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State v. Whalen11/26/2003
. Michael Whalen entered a plea of guilty to driving under the influence of alcohol, a fourth degree felony (due to Whalen's having been convicted of DUI three other times within the six years preceding this offense).
. The trial court sentenced Whalen to thirty months incarceration and fined him $1,500. The trial court also ordered "mandatory drug and alcohol treatment" when Whalen is released from prison.
. On appeal, Whalen advances three assignments of error.
. "1. THE TRIAL COURT ERRED IN FAILING TO FIND APPELLANT INDIGENT AND IN NOT SUSPENDING ANY FINE IMPOSED."
. Whalen contends that the trial court erred in not suspending the $1,500 fine because he is indigent.
. He points to the facts that he was and is represented by appointed counsel, that he lost his machinist's job when he was locked up on this offense, that his car was forfeited, that his driver's license was suspended for ten years, and that he will be incarcerated for thirty months.
. He claims that the trial court's failure to suspend the fine was an abuse of discretion.
. R.C. 4511.99(A)(4)(a)(iii), which applies to this fourth degree felony DUI, provides:
. "In addition to all other sanctions imposed on an offender under division (A)(4)(a)(i) or (ii) of this section, the court shall impose upon the offender, pursuant to section 2929.18 of the Revised Code, a fine of not less than eight hundred nor more than ten thousand dollars."
. The identical issue raised by this assignment was considered by the Court of Appeals for Lake County in State v. Cottrell (Nov. 5, 1999), Lake App. No. 98-L-220. Cottrell interpreted an earlier version of R.C. 4511.99(A)(4)(a) but - for purposes of this assignment - the only difference between the two versions was that the minimum fine prescribed by the earlier version was $750. Cottrell stated:
. "R.C. 2929.18(B)(3) applies to the instant matter, and states:
. "`For a fourth degree felony OMVI offense, the sentencing court shall impose upon the offender a mandatory fine in the amount specified in division (A)(4) of section 4511.99 of the Revised Code. The mandatory fine so imposed shall be disbursed as provided in division (A)(4) of section 4511.99 of the Revised Code.'
. "The phrase, `fourth degree felony OMVI offense' is defined by R.C. 2929.01(JJ) as meaning any violation of R.C. 4511.19(A) that constitutes a fourth degree felony. In addition, the word, `shall,' is to `be construed as mandatory unless there appears a clear and unequivocal legislative intent that receive a construction other than ordinary usage.' Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 271 N.E.2d 834, paragraph one of the syllabus.
. "In construing and applying statutory provisions, courts must remain mindful that the Ohio General Assembly holds the exclusive power to prescribe punishment for crimes committed within Ohio. State v. O'Mara (1922), 105 Ohio St. 94, 136 N.E. 885, paragraph one of the syllabus. The General Assembly may further enact mandatory penalties pursuant to that power. State v. Bonello (1981), 3 Ohio App.3d 365, 367, 445 N.E.2d 667.
. "In examining the language of R.C. 4511.99(A)(4)(a) and R.C. 2929.18(B)(3), it is apparent that the legislature requires courts to impose a mandatory fine of not less than $750 for violations of either R.C. 4511.19(A) or (B) that are felonies of the fourth degree. Specifically, R.C. 4511.99(A)(4)(a) states that a trial court `shall impose * * * a fine of not less than seven hundred fifty nor more than ten thousand dollars.' Also, in R.C. 2929.18(B)(3), the
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