[Cite as State v. Ayers, 2013-Ohio-2998.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98927
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RONALD AYERS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-548318 and CR-555008
BEFORE: Jones, P.J., Keough, J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: July 11, 2013
ATTORNEYS FOR APPELLANT
Timothy Young
State Public Defender
BY: Terrence K. Scott
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian R. Radigan
Christopher D. Schroeder
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant, Ronald Ayers, appeals the trial court’s failure to inform
him that failure to pay court costs may result in the imposition of community service.
We reverse.
{¶2} In 2012, Ayers pleaded guilty in Case No. CR-548318 to one count of rape
and pleaded guilty in Case No. CR-555008 to one count of sexual battery. The trial
court sentenced him to a total of eight years in prison and classified him as a Tier III
sexual offender. The sentencing court ordered Ayers to pay court costs but waived the
fine.
{¶3} Ayers filed a timely appeal, raising the following assignments of error, which
will be combined for review:
[I]. The trial court erred by imposing court costs without notifying Mr.
Ayers that his failure to pay such costs may result in the court’s ordering
him to perform community service.
[II]. The trial court committed plain error and denied Mr. Ayers due
process of law when it imposed court costs without proper notification that
Mr. Ayers’ failure to pay court costs may result in the court’s ordering him
to perform community service.
{¶4} In the assigned errors, Ayers argues that the trial court erred in imposing
court costs without also informing him that his failure to pay the costs may result in the
imposition of community service. The state concedes the error.
{¶5} R.C. 2947.23(A)(1)1 governs judgments for costs and provides:
Am.Sub.H.B. No. 247, Section 1, effective March 22, 2013, amended R.C. 2947.23(A)(1)
1
making the provision applicable only when the court sentences an offender to community control or
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. At the time the judge or
magistrate imposes sentence, the judge or magistrate shall notify the
defendant of both of the following:
(a) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule approved by the
court, the court may order the defendant to perform community service in
an amount of not more than forty hours per month until the judgment is paid
or until the court is satisfied that the defendant is in compliance with the
approved payment schedule.
(b) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly
credit rate per hour of community service performed, and each hour of
community service performed will reduce the judgment by that amount.
{¶6} The statutory language is clear; the “notice is mandatory and * * * a court is
to provide this notice at sentencing.” State v. Smith, 131 Ohio St.3d 297,
2012-Ohio-781, 964 N.E.2d 423, ¶ 10.
{¶7} In this case, the trial court failed to inform Ayers that if he did not pay his
court costs, the trial court could impose community service.
{¶8} Ayers claims that the remedy for the trial court’s error is for this court to
vacate the imposition of court costs and inform the trial court that it may not impose
community service requirements. We disagree. The appropriate remedy in cases such
other nonresidential sanction. Since Ayers was sentenced in 2012, the former version of the statute
applies.
as these where a trial court fails to provide the notice required by R.C. 2947.23(A)(1) is to
vacate the portion of the trial court’s entry relative to court costs and remand the case to
the trial court for resentencing only as to the issue of court costs. State v. Adams, 8th
Dist. No. 95439, 2011-Ohio-2662, ¶ 3; see also State v. Cardamone, 8th Dist. No. 94405,
2011-Ohio-818.
{¶9} The assignments of error are sustained.
{¶10} The judgment of the trial court is reversed to the extent that the trial court
failed to inform Ayers of the consequences of not paying court costs. The case is hereby
remanded. On remand, a hearing shall be held for only the proper notification of the
penalty for a failure to pay court costs.
It is ordered that appellant recover of appellee his 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 common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR