State v. Braden (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Braden, Slip Opinion No. 2019-Ohio-4204.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-4204THE STATE OF OHIO, APPELLEE, v. BRADEN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Braden, Slip Opinion No. 2019-Ohio-4204.]
Criminal law—Sentencing—R.C. 2947.23(C) authorizes trial courts to waive,
suspend or modify the payment of court costs imposed both before and after
its effective date, March 22, 2013—R.C. 2947.23(C) provides exception to
res judicata when a defendant did not request waiver at sentencing or
challenge court costs on direct appeal—R.C. 2947.23(C) does not require
retroactive application for it to apply to offenders whose convictions were
final before its enactment—Motion for reconsideration granted, court of
appeals’ judgment reversed, and cause remanded.
(Nos. 2017-1579 and 2017-1609—Submitted March 5, 2019—
Decided October 16, 2019.)
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County,
No. 17AP-48, 2017-Ohio-7903.
ON MOTION FOR RECONSIDERATION.
_______________________
SUPREME COURT OF OHIO
FRENCH, J.
{¶ 1} Appellant, David L. Braden, has asked this court to reconsider our
decision in State v. Braden, __ Ohio St.3d __, 2018-Ohio-5079, __ N.E.3d __
(“Braden I”). Appellee, the state of Ohio, opposes that request.
{¶ 2} Effective March 22, 2013, the General Assembly enacted R.C.
2947.23(C), which provides that a trial 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.” 2012 Sub.H.B. No. 247. Here, we consider whether the
statute applies to offenders, like Braden, who were sentenced before R.C.
2947.23(C) became effective. In Braden I, we held that the General Assembly did
not expressly make R.C. 2947.23(C) retroactive and that with respect to costs
imposed before the enactment of R.C. 2947.23(C), an offender must have sought
waiver of the costs at sentencing, the trial court lacks jurisdiction to reconsider its
own final order, and res judicata bars any collateral attack on that order. Id. at ¶ 3,
20-21, 23-24.
{¶ 3} Braden contends that we obviously misconstrued R.C. 2947.23(C)’s
plain language. He also contends that Braden I is inconsistent with our decision in
State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264, in which
we considered a similar statute. This court agrees and grants Braden’s motion for
reconsideration. We now hold that neither R.C. 2947.23(C) nor this court’s
precedent precludes trial courts from waiving, suspending or modifying court costs
imposed before the effective date of R.C. 2947.23(C). Accordingly, we vacate our
decision in Braden I, answer the certified-conflict question in the affirmative,
reverse the judgment of the Tenth District Court of Appeals, and remand the case
to the court of appeals for consideration of the substance of Braden’s claim that the
trial court erred in denying his motion to waive his court costs.
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FACTS AND PROCEDURAL HISTORY
{¶ 4} In 1999, the Franklin County Court of Common Pleas sentenced
Braden to death following his convictions for two counts of aggravated murder with
death-penalty specifications. State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325,
785 N.E.2d 439, ¶ 2-3, 33. Pertinent here, the trial court also ordered Braden to
pay court costs. Id. at ¶ 33.
{¶ 5} In 2003, we affirmed Braden’s convictions and death sentences. Id.
at ¶ 163. The Supreme Court of the United States denied certiorari. Braden v.
Ohio, 540 U.S. 865, 124 S.Ct. 182, 157 L.Ed.2d 119 (2003). The trial court denied
postconviction relief, and the Tenth District Court of Appeals affirmed. 10th Dist.
Franklin No. 02AP-954, 2003-Ohio-2949. We denied Braden’s request for review.
100 Ohio St.3d 1431, 2003-Ohio-5396, 797 N.E.2d 511.
{¶ 6} In November 2016, Braden asserted his indigence and filed a motion
asking the trial court to waive his court costs. Alternatively, he asked the trial court
to order the prison to keep at least $400 in his prison account or allow him to enter
a payment plan of $3 a month. The state opposed the motion, and the trial court
summarily denied it.
{¶ 7} The Tenth District affirmed, holding that when a judgment of
conviction became final before the effective date of R.C. 2947.23(C), the trial court
could not “retain jurisdiction” to waive costs, because it did not have the authority
to do so at sentencing. 2017-Ohio-7903, ¶ 7-8. Because Braden’s convictions and
sentence, including the order to pay costs, became final well before the General
Assembly enacted R.C. 2947.23(C), res judicata barred Braden’s waiver request.
Id. at ¶ 8.
{¶ 8} This court accepted Braden’s discretionary appeal on the following
proposition of law: “A trial court has jurisdiction, pursuant to the current version
of R.C. 2947.23(C), to waive, modify or suspend court costs for those cases in
which the defendant’s conviction and sentence became final prior to the enactment
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of R.C. 2947.23(C).” See 151 Ohio St.3d 1526, 2018-Ohio-557, 91 N.E.3d 758.
We also recognized that the Tenth District’s judgment conflicts with judgments of
the Second and Eighth District Courts of Appeals, and we agreed to answer the
following certified-conflict question: “ ‘Does a trial court have jurisdiction,
pursuant to the current version of R.C. 2947.23(C), to waive, modify or suspend
court costs for those cases in which the defendant’s conviction and sentence became
final prior to the enactment of * * * R.C. 2947.23(C)?’ ” 151 Ohio St.3d 1523,
2018-Ohio-557, 91 N.E.3d 756, quoting the court of appeals’ November 2, 2017
entry.
BRADEN’S MOTION FOR RECONSIDERATION IS GRANTED
{¶ 9} A party to a case may ask this court to reconsider a decision on the
merits. S.Ct.Prac.R. 18.02(B)(4). We will grant a motion for reconsideration to
correct a decision that, upon reflection, we deem to have been made in error. State
ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662
N.E.2d 339 (1995). But we will not grant reconsideration when a movant merely
reargues the case. Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision,
139 Ohio St.3d 212, 2014-Ohio-1940, 11 N.E.3d 222, ¶ 9; S.Ct.Prac.R. 18.02(B).
This court holds that Braden has not merely reargued his case and that Braden I
was decided in error.
{¶ 10} Braden argues, in part, that our decision in Braden I is inconsistent
with our recent decision in Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59
N.E.3d 1264. In Thompson, we considered former R.C. 2929.19(B)(2)(g)(iii) (now
codified elsewhere in R.C. 2929.19(B)(2)), which gives a trial court the authority
to correct errors in its award of jail-time credit and contains language very similar
to R.C. 2947.23(C). Former R.C. 2929.19(B)(2)(g)(iii) stated:
The sentencing court retains continuing jurisdiction to correct any
error not previously raised at sentencing in making a determination
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under division (B)(2)(g)(i) of this section. The offender may, at any
time after sentencing, file a motion in the sentencing court to correct
any error made in making a determination under division
(B)(2)(g)(i) of this section, and the court may in its discretion grant
or deny that motion.
(Emphasis added.) 2012 Am.Sub.S.B. No. 337; see Thompson at ¶ 5.
{¶ 11} The proposition of law we considered in Thompson asserted that a
trial court’s order denying a postconviction motion for jail-time credit is a final,
appealable order. Thompson at ¶ 3. The court of appeals had held that the trial
court’s order was not appealable. Our primary holding was that such an order is
appealable because it is a final order that affects a substantial right in a special
proceeding. Id. at ¶ 13. But inherent in our decision was the conclusion that
Thompson’s convictions became final in 2011—before the General Assembly
enacted R.C. 2929.19(B)(2)(g)(iii) in 2012, see id. at ¶ 1, 12.
{¶ 12} In Thompson, the state argued that because Thompson was
sentenced in 2011, he could not benefit from a new statute that the General
Assembly did not intend to apply retroactively. We effectively rejected that
argument when we held that Thompson could avail himself of the new law:
Pursuant to R.C. 2929.19(B)(2)(g)(iii), an offender can file
a motion to correct an error in determining jail-time credit “at any
time after sentencing” and the sentencing court has authority to
correct any error in determining jail-time credit that was “not
previously raised at sentencing.” Given that this statute was enacted
in 2012 and that it created a right that was not otherwise available to
an offender who lacked the right to appeal, we conclude that the trial
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court’s determination of a motion filed under R.C.
2929.19(B)(2)(g)(iii) constitutes a special proceeding.
Id. at ¶ 12.
{¶ 13} Although there are subtle differences between the statutory language
considered here and that in Thompson, the relevant language concerning the trial
court’s jurisdiction is substantially the same. The statute at issue in Thompson,
former R.C. 2929.19(B)(2)(g)(iii), specifically provided that at any time after
sentencing, the offender may file a motion to correct his jail-time credit and the trial
court had continuing jurisdiction to consider it. The statute at issue here, R.C.
2947.23(C), provides that a sentencing court retains jurisdiction to waive court
costs at the time of sentencing or at any time thereafter.
{¶ 14} There are no material differences between R.C. 2947.23(C) and
former R.C. 2929.19(B)(2)(g)(iii) regarding the trial court’s continuing jurisdiction
to act. In Thompson, we allowed the proceedings to go forward. We do the same
here—not just to maintain consistency with our consideration of the issue in
Thompson. We do so also because as explained below, holding that the trial court
in Thompson or the trial court here did not have the authority to consider the
defendants’ motions would defy the plain language of the statutes permitting the
motions.
{¶ 15} Braden argues in his motion for reconsideration that our decision in
Braden I is inconsistent with our recent decision in Thompson, and we agree.
Although the dissenting opinion in Braden I presented that analysis, __ Ohio St.3d
__, 2018-Ohio-5079, __ N.E.3d __, at ¶ 39-43, there is no indication in the majority
opinion that the majority fully considered and rejected it.
{¶ 16} Braden also argues that Braden I was wrongly decided because we
misconstrued the plain language of R.C. 2947.23(C) and retroactive application of
it is unnecessary. For the reasons explained below, we agree. R.C. 2947.23(C)
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plainly allows trial courts to waive, suspend or modify court costs imposed before
R.C. 2947.23(C)’s effective date, and it need not be applied retroactively to achieve
that effect. We therefore grant Braden’s motion for reconsideration.
ANALYSIS
Trial courts retain jurisdiction to waive, suspend or modify court costs for
offenders whose convictions were final before R.C. 2947.23(C)’s effective date
{¶ 17} In construing a statute, this court’s duty is to give effect to the
General Assembly’s intent as expressed in the language it enacted. State v. J.M.,
148 Ohio St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642, ¶ 7. We must read words
and phrases in context and give them their common meaning. R.C. 1.42. If the
statute is clear, unequivocal, and definite, the interpretative effort ends and we
apply the statute accordingly. Provident Bank v. Wood, 36 Ohio St.2d 101, 105-
106, 304 N.E.2d 378 (1973); Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413(1944), paragraph five of the syllabus.
{¶ 18} Effective March 22, 2013, the General Assembly enacted R.C.
2947.23(C) as a part of 2012 Am.Sub.H.B. No. 247. The statute provides that a
sentencing 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.”
(Emphasis added.) At the same time, the General Assembly authorized courts to
cancel claims for costs if the costs are uncollectible. All the provisions authorizing
the cancelation provide: “If 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. The clerk shall then effect the
cancellation.” R.C. 1901.263 (municipal court); R.C. 1905.38 (mayor’s court);
R.C. 1907.251 (county court); R.C. 1925.151 (small-claims division); R.C.
2101.165 (probate court); R.C. 2151.542 (juvenile court); R.C. 2303.23 (common
pleas court); R.C. 2501.161 (court of appeals); R.C. 2503.18 (supreme court).
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{¶ 19} Under the plain language of R.C. 2947.23(C), the trial court retained
its authority to waive Braden’s court costs, despite the fact that Braden was
sentenced in 1999. That is because under our precedent, the trial court had the
authority to waive Braden’s court costs at sentencing. Under R.C. 2947.23(C), the
trial court retained that authority and could appropriately exercise it at any time
after sentencing.
{¶ 20} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d
278, we acknowledged that “[d]espite the fact that former R.C. 2947.23 (like
current R.C. 2947.23(A)) requires a judge to assess costs against all convicted
criminal defendants, this court has held that ‘waiver of costs is permitted—but not
required—if the defendant is indigent,’ ” id. at ¶ 11, quoting State v. White, 103
Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. “That is, despite the
mandatory language of former R.C. 2947.23 requiring the imposition of court costs,
a trial court may waive the payment of costs.” (Emphasis sic.) Joseph at ¶ 11,
citing State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589,
¶ 4. We further explained that an indigent defendant must request waiver of court
costs at the time of sentencing. Joseph at ¶ 12, citing State v. Threatt, 108 Ohio
St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of the syllabus.
{¶ 21} In Threatt, this court held that if the defendant moves for waiver,
“ ‘then the issue is preserved for appeal and will be reviewed under an abuse-of-
discretion standard. Otherwise, the issue is waived and costs are res judicata.’ ”
Joseph at ¶ 12, quoting Threatt at ¶ 23. And in Clevenger, this court reiterated that
a defendant must request waiver at sentencing to prevent res judicata from applying.
Clevenger at ¶ 5.
{¶ 22} At first blush, our decisions in Threatt and Clevenger appear harmful
to Braden’s position because they say that if a defendant does not move for waiver
at sentencing, he loses his ability to do so and further consideration of the issue is
foreclosed by principles of res judicata. But even those decisions, as does Joseph,
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show that the trial court had the authority to waive Braden’s court costs at his 1999
sentencing hearing. All the decisions were announced before R.C. 2947.23(C)’s
enactment, and all of them acknowledge that a trial court could waive the payment
of court costs at sentencing before its enactment. Clevenger at ¶ 4; Threatt at ¶ 23;
Joseph at ¶ 11; White at ¶ 14. Because the trial court had the authority to waive the
costs at the time of Braden’s sentencing, R.C. 2947.23(C) merely clarified that the
trial court retained the authority to waive the costs at any time after sentencing.
{¶ 23} To summarize, this court’s pronouncements that defendants must
request waiver of court costs at the time of sentencing lest res judicata will apply
do not change the result in this case. That Braden did not request waiver of his
court costs at sentencing does not change what the trial court was permitted to do.
R.C. 2947.23(C) specifically says that the trial court “retains jurisdiction” to waive
court costs “at the time of sentencing or at any time thereafter.” To that end, the
statute specifically provides an exception to res judicata when a defendant did not
request waiver at sentencing or challenge his court costs on direct appeal.
{¶ 24} The Tenth District below and the state have relied heavily on the
General Assembly’s use of the word “retains.” See 2017-Ohio-7903 at ¶ 8, citing
State v. Banks, 10th Dist. Franklin No. 17AP-210, 2017-Ohio-7135, ¶ 10. Other
Ohio appellate courts are split on whether R.C. 2947.23(C) applies to costs that
were imposed before its enactment. See, e.g., State v. Powell, 2d Dist. Montgomery
No. 24433, 2014-Ohio-3842, ¶ 20 (“regardless of when court costs were imposed,
[the defendant] may ask the trial court, under R.C. 2947.23(C), to waive, suspend,
or modify his payment of court costs”); State v. Hunter, 8th Dist. Cuyahoga No.
102245, 2015-Ohio-4180, ¶ 12 (“In other words, the plain wording of R.C.
2947.23(C) no longer places limits on when a defendant can seek a waiver,
suspension, or modification of court costs”); State v. Sanders, 4th Dist. Pickaway
No. 16CA25, 2017-Ohio-8088, ¶ 12 (adopting the Tenth District’s reasoning in
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Banks and holding that a trial court cannot “retain” jurisdiction to waive costs when
it did not have the authority to waive costs at the time of sentencing).
{¶ 25} In Braden I, this court agreed with the Tenth District and the state,
explaining that “a trial court cannot ‘retain’ jurisdiction that it has relinquished”
because “ ‘retain’ means ‘to hold or continue to hold in possession or use: continue
to have, use, recognize, or accept: maintain in one’s keeping.’ ” __ Ohio St.3d __,
2018-Ohio-5079, __ N.E.3d __, at ¶ 21, quoting Webster’s Third New International
Dictionary 1938 (2002). We do not dispute the definition of “retains,” but it does
not compel the conclusion that R.C. 2947.23(C) applies only to court costs imposed
after its enactment. The trial court had the authority to waive Braden’s court costs
at the time of his sentencing. R.C. 2947.23(C) says that the trial court retained that
authority and could waive Braden’s costs at any time after sentencing.
R.C. 2947.23(C) does not require retroactive application for it to apply to
offenders whose convictions were final before its enactment
{¶ 26} The state also contends that the legislature did not make R.C.
2947.23(C) expressly retroactive. We agree and acknowledge that without express
retroactivity language, we are to presume “that the General Assembly did not intend
to retroactively vest trial courts with jurisdiction that they previously lacked,”
Braden I at ¶ 22. But as we have already explained, the trial court had jurisdiction
to waive court costs at the time of sentencing.
{¶ 27} In any event, a retroactivity analysis is unnecessary here because a
statute is not retroactive if it merely “ ‘draws on antecedent facts for a criterion in
its operation.’ ” Schoenrade v. Tracy, 74 Ohio St.3d 200, 204, 658 N.E.2d 247(1996), quoting United Eng. & Foundry Co. v. Bowers, 171 Ohio St. 279, 282, 169
N.E.2d 697 (1960).
{¶ 28} In State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684, 983
N.E.2d 334, this court considered whether R.C. 2933.82, which obligates certain
government entities to preserve and catalog criminal-offense-related biological
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evidence, applies to evidence that was in the entities’ possession when the statute
became effective, id. at ¶ 1. The state argued that because Roberts was convicted
in 1997 and the statute did not become effective until 2010, the statute did not apply
to evidence collected in his case unless it was applied retroactively. Id. at ¶ 27.
The state contended that because R.C. 2933.82 contains no express intent that it
apply retroactively, it applies prospectively only and that it would be unfair to
expect the state to have collected evidence in Roberts’s 1997 case in accordance
with procedures adopted in 2010. Id.
{¶ 29} This court rejected the state’s argument and held that a retroactivity
analysis was unnecessary. We reiterated that a statute is not retroactive merely
because it draws on antecedent facts for a criterion in its operation. Id. at ¶ 29,
citing Schoenrade at 204. We determined that R.C. 2933.82 merely draws upon
antecedent facts because it applies to biological evidence already in the
government’s possession when the statute was enacted and that still exists. See id.
at ¶ 30. And based on the statute’s plain language, the government had an
obligation to preserve and catalog evidence that still existed at the time of the
statute’s effective date. Id. at ¶ 31.
{¶ 30} Here, the antecedent facts are that the trial court imposed court costs
at sentencing and some remained unpaid. R.C. 2947.23(C) does not compel or even
allow a trial court to order reimbursement of court costs already paid. The statute
merely gives the trial court continuing jurisdiction to waive, suspend or modify, in
its discretion, the payment of costs if costs remain.
CONCLUSION
{¶ 31} Braden I was decided in error. R.C. 2947.23(C) authorizes trial
courts to waive, suspend or modify the payment of court costs imposed both before
and after its effective date. We grant Braden’s motion for reconsideration, vacate
our decision in Braden I, answer the certified-conflict question in the affirmative,
and reverse the judgment of the Tenth District Court of Appeals. On remand, the
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court of appeals shall consider the substance of Braden’s claim that the trial court
erred in denying his motion to waive his court costs.
Motion for reconsideration granted,
judgment reversed,
and cause remanded.
O’CONNOR, C.J., and DONNELLY and STEWART, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
FISCHER, J., dissents, with an opinion.
__________________
KENNEDY, J., dissenting.
{¶ 32} Because appellant, David L. Braden, has presented no valid basis for
revisiting our prior decision in State v. Braden, ___ Ohio St.3d ___, 2018-Ohio-
5079, ___ N.E.3d ___, I would deny reconsideration and reaffirm our holding that
R.C. 2947.23(C) does not grant a sentencing court jurisdiction to waive, suspend,
or modify the payment of the costs of prosecution imposed prior to the statute’s
effective date. I therefore dissent.
{¶ 33} It is not unprecedented for us to reconsider a decision after a change
in this court’s membership. See, e.g., State v. Gonzales, 150 Ohio St.3d 276, 2017-
Ohio-777, 81 N.E.3d 419; State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83
N.E.3d 883; Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 539 N.E.2d
103 (1989). As the late Justice Antonin Scalia has remarked, “[o]verrulings of
[United States Supreme Court] precedent rarely occur without a change in the
Court’s personnel.” South Carolina v. Gathers, 490 U.S. 805, 824, 109 S.Ct. 2207,
104 L.Ed.2d 876 (1989) (Scalia, J., dissenting).
{¶ 34} Nonetheless, a perception that changes in the law result solely from
changes in court composition would threaten our legitimacy as a court of law, as
opposed to a court of individuals, and would invite defiance of our prior decisions
by subordinate courts whenever such a change has occurred. We have therefore
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adopted standards to be applied in deciding whether to grant reconsideration of a
prior decision, and as one member of this court has observed, those standards are
“onerous,” State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Court of
Common Pleas, Probate Div., 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d
380, ¶ 45 (O’Connor, C.J., dissenting).
{¶ 35} First, S.Ct.Prac.R. 18.02(B) forbids attempts to reargue the merits of
a case in a motion for reconsideration. Yet Braden’s motion for reconsideration
presents the same statutory-construction arguments that he asserted in his opening
brief on original submission of the case. His reconsideration motion also contends
that he seeks only prospective relief, but he made that point in both his opening
brief and his reply brief. And although he points to Braden as creating the
unintended consequence of prohibiting the waiver or modification of costs even
when an inmate “later came into a sum of money” or “the defendant’s situation
suffers a negative change,” a core part of his argument on original submission was
that sentencing courts need to be able to waive, suspend, or modify the payment of
costs “if, at a later time, the inmate’s financial situation changed.” All these
attempts to reargue the case should be rejected.
{¶ 36} Second, we may grant reconsideration when a motion raises a
material issue that we did not fully consider when we should have. See Aalim, 150
Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, at ¶ 1. Braden asserts that we
failed to consider his argument that the legislative history of the statute
demonstrates the General Assembly’s intent to abrogate our prior caselaw and
apply R.C. 2947.23(C) to all offenders, regardless of the date of sentencing.
However, our decision in Braden expressly acknowledged that argument, __ Ohio
St.3d __, 2018-Ohio-5079, __ N.E.3d __, at ¶ 10, as well as the state’s
counterargument that resorting to legislative history is inappropriate when
construing an unambiguous statute, id. at ¶ 11. It is therefore not true that we failed
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to consider Braden’s argument; we just did not find it relevant in applying the plain
meaning of R.C. 2947.23(C).
{¶ 37} Third, we may grant reconsideration to “ ‘correct decisions which,
upon reflection, are deemed to have been made in error.’ ” Dublin City Schools Bd.
of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 212, 2014-Ohio-1940, 11
N.E.3d 222, ¶ 9, quoting State ex rel. Huebner v. W. Jefferson Village Council, 75
Ohio St.3d 381, 383, 662 N.E.2d 339 (1995). However, we have declined to
reconsider a prior decision when the movant “does not call our attention * * * to an
obvious error.” (Emphasis added.) Id. at ¶ 10.
{¶ 38} Braden contends that our decision in Braden is inconsistent with our
decision in State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d
1264. According to Braden, in Thompson, we applied a statute providing that the
“sentencing court retains continuing jurisdiction to correct any error [relating to a
jail-time credit] not previously raised at sentencing,” R.C. 2929.19(B)(2)(g)(iii), to
an offender who had been sentenced before the statute’s effective date. This is not
an issue that we failed to consider on original submission, because the dissenting
opinion in Braden made this argument for him in the first instance. See Braden at
¶ 39-43 (French, J., dissenting). And as explained below, Braden does not point to
any error—much less an obvious one—in our decision.
{¶ 39} In essence, Braden asks us to treat a decision that did not expressly
decide an issue as being controlling in this case. The new majority agrees with
Braden, explaining that the retroactive application of jail-time credit to Thompson
was “inherent in our decision” because he was sentenced prior to the statue’s
effective date and because we “effectively rejected” the state’s argument that the
statute did not apply retroactively. Majority opinion at ¶ 11, 12.
{¶ 40} However, Thompson concerned only the narrow question whether an
order denying a motion to correct a jail-time credit is a final order, Thompson at
¶ 3, and our analysis focused solely on whether the jail-time-credit statute created
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a “special proceeding” that was not previously available to offenders, id. at ¶ 12-
13. The question whether this special proceeding was available to Thompson
specifically was not before this court, because the court of appeals had never passed
on it in the first instance. And importantly, this court in Thompson did not engage
in any statutory construction or attempt to explain what the phrase “retains
continuing jurisdiction” means.
{¶ 41} We have long recognized that “ ‘a reported decision, although a case
where the question might have been raised, is entitled to no consideration whatever
as settling * * * a question not passed upon or raised at the time of the
adjudication.’ ” (Ellipsis sic.) State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-
4642, 873 N.E.2d 306, ¶ 11, quoting State ex rel. Gordon v. Rhodes, 158 Ohio St.
129, 107 N.E.2d 206 (1952), paragraph one of the syllabus. Writing for the
majority in Payne, then Justice O’Connor noted that “we are not bound by any
perceived implications that may have been inferred from” the prior reported
decision. Id. at ¶ 12; accord State ex rel. R.W. v. Williams, 146 Ohio St.3d 91,
2016-Ohio-562, 52 N.E.3d 1176, ¶ 30 (French, J., dissenting) (“this court is not
bound by perceived implications from its opinions”). This court’s decision in
Thompson does not provide the rule of decision in this case.
{¶ 42} And it is not true, as the new majority concludes, that “R.C.
2947.23(C) plainly allows trial courts to waive, suspend or modify court costs
imposed before R.C. 2947.23(C)’s effective date,” majority opinion at ¶ 16. The
new majority reasons that “[b]ecause the trial court had the authority to waive the
costs at the time of Braden’s sentencing, R.C. 2947.23(C) merely clarified that the
trial court retained the authority to waive the costs at any time after sentencing.”
(Emphasis added.) Id. at ¶ 22.
{¶ 43} But that analysis fails to acknowledge that prior to the enactment of
R.C. 2947.23(C), a sentencing court did not retain continuing jurisdiction to waive,
suspend, or modify the imposition of costs previously imposed on an offender. As
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we explained in State v. Clevenger, absent statutory authority, a trial court could
not suspend or waive the payment of court costs that were previously imposed at
sentencing. 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, paragraphs one
and two of the syllabus. And at the time the trial court entered a sentence imposing
costs on Braden, no statute authorized the court to retain jurisdiction to waive,
suspend, or modify court costs imposed. The General Assembly did not grant trial
courts continuing jurisdiction over an order imposing court costs until 2013, when
it enacted R.C. 2947.23(C). But by then, the trial court in Braden’s case no longer
had jurisdiction to reconsider its own final order. See State v. Gilbert, 143 Ohio
St.3d 150, 2014-Ohio-4562, 35 N.E.3d 493, ¶ 9; State v. Raber, 134 Ohio St.3d
350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 20.
{¶ 44} R.C. 2947.23(C) therefore does not “clarify” that the trial court has
always retained jurisdiction over an order to pay court costs. The word “retain”
means to “continue to have.” Webster’s Third New International Dictionary 1938
(2002). By using the word “retains” in the present tense—not “retained” in the past
tense as the new majority would have it—the General Assembly provided that
going forward from the effective date of the statute, a sentencing court continues to
have jurisdiction over its imposition of court costs. However, a trial court cannot
continue to have jurisdiction that it has relinquished upon issuance of a final order.
{¶ 45} The General Assembly provided that in a statute, “[w]ords in the
present tense include the future,” R.C. 1.43(C), but it did not say that words in the
present tense include the past. Rather, R.C. 1.48 states that “[a] statute is presumed
to be prospective in its operation unless expressly made retrospective.” Here, R.C.
2947.23(C) is not expressly retroactive. The legislature used the present tense of
the word “retain” in drafting this statute, and “ ‘a statute, employing operative
language in the present tense, does not purport to cover past events of a similar
nature,’ ” Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶
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January Term, 2019
22, quoting Smith v. Ohio Valley Ins. Co., 27 Ohio St.2d 268, 276, 272 N.E.2d 131(1971).
{¶ 46} Moreover, if the General Assembly had intended to grant trial courts
the jurisdiction to reopen final orders, that would raise serious constitutional
questions. Courts “condemn legislative encroachments that violate the separation
of powers * * * by commanding that the courts reopen final judgments.” State v.
Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 53. As the court
explained in Bodyke,
It is well settled that a legislature cannot enact laws that revisit a
final judgment. We have held for over a century that “the
Legislature cannot annul, reverse, or modify a judgment of a court
already rendered.” Bartlett v. State, 73 Ohio St. [54] 58, 75 N.E.
939 [1905]. * * * “A judgment which is final by the laws existing
when it is rendered cannot constitutionally be made subject to
review by a statute subsequently enacted * * *.” Gompf v. Wolfinger
(1902), 67 Ohio St. 144, 65 N.E. 878, at paragraph three of the
syllabus.
(Ellipses sic.) Id. at ¶ 55.
{¶ 47} Prior to the enactment of R.C. 2947.23(C), the trial court’s order
imposing court costs on Braden was a final judgment subject only to reversal on
direct appeal. But if the new majority’s interpretation of R.C. 2947.23(C) is correct,
then the General Assembly has attempted to compel trial courts to reopen final
judgments imposing costs on an offender in violation of the separation-of-powers
doctrine. However, as we explained in Bodyke, “ ‘judgments cannot be deprived
of their “finality” through statutory conditions not in effect when the judicial branch
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gave its “last word” in the particular case.’ ” Id. at ¶ 55, quoting People v. King,
27 Cal.4th 29, 35, 115 Cal.Rptr.2d 214, 37 P.3d 398 (2002).
{¶ 48} There is a significant difference between a trial court’s having once
had jurisdiction to waive the payment of costs at sentencing and its having
continuing jurisdiction to waive, suspend, or modify the payment of costs any time
after sentencing. The plain language of R.C. 2947.23(C) demonstrates that the
General Assembly did not intend to compel courts to reopen final orders imposing
court costs and the statute applies to costs imposed only on or after its effective
date.
{¶ 49} Here, the trial court ordered Braden to pay court costs at the
sentencing hearing in 1999, he failed to move for a waiver, and his motion to waive
the payment of all fines and costs is now barred by res judicata. Because R.C.
2947.23(C) is not applicable to his case, the court of appeals did not err in affirming
the trial court’s denial of Braden’s motion, and the prior majority of this court
correctly affirmed that judgment. Accordingly, I would deny the motion for
reconsideration and reaffirm our decision in this case.
DEWINE, J., concurs in the foregoing opinion.
__________________
FISCHER, J., dissenting.
{¶ 50} I too would deny appellant David Braden’s motion for
reconsideration and reaffirm our holding in State v. Braden, __ Ohio St.3d __,
2018-Ohio-5079, __ N.E.3d __, that R.C. 2947.23(C) does not grant a sentencing
court jurisdiction to waive, suspend, or modify the payment of the costs of
prosecution imposed prior to the statute’s effective date.
{¶ 51} I write separately to emphasize, once again, my concerns with the
practice of reconsidering cases at the beginning of a new term when this court’s
membership has changed following a recent election. See State v. Gonzales, 150
Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 24 (Fischer, J., concurring in part
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January Term, 2019
and dissenting in part); State v. Reese, 150 Ohio St.3d 565, 2017-Ohio-2789, 84
N.E.3d 1002, ¶ 4 (Fischer, J., concurring in part and dissenting in part); State v.
Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 51 (Fischer, J.,
concurring in part and dissenting in part).
{¶ 52} Because both the law and the entire state of Ohio benefit from
stability and certainty, see Hamilton, The Federalist No. 78 at 471 (Clinton Rossiter
Ed.1961) (“To avoid an arbitrary discretion in the courts, it is indispensable that
they should be bound down by strict rules and precedents * * *”), I continue to
encourage this court to end this practice and to take a different approach.
{¶ 53} For these reasons, I respectfully dissent.
__________________
Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert,
Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Kathryn L. Sandford, Assistant
Public Defender, for appellant.
___________________
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