State v. Babyak

[Cite as State v. Babyak, 2020-Ohio-325.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-08-025
: OPINION
- vs - 2/3/2020
:
ALEXANDER O. BABYAK, :
Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CR2009-CR-0065
Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for appellee
Alexander O. Babyak, #A616575, London Correctional Institution, 1580 State Route 56, SW
London, Ohio 43140, pro se
PIPER, J.
{¶ 1} Appellant, Alexander Babyak, appeals a decision of the Madison County Court
of Common Pleas denying his motion to waive court costs or in the alternative, stay payment
of the costs.1
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for the purposes of
issuing this opinion.
Madison CA2019-08-025
{¶ 2} In 2010, Babyak was convicted of robbery and kidnapping, and sentenced to 18
years in prison. Babyak appealed his convictions, arguing that they were against the
manifest weight of the evidence. This court affirmed his convictions. State v. Babyak, 12th
Dist. Madison Nos. CA2009-10-023 and CA2010-03-006, 2010-Ohio-3820. Babyak later
filed a motion to correct a void judgment, which was overruled by the trial court. On appeal of
the trial court's denial, we reversed Babyak's sentence because the trial court did not address
postrelease control with Babyak at the sentencing hearing. State v. Babyak, 12th Dist.
Madison No. CA2014-08-016, 2015-Ohio-1489.
{¶ 3} On remand, the trial court held a hearing and addressed postrelease control
properly. The court also reordered Babyak to pay court costs. Babyak later filed a pro se
motion to waive his court costs, or in the alternative, to stay their payment, which the trial
court denied. Babyak now appeals the trial court's decision, raising two assignments of error
for review. Because the assignments of error are interrelated, we will address them together
for ease of discussion.
{¶ 4} Assignment of Error No. 1:
{¶ 5} A TRIAL COURT MUST CONSIDER A DEFENDANT'S PRESENT AND
FUTURE ABILITY TO PAY COURT COST [sic] WHEN CONSIDERING A MOTION FILED IN
[sic] PURSUANT TO R.C. 2947.23(C).
{¶ 6} Assignment of Error No. 2:
{¶ 7} A TRIAL COURT SHOULD WAIVE COURT COSTS WHEN THEY ARE
DEEMED UN-COLLECTABLE AS DEFINED BY R.C. 2303.23.
{¶ 8} Babyak argues in his assignments of error that the trial court erred in denying
his motion to waive court costs because the trial court did not represent it considered his
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Madison CA2019-08-025
present or future ability to pay the costs and because the costs were not currently collectible.2
{¶ 9} As determined by the Ohio Supreme Court, court costs are properly assessed
against a defendant, regardless of the defendant's indigency. State v. White, 103 Ohio St.3d
580, 2004-Ohio-5989. According to R.C. 2947.23(A)(1)(a), "in all criminal cases, including
violations of ordinances, the judge or magistrate shall include in the sentence the costs of
prosecution, including any costs under section 2947.231 of the Revised Code, and render a
judgment against the defendant for such costs." (Emphasis added.)
{¶ 10} Unlike financial sanctions and fines issued pursuant to R.C. 2929.18 and
2929.32, "the imposition of court costs under R.C. 2947.23 does not require the trial court to
first consider the defendant's ability to pay." State v. Hodge, 9th Dist. Lorain No.
14CA010648, 2015-Ohio-3724, ¶ 15. A defendant's financial status is therefore "irrelevant to
the imposition of court costs." State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, ¶ 3.
Accordingly, a sentencing court must include the costs of prosecution in the sentence and
render a judgment against the defendant for costs even if the defendant is indigent. White at
¶ 8. The legislature has imposed, and the Ohio Supreme Court has upheld, a mandatory
duty placed upon trial courts.
{¶ 11} A trial court may, within its discretion, waive payment of court costs upon a
defendant's motion if the defendant is indigent. R.C. 2949.092. Thus, we review a trial
court's decision denying a motion to waive costs for an abuse of discretion. State v. Sibrian,
2d Dist. Montgomery No. 27964, 2019-Ohio-1262. An abuse of discretion implies more than
an error of law or judgment; it suggests that the trial court acted in an unreasonable, arbitrary,
or unconscionable manner. State v. Myers, 12th Dist. Madison No. CA2019-01-003, 2020-
2. The Ohio Supreme Court is currently considering the issue of a trial court's duties when deciding a post-
sentencing motion to waive costs. State v. Taylor, 2018-0797. While the court held oral arguments on January
7, 2020, there is no indication as to when the court will reach its decision. Thus, we will issue our decision
according to the statute as written, yet with anticipation of forthcoming binding authority.
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Ohio-59, ¶ 15
{¶ 12} As indicated by the plain language of the statute, the trial court is not required
to make any findings or base its decision on any enumerated factors when considering a
defendant's motion to waive costs. Neither the statute nor past decisions of the Ohio
Supreme Court require the trial court to explain what it considered before ruling on a motion
to waive costs. Had the legislature intended the court to make findings or requisite
considerations, it would have so required as it did in R.C. 2929.19(B)(5). The statutes
applicable to financial sanctions and fines require a trial court to consider a defendant's
present and future ability to pay while the statute applicable to costs, R.C. 2947.23, does not.
{¶ 13} We note that some courts have determined that a trial court should consider
certain factors such as the defendant's health, education, work history, and the length of the
prison sentence imposed before ruling on a motion to waive costs. See State v. Thomas,
11th Dist. Ashtabula No. 2014-A-0072, 2016-Ohio-1357; and State v. Copeland, 2d Dist.
Montgomery No. 26842, 2016-Ohio-7797 (Hall, J., dissenting).3 These courts reason that in
order to review the trial court's denial of a motion to waive costs, a trial court must first
explain its reasoning for such denial. However, and as stated above, we are constrained to
apply the statute as written and cannot rewrite the statute to say something it does not.
{¶ 14} There is information in the record that allows us to review the trial court's denial
without a hearing or written decision explaining its decision. Most certainly, the record does
not convincingly indicate any reason why Babyak cannot make payment on costs as ordered
at some point in time. Babyak did not reveal any serious health problem or other impediment
that would render him physically unable to work or earn some degree of income.
{¶ 15} Rather, the record demonstrates that Babyak has performed work throughout
3. In Copeland, Judge Hall dissented, and argued for the application of the statute's plain language.
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his incarceration, including work for the Ohio Department of Transportation and Ohio
Department of Wildlife.4 Babyak also tutored other inmates, and received several certificates
noting his completion of self-improvement courses. His work experience and improvement
while incarcerated increase his employability. Notably, Babyak was 20 years old at the time
of sentencing and would be only 38 at the time of his release with many years of work
eligibility as an able-bodied young man. The record also indicates that Babyak had work
experience in the restaurant industry prior to his incarceration, a service industry that has not
declined.5 This information, readily available to the trial court, demonstrates that Babyak
should be held responsible for payment of the court costs as ordered. Therefore, it cannot
be said the trial court's decision was unreasonable, arbitrary, or unconscionable.
{¶ 16} After review of the record, we find the trial court did not abuse its discretion in
denying Babyak's motion. Babyak's two assignments of error are thus overruled.
{¶ 17} Judgment affirmed.
S. POWELL, J., concurs.
M. POWELL, J., dissents.
M. POWELL, J., dissenting.
{¶ 18} R.C. 2947.23(C) provides that "[t]he court retains jurisdiction to waive, suspend,
or modify the payment of the costs of prosecution, including any costs under section
2947.231 of the Revised Code, at the time of sentencing or at any time thereafter." A
sentencing court may exercise the jurisdiction granted by the above statute pursuant to R.C.
2949.092, which provides
4. Ohio Adm.Code 5120-5-03 specifically establishes the procedure for withdrawing money from an inmate's
account to satisfy court-ordered financial obligations.
5. For these same reasons, the costs are not uncollectable pursuant to R.C. 2303.23 as argued in Babyak's
second assignment of error.
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If a person is convicted of or pleads guilty to an offense and the
court specifically is required, pursuant to section 2743.70 or
2949.091, 2949.093, or 2949.094 of the Revised Code or
pursuant to any other section of the Revised Code to impose a
specified sum of money as costs in the case in addition to any
other costs that the court is required or permitted by law to
impose in the case, the court shall not waive the payment of the
specified additional court costs that the section of the Revised
Code specifically requires the court to impose unless the court
determines that the offender is indigent and the court waives the
payment of all court costs imposed upon the offender.
{¶ 19} Thus, the standard to be applied by a trial court in considering a motion to
waive court costs is whether the movant is indigent. An appellate court reviews a decision
denying a motion to waive court costs for an abuse of discretion.
{¶ 20} In this case, the judgment entry denying Babyak's motion stated, "[Babyak's]
motion to Vacate/Waive or Grant a Stay on Court Costs Pursuant to R.C. 2947.23(C) is
Denied." The judgment entry provided nothing more. There was no hearing on the motion
and thus no record from which we can determine the trial court's reasoning in denying the
motion.
{¶ 21} A trial court has substantial discretion in determining whether to waive, modify,
or suspend payment of court costs under R.C. 2947. 23(C). However, the discretion is not
absolute. As the Second Appellate District held in a case construing a trial court's
responsibility in considering a R.C. 2947.23(C) postsentence motion to waive court costs,
Although a trial court need not consider whether a defendant has
a present or future ability to pay court costs when court costs are
assessed, the trial court should consider the defendant's ability
to pay when a defendant subsequently moves for a waiver,
modification, or stay of the payment of court costs.
State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797, ¶ 11.
{¶ 22} Although a trial court is not required by the statutes to make findings supporting
its decision upon a motion for waiver of court costs, meaningful review requires some record
from which an appellate court may discern the basis for the trial court's decision in
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determining whether there was an abuse of discretion. As the Second Appellate District
observed,
[W]e conclude that the trial court has not provided a sufficient
explanation for its decision to permit us to perform meaningful
appellate review of its decision under an abuse-of-discretion
standard. The lynchpin of abuse-of-discretion review is the
determination whether the trial court's decision is reasonable.
AAAA Enterprises, Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). Unless
the reason or reasons for the trial court's decision are apparent
from the face of the record, it is not possible to determine if the
decision is reasonable without some explanation of the reason or
reasons for that decision.
[W]e will reverse the order of the trial court and remand this
cause to the trial court for re-consideration of Chase's motion,
with directions to provide a sufficient explanation of the reason or
reasons for the trial court's decision to permit us to review that
decision, should either party choose to appeal, under an abuse-
of-discretion standard of appellate review. Chase's sole inferred
assignment of error is sustained.
State v. Chase, 2d Dist. Montgomery No. 26238, 2015-Ohio-545, ¶ 17-18, reversed on other
grounds in State v. Braden, Slip Opinion No. 2018-Ohio-5079.
{¶ 23} In this case there is no record from which the basis of the trial court's decision
may be determined.
{¶ 24} I would remand the matter for the trial court.
{¶ 25} With respect and regard for my colleagues in the majority, I dissent.
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