State v. Copeland

[Cite as State v. Copeland, 2016-Ohio-7797.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26842
:
v. : Trial Court Case No. 2014-CR-2192
:
JOSEPH L. COPELAND : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th _ day of November , 2016.
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MEAGAN D. WOODALL, Assistant Prosecuting Attorney, Atty. Reg. No. 0093466, 301
West Third Street, 5th floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JOSEPH L. COPELAND, #709-088, Madison Correctional Institution, P.O. Box 740,
London, Ohio 43140
Defendant-Appellant
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FROELICH, J.
{¶ 1} Joseph Copeland appeals pro se from the trial court’s denial of his motion to
waive court costs or stay payment.
{¶ 2} Copeland pled guilty to one count of aggravated burglary. The court
sentenced him to a mandatory term of five years in prison and imposed court costs.
Copeland did not appeal. Nine months later, he filed a “Motion to Vacate or Remit Court
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Costs”; in the memorandum to the motion, he requested, in the alternative, that costs be
stayed until his release from prison. Copeland alleged that the trial court had failed to
inform him of court costs at the sentencing hearing, as it must under R.C. 2947.23(A)(1).
Copeland also said that he earns only $17 each month for his work in prison and that
anything he needs other than food, shelter, and clothing, he must pay for with that $17.
He argues he cannot afford to make payments toward the court costs.
{¶ 3} The trial court overruled the motion. The court stated that it had watched
the video of the sentencing hearing and confirmed that it ordered Copeland to pay court
costs. As to the stay request, the court pointed out that Ohio Adm.Code 5120-5-03
establishes procedures for withdrawing money from an inmate’s account to satisfy court-
ordered financial obligations. Division (D) states that withdrawals are allowed to satisfy
these obligations “as long as the account retains twenty-five dollars for inmate
expenditures.” The last line of the trial court’s decision “overrule[d] the defendant’s
request to ‘grant him a stay on his court costs until his release.’ ” The court implicitly
rejected Copeland’s request that court costs be vacated or waived in their entirety.
{¶ 4} Copeland appeals from the denial of his motion to waive court costs or stay
payment. His sole assignment of error alleges that “[t]he trial court abused its discretion
when it failed to consider Appellant’s present and future ability to pay court costs pursuant
to R.C. §2929.19(B)(6).”
{¶ 5} On August 23, 2016, after a preliminary review, we informed the parties that
“members of the panel have concerns that certain issues that may be pertinent to this
appeal have not been addressed in the parties’ briefs.” We invited the parties to file
supplemental briefs on “whether or what standard of indigency or ability-to-pay factors
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must be considered by the trial court,” including whether taking court costs from an
inmate’s prison account is affected by state or federal statutes governing collection of civil
judgments, and if so, which court has jurisdiction over taking of court costs from a prisoner
account. The State filed a supplemental brief on September 30, 2016; Copeland did not
file a supplemental brief.
{¶ 6} It is well established that 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, 817 N.E.2d 393. R.C. 2947.23(A)(1)(a) provides: “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.)
{¶ 7} R.C. 2949.14 expressly authorizes the collection of court costs by the clerk
of the common pleas courts against nonindigent persons convicted of felonies.
However, the Ohio Supreme Court has recognized that “collection from indigent
defendants is merely permissive.” White at ¶ 14.
{¶ 8} Other statutes also address the collection of court costs. Effective March
22, 2013, the Ohio legislature amended R.C. 2947.23 to expressly provide that a trial
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.” In addition, courts are authorized to cancel all
or part of claims for costs due the court, “[i]f at any time the court finds that an amount
owing to the court is due and uncollectible, in whole or in part.” R.C.1901.263 (municipal
court); R.C.1905.38 (mayor’s court); R.C. 1907.251 (county court); R.C. 1925.151 (small
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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).
{¶ 9} On appeal, Copeland claims that the trial court erred in failing to consider his
present and future ability to pay court costs in denying his motion.1 In its decision, the
trial court briefly discussed the administrative process for withdrawing money from an
inmate’s account and denied a waiver or a stay of court costs “[g]iven that the defendant
will only pay court costs only [sic] if there are sufficient funds in the inmate’s account –
and only as long as the account retains twenty-five dollars for inmate expenditures.” In
reaching this determination, the trial court apparently concluded that the Ohio
Administrative Code provisions regarding garnishment from inmate accounts control
when it is appropriate to require a criminal defendant to pay court costs that were
imposed.
{¶ 10} The Ohio Administrative Code contains numerous provisions specifying the
sources from which monetary judgments can be collected from inmates and limitations
on collection. However, this appeal is not about collection of court costs from an inmate,
but whether the trial court erred in denying a waiver or stay of future payment of those
costs; these are separate questions.
{¶ 11} Although a trial court need not consider whether a defendant has a present
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Copeland’s motion asserted that court costs were not properly imposed at sentencing,
but he does not raise this issue on appeal. Regardless, such potential assignment is
potentially either barred by res judicata or is moot since, now that R.C. 2947.23(C) allows
post-judgment waiver of payment, a defendant may not be able to establish that he or
she was prejudiced. See State v. Weddington, 4th Dist. Scioto No. 15CA3695, 2015-
Ohio-5249, ¶ 3.
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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. The collection provisions of
the Ohio Administrative Code, while perhaps relevant, are not dispositive.
Consequently, the trial court’s reliance on those provisions alone in denying Copeland’s
motion was not an exercise of its discretion in determining whether the payment of court
costs should be waived, modified, or stayed.
{¶ 12} The trial court’s denial of Copeland’s motion will be reversed, and the case
will be remanded for consideration of whether Copeland had a present or future ability to
pay the court costs imposed.
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DONOVAN, P.J., concurring:
{¶ 13} I would find that the trial court did abuse its discretion by not determining
whether Copeland had the ability to pay the court costs imposed as part of Copeland’s
felony sentence after the application of Ohio’s exemption statute. R.C. 2949.092 does
allow a court to waive mandatory costs if “the court determines that the offender is
indigent.” In the present case, the trial court made no finding of Copeland’s indigency or
ability to pay, or whether the funds in Copeland’s account were exempt from attachment.
{¶ 14} The trial court’s reliance on Ohio Admin.Code 5120-5-03 for determining
an inmate’s ability to pay is insufficient, by failing to consider the entire rule and the
statutory authority for the rule, which both provide limitations on the attachment of assets
in an inmate’s prison account. Most importantly, the statute and the rule mandate the
application of Ohio’s exemption statute, R.C. 2329.66, which specifically exempts certain
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assets from attachment.
{¶ 15} The authority of the Department of Corrections to attach inmate accounts
to pay court judgments and to establish rules for processing such payments is found in
R.C. 5120.133, as follows:
(A) The department of rehabilitation and correction, upon receipt of
a certified copy of the judgment of a court of record in an action in which a
prisoner was a party that orders a prisoner to pay a stated obligation, may
apply toward payment of the obligation money that belongs to a prisoner
and that is in the account kept for the prisoner by the department. The
department may transmit the prisoner’s funds directly to the court for
disbursement or may make payment in another manner as directed by the
court. Except as provided in rules adopted under this section, when an
amount is received for the prisoner’s account, the department shall use it
for the payment of the obligation and shall continue using amounts received
for the account until the full amount of the obligation has been paid. No
proceedings in aid of execution are necessary for the department to take
the action required by this section.
(B) The department may adopt rules specifying a portion of an
inmate’s earnings or other receipts that the inmate is allowed to retain to
make purchases from the commissary and that may not be used to satisfy
an obligation pursuant to division (A) of this section. The rules shall not
permit the application or disbursement of funds belonging to an
inmate if those funds are exempt from execution, garnishment,
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attachment, or sale to satisfy a judgment or order pursuant to section
2329.66 of the Revised Code or to any other provision of law.
(Emphasis added.)
{¶ 16} The rule promulgated by the Department of Corrections to establish
procedures for attaching an inmate’s assets for the payment of a court judgment, Ohio
Adm.Code 5120-5-03(C), states:
(C) When a certified copy of a judgment from a court of proper
jurisdiction is received directing the DRC to withhold funds from an inmate’s
account, the warden’s designee shall take measures to determine whether
the judgment and other relevant documents are facially valid. If a facial
defect is found then a letter of explanation shall be sent to the clerk or other
appropriate authority and the collection process stops until the defect is
cured. If no defect is found, the warden’s designee shall promptly deliver to
the inmate adequate notice of the court-ordered debt and its intent to seize
money from his/her personal account. The required notice must inform
the inmate of a right to claim exemptions and types of exemptions
available under section 2329.66 of the Revised Code and a right to
raise a defense as well as an opportunity to discuss these objections
with the warden’s designee. This practice provides safeguards to
minimize the risk of unlawful deprivation of inmate property.
(Emphasis added.)
{¶ 17} Ohio’s exemption statute, R.C. 2329.66, exempts specific types of assets
from attachment. The record is not developed enough to establish whether the
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compensation paid to inmates under the work program or under private employment is
considered wages or personal earnings, triggering the exemptions for wages provided by
R.C. 2329.66(A)(13)(a). The Department of Corrections Rules describe the rate of
compensation for different types of work assignments, which range from three dollars per
month to a maximum of twenty-four dollars per month, to be paid to the inmate’s personal
checking account. Ohio Adm.Code 5120-3-08(A)(1)-(7). Based on the limit of 140 hours
per month, the maximum hourly rate available for the inmate work program is 17 cents
per hour, although the rate of pay for private employment is not specified. Even if the
inmate’s assets are not considered “personal earnings”, it is clear that the exemption
statute, R.C. 2329.66, is applicable to the attachment of inmate assets held in their prison
accounts, as recognized by statute, R.C. 5120.133 and by rule, Ohio Adm.Code 5120-5-
03.
{¶ 18} The procedure outlined in the Department of Corrections Rules for the
attachment of inmate accounts, Ohio Adm.Code 5120-5-03, appears to be a continuous
process, which begins upon receipt of a court judgment, and remains in effect until the
court judgment is paid in full. The rule specifically provides that,
If withdrawals are authorized and if there are insufficient funds in the
inmate’s account to satisfy the amount shown as due, a monthly check shall
be issued payable to the appropriate clerk’s office or in another matter as
directed by the court, for the amount of monthly income received into the
inmate’s account which exceeds twenty-five dollars until the full amount of
the court obligation has been paid. The hold shall remain on the inmate’s
account until sufficient funds have been paid to satisfy the amount shown
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as due on the balance remaining thereon.
Ohio Adm.Code 5120-5-03(E).
{¶ 19} The Department of Corrections Rule that allows the attachment of all funds
in an inmate’s account, as long as $25.00 remain in the account, appears to conflict with
the exemption statute, R.C. 2329.66(A)(3), which exempts up to $4752 of money “on
deposit with a bank, savings and loan association, credit union, public utility, landlord, or
other person.” Before summarily denying Copeland’s motion to vacate costs, the trial
court should determine whether the exemption statute permits attachment and whether
any other applicable statute dictates a finding of indigency.
{¶ 20} We have previously concluded that execution of a judgment for court costs
entered in a criminal felony sentencing order must be conducted in the same manner as
other civil judgments are collected. Galluzzo v. Galluzzo, 2d Dist. Champaign No. 2012
CA 43, 2013-Ohio-3647, ¶¶ 6-7; State v. Springs, 2015-Ohio-5016, 53 N.E.3d 804 (2d
Dist.). Civil judgments are collected under the authority of R.C. 2333.21 which provides
as follows:
The judge may order any property of the judgment debtor that is not
exempt by law to be applied toward the satisfaction of the judgment, but the
earnings of the judgment debtor for personal services shall be applied only
in accordance with sections 2329.66 and 2329.70 and Chapter 2716. of the
Revised Code.
{¶ 21} The method of collecting civil judgments outlined in R.C. 2333.21 appears
2
Exemption amounts are annually updated, pursuant to R.C. 2329.66(A)(18)(B).
Current exemption amounts are found at http://www.ohiojudges.org/Document.ashx?
DocGuid=c6a5f473-62f4-4466-9e4f-aaf7b59c1b66.
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to be in direct conflict with the provision in R.C. 5120.133 which authorizes the
Department of Corrections to assist the courts in collecting court ordered obligations
without compliance with the procedures required for aid in executions including
garnishments and attachments of judgment debtors under Chapter 2716 of the Revised
Code. The record is not developed to determine whether an inmate’s compensation under
the work program or private employment while incarcerated is considered “personal
earnings”, as defined in R.C. 2716.01. If the trial court had conducted a hearing or
ordered responsive pleadings to Copeland’s motion to vacate costs, the record would
have developed a factual basis to facilitate our review.
{¶ 22} In State v. Chase, 2d Dist. Montgomery No. 26238, 2015-Ohio-545, we
reversed the trial court’s denial of a post-conviction motion to vacate costs because the
trial court did not make sufficient findings to permit meaningful review of its decision under
an abuse of discretion standard. Id. at ¶ 17. The minimal facts presented to the court in
Chase are nearly identical to the facts Copeland presented to the trial court in the case
before us. Chase stated that he earns $18.00 a month and Copeland stated that he earns
$17.00 a month while incarcerated, which is deposited into a personal prison account.
Both stated that out of the prison account, they must pay for their own basic hygiene and
health care products and a $2 co-pay each time they seek medical care. In both cases,
the trial court summarily denied the motion to vacate costs, without a hearing and without
factual findings. In Chase, we stated, “[b]ecause the trial court’s statutory authority to
waive costs is permissive, its decision whether to do so is reviewed under an abuse-of-
discretion standard of review. The trial court did not present any reasons or explanation
for its decision.” Id. at ¶ 14. “The lynchpin of abuse-of-discretion review is the
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determination whether the trial court's decision is reasonable.” Id. at ¶ 17, citing AAAA
Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St. 3d
157, 161, 553 N.E.2d 597 (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.” Id. Without a full explanation, I am at a loss as to how the trial court could
reasonably conclude that a judgment debtor who only earns $17.00 a month is not
indigent or has the ability to pay a court ordered judgment for costs. As in the Chase
case, we should reverse the order of the trial court and remand this cause to the trial court
for re-consideration of Copeland’s motion, with directions to provide a sufficient
explanation of the reason or reasons for the trial court’s decision which would permit us
to review that decision, should either party choose to appeal, under an abuse-of-
discretion standard of appellate review.
{¶ 23} I also note that Copeland’s concerns about his inability to file a timely motion
had he not been informed at sentencing that court costs were to be imposed are
unfounded because his motion is in fact timely. R.C. 2947.23(C) provides: “The 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.” Post-conviction, a defendant may also seek a cancellation of
the debt under R.C. 2303.23, which provides, “[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. The clerk shall then effect the
cancellation.” Thus, the trial court has jurisdiction to consider a post-conviction motion
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to waive or cancel an order for costs, and a defendant has the right to appellate review of
the decision on that post-conviction motion. I also would reverse and remand this matter
for re-consideration of Copeland’s ability to pay after application of the applicable
exemption statutes to effectuate a meaningful review.
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HALL, J., dissenting:
{¶ 24} There is no case law, there is no statute, there is no regulation and there is
no exercise of discretion which requires a trial court to explicitly consider an incarcerated
defendant’s ability to pay court costs when ruling on a post-judgment motion to waive or
stay payment of court costs. I therefore dissent.
{¶ 25} The imposition of court costs is governed by R.C. 2947.23, and this statute
requires a court to impose them “against all convicted defendants, even those who are
indigent,” State v. Fuller, 2d Dist. Montgomery No. 25380, 2013-Ohio-3274, ¶ 18, citing
id. and State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 46, citing State v.
White, 103 Ohio St. 3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8 (saying that R.C.
2947.23 “requires a court to assess costs against all convicted defendants” (Emphasis
sic.)). What a court may do, though, is “waive the payment of costs.” (Emphasis sic.) State
v. Joseph, 125 Ohio St. 3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11. No law requires a
trial court to “consider a defendant’s ability to pay, as required by R.C. 2929.19 for the
imposition of financial sanctions, before imposing court costs.” (Citation omitted.) Fuller
at ¶ 19. Accord State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 45 (saying
that “R.C. 2929.19 is inapplicable to court costs, and the trial court need not consider a
defendant’s ability to pay under R.C. 2929.19 prior to imposing court costs”). Therefore,
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the trial court here did not err if it did not consider Copeland’s ability to pay before
imposing court costs. If there is no requirement to consider ability to pay at the time of
court cost imposition, I fail to see how a trial court is required to consider ability to pay
when a post-judgment motion to waive or suspend collection of court costs is filed one
week, one year or five years later. There is simply no precedent or statute to support such
a notion.
{¶ 26} Because authority for a trial court to consider a request for waiver of court
costs subsequent to sentencing did not exist until the amendment of R.C. 2947.23(C),
effective March 22, 2013, there is little case law on what a post-sentence waiver entails.
However, it is clear that the Supreme Court has previously held that a decision whether
to waive payment of court costs, at least at sentencing, is reviewed on an abuse of
discretion standard. State v. Threatt, 108 Ohio St. 3d 277, 2006-Ohio-905, 843 N.E.2d
164, ¶ 23. That case also concluded “R.C. 5120.133(A), which permits the Department of
Rehabilitation and Correction to deduct payments toward a certified judgment from a
prisoner's account without any other required proceeding in aid of execution, is merely
one method of collection against defendants who are incarcerated (and therefore are
most likely indigent).” Id. ¶ 13. If a trial court is not required to consider ability to pay court
costs upon imposition, and if deduction of payments from a prisoner account is specifically
authorized by statute (R.C. 5120.133), “as long as the account retains twenty-five dollars
for inmate expenditures” (Ohio Adm.Code 5120-5-03(D)), then a trial court does not
abuse its discretion if it does not consider ability to pay when ruling on a post-sentence
motion to waive court costs. We have previously found no abuse of discretion when a trial
court refused to grant a waiver of court costs for a prisoner serving a 22-year sentence
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who had costs collected from his meager prisoner account. State v. Hawley, 2d Dist.
Montgomery No. 25897, 2014-Ohio-731. If we were unable to find an abuse of discretion
in Hawley, then there is no abuse of discretion with respect to Copeland whose sentence
will end in less than 3 more years.
{¶ 27} Likewise, on this record, there is no basis upon which to consider potential
exemptions from collection. Appellant does not assert that the Ohio Department of
Rehabilitation and Corrections (ODRC) failed to comply with Ohio Adm.Code 5120-5-03
or that he raised possible exemptions or defenses under those rules. Even if he did, the
trial court in Montgomery County, Ohio does not have jurisdiction over ODRC actions at
Madison Correctional Institution, in Madison County, where Copeland is incarcerated. On
this record we have no assigned error, no record to support a claimed exemption, a
statute that specifically authorizes the payment, and no authority to consider the
possibility of any potential exemption that is superseded by R.C. 5120.133.
{¶ 28} Finally, although I am firmly convinced that the trial court was not required
to consider ability to pay, the record does not support a conclusion that the trial court
failed to do so. The trial court pointed out that Ohio Adm.Code 5120-5-03 establishes
procedures for withdrawing money from an inmate’s account to satisfy court-ordered
financial obligations. Division (D) states that withdrawals are allowed to satisfy these
obligations “as long as the account retains twenty-five dollars for inmate expenditures.”
In my opinion, the trial court recognized that statutory policy decision that the legislature
has made determining that a prisoner does have an ability to pay provided that a minimum
of $25.00 remains in the prisoner’s account.
{¶ 29} For all these reasons, I dissent.
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Copies mailed to:
Meagan D. Woodall
Joseph L. Copeland
Hon. Dennis J. Langer