State v. Jones , 2020 Ohio 1273 ( 2020 )

[Cite as State v. Jones, 2020-Ohio-1273.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108438
v. :
JUMAINE JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED
IN PART; REMANDED
RELEASED AND JOURNALIZED: April 2, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-614411-A and CR-17-614412-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gittel L. Chaiko, Assistant Prosecuting
Attorney, for appellee.
Erin R. Flanagan, Esq., Ltd. and Erin R. Flanagan, for
appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Jumaine Jones appeals from the trial court’s
orders in Cuyahoga C.P. Nos. CR-17-614411 (“614411”) and CR-17-614412 (“614412”)
imposing previously suspended jail sentences and ordering Jones to pay $2,532.30
in extradition costs after Jones violated community control sanctions. For the
reasons that follow, in 614412, we vacate Jones’ consecutive sentences and remand
for resentencing. In both cases, we vacate the trial court’s orders requiring Jones to
pay extradition costs. We otherwise affirm the trial court.
Procedural History and Factual Background
On February 16, 2017, a Cuyahoga County Grand Jury indicted Jones
in 614411 and 614412. In 614411, Jones was indicted on two counts of criminal
nonsupport in violation of R.C. 2919.21(B). In 614412, Jones was indicted on four
counts of criminal nonsupport in violation of R.C. 2919.21(B). The charges related
to Jones’ failure to pay child support for two minor children. Each of the counts
included furthermore specifications, indicating that Jones had failed to provide
child support for a total accumulated period of 26 weeks out of 104 consecutive
weeks, making them fifth-degree felonies. Jones initially pled not guilty to all
charges.
The parties reached a plea agreement and, on August 14, 2018, Jones
pled guilty to two amended counts of criminal nonsupport in violation of R.C.
2919.21(B) in 614411 and four amended counts of criminal nonsupport in violation
of R.C. 2919.21(B) in 614412. Pursuant to the plea agreement, the specifications
were deleted, making each of the counts a first-degree misdemeanor.
The trial court proceeded directly to sentencing. The trial court
sentenced Jones to six months in jail on each count and suspended his jail sentences.
In its August 14, 2018 sentencing journal entry in 614411, the trial court stated:
“Jones is sentenced to the Cuyahoga County Jail for a term of 12 month(s).
Execution of sentence suspended.” In its August 14, 2018 sentencing journal entry
in 614412, the trial court stated: “Jones is sentenced to the Cuyahoga County Jail for
a term of 24 month(s). Execution of sentence suspended.” After suspending his
sentences, the trial court sentenced Jones to five years of community control
sanctions1 under the supervision of the adult probation department’s nonsupport
unit. The trial court advised Jones that if he failed to comply with the terms and
conditions of his community control sanctions, he would “be sent to the county jail
for six months on each of these counts.” The trial court also ordered Jones to pay
restitution of $199,803.79 and $1,581.31 per month in child support in 614411,
restitution of $128,303.38 and $1,795.72 per month in child support in 614412 and
entered judgment against Jones in both cases “in an amount equal to the costs of
this prosecution.”
Jones did not object to, or appeal, his sentences. On August 15, 2018,
Jones was granted permission to travel. Jones failed to comply with the terms and
conditions of his community control sanctions and the trial court scheduled a
1 The terms and conditions of Jones’ community control sanctions were as follows:
(1) abide by all rules and regulations of the probation department; (2) be assigned to
appropriate level of supervision based on risk score and assessment results; (3) report as
directed by the probation officer; (4) attend nonsupport programming as determined by
the probation officer; (5) attend additional programming as directed by the probation
officer or indicated in case plan; (6) make monthly child support payments as directed;
(7) pay a monthly supervision fee of $20; and (8) comply with drug and alcohol testing as
determined by the probation officer. These terms and conditions were subject to
modification by the probation officer with court approval.
community control violation hearing for November 28, 2018. When Jones failed to
appear for the community control violation hearing, a capias was issued for his
arrest. On March 24, 2019, Jones was apprehended at McCarren Airport in Las
Vegas, Nevada and extradited to Cuyahoga County.
On April 9, 2019, the trial court held a community control violation
hearing. Jones’ probation officer stated that during the time Jones was under
community control sanctions he had failed to make any child support payments, had
not complied with his reporting obligations to his probation officer and had
outstanding fees and costs that he owed to the court. Jones admitted these
community control violations.
The trial court found Jones to have violated his community control
sanctions, determined that he was not amenable to further community control
sanctions, terminated his community control sanctions and imposed the previously
suspended sentences. In 614411, the trial court sentenced Jones to an aggregate 12-
month jail sentence, i.e., six months in the Cuyahoga County jail on each of the two
counts to be served consecutively to each other and concurrently with the sentences
in 614412.
In 614412, at the April 9, 2019 hearing, the trial court sentenced Jones
to an aggregate 24-month jail sentence, i.e., six months in the Cuyahoga County jail
on each of the four counts to be served consecutively to each other and concurrently
with the sentences in 614411. In its April 15, 2019 sentencing journal entry, the trial
court added that “70 days” of Jones’ sentence was “suspended” and that his
“aggregate total sentence is reduced to less than 18 months per statute.”
In both cases, the trial court granted Jones 104 days of jail-time
credit, ordered him to pay $2,532.30 in “extradition fees” or “extradition costs”2 and
entered judgment against him “in an amount equal to the costs of this prosecution.”
Jones did not object to trial court’s assessment of the extradition expenses against
him.
Jones appealed, raising the following three assignments of error for
review:
First Assignment of Error: The trial court erred when it ordered
consecutive service of the jail terms imposed within Case Numbers CR-
17-614411 and CR-17-614412 after revoking appellant’s community
control because it was without authority to modify its prior sentencing
judgments, which did not validly impose consecutive sentences.
Second Assignment of Error: The trial court abused its discretion in
sentencing appellant to maximum consecutive terms of imprisonment
for failure to adhere strictly to the terms of his criminal nonsupport
orders.
Third Assignment of Error: The trial court plainly erred in ordering
appellant to pay $2,532.30 in “extradition fees” after finding him
indigent and, further, sentencing him as a misdemeanant.
2 In its April 15, 2019 sentencing journal entry in 614411, the trial court referred to
the sum as “extradition costs.” In its April 15, 2019 sentencing journal entry in 614412,
the trial court referred to the $2,532.30 as “extradition fees.” At the sentencing hearing,
the trial judge stated: “I’m going to order the extradition costs to be paid as well,
[$]2532.30. Reimbursement for extradition costs through our court.” He later
distinguished the “extradition costs” from “court costs.” The trial court did not identify
the statutory or other legal basis pursuant to which it was ordering Jones to pay the
extradition expenses at the April 9, 2019 hearing or in its April 15, 2109 sentencing journal
entries.
Law and Analysis
Imposition of Consecutive Sentences
Jones’ first two assignments of error address the trial court’s
imposition of “maximum consecutive” jail sentences within 614411 and 614412 after
he violated the terms of his community control sanctions.3 In his first assignment
of error, Jones contends that the trial court lacked authority to impose consecutive
jail sentences in April 2019 after terminating his community control sanctions
because the trial court did not “appropriately specify” that his sentences were to be
imposed consecutively when he was originally sentenced in August 2018.
Specifically, Jones contends that because the trial court did not make R.C.
2929.14(C)(4) findings in support of the imposition of consecutive sentences when
it originally sentenced Jones in August 2018, it lacked authority to impose
consecutive sentences when it terminated Jones’ community control sanctions and
reimposed his previously suspended sentences in April 2019.
In his second assignment of error, Jones contends that the trial
court’s imposition of “maximum consecutive terms of imprisonment” for “failure to
adhere strictly to the terms of his criminal nonsupport orders” after terminating his
community control sanctions was “unreasonable” and an abuse of discretion
because (1) “no one is protected by — or benefits from [Jones’] extended
incarceration”; (2) “it bars [Jones] from fulfilling his monetary obligations” and
3 Jones has not challenged the individual sentences imposed by the trial court.
Accordingly, we do not address his individual sentences here.
“does far more damage to the children and their mothers * * * when [Jones] has the
desire and means to earn money to meet his obligations”; (3) is not necessary to
protect the public from future crime by Jones or others because Jones “has no other
children”; and (4) it “subjects him to a heavy punishment for actively and earnestly
trying, but failing, to succeed.”
Challenges to Sentences Imposed in 614411
As an initial matter, we note that Jones’ first and second assignments
of error are moot as to 614411. In these assignments of error, Jones challenges only
the length of his sentences. In 614411, Jones was sentenced to an aggregate 12-
month jail term with 104 days of jail-time credit. There is no indication in the record
that this sentence was stayed pending appeal. Accordingly, Jones has already served
this sentence, and his assigned errors challenging his sentences in 614411 are,
therefore, moot.4 See, e.g., State v. Jones, 8th Dist. Cuyahoga No. 107277, 2019-
4 We note that in State v. Christian, Slip Opinion No. 2020-Ohio-828, the Ohio
Supreme Court recently held that a defendant may be resentenced “on a specific count
after the sentence related to that count has been vacated on direct appeal”
notwithstanding that the defendant has already “been confined for the length of the
original term that had been attached to that count.” Id. at ¶ 1. The court reasoned that
“because a defendant in these circumstances has no expectation of finality in the original
sentence once it has been vacated on direct appeal, the trial court has the ability to
resentence the defendant de novo.” Id. We do not believe that Christian governs the
circumstances here. In Christian, the individual sentences on several counts were vacated
in the direct appeal. Id. at ¶ 1, 5. Because those sentences had been vacated, the court
held that the trial court had the authority to resentence the defendant de novo on those
counts. Id. at ¶ 18, 29. In this case, Jones has not challenged his individual sentences,
only the consecutive nature of his sentences. Even if Jones were otherwise entitled to the
relief he seeks in 614411, any resentencing would be limited to the consecutive nature of
the sentences; it would not be a de novo resentencing. Because there is no relief this court
could give Jones even if it were to find that consecutive sentences should not have been
imposed with respect to the sentences within 614411, i.e., because he has already served
Ohio-1126, ¶ 2, 13 (“‘If an individual has already served his sentence, there is no
collateral disability of loss of civil rights that can be remedied by a modification of
the length of that sentence in the absence of a reversal of the underlying
conviction.’”), quoting State v. Beamon, 11th Dist. Lake No. 2000-L-160, 2001 Ohio
App. LEXIS 5655, 4 (Dec. 14, 2001); State v. Oglesby, 1st Dist. Hamilton Nos. C-
180177 and C-180178, 2019-Ohio-1456, ¶ 19-20 (where defendant challenged only
the imposition of consecutive sentences and not his convictions, defendant’s
completion of his sentences, rendered the appeal moot because there was “no
redress” the appellate court could provide).
Challenges to Sentences Imposed in 614412
Turning to Jones’ challenges to the sentences imposed in 614412, this
court generally reviews misdemeanor sentences for an abuse of discretion. See, e.g.,
Lakewood v. Bretzfelder, 8th Dist. Cuyahoga No. 98925, 2013-Ohio-4477, ¶ 35; see
also S. Euclid v. Bickerstaff, 8th Dist. Cuyahoga No. 107526, 2019-Ohio-2223, ¶ 11
(“When a misdemeanor sentence is not contrary to law, the sentence is reviewed for
an abuse of discretion.”). We likewise review a trial court’s decision in a community
control violation proceeding for abuse of discretion. See, e.g., Oglesby at ¶ 7; State
v. Huckaby, 6th Dist. Wood No. WD-14-028, 2015-Ohio-3302, ¶ 14. A trial court
abuses its discretion where its decision is unreasonable, arbitrary or
maximum consecutive sentences in that case, his assignments of error related to those
consecutive sentences are moot.
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
Misdemeanor community control sanctions are governed by R.C.
2929.25. R.C. 2929.25, in relevant part, gives a trial court two options when
sentencing a misdemeanor offender: (1) directly impose a sentence that consists of
a community control sanction; or (2) impose a jail sentence, suspend some or all of
that sentence and place the offender on community control. R.C. 2929.25(A)(1)(a)-
(b). “Under either circumstance, the sentencing court retains jurisdiction over the
offender for the duration of the sanctions imposed.” In re A.R.H., 10th Dist.
Franklin No. 18AP-554, 2019-Ohio-1325, ¶ 13, fn. 1, citing R.C. 2929.24(H) and
2929.25(C).
If a defendant violates a term or condition of a community control
sanction imposed for a misdemeanor, R.C. 2929.25(D)(2) states that “the
sentencing court may impose upon the violator one or more of the following
penalties:”
(a) A longer time under the same community control sanction if the
total time under all of the community control sanctions imposed on the
violator does not exceed the five-year limit specified in division (A)(2)
of this section;
(b) A more restrictive community control sanction;
(c) A combination of community control sanctions, including a jail
term.
In this case, the trial court did not sentence Jones directly to
community control sanctions. The trial court chose the second option under R.C.
2929.25(A)(1)(b) — i.e., to impose a jail term, suspend the jail term and then place
Jones on community control sanctions. In 614412, the trial court sentenced Jones
to six months on each count resulting in aggregate 24-month jail sentence. It then
suspended Jones’ sentences and placed Jones on five years of community control
sanctions. After Jones violated the terms of his community control sanctions, the
trial court terminated the community control sanctions and reimposed his
previously suspended sentences.
R.C. 2929.41(B)(1) addresses the imposition of consecutive sentences
for misdemeanors. That provision states:
A jail term or sentence of imprisonment for a misdemeanor shall be
served consecutively to any other prison term, jail term, or sentence of
imprisonment when the trial court specifies that it is to be served
consecutively or when it is imposed for a misdemeanor violation of
section 2907.322, 2921.34, or 2923.131 of the Revised Code.
When consecutive sentences are imposed for misdemeanor[s] under
this division, the term to be served is the aggregate of the consecutive
terms imposed, except that the aggregate term to be served shall not
exceed eighteen months.
R.C. 2929.14(C)(4) applies to the imposition of consecutive prison
terms for felony offenses, not the imposition of consecutive jail terms for
misdemeanor offenses. See, e.g., State v. Alexander, 8th Dist. Cuyahoga No.
102708, 2016-Ohio-204, ¶ 2 (“R.C. 2929.14(C)(4) does not apply to a conviction that
includes consecutive service of misdemeanor jail terms. R.C. 2929.41(B) authorizes
consecutive service of jail terms up to 18 months without findings.”); State v. Burley,
2017-Ohio-378, 83 N.E.3d 322, ¶ 10 (7th Dist.) (“In contrast to consecutive prison
terms for felonies imposed under R.C. 2929.14(C)(4), trial courts are authorized to
order consecutive jail terms for misdemeanor offenses (up to 18 months) without
making consecutive sentence findings.”). Thus, contrary to Jones’ assertions, the
trial court was not required to make R.C. 2929.14(C)(4) findings to impose
consecutive sentences for his misdemeanor offenses. See, e.g., Alexander at ¶ 2;
State v. Jefferies, 2d Dist. Montgomery No. 27942, 2019-Ohio-1469, ¶ 34; State v.
Whitman, 5th Dist. Ashland Nos. 18-COA-030 and 18-COA-031, 2019-Ohio-2307,
¶ 71; Burley at ¶ 10. To impose consecutive sentences in this case, the trial court
simply needed to “specify” that the sentences would be served consecutively. Even
assuming the trial court was required to “specify” that the sentences would be served
consecutively when Jones was originally sentenced in August 2018 (rather than
when the sentences were “reimposed” after the termination of community control
sanctions in April 2019), the record reflects that the trial court did that here.
In this case, when the trial court originally sentenced Jones in 614412,
it sentenced him to six months in jail on each count. Although the trial court did not
use the term “consecutive” sentences, it is clear from the trial court’s August 14, 2018
sentencing journal entry — imposing an aggregate jail sentence “for a term of 24
month(s)” — that consecutive sentences were originally “specified” as to the four
counts in 614412. The trial court likewise “specified,” when sentencing Jones in
April 2019, that the sentences on the four counts in 614412 were to be served
consecutively. At the April 9, 2019 hearing, the trial court expressly stated: “Case
614412, you pled guilty to misdemeanors in Counts 1, 2, 3 and 4, six months on
Count 1, six months on Count 2, six months on Count 3, six months on Count 4,
consecutive to one another. 24 months.” The trial court’s April 15, 2019 sentencing
journal states: “It is now ordered and adjudged that said defendant Jumaine Jones
is sentenced to the Cuyahoga County jail for a term of 24 month(s). Count 1 — 6
months. Count 2 — 6 months. Count 3 — 6 months. Count 4 — 6 months. 70 day
suspended. Counts to run consecutive to each other.”
Although the trial court was not required to make R.C. 2929.14(C)(4)
findings in order to impose consecutive sentences for Jones’ misdemeanor offenses,
there is an issue with the consecutive sentences the trial court imposed in 614412.
The 24-month aggregate consecutive sentence the trial court imposed at the April 9,
2019 hearing exceeded the 18-month aggregate consecutive sentence permitted
under R.C. 2929.41(B)(1). See State v. Pierce, 4th Dist. Meigs No. 10CA10, 2011-
Ohio-5353, ¶ 11 (vacating defendant’s sentences and remanding for resentencing
where trial court’s aggregate misdemeanor jail sentence was 19 months “and, thus,
exceeded the statutory maximum”). Apparently recognizing this problem, in its
April 15, 2019 sentencing journal entry, the trial court attempted to modify the
sentence it had imposed at the hearing by stating that “70 days” of Jones’ sentence
was “suspended” and that his “aggregate total sentence is reduced to less than 18
months per statute.” However, there is no statutory authority for the imposition of
indefinite, aggregate consecutive sentences of “less than 18 months” for
misdemeanor offenses.
At oral argument, the state conceded that the trial court’s April 15,
2019 sentencing journal entry requires “clarification” but claimed that the error
could be remedied by a nunc pro tunc entry, imposing an aggregate 18-month
sentence in accordance with R.C. 2929.41(B)(1). We disagree. While courts have
inherent authority to correct clerical errors in judgment entries so that the record
“speaks the truth,” nunc pro tunc entries are limited to memorializing what the trial
court actually did, not what the trial court might have done, should have done or
intended to do. See, e.g., State v. Hidvegi, 8th Dist. Cuyahoga Nos. 108229 and
108928, 2019-Ohio-3893, ¶ 20 (“[P]roper use of a nunc pro tunc order ‘is limited to
memorializing what the trial court actually did at an earlier point in time, such as
correcting a previously issued order that fails to reflect the trial court’s true action,’
[and] ‘not what the court might or should have decided or what the court intended
to decide.’”), quoting State v. Spears, 8th Dist. Cuyahoga No. 94089, 2010-Ohio-
2229, ¶ 10, and State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d
142, ¶ 18.
Based on the record before us and considering all of the relevant facts
and circumstances, we believe the proper remedy is to vacate the consecutive
sentences imposed in 614412 and remand for resentencing in that case.
As they relate to 614411, Jones’ first and second assignments of error
are moot. As it relates to 614412, Jones’ first assignment of error is sustained in part
and overruled in part; based on our resolution of Jones’ first assignment of error,
his second assignment of error is also moot as to 614412.
Extradition Costs
In his third assignment of error, Jones contends that the trial court
committed plain error in ordering him to pay $2,532.30 in extradition costs
associated with extraditing him from Las Vegas to Cuyahoga County, Ohio after he
violated community control sanctions. Jones argues that the trial court lacked
authority to order him to pay these extradition costs because (1) the trial court was
required to impose any misdemeanor “financial sanctions” at the time of his original
sentencing in August 2018; (2) Jones is indigent and (3) extradition costs can only
be imposed on nonindigent felons under R.C. 2949.14.
R.C. 2929.28 addresses the imposition of financial sanctions in
misdemeanor cases. R.C. 2929.28(A) provides in relevant part:
In addition to imposing court costs pursuant to section 2947.23 of the
Revised Code, the court imposing a sentence upon an offender for a
misdemeanor * * * to any financial sanction or combination of financial
sanctions authorized under this section. If the court in its discretion
imposes one or more financial sanctions, the financial sanctions that
may be imposed pursuant to this section include, but are not limited to,
the following:
(1) Unless the misdemeanor offense is a minor misdemeanor or
could be disposed of by the traffic violations bureau serving the
court under Traffic Rule 13, restitution by the offender to the
victim of the offender’s crime or any survivor of the victim, in an
amount based on the victim’s economic loss. * * *
(2) A fine of the type described in divisions (A)(2)(a) and (b) of
this section payable to the appropriate entity as required by law:
(a) A fine [limited in amount based on the degree of the
offense] * * *.
(b) A state fine or cost as defined in section 2949.111 of the
Revised Code.
(3)
(a) Reimbursement by the offender of any or all of the
costs of sanctions incurred by the government, including,
but not limited to, the following:
(i) All or part of the costs of implementing any
community control sanction * * *;
(ii) All or part of the costs of confinement in a jail or
other residential facility * * *
(iii) All or part of the cost of purchasing and using
an immobilizing or disabling device * * *.
The state asserts that the trial court properly ordered Jones to pay the
extradition costs, not as a “financial sanction” under R.C. 2929.285 but as part of the
“costs of prosecution” pursuant to R.C. 2947.23. The state further asserts that the
costs associated with extraditing Jones from Las Vegas to Cuyahoga County for
purposes of the community control violation hearing were properly imposed against
Jones as part of the “costs of prosecution” because Jones had been extradited twice
before, i.e., before Jones entered his guilty pleas in August 2018, Jones had been
extradited twice — once from Georgia and once from Philadelphia — and Jones “had
to pay” the “accrued fees associated with the cost of extradition” prior to pleading
guilty.6 However, the fact that Jones may have previously reimbursed the state for
5 Because the state does not claim that the trial court could have properly ordered
Jones to pay the extradition costs as “restitution” under R.C. 2929.28(A)(1), a fine or
“state fine or cost” under R.C. 2929.28(A)(2)(a)-(b), “[r]eimbursement * * * of the costs
of sanctions incurred by the government” under R.C. 2929.28(A)(3) or any other
“financial sanction” authorized under R.C. 2929.28(A), we do not consider those issues
here.
6 In support of these claims, the state attaches (1) copies of two invoices from PTS
of America, U.S. Corrections, U.S. Prison Transport to the Cuyahoga County Prosecutor’s
Office dated January 6, 2018 and May 18, 2018 and (2) a copy of a check from Jones to
the Cuyahoga County Prosecutor’s Office dated August 7, 2018 indicating that it is for
“extradition reimbursement.” These documents were not presented to the trial court
extradition costs as a condition of a plea agreement, pursuant to which the parties
agreed Jones would pled guilty to misdemeanor criminal nonsupport charges
instead of the felony nonsupport charges with which he had been originally charged,
has no bearing on whether the trial court could order him to pay such costs in the
absence of such an agreement.
R.C. 2947.23(A)(1)(a) addresses the imposition of the “costs of
prosecution” in criminal sentences. That section provides, in relevant part:
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.
Thus, under R.C. 2947.23(A)(1)(a), the trial court must assess the
costs of prosecution against criminal defendants, including misdemeanants.
Because the imposition of the costs of prosecution is mandatory, the trial court is
not required to hold a hearing or otherwise determine a defendant’s ability to pay
before ordering him or her to pay costs. See, e.g., Cleveland v. Ruiz, 8th Dist.
Cuyahoga No. 106743, 2018-Ohio-4604, ¶ 11, citing State v. Dean, 146 Ohio St.3d
106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 231, and State v. Miller, 8th Dist. Cuyahoga
No. 106051, 2018-Ohio-2127, ¶ 22. The trial court, however, has the discretion to
waive costs if the defendant moves for a waiver of costs. Ruiz at ¶ 13; Miller at ¶ 23;
R.C. 2947.23(C) (“The court retains jurisdiction to waive, suspend, or modify the
below and were not part of the record on appeal; therefore, they will not be considered by
this court.
payment of the costs of prosecution, including any costs under section 2947.231 of
the Revised Code, at the time of sentencing or at any time thereafter.”).
The phrase “costs of prosecution,” as used in R.C. 2947.23, has not
been statutorily defined. Middleburg Hts. v. Quinones, 120 Ohio St.3d 534, 2008-
Ohio-6811, 900 N.E.2d 1005, ¶ 8. However, it has often been used interchangeably
with “court costs.” See, e.g., R.C. 2929.28(A) (referring to the “costs of prosecution”
imposed under R.C. 2947.23 as “court costs”); see also State v. Rice, 2d Dist. Greene
No. 2011-CA-74, 2012-Ohio-4084, ¶ 7 (‘“costs of prosecution’ and ‘court costs’ have
been found to be synonymous”); State v. Christy, 3d Dist. Wyandot No. 16-04-04,
2004-Ohio-6963, ¶ 22 (“Although the statute does not define the term ‘costs of
prosecution,’ we conclude after review that the term means ‘court costs’ in a criminal
case.”); State v. Holmes, 6th Dist. Lucas No. L-01-1459, 2002-Ohio-6185, ¶ 20 (“The
‘costs of prosecution’ * * * are the court costs incurred in the prosecution of the
case.”); State v. Lincoln, 6th Dist. Lucas No. L-15-1080, 2016-Ohio-1274, ¶ 11 (“Costs
of prosecution” as used in R.C. 2947.23(A)(1) “means court costs in a criminal case”
and are ‘“those [expenses] directly related to the court proceedings * * *.’”), quoting
State v. Perz, 173 Ohio App.3d 99, 2007-Ohio-3962, 877 N.E.2d 702, ¶ 36 (6th
Dist.), quoting Christy at ¶ 22.
The term “costs” has been defined as ‘“the statutory fees to which
officers, witnesses, jurors, and others are entitled for their services in an action or
prosecution, and which the statutes authorize to be taxed and included in the
judgment or sentence.’” Middleburg Hts. at ¶ 8, quoting State ex rel. Franklin Cty.
Commrs. v. Guilbert, 77 Ohio St. 333, 338, 83 N.E. 80 (1907); see also R.C.
2949.111(A)(1) (“As used in this section * * * ‘[c]ourt costs’ means any assessment
that the court requires an offender to pay to defray the costs of operating the court.”).
“The expenses which may be taxed as costs in a criminal case are those directly
related to the court proceedings and are identified by a specific statutory
authorization.” Middleburg Hts. at ¶ 8, citing Christy at ¶ 22.
Although extradition costs are no doubt a necessary expense in
prosecuting a case against a criminal offender who has left (and fails to return to)
the jurisdiction, the state has not identified any “specific statutory authorization” for
the taxing of Jones’ “extradition fees” as costs in this case. See State v. Perz, 6th
Dist. Lucas No. L-07-1330, 2008-Ohio-2383, ¶ 13-18 (trial court erred in imposing
costs of special prosecutor in the “costs of prosecution” where there was no “specific
statute” providing that such costs could be charged to the defendant). R.C. 2949.14,
entitled “[c]ost bill in case of felony,” provides:
Upon conviction of a non-indigent person for a felony, the clerk of the
court of common pleas shall make and certify under the clerk’s hand
and seal of the court, a complete itemized bill of the costs made in such
prosecution, including the sum paid by the board of county
commissioners, certified by the county auditor, for the arrest and
return of the person on the requisition of the governor, or on the
request of the governor to the president of the United States, or on the
return of the fugitive by a designated agent pursuant to a waiver of
extradition except in cases of parole violation. The clerk shall attempt
to collect the cost from the person convicted.
By its terms, R.C. 2949.14 is limited to “non-indigent” persons
“convict[ed]” of a felony. Although Jones was originally charged with felony
criminal nonsupport, he pled guilty to, and was convicted of, misdemeanor criminal
nonsupport. There is no comparable provision for the payment of extradition costs
by convicted misdemeanor offenders. See also 1929 Ohio Atty.Gen.Ops. No. 29-183,
paragraph one of the syllabus (concluding that “[t]he costs of extradition of a
defendant charged under the laws of Ohio with a misdemeanor cannot be made a
part of the costs of prosecution” when interpreting a prior version of the statute
codified at G.C. 2491).
Further, even if R.C. 2949.14 otherwise applied to Jones, it is limited
in application to convicted, “non-indigent” persons. In its April 15, 2019 sentencing
journal entries, the trial court stated that Jones was “indigent.”
Accordingly, we sustain Jones’ third assignment of error. We vacate
the trial court’s orders in 614411 and 614412 requiring Jones to pay $2,532.30 in
extradition costs.
Conclusion
Because Jones has already served his sentences in 614411, his
challenges to the length of his sentences in that case are moot. In 614412, we vacate
Jones’ consecutive sentences and remand for resentencing. On remand in 614412,
if the trial court, in its discretion, determines that consecutive sentences should be
imposed, it should comply with R.C. 2929.41(B)(1), i.e., specify that the sentences
are to be served consecutively and specify the aggregate consecutive sentence to be
served, which must not exceed 18 months. In both 614411 and 614412, we vacate
the trial court’s orders requiring Jones to pay $2,532.30 in extradition costs. We
otherwise affirm the trial court.
Judgment affirmed in part; vacated in part; remanded.
It is ordered that appellant recover from appellee 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
Cuyahoga County Court of Common Pleas to carry out this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
PATRICIA A. BLACKMON, J., CONCUR