State v. Webb, Court of Appeals No. E-18-056
| Decision Date | 29 May 2020 |
| Docket Number | Court of Appeals No. E-18-056 |
| Citation | 2020 Ohio 3132 |
| Parties | State of Ohio Appellee v. Donald E. Webb, Jr. Appellant |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Donald E. Webb, Jr., pro se.
{¶ 1} Appellant, Donald E. Webb, Jr., appeals from the September 19, 2018 judgment of the Erie County Court of Common Pleas denying appellant's motion to vacate/waive and/or stay court costs. For the reasons which follow, we affirm.
{¶ 2} Appellant was convicted and sentenced in 2009 following the acceptance of his guilty plea. In the sentencing judgment, the trial court sentenced appellant to an agreed recommended imprisonment term on each count and ordered appellant to pay court costs, fines, and the costs of prosecution. No appeal was taken from the judgment of conviction and sentencing. On October 26, 2016, the clerk certified that appellant owed a total of $2,261.50.
{¶ 3} On October 31, 2016, the Erie County prosecutor attached appellant's prisoner account to satisfy the full obligation of $2,261.50 pursuant to R.C. 2329.66, R.C. 5120.133, and Ohio Adm.Code 5120-5-03(D). Thereafter, the Department of Rehabilitation and Correction began to garnish all but $25 of appellant's funds each month.
{¶ 4} On January 25, 2017, appellant filed a motion for modification of court costs to limit the withdrawals to $30 per month or to suspend collection until his release from prison because he had limited funds of $50 each month and needed those funds for personal expenses. He asserted that R.C. 2947.23, amended March 22, 2013, permitted the court to waive, suspend, or modify court costs. He attached an affidavit of indigency. The state opposed the motion.
{¶ 5} On February 7, 2017, the trial court denied appellant's motion on the ground that collection was a matter controlled by statute and appellant had failed to demonstrate that the statutory restrictions had been violated. The court refused to suspend or institute a payment plan or permit money to be taken from exempt funds. Furthermore, the courtindicated appellant could move to have the court impose community service in lieu of payment due to his indigency. No appeal was taken from that judgment.
{¶ 6} On September 14, 2018, appellant filed a second motion to vacate/waive and/or stay collection of court costs pursuant to R.C. 2947.23(C). This motion presented essentially the same issues as the prior motion. The state again opposed the motion.
{¶ 7} On September 19, 2018, the trial court denied the motion. The trial court held that indigency does not preclude assessment of court costs and costs of prosecution. Furthermore, the court again refused to establish a payment plan or permit money to be taken from exempt funds. The court also reiterated that collection is controlled by statute and that any sum in a prison account over $25 could be attached. This time, appellant filed an appeal. On appeal, appellant asserts the following assignments of error:
{¶ 8} With regard to the first assignment of error, we find the trial court should not have considered appellant's second motion. The court already addressed the same issues in an earlier motion; therefore, the issue of waiver of costs was barred by the doctrine of res judicata unless appellant could demonstrate a change of circumstances. State ex rel. Richard v. Chambers-Smith, 157 Ohio St.3d 16, 2019-Ohio-1962, 131 N.E.3d 16, ¶ 8; State ex rel. Robinson v. Huron Cty. Court of Common Pleas, 143 Ohio St.3d 127, 2015-Ohio-1553, 34 N.E.3d 903, ¶ 5. Since the same factual basis was presented in both motions, we find there was no change in circumstances. The filing of a repetitive motion is not a substitute for appeal. Therefore, we find appellant's first assignment of error not well-taken.
{¶ 9} In his second assignment of error, appellant asserts his prison account cannot be garnished pursuant to R.C. 2329.66(A)(3), because it contains less than $400. He asserts that Ohio Adm.Code 5120-5-03(E) is in direct conflict with R.C. 2329.66(A)(3) and this court must apply the rule of lenity pursuant to R.C. 2901.04(A) to construe the statute in his favor.
{¶ 10} This argument was not raised by appellant in his first motion challenging the garnishment of funds in his prison account. In the state's memorandum in opposition, it argued the state can collect court costs by attachment of the money in a prisoner'saccount over $25 pursuant to R.C. 5120.133 and Ohio Adm.Code 5120-5-03. The trial court held that the attachment was proper in this case. Appellant did not appeal.
{¶ 11} In his second motion, appellant asserts that R.C. 5120.133 and Ohio Adm.Code 5120-5-03 conflict with R.C. 2329.66 regarding the minimum balance that must be left in the prisoner's account. This argument could have been raised in connection with the first motion because it was based on the same facts, but it was not. Appellant attempted to raise it as a new argument in his second motion. Because appellant could have raised the issue in his first motion, he is precluded from doing so in his second motion under the doctrine of res judicata. Robinson at ¶ 8; Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 8.
{¶ 12} Furthermore, we are unable to address appellant's argument because he failed to exhaust his administrative remedies.
{¶ 13} R.C. 2949.14 requires that "[u]pon conviction of a nonindigent person for a felony, the clerk of the court of common pleas shall make and certify * * * * a complete itemized bill of the costs made in such prosecution * * * [and] attempt to collect the costs from the person convicted." The judgment assessing costs becomes a civil judgment to be collected pursuant to R.C. 2333.21 or 5120.133, which is applicable to incarcerated defendants. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15, superseded by statute on other grounds in State v. Braden, Slip Opinion Nos. 2017-1579 and 2017-1609, 2019-Ohio-4204, ¶ 23-24; Dibert v. Carpenter, 2018-Ohio-1054, 98 N.E.3d 350, ¶ 44 (2d Dist.).
{¶ 15} Furthermore, R.C. 5120.133 authorizes the Department of Rehabilitation and Correction to distribute funds from an inmate's account to satisfy a court judgment. Ohio Adm.Code Sec. 5120-5-03 establishes guidelines and procedures for withdrawal of money from an inmate's account. The rule allows the department to apply money in the inmate's account toward payment of a stated obligation pursuant to a certified copy of a judgment entry issued in a matter involving the inmate so long as $25 remains in the account for the inmate's expenditures. Ohio Adm.Code 5120-5-03(E). However, R.C. 5120.133(B) also provides that: "The rules shall not permit the application or disbursement of funds belonging to an inmate if those funds are exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order pursuant to section 2329.66 of the Revised Code or to any other provision of law."
{¶ 17} Because R.C. 5120.133(B) and Ohio Adm.Code 5120-5-03(C) specifically indicate the garnishment of prisoner's funds is limited by R.C. 2329.66, the two statutes are not conflicting. Bell v. Beightler, 10th Dist. Franklin No. 02AP-569, 2003-Ohio-88, ¶ 47; State v. Holliday, 5th Dist. Fairfield No. 10 CA 54, 2011-Ohio-4211, ¶ 10.
Furthermore, Ohio Adm.Code 1520-5-03(C) requires that the warden's designee shall promptly deliver to the inmate adequate notice of the court-ordered debt and its intent to seize money from his/her personal account. The required notice must inform the inmate of a right to claim exemptions and types of exemptions available under section 2329.66 of the Revised Code and a right to raise a defense as...
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