[Cite as State v. Ball, 2023-Ohio-4352.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-03-016
: OPINION
- vs - 12/4/2023
:
NICOLE L. BALL, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2021 DR 000283
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant
Prosecuting Attorney, for appellee.
W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant
Public Defender, for appellant.
M. POWELL, J.
{¶ 1} Appellant, Nicole Ball, appeals a judgment entry of the Clermont County Court
of Common Pleas ordering her to pay the costs involved in her extradition from Texas to
Ohio. For the reasons stated herein, we affirm the trial court's judgment.
Clermont CA2023-03-016
I. STATEMENT OF FACTS/PROCEDURAL POSTURE.
{¶ 2} In 2021, Ball was indicted by the Clermont County Grand Jury on one count
of passing bad checks and one count of grand theft of a motor vehicle. At the time of the
indictment, Ball was serving a federal sentence in Texas. Upon Ball's release from federal
custody, she waived extradition and was returned to Ohio to face the charges pending
against her in Clermont County.
{¶ 3} Ball was arraigned on the Clermont County charges on October 27, 2022.
The trial court found that she was indigent and appointed counsel to represent her. Ball
entered not guilty pleas. The trial court set bond at $10,000 and remanded Ball to the
Clermont County jail. A pretrial hearing was scheduled for November 10, 2022.
{¶ 4} On October 28, 2022, the Clermont County Sheriff's Office filed an interstate
rendition cost bill with the clerk of courts indicating it had incurred costs of $4,164 in
returning Ball to Ohio from Texas. On the same day, Ball posted bail and was released
from the Clermont County jail. At the time of Ball's release from the Clermont County jail,
she was subject to holders from two counties, including Butler County. On November 10,
2022, Ball was taken into custody by Butler County; she was subsequently committed to
the Ohio Reformatory for Women.
{¶ 5} Ball failed to appear for the November 10, 2022 pretrial hearing because she
was in the custody of Butler County; the trial court issued a bench warrant for her arrest.
The Ohio Reformatory for Women subsequently notified the Clermont County Prosecutor
and the trial court that Ball had requested final disposition of her Clermont County
indictment. See R.C. 2941.401. On January 20, 2023, the trial court again found that Ball
was indigent and appointed counsel to represent her. On February 6, 2023, Ball entered a
guilty plea to passing bad checks, a fourth-degree felony. The trial court accepted Ball's
plea and found her guilty of the offense.
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{¶ 6} At a sentencing hearing held on February 27, 2023, the trial court sentenced
Ball to a ten-month prison term and ordered her "to pay court costs." The sentencing entry
likewise provided that Ball "shall pay the court costs in this case." On March 2, 2023, the
clerk of courts filed a statement of costs totaling $4,514. Of that total, the sum of $4,164
related to the costs of Ball's extradition from Texas to Ohio to face the Clermont County
indictment.
{¶ 7} Ball appeals, asserting in a single assignment of error that "[t]he trial court
erred in assigning the costs of extradition as court costs to be paid by [Ball]."
II. DISCUSSION.
A. Assessment and Collection of Court Costs Under R.C. 2947.23(A)(1) and R.C.
2949.14.
{¶ 8} R.C. 2947.23(A) provides that "[i]n all criminal cases, including violations of
ordinances, the judge or magistrate shall include in the sentence the costs of prosecution,
including any costs under [R.C.] 2947.231, and render a judgment against the defendant
for such costs."
{¶ 9} The Ohio Supreme Court has construed the phrase "costs of prosecution" in
R.C. 2947.23(A)(1) as follows:
The phrase "costs of prosecution" has not been statutorily
defined. However, this court clarified the term "costs" in State
ex rel. Franklin Cty. Commrs. v. Guilbert (1907), 77 Ohio St.
333, 338: "Costs, in the sense the word is generally used in this
state, may be defined as being 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."
See also State v. Perz, 173 Ohio App.3d 99, 2007-Ohio-3962,
¶ 36, 42 [6th Dist.] (holding that costs of prosecution are those
expenses directly related to the court proceeding and
remanding for the trial court to determine "the actual costs of
prosecution"); State v. Christy, [3d Dist.] Wyandot No. 16-04-04,
2004-Ohio-6963, ¶ 22 ("The expenses which may be taxed as
costs in a criminal case are those directly related to the court
proceedings and are identified by a specific statutory
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authorization"); State v. Holmes, [6th Dist.] Lucas No. L-01-
1459, 2002-Ohio-6185, ¶ 20 ("The 'costs of prosecution' * * * are
the court costs incurred in the prosecution of the case").
Middleburg Hts. v. Quinones, 120 Ohio St.3d 534, 2008-Ohio-6811, ¶ 8.
{¶ 10} Consistent with the supreme court's characterization of the "costs of
prosecution" in Quinones, extradition costs are directly related to a criminal prosecution in
that the prosecution cannot proceed unless the accused is brought within the trial court's
jurisdiction. Extradition costs are specifically identified by R.C. 2949.14 as a component of
the costs of prosecution ("the clerk of the court of common pleas shall make and certify
under the clerk's hand and seal of the court, a complete itemized bill of the costs made in
such prosecution, including [extradition costs]") (Emphasis added.) The Second Appellate
District has also found that the costs of prosecution include extradition costs. State v.
Jones, 2d Dist. Montgomery No. 25315, 2013-Ohio-1925, ¶ 15 ("the trial court in the instant
case properly considered extradition costs as a cost of prosecution pursuant to R.C.
2947.23[A][1]"). Thus, extradition costs are correctly considered as included within the
"costs of prosecution."
{¶ 11} Commenting upon the import of R.C. 2947.23(A)(1), the supreme court has
recognized that "[b]y statute, the imposition of court costs on all convicted defendants is
mandatory. * * * As we have explained, this strict statutory language 'requires a court to
impose costs against all convicted defendants,' indigent or not." (Emphasis sic.) State v.
Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, ¶ 6, quoting State v. White, 103 Ohio St.3d
580, 2004-Ohio-5989, ¶ 8. This court has likewise construed R.C. 2947.23(A)(1) and
observed that
Unlike financial sanctions and fines issued pursuant to R.C.
2929.18 and 2929.32, "the imposition of court costs under R.C.
2947.23 does not require the trial court to first consider the
defendant's ability to pay." State v. Hodge, 9th Dist. Lorain No.
14CA010648, 2015-Ohio-3724, ¶ 15. A defendant's financial
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status is therefore "irrelevant to the imposition of court costs."
State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, ¶ 3.
Accordingly, a sentencing court must include the costs of
prosecution in the sentence and render a judgment against the
defendant for costs even if the defendant is indigent. White at
¶ 8. The legislature has imposed, and the Ohio Supreme Court
has upheld, a mandatory duty placed upon trial courts.
State v. Babyak, 12th Dist. Madison No. CA2019-08-025, 2020-Ohio-325, ¶ 10, citing the
supreme court's White decision.
{¶ 12} Despite the mandatory nature of a sentencing court's responsibility pursuant
to R.C. 2947.23(A)(1), Ball argues that R.C. 2929.14 prohibits a sentencing court from
imposing extradition costs upon an indigent felony offender. R.C. 2949.14 provides
Upon conviction of a nonindigent person for a felony, the clerk
of the court of common pleas shall make and certify under the
clerk's hand and seal of the court, a complete itemized bill of the
costs made in such prosecution, including the sum paid by the
board of county commissioners, certified by the county auditor,
for the arrest and return of the person on the requisition of the
governor, or on the request of the governor to the president of
the United States, or on the return of the fugitive by a designated
agent pursuant to a waiver of extradition except in cases of
parole violation. The clerk shall attempt to collect the costs from
the person convicted.
B. Cases Construing Assessment and Collection of Court Costs under R.C.
2947.23(A)(1) and R.C. 2949.14.
{¶ 13} Ball claims that she is indigent based upon the trial court's having found her
so "on two separate occasions," presumably referring to the trial court's October 27, 2022
and January 20, 2023 orders that she qualified for court-appointed counsel. Ball contends
that R.C. 2949.14 prohibits the trial court from assessing her with extradition costs because
the statute applies only to nonindigent persons and therefore she "cannot be ordered to pay
extradition costs." In support of her argument, Ball cites State v. Beckwith, 8th Dist.
Cuyahoga No. 111024, 2022-Ohio-2362; State v. Maurer, 8th Dist. Cuyahoga No. 103162,
2016-Ohio-1380; State v. Jones, 8th Dist. Cuyahoga No. 108438, 2020-Ohio-1272; and
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Jones, 2013-Ohio-1925.
{¶ 14} In Maurer and the Second Appellate District's Jones opinion, the courts of
appeals upheld orders imposing the costs of extradition and observed that "under R.C.
2947.23(A)(1) and R.C. 2949.14, the trial court may impose the cost of extradition upon a
non-indigent felony defendant[.]" Jones at ¶ 15; Maurer at ¶ 30.1 However, neither case
involved an indigent offender. Thus, the courts of appeals were not called upon to consider
whether R.C. 2949.14 prohibits the imposition of extradition costs under R.C. 2947.23(A)(1)
upon an indigent felony offender. "A reported decision, although a case where the question
might have been raised, is entitled to no consideration whatever as settling * * * a question
not passed upon or raised at the time of the adjudication." State v. Payne, 114 Ohio St.3d
502, 2007-Ohio-4642, ¶ 11.
{¶ 15} On the other hand, the Eighth Appellate District's opinions in Jones and
Beckwith each hold that R.C. 2949.14 prohibits assessment of extradition costs against an
indigent felony offender: "[R.C.]2949.14 does not authorize the trial court to assess the
costs of Beckwith's extradition as prosecution costs against an indigent felony offender."
Beckwith, 2022-Ohio-2362 at ¶ 31; Jones, 2020-Ohio-1273 at ¶ 34.
{¶ 16} In White, the supreme court considered the interplay of R.C. 2747.23 and
2949.14, and determined that "R.C. 2949.14 does not govern a court's ability to assess
costs. It governs only a clerk's ability to collect assessed costs from nonindigent
defendants. Moreover, R.C. 2947.23 does not prohibit a court from assessing costs against
an indigent defendant; rather it requires a court to assess costs against all convicted
defendants." (Emphasis sic.) White, 2020-Ohio-5989 at ¶ 8.
{¶ 17} In State v. Roux, 154 Ohio App.3d 296, 2003-Ohio-4876 (7th Dist.), the
1. In Jones, the trial court had imposed the same costs of extradition in each of two cases. The court of
appeals ordered that the costs of extradition in one of the cases be vacated to prevent a double payment.
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Seventh Appellate District commented upon the differing purposes of R.C. 2947.23(A)(1)
and R.C. 2949.14:
A distinction exists between ordering a defendant to pay costs
and actually collecting those costs. R.C. 2947.23 merely
provides that the court include costs as part of a defendant's
sentence and render a judgment for those costs. This section
makes no distinction between indigent and nonindigent
defendants. In later attempting to collect the court-imposed
costs, the clerk must then follow R.C. 2949.14. Therefore, we
hold that a trial court may order an indigent defendant to pay
court costs as part of his sentence.
Id. at ¶ 16. See also State v. May, 11th Dist. Ashtabula No. 2001-A-0037, 2003-Ohio-6979,
¶ 23 ("R.C. 2947.23 expressly states that the trial court 'shall' include court costs as part of
a defendant's sentence. In addition, R.C. 2949.14 does not prohibit the imposition of court
costs on an indigent defendant"). There is nothing in the language of R.C. 2949.14
suggesting it circumscribes a sentencing court's duty to impose court costs under R.C.
2947.23(A)(1). On the contrary and as recognized by White, Roux, and May, R.C. 2949.14
applies to clerks of court, not trial courts.
{¶ 18} Furthermore, accepting Ball's argument would mean that all felony offenders
who are indigent at the time of sentencing would be exempt from court costs. R.C. 2949.14
does not treat extradition costs differently from other court costs. That is, if R.C. 2949.14
prohibits a sentencing court from assessing extradition costs against an indigent felony
offender, then it also prohibits assessment of all other costs against such an offender.
Interpreting R.C. 2949.14 as advocated by Ball would strip a sentencing court of its
discretion to impose court costs against an indigent offender who the court believes would
have the future wherewithal to pay the costs of her prosecution and forever foreclose
collection.
{¶ 19} The trial court, therefore, did not err in ordering Ball to pay the costs of her
extradition from Texas to Ohio as part of the "costs of prosecution." Ball's assignment of
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error is overruled.
III. CONCLUSION.
{¶ 20} For these reasons we decline to follow the Eighth Appellate District's opinions
in Beckwith and Jones. We hold that: (1) R.C. 2947.23 requires a sentencing court to
assess court costs, including the costs associated with an offender's extradition, against all
convicted defendants without regard to the offender's indigency; and (2) R.C. 2949.14 limits
only the clerk of court's authority to collect court costs from an indigent felony offender and
has no bearing on a sentencing court's duty to impose court costs in the first instance.
{¶ 21} For the reasons set forth herein, we affirm the trial court's judgment.
S. POWELL, P.J., and PIPER, J., concur.
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