State v. Braden (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Braden, Slip Opinion No. 2018-Ohio-5079.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2018-OHIO-5079
THE STATE OF OHIO, APPELLEE, v. BRADEN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Braden, Slip Opinion No. 2018-Ohio-5079.]
Criminal law—Sentencing—R.C. 2947.23—R.C. 2947.23(C) does not authorize a
trial court to waive, modify, or suspend payment of court costs imposed
prior to March 22, 2013, the effective date of R.C. 2947.23(C)—For
sentences entered prior to March 22, 2013, an offender may seek waiver of
costs only at sentencing, trial court lacks jurisdiction to reconsider its own
final order, and res judicata bars any subsequent collateral attack on that
order in either trial or appellate court—Court of appeals’ judgment
affirming trial court’s denial of motion for waiver of costs affirmed.
(Nos. 2017-1579 and 2017-1609—Submitted July 31, 2018—Decided December
19, 2018.)
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County,
No. 17AP-48, 2017-Ohio-7903.
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 SUPREME COURT OF OHIO

KENNEDY, J.
{¶ 1} In this discretionary appeal and certified-conflict case, we consider
the meaning of R.C. 2947.23(C), which provides that “[t]he court retains
jurisdiction to waive, suspend, or modify the payment of the costs of prosecution,
including any costs under section 2947.231 of the Revised Code, at the time of
sentencing or at any time thereafter.” The Second and Eighth District Courts of
Appeals have concluded that this statute authorizes trial courts to waive, suspend,
or modify the payment of court costs imposed both before and after its effective
date. State v. Powell, 2d Dist. Montgomery No. 24433, 2014-Ohio-3842, ¶ 20;
State v. Chase, 2d Dist. Montgomery No. 26238, 2015-Ohio-545; State v. Price,
8th Dist. Cuyahoga No. 102987, 2015-Ohio-4592, ¶ 9-10; State v. Bacote, 8th Dist.
Cuyahoga No. 102991, 2015-Ohio-5268. In contrast, the Tenth District Court of
Appeals in this case held that R.C. 2947.23(C) permits trial courts to waive, modify,
or suspend payment of only those court costs that were imposed after the statute’s
effective date. 2017-Ohio-7903, ¶ 8.
{¶ 2} We agreed to resolve this split of authority and to answer the
following certified question: “ ‘Does a trial court have jurisdiction, pursuant to the
current version of R.C. 2947.23(C), to waive, modify or suspend court costs for
those cases in which the defendant’s conviction and sentence became final prior to
the enactment of * * * R.C. 2947.23(C)?’ ” 151 Ohio St.3d 1523, 2018-Ohio-557,
91 N.E.3d 756, quoting the court of appeals’ November 2, 2017 entry.
{¶ 3} Before the enactment of R.C. 2947.23(C), a trial court lacked
continuing jurisdiction to waive, suspend, or modify the payment of the costs of
prosecution; the trial court could not retain jurisdiction that it had not yet been
granted by this statute. We therefore answer the certified question in the negative
and hold that R.C. 2947.23(C) does not authorize a trial court to waive, modify, or
suspend the payment of court costs that were imposed prior to March 22, 2013, the
effective date of R.C. 2947.23(C).

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{¶ 4} Because the trial court in this case imposed court costs prior to the
effective date of R.C. 2947.23(C), the Tenth District Court of Appeals correctly
concluded that the statute does not apply. Accordingly, we affirm the appellate
court’s judgment.
Facts and Procedural History
{¶ 5} In August 1998, appellant, David L. Braden, murdered his girlfriend
and her father; a jury found him guilty of two counts of aggravated murder with
death-penalty and firearm specifications, and it recommended a death sentence on
each count. State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439,
¶ 2-3, 33. At the sentencing hearing in May 1999, the trial court sentenced him to
death on each count, three years in prison for the firearm specifications, $50,000 in
fines, and court costs. Id. at ¶ 33. The sentencing entry did not mention costs, but
the disposition sheet, which was signed by the judge and filed with the clerk, does.
{¶ 6} We affirmed Braden’s convictions and sentence of death in 2003, id.
at ¶ 163, and the United States Supreme Court denied certiorari, Braden v. Ohio,
540 U.S. 865, 124 S.Ct. 182, 157 L.Ed.2d 119 (2003). The Tenth District Court of
Appeals affirmed the denial of postconviction relief, 10th Dist. Franklin No. 02AP-
954, 2003-Ohio-2949, and the denial of a motion for a new trial, 10th Dist. Franklin
No. 17AP-321, 2018-Ohio-1807; we declined review in both instances, 100 Ohio
St.3d 1431, 2003-Ohio-5396, 797 N.E.2d 511; 153 Ohio St.3d 1463, 2018-Ohio-
3258, 104 N.E.3d 792. Braden’s litigation seeking a writ of habeas corpus remains
pending in federal court. Braden v. Jenkins, S.D.Ohio No. 2:04-cv-842, 2018 WL
1474418 (Mar. 22, 2018); see also In re Ohio Execution Protocol Litigation,
S.D.Ohio No. 2:11-cv-1016.
{¶ 7} In November 2016, Braden, asserting his indigence, moved for an
order waiving all fines and court costs imposed in his case or, alternatively, either
ordering the prison to maintain at least $400 in his prison account or establishing a
payment plan. The trial court denied the motion.

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{¶ 8} The court of appeals affirmed, holding that the doctrine of res judicata
barred his postjudgment motion challenging the imposition of fines and court costs.
2017-Ohio-7903 at ¶ 7-8. The appellate court explained that R.C. 2947.23(C) does
not apply to judgments that were final prior to its effective date. Id. at ¶ 8. And
here, it noted, Braden’s convictions and sentence had become final long before the
statute’s effective date. Id. The court of appeals recognized that the sentencing
entry failed to mention costs but determined that that failure did not affect the
validity of the costs because the trial court had orally informed Braden at sentencing
of his obligation to pay the costs and had included them in the disposition sheet.
Id. at ¶ 9. Finally, the appellate court concluded that Braden’s challenge to the
collection procedure used by the Department of Rehabilitation and Correction or
the warden had to be brought in a separate civil action. Id. at ¶ 10.
{¶ 9} This court accepted Braden’s discretionary appeal to consider the
following proposition of law: “A trial court has jurisdiction, pursuant to the current
version of R.C. 2947.23(C), to waive, modify or suspend court costs for those cases
in which the defendant’s conviction and sentence became final prior to the
enactment of R.C. 2947.23(C).” See 151 Ohio St.3d 1526, 2018-Ohio-557, 91
N.E.3d 758. We also recognized that the Tenth District Court of Appeals’ judgment
conflicts with decisions from the Second and Eighth District Courts of Appeals,
and we agreed to answer the conflict question: “ ‘Does a trial court have
jurisdiction, pursuant to the current version of R.C. 2947.23(C), to waive, modify
or suspend court costs for those cases in which the defendant’s conviction and
sentence became final prior to the enactment of * * * R.C. 2947.23(C)?’ ” 151
Ohio St.3d 1523, 2018-Ohio-557, 91 N.E.3d 756, quoting the court of appeals’
November 2, 2017 entry.
Positions of the Parties
{¶ 10} Braden acknowledges that according to our caselaw, “absent
statutory authority, the trial court could not suspend or waive payment of costs

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when the issue was not raised at the time of sentencing.” But he argues that R.C.
2947.23(C) now provides that statutory authority and claims that the plain language
of the statute permits a trial court to waive or suspend the collection of court costs
regardless of when they were imposed. Braden also relies on the statute’s
legislative history, arguing that the General Assembly abrogated our caselaw
precluding trial courts from waiving or suspending court costs, and he asserts that
effectuating the statute’s remedial purpose requires trial courts to apply it to cases
that were final prior to its effective date.
{¶ 11} Appellee, the state of Ohio, contends that the plain language of R.C.
2947.23(C) prevents trial courts from applying it to cases in which the judgment
became final before the statute’s effective date. It notes that prior to the enactment
of the statute, the entry of a final judgment extinguished a trial court’s jurisdiction
to waive, suspend, or modify an offender’s obligation to pay court costs, and it
acknowledges that pursuant to R.C. 2947.23(C), a trial court now “retains,” or
keeps, jurisdiction to revisit an offender’s obligation to pay court costs. According
to the state, “Given the plain meaning of the word ‘retains,’ the statute cannot
restore the trial court’s jurisdiction to waive, suspend, or modify the defendant’s
obligation to pay court costs because a trial court cannot retain jurisdiction that it
does not currently possess.” (Emphasis sic.) It notes that legislative history is
irrelevant to applying an unambiguous statute and that R.C. 2947.23(C) was not
expressly made retroactive and therefore is presumed to apply prospectively only.
{¶ 12} Accordingly, the sole question presented for review is whether R.C.
2947.23(C) grants a trial court jurisdiction to waive, modify, or suspend the
payment of court costs that were imposed prior to March 22, 2013, the effective
date of the statute.
Law and Analysis
{¶ 13} Beginning with “An Act for the Punishment of Crimes” enacted in
1824, the General Assembly has required trial courts in criminal cases to include

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the costs of prosecution in the sentence and render a judgment for them against the
defendant. R.C. 2947.23(A)(1)(a); G.C. 13451-18, Am.S.B. No. 8, 113 Ohio Laws
123, 201; 22 Ohio Laws 158, 165, Section 35. The “costs of prosecution,” or
“costs,” are “ ‘the statutory fees to which officers, witnesses, jurors, and others are
entitled for their services in an action or prosecution, and which the statutes
authorize to be taxed and included in the judgment or sentence.’ ” Middleburg Hts.
v. Quinones, 120 Ohio St.3d 534, 2008-Ohio-6811, 900 N.E.2d 1005, ¶ 8, quoting
State ex rel. Franklin Cty. Commrs. v. Guilbert, 77 Ohio St. 333, 338, 83 N.E. 80
(1907).
{¶ 14} R.C. 2947.23 “requires a court to assess costs against all convicted
defendants,” indigent and nonindigent. (Emphasis sic.) State v. White, 103 Ohio
St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. “Therefore, a defendant’s
financial status is irrelevant to the imposition of court costs.” State v. Clevenger,
114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 3.
{¶ 15} The collection of costs is a separate matter. Although the clerk of
courts is required by statute to attempt to collect court costs from a nonindigent
felony offender, R.C. 2949.14, “[t]he General Assembly has neither explicitly
prohibited nor explicitly required collection from indigent defendants.” White at
¶ 14. In White, we inferred “from this silence that collection from indigent
defendants is merely permissive. * * * [W]aiver of costs is permitted—but not
required—if the defendant is indigent. It logically follows that a clerk of courts
may attempt the collection of assessed court costs from an indigent defendant.” Id.
{¶ 16} We have held that if an indigent criminal defendant fails to move for
the waiver of costs at the time of sentencing, then “the issue is waived and costs are
res judicata.” State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d
1, ¶ 239; State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164,
¶ 23. The failure to move for the waiver of costs at sentencing forfeits the claim,
and plain-error review applies on direct appeal. State v. Lang, 129 Ohio St.3d 512,

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2011-Ohio-4215, 954 N.E.2d 596, ¶ 305-306. Thereafter, res judicata bars a
collateral attack on that order in the trial or appellate court. Threatt at ¶ 23.
{¶ 17} A sentence imposing costs is a final order. Lingo v. State, 138 Ohio
St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 39. With the exception of correcting
a clerical error or a void sentence, a trial court lacks continuing jurisdiction to
reconsider its own final orders. State v. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-
4562, 35 N.E.3d 493, ¶ 9; State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636,
982 N.E.2d 684, ¶ 20. We have therefore recognized that absent statutory authority,
a trial court may not suspend or waive the payment of court costs that were
previously imposed at sentencing. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-
4006, 871 N.E.2d 589, at paragraphs one and two of the syllabus.
{¶ 18} Accordingly, at the time of Braden’s sentencing in 1999, the only
opportunity he had to seek a waiver of costs was at sentencing; the trial court lacked
jurisdiction to reconsider its final order, and any collateral attack on that order in
either the trial or appellate court was barred by res judicata, see State v. Beasley,
153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 264-265; Clinton at ¶ 239.
{¶ 19} Effective March 23, 2013, the General Assembly enacted R.C.
2947.23(C), which states, “The court retains jurisdiction to waive, suspend, or
modify the payment of the costs of prosecution, including any costs under section
2947.231 of the Revised Code, at the time of sentencing or at any time thereafter.”
2012 Sub.H.B. No. 247.
{¶ 20} Whether R.C. 2947.23(C) applies to offenders who had court costs
imposed in their sentence prior to the statute’s effective date presents a question of
statutory interpretation. This court’s duty in construing a statute is to determine
and give effect to the intent of the General Assembly as expressed in the language
it enacted. State v. J.M., 148 Ohio St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642,
¶ 7. R.C. 1.42 guides our analysis, providing that “[w]ords and phrases shall be
read in context and construed according to the rules of grammar and common

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usage.” If the language of a statute is plain and unambiguous and conveys a clear
and definite meaning, then there is no need for this court to resort to the rules of
statutory interpretation; rather, we apply the statute as written. State v. Kreischer,
109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, ¶ 12.
{¶ 21} The operative word in R.C. 2947.23(C) is “retains.” The word
“retain” means “to hold or continue to hold in possession or use: continue to have,
use, recognize, or accept: maintain in one’s keeping.” Webster’s Third New
International Dictionary 1938 (2002). Accordingly, the statute provides that the
trial court continues to have jurisdiction to waive, suspend, or modify the payment
of court costs at any time. However, prior to March 23, 2013, trial courts lacked
jurisdiction to reconsider the payment of costs after sentencing and entry of a final
order. See Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, at
paragraphs one and two of the syllabus; Threatt, 108 Ohio St.3d 277, 2006-Ohio-
905, 843 N.E.2d 164, at ¶ 23; Gilbert, 143 Ohio St.3d 150, 2014-Ohio-4562, 35
N.E.3d 493, at ¶ 9. Simply put, a trial court cannot “retain” jurisdiction that it has
relinquished.
{¶ 22} Further, R.C. 1.48 states that “[a] statute is presumed to be
prospective in its operation unless expressly made retrospective.” But here, R.C.
2947.23(C) is not expressly retroactive. The legislature used the present tense of
the word “retain” in drafting this statue, and “ ‘[a] statute, employing operative
language in the present tense, does not purport to cover past events of a similar
nature,’ ” Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899,
¶ 22, quoting Smith v. Ohio Valley Ins. Co., 27 Ohio St.2d 268, 276, 272 N.E.2d
131 (1971). Without express retroactivity language, we must presume that the
General Assembly did not intend to retroactively vest trial courts with jurisdiction
that they previously lacked. See State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-
4163, 871 N.E.2d 1167, paragraph one of the syllabus (“A statute must clearly

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proclaim its own retroactivity to overcome the presumption of prospective
application. Retroactivity is not to be inferred”).
{¶ 23} The trial court in Braden’s case therefore had no jurisdiction that it
could retain over the order to pay court costs, and pursuant to its plain language,
R.C. 2947.23(C) did not authorize the court to waive, suspend, or modify the
payment of the costs of prosecution that it previously imposed at Braden’s
sentencing.
Conclusion
{¶ 24} R.C. 2947.23(C) provides that for sentences entered on or after
March 23, 2013, the trial court retains jurisdiction to waive, suspend, or modify the
payment of the costs of prosecution at any time. For sentences entered prior to that
date, however, an offender may seek a waiver of costs only at sentencing, the trial
court lacks jurisdiction to reconsider its own final order, and any subsequent
collateral attack on that order in either the trial or appellate court is barred by res
judicata.
{¶ 25} Here, the trial court ordered Braden to pay court costs at the
sentencing hearing in 1999, and he failed to move for a waiver. Res judicata
therefore precluded the motion he filed to waive the payment of all fines and costs.
For this reason, the court of appeals correctly affirmed the trial court’s denial of
Braden’s motion.
{¶ 26} However, we note that the sentencing entry contains a clerical error.
Although the trial court ordered Braden to pay court costs at the sentencing hearing,
it did not include the order to pay costs in the sentencing entry. This clerical error
may be corrected by nunc pro tunc entry to reflect what the court actually decided,
because “[i]t is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth.” State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18. A nunc pro tunc judgment entry

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issued to correct a clerical omission in a final judgment is not a new final order and
no new right to appeal is created. Id. at ¶ 20.
{¶ 27} Accordingly, we answer the certified question in the negative and
affirm the judgment of the Tenth District Court of Appeals.
Judgment affirmed.
POWELL, FISCHER, DEWINE, and DEGENARO, JJ., concur.
FRENCH, J., dissents, with an opinion joined by O’CONNOR, C.J.
MICHAEL E. POWELL, J., of the Twelfth District Court of Appeals, sitting
for O’DONNELL, J.
_________________
FRENCH, J., dissenting.
{¶ 28} Respectfully, I dissent.
{¶ 29} In my view, neither R.C. 2947.23(C) nor this court’s precedent
precludes trial courts from waiving, suspending or modifying court costs imposed
before that provision’s effective date. I would answer the certified-conflict
question in the affirmative and reverse the judgment of the Tenth District Court of
Appeals.
Under R.C. 2947.23(C)’s plain language and our precedent, trial courts retain
jurisdiction to waive, suspend or modify court costs for offenders whose
convictions were final before the statute’s effective date
{¶ 30} As the majority notes, in construing a statute, this court’s duty is to
give effect to the General Assembly’s intent as expressed in the language it enacted.
State v. J.M., 148 Ohio St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642, ¶ 7. “Words
and phrases shall be read in context and construed according to the rules of
grammar and common usage.” R.C. 1.42. When statutory language is
unambiguous, we need not resort to rules of statutory interpretation—we simply
apply the language. Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944),
paragraph five of the syllabus.

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{¶ 31} R.C. 2947.23(C) says that a sentencing 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.”
{¶ 32} The majority relies heavily on the General Assembly’s use of the
word “retains.” According to the majority, “a trial court cannot ‘retain’ jurisdiction
that it has relinquished” because “ ‘retain’ means ‘to hold or continue to hold in
possession or use: continue to have, use, recognize, or accept: maintain in one’s
keeping.’ ” Majority opinion at ¶ 21, quoting Webster’s Third New International
Dictionary 1938 (2002). Fair enough, but that definition does not compel the
majority’s conclusion in this case.
{¶ 33} This court’s recent court-costs precedent supports the conclusion
that the trial court retained jurisdiction to waive, suspend or modify appellant David
Braden’s payment of costs. In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954,
926 N.E.2d 278, we acknowledged that “[d]espite the fact that former R.C.
2947.23 (like current R.C. 2947.23(A)) requires a judge to assess costs against all
convicted criminal defendants, this court has held that ‘waiver of costs is
permitted—but not required—if the defendant is indigent,’ ” id. at ¶ 11, quoting
State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. “That
is, despite the mandatory language of former R.C. 2947.23 requiring the imposition
of court costs, a trial court may waive the payment of costs.” (Emphasis sic.)
Joseph at ¶ 11, citing State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871
N.E.2d 589, ¶ 4. We further explained that an indigent defendant must request
waiver of court costs at the time of sentencing. Joseph at ¶ 12, citing State v.
Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of
the syllabus.
{¶ 34} In Threatt, this court held that if the defendant moves for waiver,
“ ‘then the issue is preserved for appeal and will be reviewed under an abuse-of-
discretion standard. Otherwise, the issue is waived and costs are res judicata.’ ”

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Joseph at ¶ 12, quoting Threatt at ¶ 23. And in Clevenger, this court reiterated that
a defendant must request waiver at sentencing to prevent res judicata from applying.
Clevenger at ¶ 5.
{¶ 35} These opinions show that the trial court had jurisdiction to waive
Braden’s court costs at his 1999 sentencing hearing. All of the cases were
announced before R.C. 2947.23(C)’s enactment, and all of them acknowledge that
a trial court could waive the payment of court costs at sentencing. Because a trial
court had jurisdiction to waive the costs at sentencing, R.C. 2947.23(C) merely says
that the trial court retained that authority after the statute’s enactment.
{¶ 36} This court’s pronouncements that defendants must request waiver of
court costs at the time of sentencing lest res judicata will apply do not change the
result for Braden. The trial court had the authority to waive Braden’s payment of
court costs at his 1999 sentencing hearing. That Braden did not request waiver at
that point does not change what the trial court was permitted to do. R.C. 2947.23(C)
specifically says that the trial court “retains jurisdiction” to waive court costs “at
the time of sentencing or at any time thereafter.” To that end, the statute specifically
provides an exception to res judicata when a defendant did not request waiver at
sentencing or pursue the issue on direct appeal.
R.C. 2947.23(C) does not require retroactive application for it to apply to
offenders whose convictions were final before its enactment
{¶ 37} The majority concludes that R.C. 2947.23(C) is not expressly
retroactive and that “[w]ithout express retroactivity language, we must presume
that the General Assembly did not intend to retroactively vest trial courts with
jurisdiction that they previously lacked.” Majority opinion at ¶ 22. As I have
already noted, the trial court had jurisdiction to waive court costs at the time of
sentencing. In any event, a retroactivity analysis is unnecessary here.
{¶ 38} I agree with the majority that we must presume that a statute is
prospective unless the General Assembly expressly made it retroactive. See R.C.

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1.48. But a statute is not retroactive just because “ ‘it draws on antecedent facts for
a criterion in its operation.’ ” Schoenrade v. Tracy, 74 Ohio St.3d 200, 204, 658
N.E.2d 247 (1996), quoting United Eng. & Foundry Co. v. Bowers, 171 Ohio St.
279, 282, 169 N.E.2d 697 (1961). Here, the “antecedent fact” is that the trial court
imposed court costs at sentencing and some remained unpaid. R.C. 2947.23(C)
does not compel or even allow a trial court to order reimbursement of court costs
already paid. It merely gives the trial court continuing jurisdiction to waive,
suspend or modify, in its discretion, the payment of costs if costs remain.
The majority’s holding is inconsistent with a prior holding of this court
{¶ 39} In State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59
N.E.3d 1264, we considered former R.C. 2929.19(B)(2)(g)(iii),1 which contains
language very similar to R.C. 2947.23(C). Former R.C. 2929.19(B)(2)(g)(iii)
stated:

The sentencing court retains continuing jurisdiction to correct any
error not previously raised at sentencing in making a determination
under division (B)(2)(h)(i) of this section. The offender may, at any
time after sentencing, file a motion in the sentencing court to correct
any error made in making a determination under division
(B)(2)(h)(i) of this section, and the court may in its discretion grant
or deny that motion.

(Emphasis added.)
{¶ 40} The proposition of law we considered in Thompson involved
whether a trial court’s order denying a postconviction motion for jail-time credit is
a final, appealable order. Thompson at ¶ 3. The court of appeals had held that the

1. R.C. 2929.19 was amended as of October 29, 2018. The relevant language from former R.C.
2929.19(B)(2)(g)(iii) is now contained in R.C. 2929.19(B)(2)(f)(iii). 2018 Am.Sub.S.B. No. 66.

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trial court’s order was not appealable. Our primary holding was that the order is
appealable because it is a final order that affects a substantial right in a special
proceeding. Id. at ¶ 13. But inherent in our decision was that Thompson’s
conviction became final in 2011—before the General Assembly enacted R.C.
2929.19(B)(2)(g)(iii) in 2012. Id. at ¶ 1.
{¶ 41} In Thompson, the state argued that because Thompson was
sentenced in 2011, he could not benefit from a new statute that the General
Assembly did not intend to apply retroactively. We effectively rejected that
argument when we held that Thompson could avail himself of the new law:

Pursuant to R.C. 2929.19(B)(2)(g)(iii), an offender can file
a motion to correct an error in determining jail-time credit “at any
time after sentencing” and the sentencing court has authority to
correct any error in determining jail-time credit that was “not
previously raised at sentencing.” Given that this statute was enacted
in 2012 and that it created a right that was not otherwise available to
an offender who lacked the right to appeal, we conclude that the trial
court’s determination of a motion filed under R.C.
2929.19(B)(2)(g)(iii) constitutes a special proceeding.

Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264, at ¶ 12.
{¶ 42} Although there are subtle differences between the statutory language
considered here and that in Thompson, the relevant language conveying jurisdiction
is substantially the same. The statute at issue in Thompson, former R.C.
2929.19(B)(2)(g)(iii), specifically provided that at any time after sentencing, the
offender may file a motion to correct his jail-time credit and the trial court had
continuing jurisdiction to consider it. The statute at issue here, R.C. 2947.23(C),

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provides that a sentencing court retains jurisdiction to waive court costs at the time
of sentencing or at any time thereafter.
{¶ 43} I am not convinced that there are material differences between R.C.
2947.23(C) and former R.C. 2929.19(B)(2)(g)(iii) regarding the trial court’s
continuing jurisdiction to act. In Thompson, we allowed the proceedings to go
forward, and we should do the same here.
Conclusion
{¶ 44} For all these reasons, I respectfully dissent. I would answer the
certified-conflict question in the affirmative and reverse the judgment of the Tenth
District Court of Appeals.
O’CONNOR, C.J., concur in the foregoing opinion.
_________________
Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert,
Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Kathryn L. Sandford, Assistant
Public Defender; and Steven M. Brown, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank
Romeo Zeleznikar, Assistant Prosecuting Attorney, urging affirmance for amicus
curiae Ohio Prosecuting Attorneys Association.
Organ Cole, L.L.P., Erik J. Clark, and Carrie M. Lymanstall, urging reversal
for amicus curiae Ohio Community Corrections Association.
Yeura Venters, Franklin County Public Defender, and Timothy E. Pierce,
Assistant Public Defender, urging reversal for amicus curiae Franklin County
Public Defender.
Elizabeth Bonham, Caitlin Hill, Freda J. Levenson, and R. Orion Danjuma,
urging reversal for amici curiae American Civil Liberties Union of Ohio and
American Civil Liberties Union Foundation.
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