State v. Dolman , 2024 Ohio 1175 ( 2024 )

[Cite as State v. Dolman, 2024-Ohio-1175.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WILLIAMS COUNTY
State of Ohio Court of Appeals No. WM-23-003
Appellee Trial Court No. 09CR00142
v.
Alan D. Dolman DECISION AND JUDGMENT
Appellant Decided: March 28, 2024
*****
Katherine J. Zartman, Williams County Prosecuting Attorney,
for appellee.
Alan D. Dolman, pro se.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Alan D. Dolman, appeals the September 26, 2022 order of the
Williams County Court of Common Pleas denying appellant’s motion to vacate or waive
court costs. For the reasons that follow, we affirm the trial court’s order.
A. Facts and Procedural Background
{¶ 2} In 2010, appellant was convicted of six counts of illegal use of a minor in
nudity-oriented material or performance in violation of R.C. 2907.323(A)(1), a second-
degree felony; five counts of illegal use of a minor in a nudity-oriented material or
performance in violation of R.C. 2907.323(A)(3), a fifth-degree felony; and two counts of
endangering children in violation of R.C. 2919.22(B)(5), a second-degree felony.
{¶ 3} On February 22, 2010, following a sentencing hearing, the trial court issued
a sentencing entry imposing several consecutive prison terms. In addition, the trial court
ordered appellant to “pay any restitution, all costs of prosecution, any court-appointed
counsel costs, and any supervision fees permitted.” The trial court noted in its sentencing
entry that it had considered “the record, oral statements, any victim impact statement, and
if applicable, any pre-sentence report prepared.”
{¶ 4} On March 2, 2010, appellant filed a notice of appeal to this court. In his
appeal, appellant asserted eight assignments of error challenging several aspects of his
trial and sentence. On January 10, 2011, this court found all eight assignments of error
not well-taken and affirmed the trial court’s judgment. The Supreme Court of Ohio did
not accept appellant’s appeal for review.
{¶ 5} Appellant has filed several motions since his direct appeal concluded.
Among these were two motions to convert court costs to community service, one filed on
April 25, 2011 and another filed on July 8, 2016. In support of his 2011 motion,
appellant argued that he could not afford to pay the costs on his prison income, and in
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2016, appellant argued that payment of the costs would place an undue burden on him.
On both occasions, the trial court denied appellant’s motions without hearing, and
appellant did not appeal either ruling.
{¶ 6} On September 26, 2022, appellant filed the motion at issue in this appeal.
Appellant’s motion is styled as a “Motion to Vacate/Waive Court Cost pursuant to
§2303.23 or Waive Court Cost in lieu of Partial Payment Plan pursuant to
§2947.23(A)(1)(a) of the Ohio Revised Code.” In his motion, appellant requested that
the trial court either vacate his “court cost” due to dormancy and inability to pay or
permit appellant to make monthly payments. Within his motion, appellant specifically
claimed that as part of his sentence, he had been “ordered to pay restitution in the amount
of approximately $6,504.87 to wit $8,879.34 [sic] this day to incurring appellate fees.”
Appellant argued that he had no means to pay that amount and the judgment had become
dormant pursuant to R.C. 2329.07. Accordingly, appellant contended, the court should
find that the cost was uncollectible and vacate or waive the court costs. In support of his
motion, appellant filed an “affidavit of indigence.”
{¶ 7} The trial court denied appellant’s motion without hearing and encouraged
the appellant to contact the clerk’s office to set up a payment plan. On October 18, 2022,
appellant filed a request for findings of fact and conclusions of law, and the trial court
denied the request on December 1, 2022. The trial court explained that R.C.
2947.23(A)(1)(a) requires a sentencing court to include the costs of prosecution in a
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sentence, and given the pleadings, the record, and the pre-sentence investigation report,
the sentencing court had met its obligation under R.C. 2929.19(B)(5).
{¶ 8} The trial court’s record contains an invoice from the clerk’s office for
appellant’s case dated September 27, 2022. This invoice, which is eight pages long,
contains numerous entries for charges dating from 2009, with an invoice total of
$8,887.34. The entries contain various shorthand or abbreviated notations next to them,
with many charges containing the notation “clerk fees.” The last two entries on the
invoice were from September 26 and September 27, 2022, and these two entries together
were for $8.00. Accordingly, before appellant filed his motion on September 26, 2022,
appellant’s invoice total with the clerk’s office was $8,879.34, the amount cited by
appellant in his motion to vacate or waive court costs.
B. Assignment of Error
{¶ 9} Appellant timely1 appealed and asserts the following error for our review:
Trial counsel [sic] abused its discretion when it failed to conduct any inquiry as to
Appellant’s present or future ability to pay the amount of the sanction and its
denial of appellant’s Motion to Vacate/Waive Court Cost.
1
Appellant filed his notice of appeal on February 13, 2023 challenging the trial court’s
September 26, 2022 order. In a previous order, this court held that appellant’s notice of
appeal was timely filed pursuant to Civ.R. 58 and App.R. 4 because a notation of service
of the September 26, 2022 order was not made on the trial court’s appearance docket, and
therefore the time to appeal the judgment had not lapsed.
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II. Law and Analysis
{¶ 10} Although the assignment of error is framed generically, appellant alleges in
his brief that the trial court ordered him to pay $6,503.87, now $8,879.34 due to interest
and/or fees, as restitution as part of his sentence. Appellant points out that no separate
restitution hearing was held in his case, he was sentenced to a prison term of over 50
years and will be over 90 years old at the completion of his sentence, and appellant did
not have any significant financial assets at the time of his sentence. Appellant argues that
because a sentencing court must consider an offender’s ability to pay before imposing a
financial sanction and appellant does not have the ability to pay, the trial court abused its
discretion in ordering restitution and in denying appellant’s motion to vacate or waive
court costs.
{¶ 11} The state responds that appellant’s assignment of error is barred by res
judicata because appellant’s appeal involves an issue—whether the trial court could have
ordered appellant to pay restitution—that could have been raised on direct appeal. The
state also contends that the trial court did consider appellant’s ability to pay when the
court ordered restitution in the amount of $6,503.87, pointing to the portion of the
sentencing entry in which the court noted its consideration of “the record, oral statements,
any victim impact statement, and if applicable, any pre-sentence report prepared.”
{¶ 12} In his reply brief, appellant recharacterizes the amount he owes as costs of
prosecution, arguing that R.C. 2947.23 permits a court to waive, suspend or modify the
costs of prosecution at any time and therefore res judicata should not apply. Appellant
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also argues that R.C. 2947.23 requires a court to expressly consider an offender’s ability
to pay when considering a motion to vacate or waive court costs. In contradiction to his
arguments in his initial brief, appellant reasons that because the amount he owes was not
imposed as a financial sanction, the court’s imposition of the cost must not be intended to
punish, and therefore the court must consider the appellant’s ability to pay. Finally,
appellant argues that the judgment against him is dormant because it has existed for more
than 10 years and therefore the judgment is uncollectible and must be vacated.
{¶ 13} Before we address appellant’s specific arguments, however, we note the
inconsistency in appellant’s characterizations of the amount he seeks to vacate or waive.
In his motions before the trial court and in his briefs in this appeal, appellant has referred
to the amount at times as cost of prosecution and at other times as restitution. The state
refers to the amount as restitution, apparently adopting appellant’s characterization in
appellant’s initial merit brief. In our review of the record, we have found only an invoice
from the clerk’s office containing several pages of charges. Each entry has a generic
short notation—most of which are “clerk fee”–from which we cannot determine the exact
basis or origin of the charges. More specifically, our review of the record also establishes
there is no trial court order imposing restitution, no entry of the court setting a specific
amount of restitution, and no reference to restitution at all except the trial court’s
sentencing entry requiring appellant to “pay any restitution.”
{¶ 14} App.R. 16(A) requires an appellant to provide a statement of facts relevant
to the assignment of error and include appropriate references to the record. Appellant,
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“as the party asserting an error in the trial court, bear[s] the burden to demonstrate error
by reference to matters made part of the record in the court of appeals.” Kenwood
Gardens Assn., L.L.C. v. Shorter, 6th Dist. Lucas No. L-10-1315, 2011-Ohio-4135, ¶ 9,
citing Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384;
App.R. 9(B). “Appellate courts ‘are not obligated to search the record or formulate legal
arguments on behalf of the parties.’” State v. Boles, 6th Dist. Lucas No. L-19-1080,
2021-Ohio-363, ¶ 23, citing Risner v. Ohio Dep't of Nat. Res., Ohio Div. of Wildlife, 144
Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 28. Although appellant is acting pro
se, he must follow the same procedural rules as other litigants. State v. Rickard, 6th Dist.
Lucas No. L-16-1043, 2016-Ohio-4755, ¶ 3.
{¶ 15} Moreover, even if appellant had successfully established that the amount at
issue was imposed as restitution, as he characterizes the amount at issue in his initial
brief, his motion was untimely and is barred by res judicata. See State v. Craig, 6th Dist.
Wood No. WD-22-001, 2022-Ohio-3355, ¶ 17 (holding that the appellant’s attempt to
change his restitution amount after the conclusion of his direct appeal was an untimely
petition for postconviction relief and barred by res judicata).
{¶ 16} And if we consider appellant’s contrary argument in his reply brief that he
was ordered to pay the amount at issue as the costs of prosecution and his motion in the
trial court was therefore a timely motion under R.C. 2947.23, appellant’s argument still
fails. A trial court’s order denying such a motion is reviewed under an abuse-of-
discretion standard, and a trial court is not required to consider the appellant’s ability to
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pay in imposing costs of prosecution under R.C. 2947.23. State v. Geren, 6th Dist. Wood
No. WD-14-029, 2015-Ohio-909, ¶ 6-7. Accordingly, appellant has not demonstrated
that the trial court abused its discretion in denying his motion.
{¶ 17} Finally, appellant’s argument that the costs must be vacated due to
dormancy also fails. Again, because the record clearly establishes that the costs at issue
are court costs and not restitution, the rules of civil judgments apply. 2 See Strattman v.
Studt, 20 Ohio St.2d 95, 253 N.E.2d 749 (1969), paragraph six of the syllabus (holding
“[t]he duty to pay court costs is a civil obligation arising from an implied contract”).
Because an offender’s obligation to pay court costs is civil in nature, the laws regarding
dormancy apply to an order imposing court costs. See State v. Moore, 6th Dist. Huron
No. H-20-014, 2021-Ohio-1616 (affirming order reviving a dormant judgment imposing
court costs as part of an offender’s sentence). However, dormancy relates to whether a
creditor may execute on a judgment, not to the validity of the judgment itself. See Forg
v. Gammarino, 1st Dist. Hamilton No. C-050871, 2006-Ohio-6977, ¶ 9 (explaining that
“dormancy does not destroy the validity of the judgment”). Indeed, even after a
judgment becomes dormant, the creditor may bring an action to revive the judgment and
then execute on the judgment. See R.C. 2325.15. Accordingly, even if the appellant had
established that the amount at issue involved court-imposed costs and the judgment
imposing the costs is now dormant, the trial court did not err in denying appellant’s
2
The rules of civil judgments do not apply to restitution, which is imposed as a financial
sanction. See R.C. 2929.11; R.C. 2929.18.
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motion to vacate the costs because whether the judgment is now dormant only affects
collectability not the validity of the judgment.
III. Conclusion
{¶ 18} Appellant’s assignment of error is found not well-taken. We therefore
affirm the September 26, 2022 judgment of the Williams County Court of Common
Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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