required term not included)
- State v. Beasley, 14 Ohio St.3d 74 (1984) (sentence void when it does not contain statutorily mandated term)
- State v. Bezak, 114 Ohio St.3d 94 (2007-Ohio-3250) (sentence is void if statutorily mandated terms are omitted)
- State v. Fischer, 128 Ohio St.3d 92 (2010-Ohio-6238) (when a sentence is void in part, only void portion may be vacated or amended)