State v. Taylor, 070220 OHSC, 2018-0797

Docket Nº2018-0797
Opinion JudgeDeWine, J.
Party NameThe State of Ohio, Appellant, v. Taylor, Appellee.
AttorneyMathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Andrew T. French, Assistant Prosecuting Attorney, for appellant. Timothy Young, Ohio Public Defender, and Patrick T. Clark, Assistant Public Defender, for appellee.
Judge PanelKENNEDY and FRENCH, JJ., concur. O'CONNOR, C.J., concurs, with an opinion. FISCHER, J., concurs in judgment only. STEWART, J., dissents, with an opinion joined by DONNELLY, J. O'Connor, C.J., concurring. Stewart, J., dissenting. Donnelly, J., concurs in the foregoing opinion.
Case DateJuly 02, 2020
CourtSupreme Court of Ohio


The State of Ohio, Appellant,


Taylor, Appellee.

No. 2018-0797

Supreme Court of Ohio

July 2, 2020

Submitted January 7, 2020

Appeal from the Court of Appeals for Montgomery County, No. 27539, 2018-Ohio-1649.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Andrew T. French, Assistant Prosecuting Attorney, for appellant.

Timothy Young, Ohio Public Defender, and Patrick T. Clark, Assistant Public Defender, for appellee.

DeWine, J.

{¶ 1} Ohio's statutory scheme makes a trial court's imposition of court costs on a convicted defendant mandatory but grants the court discretion to waive, suspend, or modify the costs. In making this discretionary determination, must the court consider the defendant's present or future ability to pay the costs? Because the statutory scheme imposes no such obligation, we say no. The Second District Court of Appeals saw things differently, so we reverse.

Taylor is convicted of murder and ordered to pay court costs

{¶ 2} Darren Taylor was convicted of two counts of murder for his involvement in an attempted pawn-shop robbery that resulted in the deaths of a store clerk and one of Taylor's accomplices. For his crimes the trial court sentenced him to 36 years to life in prison. The court also ordered him to pay restitution and court costs. His convictions were affirmed on direct appeal. State v. Taylor, 2d Dist. Montgomery No. 25764, 2014-Ohio-2550, ¶ 11.

{¶ 3} Later, Taylor moved to vacate or suspend the restitution order and court costs on the grounds that he was indigent and received only $19 dollars per month in prison wages. The trial court denied the motion and Taylor's subsequent request for the court to reconsider its judgment.

{¶ 4} Taylor then appealed to the Second District. The court of appeals affirmed the trial court's judgment regarding restitution. But, relying on its precedent in State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797, ¶ 11, the court in a two-to-one decision reversed as to court costs. "The trial court abused its discretion," it held, "by overruling Taylor's motion to vacate and/or suspend court costs without considering his indigency and ability to pay." 2018-Ohio-1649, ¶ 19. It remanded the case to the trial court for the appropriate consideration.

{¶ 5} We accepted the state's appeal to address whether a trial court must consider a defendant's present or future ability to pay when ruling on a motion to vacate, suspend, or modify court costs under R.C. 2947.23(C).

Ohio's statutory scheme does not require a trial court to consider a defendant's ability to pay when ruling on a motion to waive, suspend, or modify costs

{¶ 6} By statute, the imposition of court costs on all convicted defendants is mandatory. R.C. 2947.23(A)(1)(a) reads: "In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs." (Emphasis added.) 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. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.

{¶ 7} But R.C. 2947.23(C) gives a trial court continuing jurisdiction to "waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter." So, while the court must impose costs, it may also waive, suspend, or modify them. "[W]aiver of costs is permitted-but not required-if the defendant is indigent." White at ¶ 14.

{¶ 8} The statutory language provides no explicit criteria that a court should use in deciding whether to waive, suspend, or modify costs. And that provides the occasion for this appeal-what criteria, if any, must a court use in making that decision?

{¶ 9} Taylor doesn't deny that the imposition of court costs is mandatory, regardless of a defendant's ability to pay. Nor does he deny that the statute imposes no explicit criteria in assessing a motion to waive, suspend, or modify court costs. Nevertheless, he argues that an implicit requirement to consider ability to pay can be found in the broader statutory structure. In deciding whether this is so, we are mindful that the proper role of a court is to construe a statute as written without adding criteria not supported by the text. State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 50. Thus, barring some textual basis, we will not read into the statute a requirement that courts consider a defendant's ability to pay. As we explain below, Taylor fails to show that the statutory language imposes any such obligation.

{¶ 10} Taylor first argues that R.C. 2947.23(C) implies some kind of ability-to-pay determination. He notes that the statute gives a court granting a motion three options-waive, suspend, or modify. And he urges that we find an implicit requirement that the court's decision be tied to a defendant's ability to pay because that consideration makes sense of those three options. Thus, he posits, if a defendant can't pay costs in the present or the future, then waiver is appropriate. If he can't pay in the present but may be able to pay in the future, then suspension is appropriate. And if he can pay in the present, but only a limited amount, then modification would fit.

{¶ 11} On first pass, we are skeptical of this conclusion because it is in tension with a statutory scheme that requires court costs to be imposed on all convicted defendants regardless of their ability to pay or indigency status. If present or future ability to pay is a condition for retaining costs, it doesn't make much sense for it not to be a condition for imposing costs in the first place. But it plainly is not. See White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 39, at ¶ 8; R.C. 2947.23(A)(1)(a).

{¶ 12} Moreover, Taylor's argument only works if consideration of ability to pay is the only thing that could make rational sense of the statutory language. But it's not. Indeed, in the abstract, there are many other criteria that can equally justify a decision to waive, suspend, or modify the imposition of costs in a particular case. A court might, for instance, look to whether the costs are unfairly excessive given the degree of wrongdoing. Or a court might look to whether the costs impose a hardship on third parties. Or maybe a court would conclude that R.C. 5120.133, which prevents a prison from disbursing an inmate's funds that, by statute, are "exempt from execution, garnishment, attachment, or sale," adequately addresses a defendant's present inability to pay. In such a case, a court might choose to keep the costs order in place in the event the defendant can pay later.

{¶ 13} The point is that an ability-to-pay requirement is no more implied by the statute than any other of a range of plausible candidates that could make sense of a court's decision to waive, suspend, or modify costs. Indeed, this case illustrates a basic point about statutory interpretation-courts should tread carefully in finding implied conditions in statutes, because in doing so they run the risk of not just construing a statute but enlarging it. See Lamie v. United States Trustee, 540 U.S. 526, 538, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). The danger in finding implied criteria in a statute is that there can be a tendency to find what one wants to find rather than what is actually there.

{¶ 14} The dissent falls into that trap and concludes that the purpose of R.C. 2947.23 is to lighten the burden on taxpayers and therefore insists that we graft an ability-to-pay requirement onto the statutory language. But the dissent offers no textual support for this divination of legislative purpose. Indeed, one can imagine any number of reasons that might have motivated individual legislators to vote for the requirement-for example, to make a convicted defendant pay his fair share of the costs of his proceedings. But it is not our role to speculate about legislative purposes and then rewrite statutory criteria to better achieve our imagined purpose. Rather, we must base our decision on the statute that the General Assembly actually passed.

{¶ 15} Taylor also points to statutory provisions concerning the collection of court costs. For instance, R.C. 2303.23 states that a court may direct the clerk of courts to cancel all or part of an amount owed to the court if it is "due and uncollectable." And R.C. 2949.14 provides that "[u]pon conviction of a nonindigent person for a felony," the clerk of the common pleas court shall create an itemized bill of certain costs and that "[t]he clerk shall attempt to collect the costs from the person convicted." From these statutes, Taylor would have us infer that ability to pay is a necessary criterion for a trial court's determination of a motion to waive, suspend, or modify court costs. But that doesn't follow. Indeed, both R.C. 2303.23 and 2949.14 are merely permissive-they do not require consideration of ability to pay. See White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, at ¶ 14 ("we are * * * left to infer from this silence [about indigent defendants in R.C. 2949.14] that collection from indigent defendants is merely permissive"). And it is worth noting that when the General Assembly has wanted to make present and future ability to pay a required criterion, it has done so explicitly. See R.C. 2929.19(B)(5) ("Before imposing a financial sanction under section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised Code, the court shall consider the offender's present and...

To continue reading