[Cite as State v. Trammell, 2016-Ohio-5200.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2016CA00017
YUSEF L. TRAMMELL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2002
CR 1211(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 1, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO YUSEF TRAMMELL PRO SE
PROSECUTING ATTORNEY Inmate # 633-327
BY RONALD MARK CALDWELL Marion Correctional Institution
110 Central Plaza S., Ste. 510 Box 57
Canton, OH 44702 Marion, OH 43301-0057
Stark County, Case No. 2016-CA-00017 2
Gwin, P.J.
{¶1} Appellant appeals the January 4, 2016 judgment entry of the Stark County
Court of Common Pleas denying his motion for relief from dormant judgment. Appellee
is the State of Ohio.
Facts & Procedural History
{¶2} On October 23, 2002, after a jury trial, appellant Yusef Trammel was found
guilty of one count of receiving stolen property, a violation of R.C. 2913.519(A), and found
not guilty of one count of burglary. Appellant was sentenced to eleven months in prison.
In an October 29, 2002 judgment entry, the trial court ordered appellant to pay courts
costs. Appellant did not appeal this judgment entry.
{¶3} On February 3, 2003, appellant was granted judicial release and placed on
community control for three years. In a February 5, 2003 judgment entry placing appellant
on community control and granting judicial release, the trial court ordered appellant to pay
court costs to the Clerk of Courts.
{¶4} Appellant’s probation officer filed a motion to revoke his probation on May
22, 2003 for failing to comply with the Day Reporting Program and for being arrested for
domestic violence. On June 9, 2003, appellant’s community control was revoked and he
was sentenced to serve the balance of his original eleven month prison term. The trial
court memorialized appellant’s revocation and sentence in a June 12, 2003 judgment
entry. The June 12, 2003 judgment entry ordered appellant to pay costs.
{¶5} Appellant remained in prison until March of 2012 due to prison time he
served for separate prosecutions. On June 11, 2011, the Stark County Clerk of Courts
sent a Statement of Court Costs to the institution where appellant was incarcerated and
Stark County, Case No. 2016-CA-00017 3
indicated appellant’s balance of $1,120.12. The prison authorities deducted from
appellant’s prison account funds for court costs.
{¶6} On April 23, 2012, after he was released from prison, appellant signed and
dated a payment plan agreement for the payment of fines, costs, and restitution.
Appellant agreed to pay $20.00 per month for the balance of fines, costs, and restitution.
The agreement provided that all fines, court costs, and restitution would be paid in full by
January 5, 2017. The agreement appellant signed also provides as follows: “If I am
incarcerated for any reason, the institution will be billed and the payments received will
be applied to this case. Upon my release from incarceration, the terms of this payment
plan will continue.” The agreement was signed by the financial enforcement officer at the
clerk of courts and by appellant. Appellant signed and he “acknowledge[d] receipt of this
court agreement and agree[d] to the payment terms.” Appellant made two payments
pursuant to this agreement in June of 2012.
{¶7} Subsequently, in cases separate from the above-captioned case, appellant
was convicted of aggravated burglary with a repeat violent offender specification and
possession of cocaine. Appellant received an aggregate prison term of ten (10) years for
these convictions. The Stark County Clerk of Courts sent a first notice for failure to pay
court costs and restitution to appellant on December 6, 2012. On December 28, 2012,
the Stark County Clerk of Courts sent to the institution where appellant was incarcerated
a statement providing the amount of $906.88 was due and outstanding from appellant for
court costs. Appellant did not challenge or object to the 2012 statement sent to the
institution.
Stark County, Case No. 2016-CA-00017 4
{¶8} Appellant filed a motion for relief from dormant judgment on December 28,
2015. Appellant stated that in 2012, appellee sought to collect unpaid fines and costs.
Further, that on April 1, 2015, the Ohio Department of Rehabilitation and Corrections
began deducting money from appellant’s institutional account for the payment of costs.
Appellant cited to State v. Magruder in support of his argument and sought to suspend
any further withdrawal of money from his institutional account and order the return of the
seized money. The trial court denied appellant’s motion on January 4, 2016.
{¶9} Appellant appeals the January 4, 2016 judgment entry of the Stark County
Court of Common Pleas and assigns the following as error:
{¶10} “I. WHETHER A DORMANT JUDGMENT FOR COSTS, FEES OR FINES
(IN A CRIMINAL PROCEEDING) MAY BE REVIVED ABSENT NOTICE AND A
SUMMARY HEARING AS A MATTER OF STATE AND FEDERAL DUE PROCESS, SEE
STATE V. MAGRUDER, 2008 OHIO APP. LEXIS 1827, AT HN5 AND O.R.C. 2325.17,
AND ESPECIALLY SO WHERE, AS HERE, SUCH REVIVAL WAS NOT A PRODUCT
OF A JUDICIAL PROCEEDING, RATHER, WAS AN EXTRA-JUDICIAL
ADMINISTRATIVE ACTION OF THE COUNTY PROSECUTOR.”
I.
{¶11} In his assignment of error, appellant contends the trial court erred in denying
his motion to suspend the collection of court costs from his institutional account. Appellant
contends because of his failure to pay court costs, the judgment became dormant.
Further, that the trial court erred in not providing him notice or a hearing to challenge the
revival of a dormant judgment entry.
Stark County, Case No. 2016-CA-00017 5
{¶12} Appellant cites State v. Magruder in support of his argument that he is
entitled to notice and hearing on a dormant judgment for costs and argues this Court
should follow Magruder in this case. However, we find Magruder distinguishable from the
instant case. In Magruder, the trial court, sua sponte, issued an order in 2007 reviving a
dormant judgment for court costs in connection with his criminal convictions in 1985.
State v. Magruder, 11th Dist. Geauga No. 2007-G-2799, 2008-Ohio-2137. The 11th
District Court of Appeals found the trial court erred in issuing an order reviving a dormant
judgment against Magruder sua sponte and without notice and a summary hearing. Id.
{¶13} Unlike in Magruder, in this case, there is no judgment entry by the trial court
reviving a dormant entry. Rather, there is an agreed payment plan signed by appellant
in 2012 agreeing to make payments for costs and a statement sent by the Stark County
Clerk of Courts in 2012 in which the Stark County Clerk of Courts informed the institution
the amount of $906.88 was due and outstanding from appellant for court costs. Appellant
agreed to the payment plan and did not challenge or object to the 2012 statement sent to
the institution. The trial court did not sua sponte, or upon motion, file a judgment entry
that revived any judgment for court costs. Accordingly, we decline to apply Magruder in
the instant case.
{¶14} We further disagree with appellant’s contention that the judgment at issue
is dormant. R.C. 2329.07 defines a dormant judgment as one in which in collection
efforts, including placing liens on property, are made within five years of the date of the
judgment. In this case, appellant signed a payment plan agreement for the payment of
costs on April 23, 2012, signed and acknowledged receipt of the agreement, agreed to
the payment terms, and made two payments pursuant to the agreed payment plan.
Stark County, Case No. 2016-CA-00017 6
Accordingly, pursuant to R.C. 2329.07, the judgment for court costs would not become
dormant until 2017. Thus, appellant’s challenged judgment is not a dormant judgment.
{¶15} Finally, as to any challenge appellant has to the imposition of court costs,
we find appellant has not timely challenged such imposition of costs. In this case, the
trial court assessed court costs against appellant as required by statute. The court costs
were originally imposed in the 2002 original sentencing entry and the 2003 sentencing
entry upon the revocation of his community control sanction. Appellant did not object 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 of either the 2002 or 2003 entry.
Appellant signed a payment plan in 2012 and made two payments pursuant to this
payment plan in 2012. The Stark County Clerk of Courts sent a statement to the prison
notifying the authorities appellant owed costs in the case in December of 2012. Appellant
did not object to the agreed payment plan or the statement sent by the Stark County Clerk
of Courts sent to the institution in 2012.
{¶16} Accordingly, the issue of the imposition of court costs is res judicata as
defined in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Pursuant to 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.” Id; 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.
Stark County, Case No. 2016-CA-00017 7
{¶17} Based on the foregoing, appellant’s assignment of error is overruled. The
January 4, 2016 judgment entry of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
State v. Trammell
Combined Opinion