State v. Cravens

• Decision Date: 17 February 1988
• Docket Number: Nos. C-870095,C-870097,s. C-870095
• Citation: 42 Ohio App.3d 69,536 N.E.2d 686
• Parties: The STATE of Ohio, Appellant, v. CRAVENS, Appellee. The STATE of Ohio, Appellant, v. KRUSE, Appellee.
• Court: Ohio Court of Appeals

Page 69

42 Ohio App.3d 69

536 N.E.2d 686

The STATE of Ohio, Appellant, v. CRAVENS, Appellee.

The STATE of Ohio, Appellant, v. KRUSE, Appellee.

Nos. C-870095, C-870097.

Court of Appeals of Ohio, First District, Hamilton County.

Feb. 17, 1988.

Syllabus by the Court

1. The interpretation of a statute is the determination of what the statute means. The interpretation starts and ends with the words chosen by the legislature, but it is not limited to the words alone, because the whole context of the enactment must be considered.

2. The process of interpretation requires (1) a decision about the purpose to be attributed to the statute and (2) a decision about the meaning of the legislature's words that will carry out that purpose. The words have a double function: They serve as guides to discovery of the purpose, and they serve as limitations on the extent of the statute's applications. The words must be taken in their usual, normal or customary meaning.

3. A court may not suspend or reduce the "mandatory fines" required by R.C. 2925.03(H) except in the case where the court determines that the offender is indigent and unable to pay the fine.

Arthur M. Ney, Jr., Pros. Atty., and Paul R. Markgraf, for appellant.

Jack C. Rubenstein, Cincinnati, for appellees Donald E. Cravens and Brian K. Kruse.

BLACK, Judge.

In 1986, the General Assembly amended R.C. 2925.03 by adding divisions (H) through (L), providing for the imposition of mandatory fines for certain drug trafficking offenses. The single question in these two state appeals (filed by leave of court and consolidated for decision) is whether the trial court has the power to suspend a portion of the mandatory fines under R.C. 2929.51(F). ¹ We hold that the trial court has no power to suspend any portion of the mandatory fines.

In State v. Kruse, case No. C-870097, the defendant pleaded guilty on December 11, 1986 to one count of aggravated trafficking in cocaine (a violation of R.C. 2925.03[A] and a felony of the third degree), and the other two counts were dismissed. A presentence report was ordered by the trial court. At the sentencing hearing on January 6, 1987, the court imposed a sentence for a definite term of two years, suspended it, and placed the defendant on probation for five years on certain conditions not relevant in this appeal. The court specifically deferred the consideration of a fine under divisions (H) through (L) of R.C. 2925.03, asking for memoranda of counsel on the meaning of these new provisions, which had become effective August 29, 1986. On January 8, 1987, after a hearing at which the court expressed its opinion that the power to suspend a fine as granted in R.C. 2929.51(F)(1) was still "operative" because fines imposed without considering all the circumstances are arbitrary and should not be forced on a court, the trial court "modified" the prior sentencing entry by imposing a fine of $2,500, suspending $1,900 of it "in the interest of justice and the correction and rehabilitation of the offender," and ordering payment of a $600 fine. This is the order from which the prosecution appeals.

In State v. Cravens, case No. C-870095, after acceptance on January 6, 1987 of a plea of guilty to one count of aggravated trafficking in cocaine (in violation of R.C. 2925.03[A] and a felony of the second degree), followed by a presentence report, the trial court imposed a sentence of imprisonment of three to fifteen years, three years to be "actual incarceration" (not suspended), imposed a fine of $5,000, and suspended "execution" of $4,000, leaving $1,000 to be paid.

The statutory language to be interpreted is found in the following parts of R.C. 2925.03(H), (I), (J) and (L), all of which were enacted by Am.S.B. No. 67 (141 Ohio Laws, Part I, 164), effective August 29, 1986:

"(H) Notwithstanding the fines otherwise required to be imposed pursuant to section 2929.11 or 2929.31 of the Revised Code for violations of this section and notwithstanding section 2929.14 of the Revised Code:

" * * *

"(4) If the offense is aggravated trafficking and a violation of division (A)(1) of this section, or if the offense is trafficking in drugs and a violation of division (A)(3) of this section, the court shall impose a mandatory fine of two thousand five hundred dollars and, if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a mandatory fine of five thousand dollars.

" * * *

"(6) If the offense is trafficking in marihuana and a violation of division (A)(7) of this section, if the offense is trafficking in drugs and a violation of division (A)(7) of this section, or if the offense is aggravated trafficking and a violation of division (A)(2), (4), (5), or (6) of this section, the court shall impose a mandatory fine of five thousand dollars and, if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a mandatory fine of ten thousand dollars.

" * * *

"(I) When the mandatory fine imposed pursuant to division (H) of this section does not exceed the maximum fine that could be imposed pursuant to section 2929.11 or 2929.31 of the Revised Code, the court may impose an additional fine if the total of the mandatory and additional fines together does not exceed the maximum fine that could be imposed pursuant to section 2929.11 or 2929.31 of the Revised Code. When the mandatory fine exceeds the maximum fine that could be imposed pursuant to section 2929.11 or 2929.31 of the Revised Code, the court shall not impose an additional fine.

"(J) Any mandatory fine imposed pursuant to this section shall be paid to the law enforcement agencies in this state that were primarily responsible for or involved in making the arrest of, and in prosecuting, the offender. The mandatory fines shall be used to subsidize each agency's law enforcement efforts that pertain to drug offenses. Any additional fine imposed pursuant to division (I) of this section shall be disbursed as otherwise provided by law.

" * * *

"(L) No court shall impose a mandatory fine pursuant to division (H) of this section upon an offender who alleges in an affidavit filed with the court prior to sentencing that he is indigent and is unable to pay any mandatory fine imposed pursuant to that division, if the court determines that the offender is an indigent person and is unable to pay the fine." (Emphasis added.)

The statutory language used by the trial court to justify its suspension of a portion of the fines was originally enacted in 1974 (Am.Sub.H.B. No. 511 [134 Ohio Laws, Part II, 1866, 1987] ) and is now found in R.C. 2929.51:

"(F) At the time of sentencing and after sentencing, when a fine is imposed, the court may:

"(1) Suspend all or any portion of the fine, upon any conditions that the court imposes in the interests of justice and the correction and rehabilitation of the offender;

"(2) Permit payment of all or any portion of the fine in installments, or by any other method and in any time and on any terms that the court considers just, except that the maximum time permitted for payment shall not exceed two years." ² (Emphasis added.)

It is clear that in Ohio, trial judges do not have inherent power to suspend the execution of a sentence, the legislature may grant or withhold the power to suspend, and a suspension not authorized by statute shall be set aside. State, ex rel. Gordon, v. Zangerle (1940), 136 Ohio St. 371, 16 O.O. 536, 26 N.E.2d 190. It is also clear that when the legislature specifically provides for mandatory imprisonment ("actual incarceration") for a felony drug offense, the sentencing judge has no discretion to modify the period of mandatory imprisonment (R.C. 2929.51), and a convicted offender must serve the stated period. State v. Oxenrider (1979), 60 Ohio St.2d 60, 14 O.O.3d 235, 396 N.E.2d 1034 (interpreting R.C. 2925.03[E] requiring "actual incarceration" for a violation of division [A] of that statute, and R.C. 2925.01[D] defining "actual incarceration"). See Cleveland v. Scott (1983), 8 Ohio App.3d 358, 8 OBR 470, 457 N.E.2d 351 (mandatory sentences for certain liquor law violations); State v. Bonello (1981), 3 Ohio App.3d 365, 3 OBR 428, 445 N.E.2d 667 (the legislature's power to provide sentences, mandatory or otherwise, may constitutionally restrict the sentencing discretion of the trial court). This being the state of the law, our attention turns to the meaning of the statutes under consideration.

The interpretation of a statute is the determination of what the statute means. The interpretation starts and ends with the words chosen by the legislature, but it is not limited to the words alone, because the whole context of the enactment must be considered.

The process of interpretation requires (1) a decision about the purpose to be attributed to the statute and (2) a decision about the meaning of the legislature's words that will carry out that purpose. The words have a double function: They serve as guides to discovery of the purpose, and they serve as limitations on the extent of the statute's applications. The words must be taken in their usual, normal or customary meaning.

We first note that in divisions (H) through (L) of R.C. 2925.03, the General Assembly emphasized what it intended by using the phrase "mandatory fine" a total of twenty-five times. The word "mandatory" has a well-known meaning: "Imperative. Required to be done or performed. Compulsory, not a matter of discretion." Ballentine's Law Dictionary (3 Ed.1969) 771. We find in the use of "mandatory fine" the same restrictions on sentencing discretion as was meant by the use of "actual incarceration." State v. Oxenrider, supra.

The purpose and intent of the 1986 amendment are further revealed by its design and structure. First, mandatory fines are separate from the fines that may be assessed generally for felony convictions. Division (H) begins with the phrase "[n]otwithstanding the fines otherwise...