State v. Hill ( 2015 )

[Cite as State vs. Hill, 2015-Ohio-335.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
KENNETH HILL : Case No. 14CA71
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2005-CR-0147D
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 29, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE KENNETH HILL, Pro Se
Prosecuting Attorney Inmate No. A553-178
Lebanon Correctional Institution
By: JOHN C. NIEFT P.O. Box 56
Assistant Prosecuting Attorney Lebanon, OH 45036-0056
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 14CA71 2
Baldwin, J.
{¶1} Defendant-appellant Kenneth Hill appeals from the August 19, 2014
Judgment Entry of the Richland County Court of Common Pleas overruling his Motion of
Waiver of Payment of Court Costs. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 9, 2005, the Richland County Grand Jury indicted appellant on
one count of attempted murder with a firearm specification, one count of felonious
assault with a firearm specification, and one count of having weapons under disability.
At his arraignment on March 11, 2008, appellant entered a plea of not guilty to the
charges.
{¶3} At the conclusion of appellant’s trial, the jury found appellant guilty of all
charges and specifications in the indictment. Pursuant to a Sentencing Entry filed on
August 22, 2008, the trial court sentenced appellant to ten years on the attempted
murder charge, three years consecutive on the firearm specification, and five years
consecutive on the weapons under disability charge. Thus, appellant’s aggregate
sentence was 18 years. The trial court also ordered appellant to pay court costs and
restitution to the victim for medical expenses and imposed five years of post release
control on appellant. The amount of the restitution, however, was not specified.
{¶4} After finding that there was no final appealable order from which an appeal
could be taken because the manner of conviction was not specified, this Court sua
sponte dismissed appellant's original appeal. Appellant was resentenced as
memorialized in an Amended Sentencing Entry that was filed on February 5, 2009. The
Amended Sentencing Entry also ordered appellant to pay court costs and restitution and
Richland County, Case No. 14CA71 3
imposed five years of post release control on appellant. Appellant then appealed,
arguing that his right to a speedy trial was violated and that his convictions were against
the manifest weight of the evidence. This Court, in an Opinion filed on June 30, 2010 in
State v. Hill, 5th Dist. Richland No. 2009-CA-25, 2010-Ohio-3102, affirmed the judgment
of the trial court.
{¶5} Thereafter, on July 28, 2011, appellant filed a Motion to Resentence
Defendant, arguing that the August 22, 2008 Sentencing Entry was not a final
appealable order because it did not specify the manner of conviction. Appellee, in its
response to such motion, noted that the August 22, 2008 Sentencing Entry had been
amended after appellant’s first appeal was dismissed and that the subsequent
Amended Sentencing Entry that was filed on February 5, 2009 did contain the manner
of conviction. The trial court overruled appellant’s motion as memorialized in a
Judgment Entry filed on December 21, 2011.
{¶6} On July 11, 2012, appellant filed a Motion for Issuance of a Final
Appealable Order. Appellant, in his motion, argued that the February 5, 2009 Amended
Sentencing Entry was not final because it did not specify an amount of restitution. In an
Order filed on November 14, 2012, the trial court stated that such Entry was a final
appealable order and noted that appellant had already appealed such Entry to this
Court. The trial court stated that appellant “had a final appealable entry or he would not
have been able to prosecute his appeal.” The trial court, however, stated that it was
amending the Sentencing Entry to show that no restitution was owed because no
medical bills had been submitted to the trial court. A Second Amended Sentencing
Richland County, Case No. 14CA71 4
Entry was filed on November 14, 2012 that did not order appellant to pay restitution to
the victim.
{¶7} Subsequently, appellant, on July 28, 2014, filed a Motion of Waiver of
Payment of Court Costs pursuant to Crim.R. 43(A) and R.C. 2947.23(A). Appellant, in
his motion, argued that the trial court, at his August 21, 2008 sentencing hearing, never
addressed court costs, thereby depriving him of his opportunity to challenge his ability to
pay the same. The trial court overruled appellant’s motion via a Judgment Entry filed on
August 19, 2014.
{¶8} Appellant now raises the following assignment of error on appeal:
{¶9} THE TRIAL COURT ERRED WHEN IT FAILED TO ADDRESS THE
IMPOSITION OF COURT COSTS IN OPEN COURT, BUT INCLUDED SUCH COSTS
IN THE SENTENCING ENTRY.
I
{¶10} Appellant, in his sole assignment of error, argues that the trial court erred
in overruling his July 28, 2014 Motion of Waiver of Payment of Court Costs.
{¶11} Pursuant to R.C. 2947.23(A)(1)(a), a trial court in all criminal cases shall
render judgment against a defendant for court costs. In this case, the trial court
accessed court costs against appellant as required by statute. Appellant did not object
to the payment of court costs at the time of sentencing, and did not raise the issue of
court costs in his direct appeal. Nor did appellant appeal from the trial court’s November
14, 2012 Second Amended Sentencing Entry which ordered appellant to pay court
costs.
Richland County, Case No. 14CA71 5
{¶12} Because appellant failed to object or appeal the order of court costs, the
issue is res judicata as defined in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus:
Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented
by counsel from raising and litigating in any proceeding
except an appeal from that judgment, any defense or any
claimed lack of due process that was raised or could have
been raised by the defendant at trial, which resulted in that
judgment of conviction, or on an appeal from that judgment.
{¶13} See, State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905,
843 N.E.2d 164; State v. Snelling, 5th Dist. Richland No. 13CA3, 2013–
Ohio–4180.
{¶14} Appellant’s sole assignment of error is, therefore overruled.
{¶15} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.