State v. Thompson ( 2013 )

[Cite as State v. Thompson, 2013-Ohio-3200.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-13-04
v.
DELREECE M. THOMPSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 12-CR-0153
Judgment Affirmed
Date of Decision: July 22, 2013
APPEARANCES:
Delreece M. Thompson, Appellant
Case No. 9-13-04
{¶1} Although this appeal has been placed on the accelerated calendar, this
court elects to issue a full opinion pursuant to Loc.R. 12(5).
{¶2} Defendant-Appellant, Delreece M. Thompson (“Thompson”), pro se,
appeals the judgment of the Marion County Court of Common Pleas denying his
motion to waive the court costs that were imposed when he was sentenced to
prison for voluntary manslaughter. On appeal, Thompson contends that the trial
court’s imposition of such costs is in violation of R.C. 2929.19(B)(5) because he is
indigent. For the reasons set forth below, the judgment is affirmed.
{¶3} On April 11, 2012, the Marion County Grand Jury issued a nine-count
indictment charging Thompson with aggravated murder, murder, and having
weapons while under disability, pertaining to the murder of Travell E. Smith. The
indictment also included firearms and forfeiture specifications.
{¶4} Thompson filed an affidavit of indigency and was assigned court-
appointed counsel. He entered an initial plea of not guilty.
{¶5} A plea agreement was reached whereby the State agreed to amend the
indictment by changing Count 1 from aggravated murder to voluntary
manslaughter and to dismiss all of the other charges, except for Count 5, having
weapons while under disability, and the firearms and forfeiture specifications.
{¶6} On September 4, 2012, Thompson appeared in court and entered a
plea of guilty to the remaining counts in the indictment after being advised of his
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rights pursuant to Crim.R. 11. The trial court found him guilty, Thompson waived
his right to a pre-sentence investigation, and they proceeded immediately with the
sentencing hearing.
{¶7} The trial court sentenced Thompson to eight years in prison on the
manslaughter count, three years in prison for having weapons while under
disability, and an additional mandatory term of three years for the firearms
specification. (Sep. 6, 2012 J.E. of Sentencing) The trial court ordered that the
sentences be served consecutively for a total sentence of 14 years. Thompson was
advised that he would be subject to post release control, and he was given credit
for the 241 days of time served. The trial court further ordered that $4,248 in U.S.
Currency should be forfeited to MARMET and the firearms were to be forfeited to
the Marion Police Department. (Id.) “Costs and appointed attorney fees
assessed.” (Id.)
{¶8} On December 21, 2012, Thompson filed a “Motion to Waive the
Imposed Court Costs or Fines,” claiming that the trial court abused its discretion in
assessing fines and court costs without any regard to his ability or inability to pay,
in violation of R.C. 2929.19(B)(5). On December 28, 2012, the trial court filed a
judgment entry denying Thompson’s motion.
This day this cause came on to be heard on Defendant’s Motion to
Waive Court cost or Fines previously filed herein. The Court finds
said motion to be not well taken and is hereby overruled. Costs are
to be paid by the Defendant.
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Case No. 9-13-04
(Dec. 28, 2012 J.E.)
{¶9} It is from this judgment that Thompson now appeals, pro se, raising
the following assignment of error for our review. The State has not filed an
Appellee’s brief.
Assignment of Error
The trial court abused its discretion and violated the mandates
of Ohio’s law in assessing fines and court costs without any
regard to [Thompson’s] ability or inability to pay said fines and
court costs, in violation of Ohio Revised code 2929.19(B)(5).
{¶10} Thompson claims that because he was represented by court
appointed counsel based upon his indigency status in the case, the trial court was
aware that he was indigent and it erred when it ordered him to pay court costs or
fines without taking into consideration his inability to pay. In his brief, Thompson
represents that “before imposing the fines or court costs, the trial court had refused
to make any express determination of whether [Thompson] was able or unable to
pay a fine or court costs.” He claims that he asked his appointed counsel to object,
but that his counsel refused to do so.
{¶11} To clarify, we note that the record does not indicate that the trial
court imposed any fines on Thompson – only court costs. The docket reflects that
that there are $2,675.99 in court costs, which includes $2,500.55 in court-
appointed attorney fees.
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{¶12} R.C. 2929.19(B)(5) states that “[b]efore imposing a financial
sanction under section 2929.18 of the Revised Code or a fine under section
2929.32 of the Revised Code, the court shall consider the offender's present and
future ability to pay the amount of the sanction or fine.” A hearing on a
defendant's ability to pay is not required, nor is a court required to make findings.
State v. Edwards, 2d Dist. No. 2012-CA-49, 2013-Ohio-1922, ¶ 16. “All that is
required is that the trial court ‘consider’ a defendant's ability to pay.” State v.
Hodge, 2d Dist. Montgomery No. 23964, 2011–Ohio–633, ¶ 55 (citations
omitted). “[A] trial court is not required to expressly state that it considered [a
defendant's] ability to pay a fine.” State v. Parker, 2d Dist. Champaign No.
03CA0017, 2004–Ohio–1313, ¶ 42. Under appropriate circumstances, a
reviewing court may infer that a trial court considered the issue. Id.; State v. Lewis,
2d Dist. No. 2011–CA–75, 2012–Ohio–4858, ¶ 9.
{¶13} The record clearly reflects that the trial court considered the matter
when it reviewed Thompson’s motion and filed its judgment entry denying the
motion. A court's denial of an indigent criminal defendant's motion for waiver of
payment of costs is reviewed under an abuse-of-discretion standard. State v.
Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph four of the syllabus.
{¶14} However, the statute cited by Thompson refers to financial sanctions,
such as restitution, and fines. The trial court ordered Thompson to pay costs – not
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a financial sanction or a fine. The applicable statute in this case would be R.C.
2947.23(A)(1)(a), which states that “[i]n 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.” (Emphasis added.) This
Court has discussed this exact situation and held that a trial court has the authority
to assess costs upon an indigent defendant so that in the event an indigent
defendant ceases to be indigent in the future, the clerk can then collect costs
pursuant to the procedure outlined in the statutes. State v. Haynie, 157 Ohio
App.3d 708, 2004-Ohio-2452, ¶ 27.
{¶15} Furthermore, the Supreme Court of Ohio stated that “costs are taxed
against certain litigants for the purpose of lightening the burden on taxpayers
financing the court system.” Strattman v. Studt, 20 Ohio St.2d 95 (1969).
“Therefore, although costs in criminal cases are assessed at sentencing and are
included in the sentencing entry, costs are not punishment, but are more akin to a
civil judgment for money.” Threatt, 108 Ohio St. 277, ¶ 15.
Costs must be assessed against all defendants. R.C. 2947.23; White,
103 Ohio St.3d 580, 817 N.E.2d 393, at ¶ 8. However, we also held
in White that a judge has discretion to waive costs assessed against
an indigent defendant. Id. at ¶ 14. Costs are assessed at sentencing
and must be included in the sentencing entry. R.C. 2947.23.
Therefore, an indigent defendant must move a trial court to waive
payment of costs at the time of sentencing. If the defendant makes
such a motion, then the issue is preserved for appeal and will be
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reviewed under an abuse-of-discretion standard. Otherwise, the issue
is waived and costs are res judicata. Accordingly, the sentencing
entry is a final appealable order as to the assessment of costs.
State v. Threatt, 2006-Ohio-905, ¶ 23.
{¶16} Thompson has failed to provide this Court with a copy of the
transcript of the Sentencing Hearing for our review. Therefore, we do not know
what happened in the proceedings below. In the absence of the transcript of
sentencing hearing, this Court is unable to determine what was discussed
concerning assessing court costs and Thompson’s ability to pay. There is no
evidence in the record that Thompson requested a waiver at the sentencing
hearing, and we must presume the regularity of proceeding. See State v. Call, 3d
Dist. No. 9-04-29, 2004-Ohio-5645, ¶ 12.
{¶17} Furthermore, Thompson did not raise an appeal from the final
sentencing judgment entry. Therefore, Thompson’s motion after sentencing was
imposed was untimely and this matter is now barred by res judicata. See Threatt,
supra. For all of the above reasons, Thompson’s assignment of error is overruled.
{¶18} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/jlr
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