[Cite as State v. Hunter, 2015-Ohio-4180.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102245
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
STEVAN HUNTER
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-568061-B
BEFORE: Stewart, J., Kilbane, P.J., Laster Mays, J.
RELEASED AND JOURNALIZED: October 8, 2015
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
Mary McGrath
Eric L. Foster
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
Sarah E. Gatti
Assistant Public Defender
310 West Lakeside Avenue, Suite 200
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} R.C. 2947.23(C) gives the court jurisdiction “to waive, suspend, or modify
the payment of the costs of prosecution * * * at the time of sentencing or at any time
thereafter.” The issue in this appeal is whether a defendant who was sentenced before
the effective date of R.C. 2947.23(C) and who did not seek a waiver of court costs at the
time of sentencing, can subsequently use the statute as a means of invoking the court’s
jurisdiction to seek a waiver of those costs. We hold that the specific language of R.C.
2947.23(C) stating that a court has jurisdiction to waive costs at “any time” after
sentencing is prospective in application and is not a retroactive application that would bar
defendants who failed to seek a waiver of court costs at the time of sentencing.
{¶2} In February 2013, defendant-appellee Stevan Hunter pleaded guilty to one
count of drug trafficking. At sentencing, the court imposed a two-year community
control sanction but said nothing about Hunter’s obligation to pay court costs. The
court’s sentencing entry, however, ordered Hunter to pay “an amount equal to the costs of
this prosecution.”
{¶3} Hunter twice violated the terms of community control: the first violation
occurred in August 2013 and resulted in a continuation of community control; the second
violation occurred in December 2013 and resulted in the court ordering Hunter to serve a
three-year prison term. The court waived the costs of the first community control
violation proceeding, but ordered Hunter to pay the costs of the second community
control violation hearing.
{¶4} In October 2014, Hunter filed a generic motion to “vacate/waive” the costs in
his case. He appended an affidavit of indigency to that motion. The motion made no
specific reference to which costs Hunter sought to “vacate/waive,” but the court
presumably interpreted the motion as referring to not only the costs of the second
community control violation hearing, but the costs of the proceedings leading to his
conviction. The court granted the motion and waived court costs over the state’s
opposition. The state of Ohio appeals from that order.
{¶5} The state’s first assignment of error is that the court erred as a matter of law
by granting Hunter’s motion to waive court costs. Importantly, the state does not
maintain that the court abused its discretion by waiving Hunter’s court costs. Rather, its
opposition to granting Hunter’s motion consists of two parts: first, that Hunter failed to
seek a waiver of court costs at the time of sentencing, so the imposition of court costs was
res judicata; second, to the extent Hunter relied on R.C. 2947.23(C) as giving the court
jurisdiction to modify the court costs, reliance on the statute was misplaced because the
statute was not enacted until the day after the court imposed Hunter’s costs and the
statute’s use would entail a forbidden, retroactive application of the statute.
{¶6} The state’s res judicata argument made below was based on two cases: State
v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, and State v. Clevenger,
114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589. Paragraph two of the syllabus to
Threatt states: “A motion by an indigent criminal defendant for waiver of payment of
costs must be made at the time of sentencing”; paragraph three of the syllabus to
Clevenger states: “A trial court may waive the payment of court costs previously imposed
on a criminal defendant only upon statutory authority and only if the defendant moves for
waiver of costs at the time of sentencing.” The state argued that these cases collectively
held that Hunter was barred from arguing, subsequent to the imposition of costs, that
costs should have been waived because he did not raise the issue at the time of
sentencing.
{¶7} The state has withdrawn its res judicata argument and says that we should
remand for a proper advisement in light of its concession that the court failed to inform
Hunter of his obligation to pay court costs at the time of sentencing. The state believes
that its concession is dictated by State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926
N.E.2d 278, where the Ohio Supreme Court held that a court’s failure to advise a
defendant of court costs at the time of sentencing is error because it violates Crim.R.
43(A), which states that a defendant must be present at all stages of trial, including
sentencing. Id. at ¶ 22. We have confirmed that the court’s sentencing entry stated that
“the Court hereby enters judgment against the defendant in an amount equal to the costs
of this prosecution[,]” but the court did not impose court costs at the time it originally
sentenced Hunter following his guilty plea.
{¶8} Despite the state’s concession, a remand so that the court could properly
advise Hunter of his obligation to pay court costs is nonetheless barred as res judicata. In
State v. Pettiway, 8th Dist. Cuyahoga No. 98836, 2013-Ohio-1348, we held that
principles of res judicata bar the assertion of a claim regarding court costs by a defendant
who filed a direct appeal but failed to raise the issue of court costs in that direct appeal.
Id. at ¶ 5. Although Hunter did not file a direct appeal from his conviction, claims are
considered res judicata not only if they were raised in a prior proceeding, but if they could
have been raised in a prior proceeding. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d
104 (1967), paragraph nine of the syllabus. Hunter could have raised the issue of court
costs on direct appeal, State v. Appleton, 8th Dist. Cuyahoga No. 97942, 2012-Ohio-2778,
¶ 9, so principles of res judicata would bar Hunter from raising the issue of the court’s
failure to properly advise him of his obligation to pay court costs. Threatt at ¶ 23 (if an
indigent defendant requests a waiver of mandatory court costs at the time of sentencing,
“the issue is preserved for appeal”; otherwise, “the issue is waived and costs are res
judicata.”).1
{¶9} With res judicata barring Hunter from asserting error at the sentencing stage
of his trial, we consider the state’s second argument made in opposition to granting
Hunter’s motion to vacate court costs — that the court had no jurisdiction to waive the
imposition of costs after they became final.
It is important to understand that the court’s error in failing to inform
1
Hunter about court costs did not render those costs void, but merely voidable.
Joseph, 125 Ohio St.3d at 22, 2010-Ohio-954, 926 N.E.2d 278. So despite the
state’s concession that the court failed to inform Hunter about the payment of court
costs at the time of sentencing, it boots Hunter nothing because he did not file a
direct appeal. However, Hunter’s failure to file a direct appeal does not affect his
ability to seek a waiver of costs under R.C. 2947.23(C).
{¶10} Absent express authority, a court cannot, after entry of a final judgment of
conviction, entertain a motion that challenges a court action as being merely voidable,
rather than void. State v. Hollomon, 10th Dist. Franklin No. 07AP-875,
2008-Ohio-2650, ¶ 11. Hunter relied on R.C. 2947.23(C) as providing the court
jurisdiction to vacate/waive court costs after sentence had been imposed.
{¶11} The state argues that the current version of R.C. 2947.23(C) granting the
court jurisdiction to consider a motion to waive costs did not become effective until
March 22, 2013, and that the court sentenced Hunter on March 21, 2013 — one day
before the effective date of the statute. It argues that with Clevenger, 114 Ohio St.3d
258, 2007-Ohio-4006, 871 N.E.2d 589, barring a court from waiving court costs at any
time after sentencing, the trial court could not have waived Hunter’s court costs unless it
retroactively applied R.C. 2947.23(C).
{¶12} We believe the state’s argument misapprehends what constitutes a
“retroactive” application of R.C. 2947.23(C). It is true that absent express language
indicting retroactivity, a statute is presumed to be prospective in its application. See R.C.
1.48; Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 105, 522 N.E.2d 489
(1988). But retroactivity is premised on the idea that a law reaches back in time to upset
settled legal expectations. By its own terms, R.C. 2947.23(C) states that a court retains
jurisdiction to waive, suspend, or modify court costs “at the time of sentencing or at any
time thereafter.” No settled legal expectations are affected by the amended statute — it
expressly states, consistent with prior precedent, that the court may waive court costs at
the time of sentencing, but the statute goes on to expand the time frame in which a court
may waive, suspend, or modify costs to “any time thereafter.” 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. There is no dispute that Hunter
sought a waiver of court costs after the effective date of the modifications to R.C.
2947.23(C), so there was no retroactive application of the statute.
{¶13} Our interpretation of R.C. 2947.23(C) is consistent with State v. Raymond,
8th Dist. Cuyahoga No. 99177, 2013-Ohio-3144, in which we applied R.C. 2947.23 to an
offender who had been sentenced prior to the effective date of the statute. During
sentencing, Raymond asked the court to waive the imposition of court costs, but the court
refused. On direct appeal from that sentencing, the panel found that Raymond failed to
offer any evidence in support of his claimed indigence, so the court did not abuse its
discretion by refusing to waive costs. Id. at ¶ 13. Raymond also argued that the court
failed to inform him, consistent with former R.C. 2947.23(A)(1)(a), that his failure to pay
court costs could result in his having to perform community service. The panel agreed
that the court did not so advise Raymond, but held that the amended version of R.C.
2947.23 no longer contained the notice requirement. We held:
Accordingly, we find the trial court erred in failing to provide the
notifications required at the time of sentencing. Because the law no longer
requires defendants who are sentenced to prison to be so advised and R.C.
2947.23(C) permits the court to modify the payment of costs, upon remand,
the trial court shall modify its judgment to eliminate any requirement that
appellant can be mandated to perform community service should he fail to
pay court costs. Appellant’s second assignment of error is sustained in this
regard.
Id. at ¶ 16.
{¶14} The state cites State v. Walker, 8th Dist. Cuyahoga No. 101213,
2014-Ohio-4841, as authority from this court for the proposition that R.C. 2947.23(C)
cannot be applied retroactively. The panel found Walker had been sentenced before the
effective date of R.C. 2947.23(C), so “revised R.C. 2947.23(C) does not apply.” Id. at ¶
9. However, the Walker statement regarding the retroactivity of R.C. 2947.23(C) was
dicta because the panel actually concluded that Walker had been aware at the time he
filed his first appeal that the court imposed costs, but his failure to raise the issue rendered
it res judicata. Id. at ¶ 8. Its discussion of R.C. 2947.23(C) was an alternative holding
and thus not an authoritative statement of the law. Heisler v. Mallard Mechanical Co.,
LLC, 10th Dist. Franklin No. 09AP-1143, 2010-Ohio-5549, ¶ 13.2 The first assignment
of error is overruled.
{¶15} The state presents a second assignment of error that is uncontested — that
the court lacked the authority to waive Hunter’s fines because they were mandatory fines
and Hunter did not file an affidavit of indigency prior to sentencing as required by R.C.
In two cases, the Second District Court of Appeals has suggested that the
2
2013 amendment to R.C. 2947.23(C) granting a trial court jurisdiction to waive,
suspend, or modify the payment of court costs at “any time” can be applied
“retroactively,” even if the defendant does not raise the issue of court costs in a
direct appeal. See State v. Powell, 2d Dist. Montgomery No. 24433,
2014-Ohio-3842; State v. Hawley, 2d Dist. Montgomery No. 25897, 2014-Ohio-731.
Despite agreeing in principle with this sentiment, we acknowledge that the Second
District’s statements were dicta because, as in Walker, the actual holdings were
that the defendants’ respective motions to waive court costs were res judicata based
on the facts of each case.
2929.18(B)(1). Hunter concedes the error and we agree that the court erred by waiving
the fines. See State v. T.M., 8th Dist. Cuyahoga No. 101194, 2014-Ohio-5688, ¶ 7. We
therefore sustain this assignment of error.
{¶16} Judgment affirmed in part, reversed in part and remanded.
It is ordered that appellant and appellee share 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 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.
______________________________________________
MELODY J. STEWART, JUDGE
MARY EILEEN KILBANE, P.J., and
ANITA LASTER MAYS, J., CONCUR