State v. Ali ( 2024 )

[Cite as State v. Ali, 2024-Ohio-486.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-23-1123
L-23-1129
Appellee
Trial Court No. CR0202201941
CR0202201984
v.
Shahnaz Ali DECISION AND JUDGMENT
Appellant Decided: February 9, 2024
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
SULEK, P.J.
{¶ 1} In this consolidated appeal, appellant, Shahnaz Ali, appeals the April 19,
2023 judgments of the Lucas County Court of Common Pleas, convicting her of two
counts of felonious assault and sentencing her to minimum prison terms of three years
and maximum prison terms of four-and-a-half years on each count, to be served
concurrently with one another. The court also imposed a period of postrelease control
and certain costs. For the following reasons, the trial court’s judgments are reversed with
respect to the imposition of the costs of confinement. The judgments are otherwise
affirmed.
I. Background
{¶ 2} In Lucas County Case no. CR0202201941, Shahnaz Ali pleaded no contest
to felonious assault, a violation of R.C. 2903.11(A)(1) and (D), a second-degree felony.
In Lucas County Case no. CR0202201941, Ali entered a plea of no contest to a second
count of felonious assault. The trial court found Ali guilty, ordered a presentence
investigation report and general sentencing evaluation by Court Diagnostic and
Treatment Center (“CDTC”), and continued the matters for a sentencing hearing on
April 19, 2023.
{¶ 3} At that hearing, it sentenced Ali to minimum prison terms of three years and
maximum prison terms of four-and-a-half years on each count, to be served concurrently
with one another. It also imposed 18 months to three years’ mandatory postrelease
control and ordered her to pay the costs of prosecution. The convictions and sentences
were memorialized in judgments entered April 19, 2019. In those judgment entries, the
court imposed costs as follows:
Defendant found to have, or reasonably may be expected to have, the
means to pay all or part of the applicable costs of supervision, confinement,
and prosecution as authorized by law. Defendant ordered to reimburse the
2.
State of Ohio and Lucas County for such costs. This order of
reimbursement is a judgment enforceable pursuant to law by the parties in
whose favor it is entered. Defendant further ordered to pay the cost [sic]
assessed pursuant to R.C. 9.92(C), 2929.18 and 2951.021 if not sentenced
to ODRC. Notification pursuant to R.C. 2947.23 given. Defendant is
found to have or reasonably may be expected to have the means to pay all
or part of the costs of appointed counsel. The Court hereby assesses all or
part of the assigned counsel fee against defendant. This is a civil judgment
enforceable against defendant and is not part of defendant’s criminal
sentence.
{¶ 4} Ali appealed. She assigns a single error for our review:
THE TRIAL COURT IMPROPERLY ASSIGNED COSTS OF
CONFINEMENT AND SUPERVISION IN THE JUDGMENT ENTRY
OF SENTENCING, WITHOUT CONSIDERATION ON THE RECORD
OF APPELLANT’S ABILITY TO PAY.
II. Law and Analysis
{¶ 5} Ali argues that the trial court erred when it assigned costs of confinement
and supervision without considering on the record whether she has the ability to pay. She
asserts that these costs were not addressed by the trial court at the sentencing hearing.
3.
{¶ 6} This court reviews a challenge to the imposition of costs under R.C.
2953.08(A)(4) and (G)(2)(b) to determine whether it was contrary to law to impose such
costs. State v. Velesquez, 6th Dist. Lucas No. L-22-1167, 2023-Ohio-1100, ¶ 6, quoting
State v. Ivey, 6th Dist. No. L-19-1243, 2021-Ohio-2138, ¶ 7, citing R.C. 2953.08(A)(4)
and (G)(2)(b).
{¶ 7} Before addressing whether the imposition of costs here was contrary to law,
it is necessary to note that Ali was sentenced to prison, not community control. Under
2951.021(A)(1), a trial court may impose costs of supervision on a felony offender
sentenced to a community control sanction. Because Ali was sentenced to a term of
prison and not community control, the costs of supervision are not applicable here. State
v. Eaton, 6th Dist. Lucas No. L-18-1183, 2020-Ohio-3208, ¶ 33 (“The costs of
supervision are not at issue in this case because a prison term was imposed.”); Velesquez
at ¶ 12. Only the costs of confinement are at issue.1
1
At the end of her brief, Ali also argues that we should find that costs of prosecution
should be waived. But Ali’s assignment of error only challenges the imposition of costs
of confinement and supervision—not costs of prosecution. Moreover, costs of
prosecution are mandatory costs that must be imposed in all criminal cases. R.C.
2947.23(A)(1)(a). The court need not consider the offender’s ability to pay the costs of
prosecution. State v. Townsend, 6th Dist. Lucas No. L-22-1214, 2023-Ohio-2625, ¶ 10.
4.
{¶ 8} R.C. 2929.18(A)(5)(a) permits a court to order an offender to pay the costs
of confinement, which are discretionary. Velesquez at ¶ 8; Ivey ¶ 8; Townsend at ¶ 10.
Costs of confinement must be imposed on the record at the sentencing hearing and in the
judgment entry. Id. at ¶ 14; State v. Henderson, 6th Dist. Lucas No. L-23-1098, 2023-
Ohio-4576, ¶ 17. Moreover, before imposing the costs of confinement, the trial court
must consider whether the offender has, or reasonably may be expected to have, the
ability to pay these costs. See R.C. 2929.19(B)(5) (requiring the court to consider the
offender’s present and future ability to pay before imposing a financial sanction under
R.C. 2929.18).
{¶ 9} The state acknowledges that the trial court “did not specifically discuss the
imposition of the costs of confinement at the April 19, 2023 sentencing hearing”; the
costs were imposed only in the judgment entries, along with a finding that Ali has, or
reasonably may be expected to have, the means to pay these costs. But it maintains that
because the court stated at the sentencing hearing that it considered the PSI—and the PSI
contains an overview of Ali’s education and employment history—the record supports a
finding that Ali has, or reasonably may be expected to have, the means to pay the costs of
confinement.
{¶ 10} “Where courts fail to address discretionary costs at the sentencing hearing,
but include imposition of costs within the sentencing entry, we have consistently found
the imposition of costs to be contrary to law, and vacated the portion of the judgment
5.
imposing discretionary costs.” Henderson at ¶ 16, citing State v. Wymer, 6th Dist. Lucas
No. L-18-1108, 2019-Ohio-1563, ¶ 14; State v. Hill, 6th Dist. Lucas No. L-18-1160,
2020-Ohio-1237, ¶ 30; State v. Temple, 6th Dist. Lucas No. L-18-1070, 2019-Ohio-3503,
¶ 13; Velesquez at ¶ 12-13; but see State v. Fisher, 6th Dist. Lucas No. L-22-1150, 2023-
Ohio-2088, ¶ 34 (affirming imposition of discretionary costs despite trial court’s failure
to address them at sentencing hearing because information in PSI supported a finding of
offender’s ability to pay).
{¶ 11} Here, there is no dispute that the trial court failed to impose discretionary
costs at the sentencing hearing. The trial court, therefore, erred in imposing the costs of
confinement in the judgment entries. Accordingly, Ali’s sole assignment of error is well-
taken and the portions of the judgments that impose costs of confinement are vacated.
III. Conclusion
{¶ 12} Because the trial court failed to impose the costs of confinement on the
record at the sentencing hearing, the imposition of those costs in the judgment entries was
contrary to law. The April 19, 2023 judgments of the Lucas County Court of Common
Pleas are reversed only as to the imposition of the costs of confinement. The portion of
the judgments that impose those costs are vacated. The state is ordered to pay the costs
of this appeal under App.R. 24.
Judgments affirmed, in part,
reversed, in part,
and vacated, in part.
6.
State of Ohio
v. Shahnaz Ali
L-23-1123, L-23-1129
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.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/.
7.