State v. Smith ( 2012 )

[Cite as State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781.]
THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
[Cite as State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781.]
Criminal law—Ripeness—R.C. 2947.23(A)(1)—Trial court’s failure to inform
offender that community service may be imposed if the offender fails to
pay court costs presents issue ripe for review even where record does not
show that offender has failed to pay costs or that court has ordered
community service for failure to pay.
(No. 2011-0811—Submitted December 7, 2011—Decided March 1, 2012.)
CERTIFIED by the Court of Appeals for Warren County,
No. CA2010-06-057, 2011-Ohio-1188.
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SYLLABUS OF THE COURT
A sentencing court’s failure to inform an offender, as required by R.C.
2947.23(A)(1), that community service could be imposed if the offender
fails to pay the costs of prosecution or court costs presents an issue ripe for
review even though the record does not show that the offender has failed
to pay such costs or that the trial court has ordered the offender to perform
community service as a result of failure to pay.
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LUNDBERG STRATTON, J.
I. Introduction
{¶ 1} Appellant, Timothy Smith, pleaded guilty to forgery under R.C.
2913.31(A)(3), a fifth-degree felony. The trial court accepted Smith’s plea and
found him guilty. The court sentenced Smith to five years of community control
and required Smith to pay court costs, the fee for his court-appointed attorney,
and $4,857 in restitution. However, the court did not inform Smith that if he
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failed to pay court costs, the court could require him to perform community
service pursuant to R.C. 2947.23(A)(1).
{¶ 2} Smith appealed, asserting four assignments of error, including an
assertion that the trial court erred and abused its discretion when it failed to notify
him pursuant to R.C. 2947.23(A)(1) that if he failed to pay court costs, the trial
court could require him to perform community service. State v. Smith, 12th Dist.
No. CA2010-06-057, 2011-Ohio-1188, 2011 WL 882182, ¶ 25-26. The court of
appeals refused to consider this assignment of error on its merits, holding that the
issue was not ripe for review until the defendant fails to pay costs or a court
imposes community service as a consequence for failing to pay court costs. Id. at
¶ 32. However, the court of appeals reversed the trial court’s judgment to the
extent it determined that the clerk of court may have charged Smith certain costs
that were not permitted by law, and remanded the cause to the trial court to
determine whether these costs were properly imposed. Id. at ¶ 58-59, 68.
{¶ 3} Smith did not file a discretionary appeal in this court. However, he
did file a motion in the court of appeals to certify a conflict. Smith alleged that
the court of appeals’ holding that a trial court’s failure to notify under R.C.
2947.23(A)(1) was not ripe for review conflicted with the Fourth District Court of
Appeals’ decision in State v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930
N.E.2d 838 (4th Dist.) and the Fifth District Court of Appeals’ decision in State v.
Dansby, 5th Dist. No. 08 AP 06 0047, 2009-Ohio-2975, 2009 WL 1763679.
{¶ 4} The court of appeals issued an order certifying that a conflict
existed. We agreed and ordered the parties to brief the issue
whether a sentencing court's failure to inform an offender, as
required by R.C. 2947.23(A)(1), that community service could be
imposed if the offender fails to pay the costs of prosecution or
“court costs” presents an issue ripe for review even though the
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record does not show that the offender has failed to pay such costs
or that the trial court has ordered the offender to perform
community service as a result of failure to pay.
129 Ohio St.3d 1426, 2011-Ohio-3740, 951 N.E.2d 89.
{¶ 5} Smith argues that the trial court’s failure to provide him with the
community-service notification is ripe for review even though he has not yet
failed to pay court costs or the court has not yet imposed community service. The
state argues that the trial court’s failure to notify is not ripe for review until the
defendant fails to pay court costs or a trial court imposes community control.
II. Analysis
{¶ 6} We begin our analysis by examining R.C. 2947.23(A)(1), which
provides:
In all criminal cases, including violations of ordinances, the
judge or magistrate shall include in the sentence the costs of
prosecution, including any costs under section 2947.231 of the
Revised Code, and render a judgment against the defendant for
such costs. At the time the judge or magistrate imposes sentence,
the judge or magistrate shall notify the defendant of both of the
following:
(a) If the defendant fails to pay that judgment or fails to
timely make payments towards that judgment under a payment
schedule approved by the court, the court may order the defendant
to perform community service in an amount of not more than forty
hours per month until the judgment is paid or until the court is
satisfied that the defendant is in compliance with the approved
payment schedule.
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(Emphasis added.)
{¶ 7} The Twelfth District Court of Appeals below declined to address
the trial court’s failure to notify Smith of the potential imposition of community
service because
the record does not demonstrate that Smith has failed to pay the
court costs or the cost for his court-appointed counsel, or that the
trial court has ordered him to perform community service. If Smith
fails to pay those costs in the future, then under R.C. 2947.23(B),
the trial court will be required to hold a hearing regarding his
failure to pay and may, in its discretion, order him to perform
community service. However, because these events have yet to
happen and may not ever happen, Smith's claim regarding
community service is not yet ripe for review.
State v. Smith, 2011-Ohio-1188, ¶ 33.
{¶ 8} By contrast, the Fourth District Court of Appeals in Moss, 186
Ohio App.3d 787, 2010-Ohio-1135, 930 N.E.2d 838, ¶ 20 (4th Dist.), has held
that the trial court’s failure to provide the community-service notification
pursuant to R.C. 2947.23(A)(1) is ripe for review. The court reasoned that the
community-service notification in R.C. 2947.23(A)(1) is “mandatory.” Id. at
¶ 21; see also Dansby, 2009-Ohio-2975, and State v. Cardamone, 8th Dist. No.
94405, 2011-Ohio-818, 2011 WL 676080, ¶ 13-14.
{¶ 9} When interpreting a statute, a court must first look to its language
and apply it as written if the meaning is unambiguous. State v. Lowe, 112 Ohio
St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. “ ‘[T]he word “shall” shall be
construed as mandatory unless there appears a clear and unequivocal legislative
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intent that [it] receive a construction other than [its] ordinary usage.’ ” Ohio Civ.
Rights Comm. v. Countrywide Home Loans, Inc., 99 Ohio St.3d 522, 2003-Ohio-
4358, 794 N.E.2d 56, ¶ 4, quoting Dorrian v. Scioto Conservancy Dist., 27 Ohio
St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus.
{¶ 10} In R.C. 2947.23(A)(1), the General Assembly’s use of the
language “at the time the judge * * * imposes sentence, the judge * * * shall
notify” clearly registers an intent that this notice is mandatory and that a court is
to provide this notice at sentencing. Therefore, a reviewing court’s authority to
consider a trial court’s failure to provide this notice does not first require a
defendant to fail to pay court costs or a court to impose community service. Thus,
we agree with the holdings in Moss, Dansby, and Cardamone. Accordingly, we
answer the certified question in the affirmative and hold that a sentencing court’s
failure to inform an offender, as required by R.C. 2947.23(A)(1), that community
service could be imposed if the offender fails to pay the costs of prosecution or
court costs presents an issue ripe for review even though the record does not show
that the offender has failed to pay such costs or that the trial court has ordered the
offender to perform community service as a result of failure to pay. We also note
that because a trial court must provide this notice at sentencing, the time to appeal
a trial court’s failure to provide the notice required by R.C. 2947.23(A)(1) begins
to run from the date of the trial court’s sentencing entry. See State v. Threatt, 108
Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph three of the syllabus
(a sentencing entry is a final, appealable order as to costs).
III. Conclusion
{¶ 11} In the instant case, the court of appeals declined to address Smith’s
second assignment of error, holding that the trial court’s failure to provide Smith
the community-service notice required by R.C. 2947.23(A)(1) was not ripe for
review because Smith had not yet failed to pay court costs. Because we have held
that this failure to notify is ripe for review regardless of whether a defendant has
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failed to pay costs, we reverse that portion of the court of appeals’ judgment and
remand this cause to the court of appeals for it to consider Smith’s second
assignment of error in accordance with this opinion.
Judgment reversed in part,
and cause remanded.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
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David P. Fornshell, Warren County Prosecuting Attorney, and Michael
Greer, Assistant Prosecuting Attorney, for appellee.
Diehl & Hubbell, L.L.C., and Martin E. Hubbell, for appellant.
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