State v. D.M.

Decision Date08 August 2018
Docket NumberNo. 17CA3822,17CA3822
Citation2018 Ohio 3327,118 N.E.3d 288
Parties STATE of Ohio, Plaintiff-Appellant, v. D.M., Defendant-Appellee.
CourtOhio Court of Appeals

Shane Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellant.

D.M., Portsmouth, Ohio, pro se.1

DECISION AND JUDGMENT ENTRY

ABELE, J.

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that sealed the record of conviction of D.M., defendant below and appellee herein. The State of Ohio, plaintiff below and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE STATE OF OHIO WAS DEPRIVED OF RIGHT TO NOTICE AND THE OPPORTUNITY TO BE HEARD REGARDING APPELLEE'S MOTION TO DISMISS COURT COSTS. THEREFORE, THE TRIAL COURT'S DECISION SHOULD BE REVERSED AS VIOLATIVE OF THE STATE'S RIGHT TO DUE PROCESS."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT LACKED AUTHORITY TO WAIVE THE COURT COSTS AS APPELLEE/DEFENDANT'S REQUEST WAS UNTIMELY MADE. THEREFORE, THE TRIAL COURT'S DECISION WAS IN ERROR."
THIRD ASSIGNMENT OF ERROR:
"BOTH THE VICTIMS AND THE STATE OF OHIO WERE DENIED DUE PROCESS BY THE TRIAL COURT'S HEARING ON APPELLEE'S APPLICATION TO SEAL RECORDS."
FOURTH ASSIGNMENT OF ERROR:
"APPELLEE'S APPLICATION TO SEAL RECORDS WAS BARRED BY RES JUDICATA AND THE TRIAL COURT ERRED BY GRANTING THE SAME."
FIFTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT'S DECISION GRANTING THE APPLICATION TO SEAL AND EXPUNGE RECORDS WAS AN ABUSE OF DISCRETION NOT SUPPORTED BY THE FACTS."

{¶ 2} In 2007, appellee entered a guilty plea to a charge of aggravated theft. The trial court ordered appellee to serve four years in prison and to pay court costs. On February 17, 2016, appellee filed a pro se motion that requested the court to seal his record of conviction. He asserted "that he is eligible for a sealing of records pursuant to R.C. 2953.32." Appellant filed a written objection. On April 8, 2016, the court summarily denied appellee's motion.

{¶ 3} On October 19, 2017, the trial court indicated that it had received a "letter" that requested the court to seal appellee's record of conviction. The court directed the Chief Probation Officer to investigate and set the matter for a hearing.

{¶ 4} On November 6, 2017, appellant filed an objection. Appellant first asserted that appellee did not properly serve and file his request to seal the record of his conviction. Appellant claimed that appellee's letter that requested the sealing of his conviction had not been filed with the court, and that appellant had not received a copy of the letter.

{¶ 5} Appellant also objected to the merits of appellee's request. Appellant contended that appellee has not paid restitution or court costs and that appellant "has a compelling interest in maintaining the record to ensure that [appellee] is not again put into such a position of trust."

{¶ 6} On November 7, 2017, appellee's letter that requested the sealing of his records was filed with the court. Appellee asserted that his "felony conviction has prevented [him] from many jobs" and that he "need[s] an opportunity to obtain a real job/career." Appellant filed a supplemental objection that asserted the doctrine of res judicata bars appellee's second application to seal.

{¶ 7} On November 9, 2017, the trial court held a hearing to consider appellee's motion. Appellee asserted that he had served his punishment and that the victims had been made whole. He stated that he has "done [his] best to be a good citizen." Appellee further alleged that his "health is ailing and [he] would just wish to be a free man again." When the prosecutor asked appellee whether anything had changed since he first requested the court to seal the record of his conviction, appellee responded, "My health." Also, on November 22, 2017 appellee filed a pro se letter that requested the court to "dismiss court costs and judgements [sic]."

{¶ 8} On November 29, 2017, the trial court granted appellee's motion to seal the record of his conviction. The court found that appellee "is a first time offender, that no criminal proceedings are pending against [appellee], that [appellee] has been rehabilitated to the satisfaction of the Court and that the interest of [appellee] in having the records pertaining to his arrest sealed are not outweighed by any legitimate governmental need to maintain such records." The court also suspended appellee's court costs. This appeal followed.

I

{¶ 9} We initially point out that appellee did not file an appellate brief in this matter. When an appellee fails to file an appellate brief, App.R. 18(C) authorizes us to accept an appellant's statement of facts and issues as correct, and then reverse a trial court's judgment as long as the appellant's brief "reasonably appears to sustain such action." In other words, an appellate court may reverse a judgment based solely on consideration of an appellant's brief. Harper v. Neal , 4th Dist. Hocking No. 15CA25, 2016-Ohio-7179, 2016 WL 5874628, ¶ 14, citing Fed. Ins. Co. v. Fredericks , 2nd Dist., 2015-Ohio-694, 29 N.E.3d 313, 330–31, ¶ 79 ; Sites v. Sites , 4th Dist. Lawrence No. 09CA19, 2010-Ohio-2748, 2010 WL 2391647, ¶ 13 ; Sprouse v. Miller , Lawrence App. No. 06CA37, 2007-Ohio-4397, 2007 WL 2410894, fn. 1. In the case sub judice, as we explain below, we believe that in this particular case appellant's brief reasonably appears to support a reversal of the trial court's judgment.

II

{¶ 10} Appellant's first and second assignments of error challenge the propriety of the trial court's judgment that granted appellee's motion to waive costs. For ease of discussion, we first consider appellant's second assignment of error.

{¶ 11} In its second assignment of error, appellant argues that the trial court lacked jurisdiction to waive, suspend, or modify appellee's payment of court costs. Appellant notes that R.C. 2947.23(C) allows a sentencing court to waive, suspend, or modify the payment of court costs "at the time of sentencing or at any time thereafter." Appellant points out, however, that at the time of appellee's sentence, R.C. 2947.23(C) was not in effect and that the law required a criminal defendant to request the trial court to waive court costs at the time of sentencing. Appellant asserts that because R.C. 2947.23(C) was not in effect at the time of appellee's sentencing, appellee waived the issue and costs are res judicata.

{¶ 12} R.C. 2947.23(A)(1) governs the imposition of costs in criminal cases and provides in relevant part: "In all criminal cases * * * the judge * * * shall include in the sentence the costs of prosecution * * * and render a judgment against the defendant for such costs." A trial court must include in the sentence the costs of prosecution and render a judgment against the defendant for costs, even if the defendant is indigent. State v. White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.

{¶ 13} Although trial courts must "assess costs against all convicted criminal defendants, [the Ohio Supreme Court] has held that ‘waiver of costs is permitted—but not required—if the defendant is indigent.’ " State v. Joseph , 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11, quoting White at ¶ 14. The trial court thus has discretion to waive court costs if the defendant is indigent. Id. at ¶ 12 ; see State v. Farnese , 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, 2015 WL 5102678, ¶ 12.

{¶ 14} A "sentencing entry is a final appealable order as to costs." State v. Threatt , 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 24. Thus, in 2007, at the time of appellee's sentencing, Ohio law required a defendant to request a waiver of costs at the time of sentencing. See id. , paragraph two of the syllabus; State v. Brown , 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, 2016 WL 1461495, ¶ 14 ; Farnese at ¶ 15. A defendant who failed to request a waiver of costs at the time of sentencing forfeited the right to raise the issue on appeal. Threatt at ¶ 23. Additionally, the doctrine of res judicata precluded a defendant from collaterally attacking the trial court's imposition of costs. Id.

{¶ 15} In March 2013, however, the General Assembly enacted R.C. 2947.23 )C). This provision states that the trial "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) ; accord Farnese at ¶ 12, citing State v. Hawkins , 4th Dist. Gallia No. 13CA3, 2014-Ohio-1224, 2014 WL 1339804, ¶ 18 ; State v. Walker , 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, 2014 WL 5500257, ¶ 9. Consequently, with the enactment of R.C. 2947.23(C), "a defendant is no longer required to move for a waiver of court costs at the sentencing hearing or waive it." Farnese at ¶ 15.

{¶ 16} The critical question in the case at bar is whether R.C. 2947.23(C), enacted approximately six years after appellee's sentence, vested the trial court with jurisdiction to consider appellee's motion to waive costs. Ohio appellate courts have reached conflicting decisions regarding the applicability of R.C. 2947.23(C) to a defendant whose sentence became final before the effective date of the statute.

State v. Braden , 10th Dist. Franklin No. 17AP-48, 2017-Ohio-7903, 2017 WL 4317413, ¶ 8 ; State v. Powell , 2d Dist. Montgomery No. 24433, 2014-Ohio-3842, 2014 WL 4384146, State v. Chase , 2d Dist. Montgomery No. 26238, 2015-Ohio-545, 2015 WL 627635 ; State v. Price , 8th Dist. Cuyahoga, 2015-Ohio-4592, 46 N.E.3d 1141 ; State v. Bacote , 8th Dist. Cuyahoga No. 102991, 2015-Ohio-5268, 2015 WL 9238668. Additionally, the issue currently is pending before the Ohio Supreme Court. State v. Braden , 151 Ohio St.3d 1523, 2018-Ohio-557, 91 N.E.3d 756 (certifying conflict on the following question of law: "Does a trial court have jurisdiction, pursuant to the current version of R.C. 2947.23(C), to waive, modify or suspend co...

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