State v. Russell , 2012 Ohio 2336 ( 2012 )

[Cite as State v. Russell, 2012-Ohio-2336.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24802
Plaintiff-Appellee :
: Trial Court Case No. 2011-CR-1758
v. :
: (Criminal Appeal from
RANDALL L. RUSSELL : (Common Pleas Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 25th day of May, 2012.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. #0074057, 120 West Second Street, Suite 400, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Randall Lee Russell appeals from his conviction and sentence following a
guilty plea to a charge of operating a motor vehicle while under the influence of alcohol
2
(OVI).
{¶ 2} In his sole assignment of error, Russell contends the trial court abused its
discretion in imposing a mandatory fine as part of his third-degree felony OVI sentence.
Because he filed a pre-sentence affidavit of indigency and the trial court found him indigent,
Russell claims the trial court should not have imposed a $1,350 fine.
{¶ 3} In support of his argument, Russell relies on R.C. 2929.18(B)(1), which
provides in part: “If an 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 if the court determines
the offender is an indigent person and is unable to pay the mandatory fine described in this
division, the court shall not impose the mandatory fine upon the offender.”
{¶ 4} Upon review, we find Russell’s argument to be without merit. Another
provision, R.C. 2929.18(B)(3), states that “[f]or a fourth degree felony OVI offense and for a
third degree felony OVI offense, the sentencing court shall impose upon the offender a
mandatory fine in the amount specified in division (G)(1)(d) or (e) of section 4511.19 of the
Revised Code, whichever is applicable.” In turn, R.C. 4511.19(G)(1)(e)(iii) makes clear that
the fine required by R.C. 2929.18(B)(3) for a third-degree felony OVI offense cannot be
waived. It states that a person convicted of third-degree felony OVI shall receive a sentence
that includes “[i]n all cases, notwithstanding Section 2929.18 of the Revised Code, a fine of
not less than one thousand three hundred fifty * * * dollars.” (Emphasis added.) See State v.
Whalen, 2d Dist. Montgomery No. 19783, 2003-Ohio-6539 (holding that a fine is required for
a fourth-degree felony OVI offense even when an offender is indigent).
{¶ 5} On the authority of R.C. 4511.19(G)(1)(e)(iii), and this court’s decision in
3
Whalen, we overrule Russell’s assignment of error and affirm the judgment of the
Montgomery County Common Pleas Court.
.............
GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Lucas W. Wilder
Hon. Michael Tucker