State v. Smith , 2023 Ohio 1235 ( 2023 )

[Cite as State v. Smith, 2023-Ohio-1235.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
State of Ohio, : Case No. 22CA4006
Plaintiff-Appellee, :
DECISION AND
v. : JUDGMENT ENTRY
Thomas O. Smith, :
Defendant-Appellant. : RELEASED 4/12/2023
______________________________________________________________________
APPEARANCES:
Addison M. Spriggs, Assistant State Public Defender, Office of the Ohio Public Defender,
Columbus, Ohio, for appellant.
Shane A. Tieman, Prosecuting Attorney, and Jay S. Willis, Assistant Prosecuting
Attorney, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Thomas O. Smith appeals from a judgment of the Scioto County Court of
Common Pleas denying his motion to waive, modify, or suspend payment of court costs.
Smith presents two assignments of error asserting the trial court plainly erred when it
failed to vacate unauthorized court costs in the form of special project fees and abused
its discretion when it failed to waive, modify, or suspend his $22,564.54 in court costs and
instead directed his account into a payment plan. For the reasons which follow, we
overrule the assignments of error and affirm the trial court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} In February 2015, Smith was convicted, following a jury trial, of multiple
offenses, including engaging in a pattern of corrupt activity, drug trafficking offenses, and
Scioto App. No. 22CA4006 2
participating in a criminal gang. The trial court imposed an aggregate sentence of 40
years in prison, ordered Smith to pay a fine of $20,000 and the costs of prosecution, and
directed the Department of Rehabilitation and Corrections (“DRC”) “to withhold funds in
the appropriate amount from the defendant’s account to pay the costs.” We affirmed the
convictions but found that the trial court should have merged the convictions for engaging
in a pattern of corrupt activity and participating in a criminal gang as allied offenses of
similar import. State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, ¶ 123 (4th Dist.).
Therefore, we remanded the matter to the trial court “for the limited purpose of conducting
a new sentencing hearing consistent with” our opinion. Id. Subsequently, Smith filed a
petition for postconviction relief. The trial court denied the petition and conducted the
resentencing hearing. The court imposed an aggregate sentence of 32 years in prison,
again ordered Smith to pay a fine of $20,000 and the costs of prosecution, and directed
DRC “to withhold funds in the appropriate amount from the defendant’s account to pay
the fine and costs.” Smith appealed the denial of his petition for postconviction relief, and
we affirmed the trial court’s judgment. State v. Smith, 4th Dist. Scioto No. 16CA3774,
2017-Ohio-7659, ¶ 1.
{¶3} The docket sheet contains two notations for August 29, 2022, which are
relevant to this appeal. The first notation states:
ITEMIZED BILL
SMITH, THOMAS was sent bill (STMT MAILED TO MANCI) for $22564.54
printed on 08/29/2022
-ATTY ADDISON SPRIGGS W/PUBLIC DEFENDER OFFICE
REQUESTED COPY OF THIS ITEMIZED BILL
-REVISED BILL TO REMOVE ALL SP CODES – RE-SENT REVISED BILL
TO MANCI
Scioto App. No. 22CA4006 3
{¶4} The second notation is for a motion to waive, modify, or suspend payment
of court costs filed by Smith. In the motion, Smith asserted he was charged $22,564.54
in court costs, which included eight charges for special project fees totaling $40.00.
Pursuant to R.C. 2947.23(C), Smith asked the court to waive the costs, modify the costs
by reducing them, or suspend their collection until his release from prison in 2046. Smith
asserted that he was 34 years old, incarcerated in the Mansfield Correctional Institution,
and had “no financial resources to assist him in paying the court costs associated with his
case, other than the negligible income he earns while employed in the institution.” Smith
claimed that he made between $8 and $17 a month, received “no financial support from
outside sources,” and could not afford basic living expenses. Smith asserted that he was
indigent at the time of trial, remained indigent, and was unable to pay his debt while
incarcerated. He asserted it was unlikely that he would be able to make meaningful
payments towards his debt after his release. Smith also asked the court to waive the
special project fees on the additional ground that no statute or rule authorized them, and
in State v. Duckett, 4th Dist. Scioto No. 20CA3924, 2021-Ohio-3110, this court held that
it was plain error to assess such fees when no statute or local rule authorizes them.
{¶5} The exhibits attached to Smith’s motion include an itemized bill dated
August 29, 2022 with an amount due of $22,564.54. This amount includes the $20,000
fine. No “special project” fees appear on the bill.
{¶6} The state filed a memorandum in response to Smith’s motion. The state
agreed special project fees should be waived pursuant to Duckett. The state had no
“objection to an appropriate payment plan being established for the Defendant in this
matter.” However, the state objected “to a suspension or waive[r] of all court costs in this
Scioto App. No. 22CA4006 4
case.” The state asserted that Smith “made a decision to take this matter to trial and was
convicted” and that “he should bear at least part of the burden of paying for the costs
associated with conducting that trial, not as punishment but as the natural consequence
of his decision.” The state asserted that “[s]ociety should not bear the entire burden.”
{¶7} Subsequently, the trial court issued a judgment entry stating:
This matter comes before the Court upon Defendant’s Request for
Payment Plan for fines and court costs.
With due consideration, the Court hereby finds a payment plan shall
be granted in the above stated matter for any fines/court costs. Effective
the date of this entry, Defendant’s payment of court costs shall be paid, in
the total amount of $25.00 monthly, by the Defendant or Defendant’s family
member, directly to the Scioto County Clerk of Courts, and not deducted
from the commissary.
It is further Ordered if one payment is missed, the payment of costs
shall return to being deducted from the commissary.
This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶8} Smith presents two assignments of error:
ASSIGNMENT OF ERROR I: The trial court plainly erred when it failed to
vacate unauthorized court costs in the form of special project fees.
ASSIGNMENT OF ERROR II: The trial court abused its discretion when it
failed to waive, modify, or suspend Mr. Smith’s $22,564.54 in court costs
and instead directed his account into a payment plan.
III. LAW AND ANALYSIS
{¶9} “By statute, the imposition of court costs on all convicted defendants is
mandatory.” State v. Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 6.
R.C. 2947.23(A)(1)(a) states: “In all criminal cases, * * * the judge * * * shall include in
the sentence the costs of prosecution * * * and render a judgment against the defendant
Scioto App. No. 22CA4006 5
for such costs.” (Emphasis added.) However, R.C. 2947.23(C) states that “[t]he court
retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution
* * * at the time of sentencing or at any time thereafter.” “Thus, although R.C. 2947.23
mandates trial courts to impose costs in all criminal cases, it also gives trial courts
discretion to waive, suspend, or modify the payment of costs, either at sentencing or at
any time thereafter.” State v. Bolin, 4th Dist. Athens No. 21CA14, 2022-Ohio-3375, ¶ 6.
We review a trial court’s decision regarding a motion to waive, suspend, or modify the
payment of costs under an abuse of discretion standard. Id. “To find an abuse of
discretion, an appellate court must determine the trial court’s decision is unreasonable,
arbitrary, or unconscionable.” Id.A. Special Project Fees
{¶10} In the first assignment of error, Smith contends that the trial court plainly
erred when it failed to vacate unauthorized court costs in the form of special project fees.
Smith asserts that the fees were assessed in 2014 and 2015, and citing State v. Tabor,
4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, he asserts that plain error review applies
because his counsel at the time did not object to the fees. He asserts that a court’s power
to assess costs is limited by statute and local rule and that Duckett found no statute or
local rule in Scioto County authorizes special project fees, so the trial court should have
vacated them. He asks this court to “vacate the unauthorized costs that have been
assessed against” him.
{¶11} In its appellee’s brief, the state asserted that Smith would be withdrawing
his first assignment of error, which the parties now agreed was moot because the clerk
removed the special project fees from Smith’s bill on August 29, 2022. Subsequently,
Scioto App. No. 22CA4006 6
Smith filed a “notice of modification to cost bill” to “notify this court of a development
related to his cost bill”—that the clerk removed the special project fees from his bill. The
notice states that “[t]his may have rendered the corresponding assignment of error moot.
However, absent an order from this court, it is unclear whether the clerk of courts may
reinstate those unauthorized fees.”
{¶12} As a preliminary matter, we note that plain error review does not apply to
this assignment of error. Crim.R. 52(B) states: “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court.” Smith brought the special project fee issue to the attention of the trial court via his
motion to waive, modify, or suspend payment of court costs. He asked the court to waive
special project fees under R.C. 2947.23(C) on the same ground asserted in the argument
under his first assignment of error—that the fees are not authorized by statute or rule.
The trial court effectively denied Smith’s motion, and as we explained above, we review
a decision on a motion to waive, suspend, or modify the payment of costs pursuant to
R.C. 2947.23(C) for an abuse of discretion. Bolin, 4th Dist. Athens No. 21CA14, 2022-
Ohio-3375, at ¶ 6.
{¶13} Tabor is inapposite. In that case, the defendant filed a direct appeal from a
judgment of conviction and sentence and asserted that the trial court erred by imposing
unauthorized court costs. Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, at ¶ 1,
43. We concluded plain error review applied because the defendant did not object to the
costs during the trial court proceedings. Id. at ¶ 44. Nothing in Tabor indicates the
defendant filed a motion in the trial court pursuant to R.C. 2947.23(C) like Smith did.
Scioto App. No. 22CA4006 7
{¶14} The trial court did not abuse its discretion when it denied Smith’s request
for a waiver of special project fees. One could interpret the first notation on the docket
sheet for August 29, 2022 to mean that the clerk revised Smith’s bill that day to remove
special project fees from it. No one has challenged the clerk’s authority to do so. The bill
which Smith attached as an exhibit to his motion to waive, modify, or suspend payment
of court costs is evidently the revised bill because it does not include any “special project”
fees. In his appellate brief, Smith made a table outlining the $40 in special project fees
which he asserts were charged to him. For each of the eight fees, the table lists a date,
the item description “SPECIAL PROJECTS/MARSHALL,” an amount charged of $5, and
an amount due of $5. He cites the “August 29, 2022 Cost Bill” as the source for the
information in the table. But none of these fees appear on the bill from that date which
he attached to his motion. And because no special project fees appear on the bill which
Smith attached to his motion, the trial court’s denial of his request for a waiver of special
project fees was not unreasonable, arbitrary, or unconscionable. Accordingly, we
overrule the first assignment of error.
B. Other Costs
{¶15} In the second assignment of error, Smith contends the trial court abused its
discretion when it failed to waive, modify, or suspend his $22,564.54 in court costs and
instead directed his account into a payment plan. Smith asserts that he “was indigent
when he was first convicted, remains indigent, and will likely be indigent until at least the
age of 56 when he is released from prison.” Smith maintains that there is “no feasible
way” for him to pay his debt while incarcerated. He asserts that he “will be unable to
obtain a higher salary beyond what is offered through” DRC “for the foreseeable future.”
Scioto App. No. 22CA4006 8
He asserts DRC paid him $17 in June 2022 and $8.75 in July 2022, and he “is unable to
pay for his hygiene products, medical co-pays, and necessary daily expenses, much less
his extensive court debt.” Smith states that even after his release, he “will likely struggle
to support himself, let alone make meaningful payments toward his $22,564.54 debt” “as
a 56-year old man who is navigating reentry.” Smith asserts that it was an abuse of
discretion for the trial court to not modify, waive, or suspend his court costs “despite the
numerous indications of his present and future ability to pay them” and “summarily” state
that he, “or a family member of his, would be required to make monthly payments towards
the court costs, without any consideration of the indigency indications presented” by him.
Smith asks us to “remand to the trial court for a hearing to determine an appropriate
amount of [his] costs to waive, modify, or suspend.”
{¶16} The state contends that a trial court “is not required to suspend court costs
upon a showing of indigency” or make explicit findings or explain its decision under R.C.
2947.23(C). And the state asserts that the trial court implicitly considered Smith’s
assertion that he was indigent “by ordering a payment plan.”1
{¶17} R.C. 2947.23(C) “provides no explicit criteria that a court should use in
deciding whether to waive, suspend, or modify costs.” Taylor, 161 Ohio St.3d 319, 2020-
Ohio-3514, 163 N.E.3d 486, at ¶ 8. “[A] trial court is not required to consider the
defendant’s ability to pay in assessing a motion to waive, suspend, or modify
court costs under R.C. 2947.23(C), though it is permitted to do so.” Id. at ¶ 16. “ ‘[W]aiver
of costs is permitted—but not required—if the defendant is indigent.’ ” Id. at ¶ 7, quoting
1 The state has not argued that the $20,000 fine, which is included in the $22,564.54, is not a cost of
prosecution which is subject to R.C. 2947.23(C).
Scioto App. No. 22CA4006 9
State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. Taylor
observed that aside from ability to pay,
in the abstract, there are many other criteria that can equally justify a
decision to waive, suspend, or modify the imposition of costs in a particular
case. A court might, for instance, look to whether the costs are unfairly
excessive given the degree of wrongdoing. Or a court might look to whether
the costs impose a hardship on third parties. Or maybe a court would
conclude that R.C. 5120.133, which prevents a prison from disbursing an
inmate’s funds that, by statute, are “exempt from execution, garnishment,
attachment, or sale,” adequately addresses a defendant’s present inability
to pay. In such a case, a court might choose to keep the costs order in
place in the event the defendant can pay later.
Id. at ¶ 12. Taylor also explained the absence of explicit criteria in R.C. 2947.23(C) did
not make the decision to waive, modify, or suspend costs “a matter of trial-court whim,”
stating:
It is a basic principle of our legal system that a trial court’s decision must
not be arbitrary and cannot be based on considerations wholly unrelated to
the decision it is tasked with making. A trial court could not, for instance,
deny a motion to waive costs based on the flip of a coin or the color of a
defendant’s hair or because it is Tuesday. Neither could a court adopt a
standing order to reject all such motions, as that would be opting out of any
sort of rational assessment altogether.
Id. at ¶ 16.
{¶18} In addition, this court has recognized that while “an explanation for a trial
court’s decision regarding a motion to waive payment of court costs may facilitate a more
meaningful appellate review,” R.C. 2947.23(C) “does not require an explicit explanation.”
State v. Phillips, 4th Dist. Scioto No. 20CA3905, 2022-Ohio-478, ¶ 13. We have stated
that “because the statute is silent concerning findings, trial courts should not be required
to make findings when ruling on a motion to waive the payment of court costs.” Id.Therefore, we have found “no error” with a trial court’s failure to include explicit findings
in a decision on a motion under R.C. 2947.23(C). Id. at ¶ 14.
Scioto App. No. 22CA4006 10
{¶19} Smith does not identify anything unreasonable, arbitrary, or unconscionable
about the decision denying his motion except for the fact that there are “numerous
indications” of his present and future inability to pay court costs, and the trial court issued
a summary decision “without any consideration of the indigency indications presented” by
him. But again, “a trial court is not required to consider the defendant’s ability to pay in
assessing a motion to waive, suspend, or modify court costs under R.C. 2947.23(C),
though it is permitted to do so,” Taylor at ¶ 16, and the court is not required to make
explicit findings when ruling on such a motion, Phillips at ¶ 13-14. And the fact that the
court ordered Smith to make modest monthly payments suggests the court did consider
his ability to pay. For these reasons, we cannot conclude the trial court abused its
discretion when it failed to waive, modify, or suspend Smith’s court costs and instead
directed his account into a payment plan. Accordingly, we overrule the second
assignment of error.
IV. CONCLUSION
{¶20} Having overruled the assignments of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Scioto App. No. 22CA4006 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, 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.