State v. Martinez , 2014 Ohio 898 ( 2014 )

[Cite as State v. Martinez, 2014-Ohio-898.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : Nos. 12AP-852
(C.P.C. No. 1oCR-1762) and
v. : 12AP-853
(C.P.C. No. 10CR-1616)
Gregory J. Martinez, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 11, 2014
Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
for appellee.
Gregory J. Martinez, pro se.
APPEALS from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Gregory J. Martinez ("appellant"), appeals pro se
from a judgment of the Franklin County Court of Common Pleas denying his motions to
vacate court costs and fines. Because we conclude that his arguments are barred by res
judicata and that the trial court did not abuse its discretion by imposing court costs, we
affirm.
{¶ 2} On January 11, 2011, appellant pled guilty to one count of felonious assault
with a firearm specification and two counts of tampering with evidence in one criminal
proceeding and pled guilty to one count of carrying a concealed weapon in another
criminal proceeding in the same court. On February 16, 2011, the trial court conducted a
sentencing hearing for both criminal cases. The trial court imposed a total sentence of 17
years of imprisonment on all of the charges. The court did not impose any fines as part of
Nos. 12AP-852 and 12AP-853 2
appellant's sentences, but required him to pay court costs in an amount to be determined.
Appellant did not file a direct appeal of the trial court's judgment in either case.
{¶ 3} In August 2012, appellant filed motions to vacate court costs and fines in
both cases. In these motions, appellant asserted that the trial court failed to notify him of
the amount of the court costs at the sentencing hearing. The trial court denied appellant's
motions to vacate court costs and fines, finding them to be without merit.
{¶ 4} Appellant appeals from the trial court's judgment, assigning a single error
for this court's review:
FIRST ASSIGNMENT OF ERROR: ABUSE OF DISCRETION.
TRIAL COURT FAILED TO HOLD A HEARING TO
CONSIDER DEFENDANT'S ABILITY TO PAY COURT COST
AND FINDS [sic].1
{¶ 5} At the time of appellant's sentencing hearing, R.C. 2947.23(A)(1) provided
as follows:
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 the
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.
(b) If the court orders the defendant to perform community
service, the defendant will receive credit upon the judgment at
the specified hourly credit rate per hour of community service
performed, and each hour of community service performed
will reduce the judgment by that amount.
1 Although appellant claims in his assignment of error that the trial court failed to consider his ability to pay
fines, the trial court did not impose any fines as part of his sentences. Therefore, this argument is moot and
we confine our analysis to the issue of court costs.
Nos. 12AP-852 and 12AP-853 3
{¶ 6} The Supreme Court of Ohio has held that, although costs must be assessed
against all criminal defendants under R.C. 2947.23, a trial judge has discretion to waive
costs for an indigent defendant. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905,
¶ 23. Because costs are assessed at sentencing, a defendant must move for waiver of costs
at the time of sentencing. Id. "If the defendant makes such a motion, then the issue is
preserved for appeal and will be reviewed under an abuse-of-discretion standard.
Otherwise, the issue is waived and costs are res judicata." Id. In this case, appellant was
represented by counsel at the sentencing hearing. Neither appellant nor his counsel
moved to waive court costs at the sentencing hearing. Therefore, to the extent that
appellant contests the imposition of court costs, his arguments are barred by res judicata.
Moreover, we conclude that appellant's arguments related to the imposition of court costs
fail on their merits.
{¶ 7} Appellant first argues that he was not given an opportunity at the
sentencing hearing to seek a waiver of costs, citing State v. Joseph, 125 Ohio St.3d 76,
2010-Ohio-954. In Joseph, the Supreme Court of Ohio held that a trial court erred by
failing to orally notify a defendant at the sentencing hearing that it was imposing court
costs as part of his sentence. The Supreme Court reasoned that the trial court's failure to
notify the defendant denied him an opportunity to claim indigence and seek a waiver of
court costs. Id. at ¶ 22. At the sentencing hearing in this case, by contrast, the trial court
orally notified appellant twice that he would be required to pay court costs. Neither
appellant nor his trial counsel objected to the imposition of costs or requested a waiver of
costs. Thus, this case is distinguishable from Joseph. It appears that the essence of
appellant's argument is that he was denied the opportunity to seek a waiver of court costs
because the trial court did not notify him at the sentencing hearing of the amount of the
court costs. However, the Supreme Court has held that calculating court costs in a
criminal case is "merely a ministerial task" and that "failing to specify the amount of costs
assessed in a sentencing entry does not defeat the finality of the sentencing entry as to
costs." Threatt at ¶ 21. Under the same reasoning, a trial court's failure to specify the
amount of court costs at a sentencing hearing is not equivalent to a failure to notify a
defendant of the imposition of court costs. See State v. Lux, 2d Dist. No. 2010 CA 30,
2012-Ohio-112, ¶ 49 ("[W]e have held that the failure to specify the amount [of court
Nos. 12AP-852 and 12AP-853 4
costs] at sentencing does not affect the order's finality and the itemized bill may be
calculated later.").
{¶ 8} Appellant also claims that R.C. 2947.23 required the trial court to conduct a
mandatory hearing whether he was able to pay court costs. This court recently considered
a similar claim in State v. Huddleston, 10th Dist. No. 12AP-512, 2013-Ohio-2561, where
the appellant asserted that the trial court was required to make reasonable inquiries
regarding his ability to pay court costs before ruling on his motion to waive costs. Id. at
¶ 7. As we noted in that case, " 'it is well-established that a trial court need not consider a
defendant's ability to pay court costs.' " Id., quoting Columbus v. Kiner, 10th Dist. No.
11AP-543, 2011-Ohio-6462, ¶ 3. Moreover, in this case, as in Huddleston, the trial court
indicated in the judgment entries that it considered appellant's present and future ability
to pay a fine and financial sanctions before declining to impose a fine but ordering
appellant to pay court costs. Because a court speaks only through its journal entries, we
presume that the trial court considered appellant's ability to pay before issuing the
judgment entries, even if the court's statements at the sentencing hearing did not reflect
this consideration. Huddleston at ¶ 7. See also State v. Alexander, 10th Dist. No. 05AP-
192, 2006-Ohio-1298, ¶ 23 ("Because the trial court may assess costs against an indigent
defendant, the court is not required to hold a hearing to determine defendant's ability to
pay."); State v. Turner, 6th Dist. No. WD-12-064, 2013-Ohio-5073, ¶ 11 (holding that a
trial court is not required to hold a hearing or otherwise determine an offender's ability to
pay before ordering him to pay court costs).
{¶ 9} Accordingly, even if the issue is not barred by res judicata, we conclude that
the trial court did not abuse its discretion by imposing court costs as part of appellant's
sentence.
{¶ 10} Finally, appellant's brief suggests that the trial court erred by failing to give
him the statutorily required notices under R.C. 2947.23(A)(1)(a) and (b) related to the
imposition of community service if he failed to pay court costs. Although it appears that
the trial court did not give these notices at the sentencing hearing or in the judgment
entry, this argument fails for two reasons.
{¶ 11} First, res judicata bars the argument because appellant failed to assert it in a
direct appeal of the judgment of conviction. "Pursuant to the doctrine of res judicata, a
Nos. 12AP-852 and 12AP-853 5
final judgment of conviction precludes a defendant from raising and litigating in any
proceeding, except a direct appeal from that judgment, any defense or claimed lack of due
process that the defendant raised or could have raised on direct appeal from his
conviction." State v. Slager, 10th Dist. No. 11AP-794, 2012-Ohio-3584, ¶ 11, citing State v.
Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. As explained above, appellant did not file a
direct appeal of the judgment entries of conviction. A claim that the trial court failed to
give the required statutory notices is an issue that appellant could have raised on direct
appeal; because he failed to do so, the argument is now barred by res judicata.
Huddleston at ¶ 12. Compare State v. Debruce, 9th Dist. No. 25574, 2012-Ohio-454, ¶ 32-
39 (sustaining a claim that the trial court erred by failing to give statutory notices required
under R.C. 2947.23(A)(1) when raised in a direct appeal from judgment of conviction).
{¶ 12} Second, even if not barred by res judicata, appellant waived this argument
by failing to raise it in the trial court. Appellant did not object to the failure to give the
statutory notices at the sentencing hearing. Similarly, he did not raise this issue in his
motion to vacate court costs and fees. "It is well-settled law that issues not raised in the
trial court may not be raised for the first time on appeal because such issues are deemed
waived." State v. Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986, ¶ 13. Under Crim.R.
52(B), we may take notice of plain errors affecting substantial rights despite the fact that
they were not brought to the attention of the trial court. We take notice of plain error only
in exceptional circumstances to prevent a manifest miscarriage of justice. State v. Sneed,
63 Ohio St.3d 3, 10 (1992). The error must constitute an obvious defect in the trial
proceedings and affect an appellant's substantial rights. State v. Carter, 10th Dist. No.
03AP-778, 2005-Ohio-291, ¶ 22. Appellant has not claimed plain error in this appeal and
we do not find plain error to have occurred. See Huddleston at ¶ 13.
{¶ 13} For the foregoing reasons, we overrule appellant's sole assignment of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and O'GRADY, J., concur.
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