State v. Phillips

[Cite as State v. Phillips, 2022-Ohio-478.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 20CA3905
v. :
CHAD PHILLIPS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Christopher J. Pagan, Middletown, Ohio, for appellant.1
Shane Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:2-11-22
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court order that denied a
motion to vacate and set aside court costs filed by Chad Phillips, defendant below and appellant
herein.
{¶2} Appellant assigns one error for review:
“R.C. 2947.23(C) CONFERS JURISDICTION ON THE TRIAL
COURT TO ADJUDICATE A POSTCONVICTION MOTION TO
VACATE, SUSPEND, OR MODIFY COSTS. THIS IS A
STATUTORY CLAIM- NOT A CONSTITUTIONAL CLAIM- SO
THE 1-YEAR LIMITATIONS PERIOD FROM THE
POSTCONVICTION STATUTE IS INAPPLICABLE. AND RES
JUDICATA IS NO BAR BECAUSE R.C. 2947.23(C) AUTHORIZES
A POSTCONVICTION COSTS MOTION AS A LEGISLATIVE
1
Different counsel represented appellant during the trial
court proceedings.
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EXCEPTION TO RES JUDICATA.”
{¶3} On December 21, 2018, this court affirmed appellant’s convictions for aggravated
murder and other crimes. See State v. Phillips, 4th Dist. Scioto No. 18CA3832, 2018-Ohio-5432.
The trial court sentenced appellant to serve a life sentence with the possibility of parole after 30
years, did not impose a fine or restitution, but did order appellant to pay court costs. Subsequently,
the court clerk produced and filed a $4,238 cost bill.
{¶4} On December 16, 2019, appellant filed a pro se motion to vacate and set aside costs.
Appellant asserts that the court did not consider appellant’s present or future ability to pay costs,
either at his sentencing hearing or in his sentencing entry. Appellee’s memorandum contra argued
that the trial court should dismiss the motion because (1) it is an untimely R.C. 2953.21(A)(2)
postconviction motion, or (2) it is barred by res judicata. On January 29, 2020, the trial court denied
the motion without explanation or analysis and this appeal followed. Additionally, appellant now
has counsel to represent him.
{¶5} In general, a trial court has discretion to waive the payment of court costs. Therefore,
a court’s decision concerning a waiver of costs is reviewed under an abuse of discretion standard.
State v. Braden, 158 Ohio St.3d 462, 2019-Ohio-4202, 145 N.E.3d 235, ¶ 21. To find an abuse of
discretion, an appellate court must determine the trial court’s decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶6} Effective March 22, 2013, the General Assembly enacted R.C. 2947.23(C). That
statute 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. R.C. 2947.32 also provides, however, that trial courts are required to assess court costs
against criminal defendants even if a defendant is indigent. State v. Clinton 153 Ohio St.3d 422,
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2017-Ohio-9423, 108 N.E.3d 1, citing State v. White 103 Ohio St.3d 580, 2004-Ohio-5989, 817
N.E.2d 393.
{¶7} Although appellee concedes that R.C. 2947.23(C) authorizes appellant’s request,
appellee nevertheless argues that the trial court did not find that it does not have the authority to
consider appellant’s motion, but rather the court considered appellant’s request and, in general terms,
overruled the request. Appellee further asserts that in this situation a trial court is not required to
explicitly state reasons for the motion’s denial.
{¶8} Appellee also cites State v. Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d
486 in support of its argument. In Taylor, the court held that a trial court is not required to consider
a defendant’s ability to pay when it rules on a motion to waive, suspend, or modify court costs:
By statute, the imposition of court costs on all convicted defendants is mandatory.
R.C. 2947.23(A)(1)(a) reads: ‘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.) As we
have explained, this strict statutory language “requires a court to impose costs against
all convicted defendants,” indigent or not. (Emphasis sic.) State v. White, 103 Ohio
St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.
But R.C. 2947.23(C) gives a trial court continuing jurisdiction to ‘waive, suspend, or
modify the payment of the costs of prosecution * * * at the time of sentencing or at
any time thereafter.’ So, while the court must impose costs, it may also waive,
suspend, or modify them. ‘[W]aiver of costs is permitted - but not required - if the
defendant is indigent.’ White at ¶ 14.
State v. Taylor, supra, at ¶ 6-8.
The court went on to explain:
* * * It is a basic principle of our legal system that a trial court’s decision must not be
arbitrary and cannot be based on considerations wholly unrelated to the decision it is
tasked with making. A trial court could not, for instance, deny a motion to waive
costs based on the flip of a coin or the color of a defendant’s hair or because it is
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Tuesday. Neither could a court adopt a standing order to reject all such motions, as
that would be opting out of any sort of rational assessment altogether. Statutes often
give broad discretion that are reasonable under the circumstances. But to require that
a specific criterion be applied in every case, there must be statutory support. And
there just isn’t any here. Thus, we hold that a trial court is not required to consider
the defendant’s ability to pay in assessing a motion to waive, suspend, or modify
court costs under R.C. 2947.23(C), though it is permitted to do so.
Taylor at ¶ 16.
{¶9} Although a trial court is not required to consider a defendant’s ability to pay when
assessing a motion to waive, suspend, or modify court costs, we recognize that a division of
authority exists among appellate districts regarding whether a court must explain its decision. In
State v. Sibrian, 2d Dist. Montgomery No. 27964, 2020-Ohio-6769, the Second District recently
addressed this issue, with facts similar to the case at bar. After the trial court overruled a motion to
vacate costs and found the evidence “not to be persuasive,” the Second District wrote:
The lynchpin of abuse-of-discretion review is the determination whether the trial
court’s decision is reasonable. 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.
Sibrian, citing State v. Chase, 2d Dist. Montgomery No. 26238, 2015-Ohio-545, ¶ 17.
{¶10} The Sibrian court acknowledged that, although the trial court’s decision to find the
motion “unpersuasive” after “careful consideration” indicates that the trial court did not base the
decision simply “on the color of the defendant’s hair or the day of the week,” nevertheless the
decision “does not provide sufficient explanation for an appellate court to review and determine
whether its conclusion constituted an abuse of discretion.” Id. at ¶ 13.
{¶11} In Chase, after the trial court denied the motion to vacate costs as “not well taken,”
the Second District concluded that without some explanation from the trial court the appellate court
is “left to guess what criteria was used by the trial court in denying [the] motion.” Sibrian at ¶ 12.
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Thus, the Second District reversed and remanded the trial court’s decision to deny the defendant’s
motion.
{¶12} The Eleventh and Twelfth Districts, however, have reached the opposite conclusion.
In State v. Riley, 2019-Ohio-3327, 141 N.E.3d 531, (11th Dist.), the court pointed out that “Ohio
courts have consistently held that a sentencing court is only required to make findings when the
applicable statute requires a finding.” Id. at ¶ 110. Thus, because R.C. 2947.23(C) is silent
concerning findings, a court is not “required to make findings when ruling on a motion to waive the
payment of court costs.” State v. Mallory, 11th Dist. Trumbull No. 2019-T-0025, 2020-Ohio-868, ¶
17. See also State v. Stoutamire, 11th Dist. Trumbull No. 2020-T-0018, 2020-Ohio-4533, ¶ 10.
Also, the Twelfth District wrote:
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.
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).
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, as
stated above, we are constrained to apply the statute as written and cannot rewrite the
statute to say something it does not.
State v. Babyak, 12th Dist. Madison No. CA2019-08-025, 2020-Ohio-325, ¶ 12-13.
{¶13} In the case sub judice, the trial court’s decision provides in its entirety:
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This matter comes before the Court on the defendant’s Motion to Vacate and Set
Aside Costs, Fines and Restitution and the State of Ohio’s memorandum in
opposition. The Court finds the defendant’s Motion is not well-taken and is
overruled.
Although we recognize that an explanation for a trial court’s decision regarding a motion to waive
payment of court costs may facilitate a more meaningful appellate review, we also recognize that the
statute does not require an explicit explanation. Consequently, because the statute is silent
concerning findings, trial courts should not be required to make findings when ruling on a motion to
waive the payment of court costs. Riley at ¶ 110; Mallory at ¶ 17; Babyak at ¶ 12. R.C. 2947.23(C)
“give[s] broad discretion to [trial] courts to make decisions that are reasonable under the
circumstances.” Taylor, supra, at ¶ 7.
{¶14} In the case sub judice, the trial court did not impose a fine, but did include an order
that the Ohio Department of Rehabilitation and Corrections withhold appellant’s funds to pay the
costs. Thus, it also appears that the trial court did, in fact, take appellant’s ability to pay into
consideration at the original sentencing hearing. In any event, we find that the trial court’s denial of
appellant’s request to waive the payment of costs assessed against appellant, does not constitute an
abuse of discretion. Furthermore, we find no error with the trial court’s failure to include explicit
findings in its order.
{¶15} Accordingly, based upon the foregoing reasons, we overrule appellant’s assignment
of error and affirm the trial court’s judgment.2
2
Appellant also submitted a pro se brief that sets forth
three additional assignments of error. Although appellant has the
right to either appear pro se or, alternatively, to have counsel
represent him, appellant has no right to act as co-counsel on his
own behalf. State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407(1987). The right to either appear pro se or have counsel are
independent of each other and may not be asserted simultaneously.
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State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d
227; State v. Smith, 4th Dist. Highland No. 09CA29, 2010-Ohio-4507;
State v. Smith, 1st Dist. Hamilton Nos. C-160836 and C-160837, 2017-
Ohio-8558; State v. Greenleaf, 11th Dist. Portage No. 2005-P-0017,
2006-Ohio-4317; State v. Davis, 10th Dist. Franklin No. 05AP-193,
2006-Ohio-5039; State v. Pizzaro, 8th Dist. Cuyahoga No. 94849,
2011-Ohio-611. Here, appellant has submitted assignments of error
in his pro se appellate brief while he had simultaneous
representation from appellate counsel, who also filed an appellate
brief. However, appellate courts do possess the discretion to
address arguments raised in a pro se brief when the appellant is
represented by counsel who has filed a brief if the pro se brief is
submitted through appellate counsel and the court has granted a
request for leave to file a supplemental brief. State v. Beaver,
119 Ohio App.3d 385, 695 N.E.2d 332, (11th Dist. 1997). That is not
the situation here. Nevertheless, we will give some consideration
to the issues appellant raises.
In his first pro se assignment of error, appellant asserts
that the trial court erred by not finding appellant to be indigent
at his sentencing hearing, or when he filed the motion to vacate
fines and costs. Appellant contends he is indigent and expects to
remain so for the next thirty years to life. However, R.C.
2947.23(A) requires a sentencing court to assess costs against all
defendants. Braden, 158 Ohio St.3d 462, 2019-Ohio-4204, 145 N.E.3d
235, ¶ 20, citing State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-
954, 926 N.E.2d 278, ¶ 11 (superceded by statute as stated in State
v. Braden). If a defendant is indigent, a court is permitted, but
not required, to waive the payment of those costs. Braden, supra,
at ¶ 20, citing Joseph, supra, at ¶ 11, citing State v. Clevenger,
114 Ohio St.3d 258, 2007-Ohio-4006 ; Mallory at ¶ 16-17.
Therefore, this argument is without merit.
In his second pro se assignment of error, appellant asserts
that had his counsel notified the court of appellant’s indigency
and inability to pay fines and costs, the court would have found
him to be indigent and waived costs and fines at the sentencing
hearing. First, the trial court did not impose any fines in the
case at bar. Second, in State v. Davis, 159 Ohio St.3d 31, 2020-
Ohio-309, 146 N.E.3d 560, the Supreme Court of Ohio held that, when
an indigent defendant makes an ineffective assistance of counsel
claim based upon counsel's failure to request a waiver of court
costs, a court must objectively consider the facts and
circumstances to determine whether the defendant established the
necessary prejudice sufficient to support that claim (i.e., but for
counsel's deficient performance, a reasonable probability exists
that the result of the proceeding would have been different). The
court also pointed out that a determination of indigency alone does
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JUDGMENT AFFIRMED.
not constitute a reasonable probability that the trial court would
have waived costs had defense counsel so requested. Instead, a
court must look at all of the circumstances to determine whether a
reasonable probability exists that a trial court would have granted
a motion to waive costs. Davis. The adoption of R.C. 2947.23(C)
now permits trial counsel flexibility regarding a request for
waiving costs. State v. Eblin, 5th Dist. Muskingum No. CT2019-
0036, 2020-Ohio-1216, ¶ 16. Prior to its adoption, a failure to
request of waiver of costs at sentencing resulted in a final
judgment and prohibited any further consideration of that issue.
Id., citing State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905,
843 N.E.2d 164, ¶ 23. However, res judicata no longer bars
appellant from requesting a waiver at any time after sentencing.
State v. Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-3533,
¶ 16; State v. Purifoy, 2nd Dist. Montgomery No. 28042, 2019-Ohio-
2942, ¶ 28; Eblin at ¶ 16. Thus, the timing of a motion to seek
waiver of costs is a matter of trial strategy. State v. Pultz, 6th
Dist. Wood No. WD-14-083, 2016-Ohio-329, ¶ 61. A debatable trial
strategy does not necessarily equal ineffective assistance of
counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643(1995); State v. Moore, 6th Dist. Erie No. E-19-009, 2019-Ohio-
4609, ¶ 14. Therefore, because trial counsel does not violate an
essential duty to appellant by not filing a motion to waive costs
at the sentencing hearing, appellant did not receive ineffective
assistance of counsel. Also, because appellant failed to
demonstrate a reasonable probability that the outcome would have
changed, he did not suffer prejudice as a result of counsel not
filing a motion to waive costs. State v. Dean, 146 Ohio St.3d 106,
2015-Ohio-4347, 54 N.E.3d 80, ¶ 233.
In his third pro se assignment of error, appellant asserts
that the trial court erred by not considering his future ability to
pay court costs and fines. However, our resolution of this issue
under appellant’s counsel’s assignment of error renders this
assignment of error moot. State v. Graves, 900 N.E.2d 1045, 2008-
Ohio-5763, ¶ 5 (4th Dist.).
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
FOR THE COURT
BY:__________________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.