[Cite as State v. Gomez, 2016-Ohio-674.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2015-CA-00118
DAMON ANDRE GOMEZ :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2013-
CR-1253(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 22, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN D. FERERO DAMON ANDRE GOMEZ PRO SE
PROSECUTING ATTORNEY #651-744
BY: RONALD MARK CALDWELL Marion Correctional Institute
110 Central Plaza S., Ste. 510 Box 57
Canton, OH 44702 Marion, OH 43301-0057
Stark County, Case No. 2015-CA-00118 2
Gwin, P.J.
{¶1} Appellant appeals the May 15, 2015 judgment entry of the Stark County
Court of Common Pleas denying his motion to modify court costs and consolidate court
costs. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} In 2013, appellant Damon Gomez was indicted with one count of
possession of heroin in violation of R.C. 2925.11. On October 9, 2013, appellant pled
guilty to the indictment charges. After a pre-sentence investigation report, appellant was
sentenced on January 22, 2014 to a prison term of twelve (12) months. In addition to this
sentence, the trial court ordered appellant to pay court costs. Appellant did not file a
direct appeal.
{¶3} On May 15, 2015, appellant filed a motion to modify court costs order and
consolidate court costs order per R.C. 2949.111, R.C. 2949.14, and R.C. 2929.28. On
May 19, 2015, the trial court denied appellant’s motion.
{¶4} Appellant appeals the trial court’s May 19, 2015 judgment entry and assigns
the following as error:
{¶5} “I. THE TRIAL COURT COMMITTED PREJUDICE [SIC] ERROR WHEN
THE TRIAL COURT, DURING THE SENTENCING PHASE UNDER CASE NO. 2013CR-
1253A, 2004CR1749, AND 2004CR1083 FAILED TO DETERMINE THE DEFENDANT’S
ABILITY TO PAY THE COSTS PURSUANT TO R.C. 2947.23 IN VIOLATION OF THE
DEFENDANT’S UNITED STATES CONSTITUTIONAL RIGHTS.”
Stark County, Case No. 2015-CA-00118 3
I.
{¶6} We first note that, in his brief and in his assignment of error, appellant makes
reference to two other criminal cases which resulted in his conviction and sentence, as
well as the imposition of court costs. In each of these two cases, 2004-CR-1749 and
2004-CR-1083, both 2004 cases, appellant did not appeal or otherwise challenge the
imposition of court costs until 2015. Like in the instant case, appellant filed a motion to
consolidate court costs and to modify those court costs in both cases. The trial court
judge overruled those motions on June 1, 2015.
{¶7} Appellant has not filed an appeal from these June 1, 2015 denials. While
appellant attempts to challenge the validity of the court costs in the 2004 cases in this
case, we find because appellant failed to file a timely appeal from the June 1, 2015
judgment entries, this Court lacks jurisdiction to entertain appellant’s arguments regarding
the judgment entries in the 2004 cases.
{¶8} In the instant case, appellant argues the trial court failed to comply with R.C.
2947.23(A)(1)(a) because the trial court did not determine, at the time of sentencing, his
ability to pay court costs.
{¶9} The version of R.C. 2947.23 in effect at the time appellant was sentenced
provides as follows:
(A)(1)(a) In all criminal cases * * * 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. If the judge or magistrate imposes a community
control sanction or other nonresidential sanction, the judge or magistrate,
Stark County, Case No. 2015-CA-00118 4
when imposing the sanction, shall notify the defendant of both of the
following:
(i) 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.
(ii) 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.
{¶10} In the instant case, appellant pled guilty to the charge set forth in the
indictment against him in October of 2013 and sentencing was deferred until the
completion of a presentence investigation report. Upon completion of the report, the trial
court sentenced him to a prison term of twelve (12) months. The trial court did not impose
“a community control sanction or other nonresidential sanction.” Therefore, R.C. 2947.23
is not applicable to appellant and the trial court did not err in failing to determine
appellant’s ability to pay pursuant to that section of the Ohio Revised Code.
{¶11} Further, pursuant to R.C. 2947.23(A)(1)(a), a trial court in all criminal cases
shall render judgment against a defendant for court costs. In this case, the trial court
assessed court costs against appellant as required by statute. Appellant did not object
Stark County, Case No. 2015-CA-00118 5
to the payment of court costs or argue he did not have the ability to pay court costs at the
time of sentencing, and did not file a direct appeal. Accordingly, the issue is res judicata
as defined in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967):
Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and
litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have
been raised by the defendant at trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.
See State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164; State v. Scott,
5th Dist. Richland No. 13CA110, 2014-Ohio-2374.
{¶12} Based on the foregoing, appellant’s assignment of error is overruled. The
May 15, 205 judgment entry of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur