[Cite as State v. Webb, 2015-Ohio-3318.]
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, 80 Ohio St.3d 626,
631, 687 N.E.2d 750 (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, 10 Ohio St.2d 175, 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, 80 Ohio St.3d 626, 634, 687
N.E.2d 750 (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, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (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