State v. Pettway , 2013 Ohio 1348 ( 2013 )

[Cite as State v. Pettway, 2013-Ohio-1348.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98836
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TIMOTHY PETTWAY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-498474
BEFORE: Blackmon, J., Stewart, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: April 4, 2013
FOR APPELLANT
Timothy Pettway, Pro Se
Inmate #550-655
Toledo Correctional Institution
2001 E. Central Avenue
Toledo, Ohio 43608
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Timothy Pettway (“Pettway”) appeals pro se the trial court’s imposition of
court costs and assigns the following error for our review:
The trial court erred in denying appellant’s motion to remand
sentencing for the limited purpose of allowing defendant to move trial
court for a waiver of the payment of court cost per State v. Joseph, 125
Ohio St.3d 76.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
judgment. The apposite facts follow.
{¶3} In May 2008, Pettway was convicted of murder and one-and-three-year
firearm specifications. The trial court sentenced him to 18-years to life in prison.
Pettway filed a direct appeal of his conviction; this court affirmed his conviction in State
v. Pettway, 8th Dist. No. 91716, 2009-Ohio-4544. Thereafter, Pettway filed various pro
se motions in the trial court, including his November 14, 2011 “Motion to Remand
Sentencing for the Limited Purpose of Allowing Defendant to Move Trial Court for a
Waiver of the Payment of Court Costs per State v. Joseph, 125 Ohio St.3d 76, 926 N.E.2d
278.” Pettway argued that the trial court imposed court costs in the journal entry, but
failed to impose the costs at the sentencing hearing. The trial court denied the motion on
July 30, 2012.
Res Judicata
{¶4} In his sole assigned error, Pettway argues the trial court erred by denying
his motion requesting that the trial court remand the matter for resentencing so that he
could request the court to waive court costs. In support of his argument, he relies on the
Ohio Supreme Court’s decision in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954,
926 N.E.2d 278.
{¶5} In Joseph, the Supreme Court held that it was reversible error under
Crim.R. 43(A) for the trial court to impose costs in its sentencing entry when it did not
impose those costs at the sentencing hearing. Id. at ¶ 22. Joseph, however, was decided
in the context of a direct appeal from the sentencing judgment imposing court costs. As
we have previously held, Joseph does not support the argument that a trial court’s failure
to orally notify a defendant in open court before imposing court costs can be corrected
after the appeal period expires. State v. Appleton, 8th Dist. No. 97942, 2012-Ohio-2778;
State v. Walker, 8th Dist. No. 96305, 2011-Ohio-5270. The appropriate forum for
challenging court costs is by way of direct appeal from the sentencing entry; a defendant
is barred under the doctrine of res judicata from raising the issue in a subsequent motion
or proceeding. Id.{¶6} In this case, Pettway could have raised the issue of court costs in his 2008
direct appeal to this court. He has not shown that he was precluded from raising the
issue at that time based on information contained in the original record. Having failed to
do so, Pettway is now barred from raising the issue in a motion after his direct appeal.
Accordingly, Pettway’s sole assigned error is overruled.
{¶7} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MELODY J. STEWART, A.J., and
MARY EILEEN KILBANE, J., CONCUR