State v. Crossley , 2022 Ohio 2599 ( 2022 )

[Cite as State v. Crossley, 2022-Ohio-2599.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-53
:
v. : Trial Court Case No. 2020-TRC-493
:
PAIGE CROSSLEY : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of July, 2022.
...........
MARC T. ROSS, Atty. Reg. No. 0070446, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
AMY E. BAILEY, Atty. Reg. No. 0088397, P.O. Box 188, Englewood, Ohio 45322
Attorney for Defendant-Appellant
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EPLEY, J.
{¶ 1} Paige Crossley was convicted in the Clark County Municipal Court of
operating a vehicle under the influence of alcohol or drugs (OVI). On appeal, she
contends that the trial court did not properly impose court costs as part of her sentence.
For the following reasons, the trial court’s judgment will be affirmed.
I. Procedural History
{¶ 2} In January 2020, Crossley was charged with two counts of OVI, driving under
suspension, and speeding. The following month, she pled guilty to one count of OVI, a
misdemeanor of the first degree (no prior offenses). In exchange for the plea, the three
additional charges were dismissed. At the plea hearing, Crossley agreed to complete a
three-day driver intervention program (DIP), which she did prior to sentencing.
{¶ 3} At her dispositional hearing, the trial court sentenced Crossley to 160 days
in jail with 157 days suspended and three days’ credit for DIP attendance, imposed one
year of probation, and suspended her driver’s license for one year, dating back to the
date of the offense. With respect to the mandatory fine and court costs, the trial court
told Crossley: “The Statute also mandates that I must fine you at least $375.00 in Court
costs. Uh that’s what I will do here ma’am. It will be the minimum fine of $375.00.”
The trial court’s written judgment entry reflects the requirement to pay both a $375 fine
and court costs. Crossley appeals from her conviction.
{¶ 4} Crossley’s original appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that she could
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find no non-frivolous issues for appeal. Upon an initial review, we noted that the record
was not complete (the record did not contain transcripts of the arraignment and plea
hearing) and thus the filing of an Anders brief was not appropriate. We further found
that, with the record before us, a non-frivolous issue existed as to whether the trial court
had informed Crossley at sentencing that it was imposing court costs and a mandatory
fine. We rejected the Anders brief and appointed new counsel for Crossley. New
counsel was ordered to supplement the record with transcripts of all on-the-record
proceedings and to file a new brief raising any claims with arguable merit.
{¶ 5} Crossley now raises one assignment of error on appeal, namely that the trial
court “improperly issued court costs.” She states that she was assessed a total of $970,
including a fine of $375, and has paid $130 of that amount. (This statement is consistent
with the itemized list of assessments and the allocation of Crossley’s payments as noted
on the Clark County Municipal Court website.) Crossley argues that no court costs were
ordered at sentencing, and thus no court costs should have been assessed; she asks
that the balance on her fine be adjusted to $245. The State has not filed a responsive
appellate brief.
II. Imposition of Court Costs
{¶ 6} At the outset, Crossley states that the trial court’s order that she pay $375
“should be treated as the mandatory minimum fine for the charge.” We agree. Pursuant
to the OVI statute, the trial court was required to impose upon Crossley a fine of not less
than $375 and not more than $1,075. See R.C. 4511.19(G)(1)(a)(iii). The trial court
informed Crossley at the plea hearing that it had no discretion “not to fine [her] or to go
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below $375.” Although the trial court misspoke when it initially told Crossley at
sentencing that it was required to impose “at least $375.00 in Court costs,” it clarified that
it was imposing “the minimum fine of $375.00.” The judgment entry reflects a fine of
$375 plus court costs. The record thus demonstrates that Crossley was ordered to pay
$375 as the mandatory minimum fine under the OVI statute, not as court costs.
{¶ 7} The crux of Crossley’s argument is that the court imposed court costs in its
judgment entry without orally imposing them at sentencing. Trial courts are required to
assess the costs of prosecution against all convicted defendants, even those who are
indigent, R.C. 2947.23(A)(1)(a), but the trial court is also permitted to waive such costs.
{¶ 8} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the
Ohio Supreme Court held that a trial court committed reversible error under Crim.R. 43(A)
when it included court costs in its sentencing entry without orally imposing them at the
sentencing hearing. When Joseph was decided, however, the motion to waive payment
of costs had to be made at sentencing. See Joseph at ¶ 12; State v. Threatt, 108 Ohio
St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of the syllabus. If a
defendant did not seek a waiver at sentencing, the issue was waived and a subsequent
challenge to court costs was barred by res judicata. Threatt at ¶ 23.
{¶ 9} In Sub.H.B. 247, effective March 22, 2013, the General Assembly amended
R.C. 2947.23 to allow the trial court to “waive, suspend, or modify the payment of the
costs of prosecution * * * at the time of sentencing or at any time thereafter.” (Emphasis
added.) R.C. 2947.23(C); see State v. Braden, 158 Ohio St.3d 462, 2019-Ohio-4204, 145
N.E.3d 235, ¶ 31 (“R.C. 2947.23(C) authorizes trial courts to waive, suspend or modify
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the payment of court costs imposed both before and after its effective date.”). It also
enacted R.C. 2303.23, which provides that, “[i]f at any time the court finds that an amount
owing to the court is due and uncollectible, in whole or in part, the court may direct the
clerk of the court to cancel all or part of the claim.”
{¶ 10} The Ohio Supreme Court has since held that “Joseph is no longer good
law.” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 263. It
emphasized that the result in Joseph “was dictated by the fact that at the time of Joseph’s
trial, an indigent criminal defendant was required to file a motion for waiver of costs at the
time of sentencing. Thus, if the court failed to mention court costs at the sentencing
hearing but then ordered the defendant to pay costs in its entry, the defendant would be
deprived of an opportunity to seek a waiver.” (Citation omitted.) Id. at ¶ 264. The
Court reasoned that, with the addition of R.C. 2947.23(C), a defendant no longer needed
an appellate court to remand the case for a defendant to request a waiver of court costs.
{¶ 11} In light of Beasley, nearly all of the Ohio appellate districts to address the
issue have held that, due to the ability to seek a waiver of court costs after sentencing
under R.C. 2947.23(C), the trial court’s failure to orally impose court costs at sentencing
no longer constitutes reversible error. See State v. Fissel, 1st Dist. Hamilton No. C-
210483, 2022-Ohio-1856, ¶ 17; State v. Bubenchik, 5th Dist. Stark No. 2019-CA-00178,
2020-Ohio-1268; State v. Price, 2019-Ohio-500, 130 N.E.3d 1017 (7th Dist.); State v.
Gardner, 8th Dist. Cuyahoga No. 110606, 2022-Ohio-381, ¶ 28; State v. Yeager, 2018-
Ohio-574, 106 N.E.3d 274, ¶ 20 (9th Dist.); State v. Williams, 12th Dist. Butler No.
CA2018-01-012, 2018-Ohio-3989, ¶ 18. But see State v. Anderson, 9th Dist. Summit
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No. 29275, 2019-Ohio-5220, ¶ 16 (“[T]he trial court erroneously imposed court costs in
its sentencing entries after failing to discuss that issue at the sentencing hearing.”); State
v. Jordan, 6th Dist. Sandusky No. S-18-034, 2019-Ohio-1814, ¶ 12.
{¶ 12} We similarly conclude that Beasley governs and that the trial court in this
case did not commit reversible error when it ordered Crossley to pay court costs in its
judgment entry without clearly informing her of that obligation at sentencing. Pursuant
to R.C. 2947.23(C), Crossley may seek a waiver of her court costs in the trial court, if she
has not already done so.
{¶ 13} Finally, we note that, unless a trial court designates otherwise, the order
that payments for a misdemeanor offense are assigned is set by statute. Under R.C.
2949.111(B), the clerk must assign the misdemeanor offender’s payments in the following
order: (1) court costs, (2) state fines or costs, (3) restitution, (4) fines, and (5)
reimbursements. Each category must be entirely paid before payments are assigned to
the next category. Id. Here, the trial court did not specify an order of payments that
differed from the statutory schedule. Therefore, the clerk appropriately applied
Crossley’s payments toward her court cost obligation, rather than toward the mandatory
fine.
{¶ 14} Crossley’s assignment of error is overruled.
III. Conclusion
{¶ 15} The trial court’s judgment will be affirmed.
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TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Marc T. Ross
Amy E. Bailey
Hon. Stephen A. Schumaker