State v. Pettygrove , 2013 Ohio 1062 ( 2013 )

[Cite as State v. Pettygrove, 2013-Ohio-1062.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellant, : Case No. 12CA941
vs. :
TANGELA PETTYGROVE, : DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: C. David Kelley, Adams County Prosecuting
Attorney, and Kris D. Blanton, Adams County
Assistant Prosecuting Attorney, 110 West
Main Street, Room 112, West Union, Ohio
45693-13891
_________________________________________________________
CRIMINAL APPEAL FROM COUNTY COURT
DATE JOURNALIZED: 3-11-13
ABELE, J.
{¶ 1} This is an appeal from an Adams County Court judgment that
dismissed a criminal proceeding, without prejudice, against Tangela
Pettygrove, defendant below and appellee herein. The State of Ohio,
plaintiff below and appellant herein, challenges the portion of the
judgment that assessed court costs against the Office of the
Prosecuting Attorney. Appellant assigns the following error for
review:
“THE TRIAL COURT INCORRECTLY ORDERED THE STATE
OF OHIO TO PAY COURT COSTS AFTER THE STATE MOVED
1
Appellee did not enter an appearance in this matter.
ADAMS, 12CA941 2
TO DISMISS THE ACTION AGAINST THE DEFENDANT.”
{¶ 2} On June 27, 2011, a criminal complaint was filed that
charged appellee with driving under the influence in violation of
R.C. 4511.19(A)(1). Before the case came on for trial, appellant
moved to dismiss the matter.2 On February 14, 2012, the trial court
issued an entry that dismissed the case without prejudice. Although
the bulk of the entry was pre-printed, the trial court's handwritten
notation assessed “all costs to the P.A. office.”
{¶ 3} The appellant subsequently sought leave to appeal on
grounds that the trial court does not have the authority to assess
court costs in that manner. We granted the motion, and the case
is now before us.
{¶ 4} The appellant argues in its assignment of error that the
trial court erred by ordering it to pay the court costs. We disagree.
First, we recently addressed this issue. In State v. Hicks, 4th
Dist. No. 11CA933, 2012-Ohio-3831,3 we wrote:
“In its fourth assignment of error, the State complains that
the trial court ordered it to pay court costs after dismissing the
indictment. The State generally argues that the trial court lacked
any authority to make this order. However, “ ‘[t]he duty to pay court
costs is a civil obligation arising from an implied contract.’ “
State v. Joseph, 125 Ohio St. 3d 76, 2010–Ohio–954, 926 N.E.2d 278,
¶ 20, quoting Strattman v. Studt, 20 Ohio St. 2d 95, 253 N.E.2d 749
(1969), paragraph six of the syllabus. “That court costs are a civil
obligation is true in both criminal and civil cases: ‘By being
2
It is not entirely clear from the record why the appellant requested to dismiss the case. However, shortly before
trial appellant moved to amend the criminal complaint, and we find no indication that the trial court ruled on that motion.
3
Hicks was decided approximately three months after the appellant filed its brief in this matter.
ADAMS, 12CA941 3
involved in court proceedings, any litigant, by implied contract,
becomes liable for the payment of court costs if taxed as a part
of the court's judgment.’ “ Id., quoting Strattman at 103. Therefore,
we see no reason why as a general matter, the trial court could not
order the State to pay court costs of its failed prosecution.”
(Emphasis added.) Id. at ¶24.
{¶ 5} In Hicks, as in the case sub judice, the State relied on State
v. Songer, 5th Dist. No. 03COA051, 2004-Ohio-1281, (wherein the Ashland
County Court of Appeals held that in view of the fact that statutory
provisions exist for the payment of jury fees and indigent counsel fees
by county treasuries, the court should not have assessed these particular
types of fees against the State. Id. at ¶22) and State v. Christian, 7th
Dist. No. 04JE20, 2005-Ohio-905, (for the same general proposition and
involving prospective jury fees).
{¶ 6} However, in Hicks we rejected the application of Songer and
Christian because neither indigent counsel fees nor jury fees were involved
in the costs of that case. Likewise, in the case sub judice we find no
indication that those matters are at issue. Thus, Songer and Christian
are inappositive to the instant case.
{¶ 7} This brings us to the second reason we reject appellant's
argument. Specific statutes covered the fees and costs at issue
in Songer and Christian. In the case at bar, however, the appellant’s
brief does not cite a statute that the trial court allegedly violated
by assessing costs to the Office of the Prosecutor. Trial court
proceedings generally enjoy a presumption of correctness and an
appellant has the burden to affirmatively demonstrate error. See
ADAMS, 12CA941 4
e.g., State v. Henry, 5th Dist. No. 2006- CA-00245, 2007-Ohio-5702,
at ¶33; State v. Freeman, 4th Dist. No. 06CA3, 2006-Ohio-5020, at
¶9. Without citation to a pertinent statute that the State believes
the trial court has violated, we are not inclined to find error or
to revisit Hicks.
{¶ 8} Finally, the appellant also relies on 2005 Ohio Atty. Gen.
Ops. No. 14, for the proposition that all court costs in criminal
cases are to be paid from the county treasury. We, however, rejected
that reasoning, in Hicks, supra, at ¶28.
{¶ 9} Thus, for all these reasons, we hereby overrule appellant's
assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee to
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Adams County Court to carry this judgment into
execution.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
ADAMS, 12CA941 5
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.