State v. Banks

[Cite as State v. Banks, 2017-Ohio-7135.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 17AP-210
v. : (C.P.C. No. 08CR-5359)

Andre Banks, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on August 8, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellee.

On brief: Andre Banks, pro se.

APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
{¶ 1} Defendant-appellant, Andre Banks, appeals from a judgment of the Franklin
County Court of Common Pleas entered February 21, 2017, denying his motion for the trial
court to waive court costs in his criminal case. Banks' assignments of error are virtually
identical to the assignments of error he argued in a previous case before this court, and we
found such arguments were barred by the doctrine of res judicata. This time is no different.
We affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} We have previously recounted the facts and procedural history of this case in
a number of prior decisions. See State v. Banks, 10th Dist. No. 15AP-653, 2015-Ohio-5372,
¶ 2-10, quoting State v. Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-2749, ¶ 2, citing State
v. Banks, 10th Dist. No. 11AP-1134, 2012-Ohio-2328; Banks, 2011-Ohio-2749, ¶ 1, 26; State
ex rel. Banks v. Court of Common Pleas Franklin Cty., 10th Dist. No. 10AP-914, 2011-Ohio-
No. 17AP-210 2

5055; State v. Banks, 10th Dist. No. 09AP-224, 2009-Ohio-5582, ¶ 1. We shall therefore
be brief.
{¶ 3} In July 2007, Banks drove on the wrong side of the road while drunk and high
with the result that he killed one person and injured three, two of whom were children.
Banks, 2011-Ohio-2749, ¶ 2. He pled guilty on January 5, 2009 and was sentenced on
February 3 of that year to 13 years in prison. Id. at ¶ 3-4. Since then he has repeatedly
sought resentencing or other review of his conviction and sentence based on a variety of
technical and legal arguments; we have found merit in none of those arguments. Banks,
2015-Ohio-5372, ¶ 5-10, 14, 20.
{¶ 4} Notwithstanding the fact that we have previously ruled that Banks'
complaints about the imposition of court costs are res judicata, Banks' latest motion
requested that the trial court waive or suspend court costs on the grounds that his sentence
is a "Nullity or Void" because the sentencing court failed to state the amount of costs when
it imposed them and failed to provide certain warnings about consequences if Banks failed
to pay. Nov. 23, 2016 Mot. at 5; Banks, 2015-Ohio-5372, ¶ 14 (finding that Banks'
arguments on the imposition of costs are res judicata). The trial court denied Banks'
motion, noting that he has already paid his court costs. (Feb. 21, 2017 Decision & Entry.)
{¶ 5} Banks again appeals.
II. DISCUSSION
{¶ 6} Banks raises two assignments of error:

[1.] The trial court erred as a matter of law, and abused its
discretion when it refused to re-sentence Appellant Banks in
compliance with statutory requirements pursuant
R.C. 2947.23(A)(1)(a), when the trial court failed to notify
appellant at the sentencing hearing dated Feb. 3rd, 2009 that
failure of appellant, to pay the court cost "in an amount to be
determined, could result in the court ordering the appellant to
perform community service until the judgment is paid or until
the trial court is satisfied that the appellant is in compliance
with the approved schedule, and for failing to refund any
monies taken in error from appellant's inmate account.

[2.] Trial Counsel erred as a matter of law, and provided
ineffective assistance of counsel in violations of the Sixth and
Fourteen Amend. U.S. Const. and Sec. 10 Art. I Ohio Const. for
No. 17AP-210 3

failing to object to the statutory requirements pursuant R.C.
2947.23(A)(1)(a)(b).

(Sic passim).
{¶ 7} Banks' assignments of error in this appeal are effectively the same as two of
his assignments of error in his last appeal.

[I.] THE TRIAL COURT ERRED AS A MATTER OF LAW, AND
ABUSED ITS DISCRETION WHEN IT REFUSED TO RE-
SENTENCE APPELLANT BANKS IN COMPLIANCE WITH
STATUTORY REQUIREMENTS PURSUANT TO R.C.
2947.23(A)(1)(a), WHEN THE TRIAL COURT FAILED TO
NOTIFY APPELLANT BANKS AT THE "SENTENCING
HEARING" DATED FEBRUARY 3rd, 2009 THAT FAILURE
OF APPELLANT BANKS, TO PAY THE COURT COSTS, IN AN
AMOUNT TO BE DETERMINED" COULD RESULT IN THE
COURT "ORDERING THE APPELLANT TO PERFORM
COMMUNITY SERVICE "UNTIL THE JUDGMENT IS PAID
OR UNTIL THE TRIAL COURT IS SATISFIED THAT THE
APPELLANT IS IN COMPLIANCE WITH THE APPROVED
SCHEDULE"

***

[III.] THE TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE, IN VIOLATION OF THE SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTIONS, AND SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION FOR FAILING TO "OBJECT" AT
"SENTENCING" ON FEBRUARY 3rd, 2009 TO THE TRIAL
COURT'S IMPOSITION OF COURT COSTS IN AN AMOUNT
TO BE DETERMINED WHEN THE COURT FAILED TO
"NOTIFY APPELLANT BANKS, THAT HIS FAILURE TO PAY
"COURT COSTS IN AN AMOUNT TO BE DETERMINED"
COULD RESULT IN THE COURT "ORDERING" THE
APPELLANT TO PERFORM COMMUNITY SERVICE UNTIL
THE JUDGMENT IS PAID OR, UNTIL THE COURT IS
SATISFIED THAT THE APPELLANT IS IN COMPLIANCE
WITH THE APPROVED SCHEDULE.

Banks, 2015-Ohio-5372, ¶ 11.
{¶ 8} In that appeal, we previously overruled Banks' assignments of error as res
judicata stating:

[I]n criminal cases res judicata generally bars a defendant from
litigating claims in a proceeding subsequent to the direct
No. 17AP-210 4

appeal "if he or she raised or could have raised the issue at the
trial that resulted in that judgment of conviction or on an
appeal from that judgment." (Emphasis sic.) State v. Jackson,
141 Ohio St. 3d 171, 2014-Ohio-3707, ¶ 92. * * *

Void sentences, for example, are subject to correction at any
time irrespective of the principles of res judicata or law of the
case doctrine. State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-
6238, ¶ 27, 30 (holding that a sentence is void in part where an
offender is not properly required to be subject to a period of
post-release control); see also State v. Harris, 132 Ohio St. 3d
318, 2012-Ohio-1908, paragraph one of the syllabus (extending
Fisher to driver's license suspensions). This principle does not
apply to the improper imposition of costs, however, because,
among other reasons, courts have discretion on the imposition
of costs, and costs are a civil assessment, even when assessed
within a criminal case. See State v. Joseph, 125 Ohio St. 3d 76,
2010-Ohio-954, ¶ 1, 19-21. Thus, Banks' arguments with
respect to costs, even if successful, could not show that his
sentence is void, even in part. Nor are Banks' claims regarding
costs the sort of claims that rely on evidence that was not
available in the record of his original trial and which could not
properly have been raised on direct appeal. See, e.g.,
Manigault v. Ford Motor Co., 96 Ohio St. 3d 431, 43 (2002)
("The law prevents appellate courts from considering evidence
dehors the record."). The trial court's rulings on costs were
announced orally in the sentencing hearing and within the
sentencing entry. Because the claims regarding costs could
have been raised in his direct appeal in 2009, they cannot be
raised now. Jackson at ¶ 92.
(Emphasis sic.) Banks, 2015-Ohio-5372, ¶ 13-14.
{¶ 9} Banks again presents arguments on costs, this time arguing they are not
subject to res judicata because the "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." R.C. 2947.23(C). However, the provision of law that Banks relies on did not
take effect until 2013, years after the trial court imposed sentence on Banks and determined
he was to pay the costs of his prosecution. 2012 Am.Sub.H.B. No. 247 (effective Mar. 22,
2013)1; Banks, 2015-Ohio-5372, ¶ 3-5.
{¶ 10} The Supreme Court of Ohio has held that " 'trial courts lack authority to
reconsider their own valid final judgments in criminal cases' * * * although trial courts

1 Reported online as 2011 Ohio HB 247.
No. 17AP-210 5

retain continuing jurisdiction to correct a void sentence and to correct a clerical error in a
judgment." State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 20, quoting State ex rel.
White v. Junkin, 80 Ohio St.3d 335, 338 (1997), citing State ex rel. Cruzado v. Zaleski, 111
Ohio St.3d 353, 2006-Ohio-5795, ¶ 19; State ex rel. Hansen v. Reed, 63 Ohio St.3d 597
(1992). For criminal sentences imposed after the effective date of HB 247, trial courts are
afforded by law the jurisdiction to waive, suspend, or modify the payment of the costs of
prosecution beyond the sentencing date. R.C. 2947.23(C). Note that the people of Ohio in
the Ohio Constitution, Article IV, Section 4(B), have determined that the legislature
determines the jurisdiction of the courts of common pleas: "The courts of common pleas
and divisions thereof shall have such original jurisdiction over all justiciable matters and
such powers of review of proceedings of administrative officers and agencies as may be
provided by law." (Emphasis added.) Thus in cases such as Banks' where sentence was
imposed and the judgment became final before the effective date of HB 247, the trial court
cannot "retain jurisdiction" to waive, suspend, or modify costs when it did not have the
authority to do so at the time of sentencing. R.C. 2947.23(C); Ohio Constitution, Article IV,
Section 4(B).2
{¶ 11} Banks was convicted, sentenced, and costs were imposed in 2009. Banks,
2011-Ohio-2749, ¶ 3-4. He lost his direct appeal in 2009. Banks, 2009-Ohio-5582, in
passim. Current R.C. 2947.23(C) is inapplicable to Banks' case because the provision Banks
seeks to avail himself of was not in effect until long after the trial court imposed costs when
it sentenced him, reaching a final judgment.3 Banks makes no new viable arguments, and
his issues are res judicata, just as they were when we last addressed them in December
2015. Banks, 2015-Ohio-5372, ¶ 12-15.
{¶ 12} We overrule both of Banks' assignments of error.

2 The Eighth District Court of Appeals has both agreed and disagreed with this conclusion. See State v.
Walker, 8th Dist. No. 101213, 2014-Ohio-4841, ¶ 9 (holding that R.C. 2947.23(C) did not apply to a defendant
sentenced in 2006); but cf. State v. Hunter, 8th Dist. No. 102245, 2015-Ohio-4180, ¶ 10-14 (stating that
Walker's holding was dicta and reaching the opposite result in a similar case); see also State v. Bacote, 8th
Dist. No. 102991, 2015-Ohio-5268, ¶ 6-7 (following Hunter). We find the reasoning in Hunter to be
problematic. Hunter stands for the proposition that "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." Hunter at ¶ 12. But
R.C. 2947.23(C) is directed to a trial court's jurisdiction and not to what a defendant can do. Under the plain
meaning of the statute, nothing empowers a trial court that has already relinquished or failed to "retain[]
jurisdiction" to reach back and reacquire it. Id. Prior to the statute, a trial court could only correct a void
sentence or correct clerical errors. Raber.
3 Nor was the statute made to be retroactive.
No. 17AP-210 6

III. CONCLUSION
{¶ 13} Both of Banks' assignments of error are overruled as res judicata and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.