The State Of Ohio v. Joseph

• Citation: 125 Ohio St.3d 76,926 N.E.2d 278,2010 Ohio 954
• Decision Date: 18 March 2010
• Docket Number: No. 2008-0711,2008-1005.,2008-0711
• Parties: The STATE of Ohio, Appellee,v.JOSEPH, Appellant.
• Court: United States State Supreme Court of Ohio

125 Ohio St.3d 76
926 N.E.2d 278
2010 Ohio 954

The STATE of Ohio, Appellee,
v.
JOSEPH, Appellant.

Nos. 2008-0711, 2008-1005.

Supreme Court of Ohio.

Submitted March 11, 2009.
Decided March 18, 2010.

926 N.E.2d 279

Juergen A. Waldick, Allen County Prosecuting Attorney, and Jana E. Emerick, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Katherine A. Szudy and Randall L. Porter, Assistant Public Defenders, for appellant.

PFEIFER, J.

{¶ 1} In this case, we address the issue of whether a trial court may impose court costs pursuant to former R.C. 2947.23 in its sentencing entry when it did not impose those costs in open court at the sentencing hearing. We hold that a court errs in imposing court costs without so informing a defendant in court but that the error does not void the defendant's entire sentence. Instead, upon remand, the trial court must address the defendant's motion for waiver of payment of court costs.

Factual and Procedural Background

{¶ 2} Defendant-appellant, Richard E. Joseph, was convicted of the aggravated murder of Ryan Young in 1991. He was sentenced to death. His conviction and sentence were affirmed by the Allen County Court of Appeals in State v. Joseph (Dec. 23, 1993), Allen App. No. 1-91-11, 1993 WL 531858, and by this court in State v. Joseph (1995), 73 Ohio St.3d 450, 653 N.E.2d 285. The United States Supreme Court denied Joseph's petition for a writ of certiorari. Joseph v. Ohio (1996), 516 U.S. 1178, 116 S.Ct. 1277, 134 L.Ed.2d 222 .

{¶ 3} Joseph's attempt at state postconviction relief was unsuccessful. State v. Joseph (July 17, 1997), Allen App. No. 1-96-90, 1997 WL 404252 (affirming denial of relief); discretionary appeal not accepted, State v. Joseph (1997), 80 Ohio St.3d 1449, 686 N.E.2d 276. Joseph then filed a petition for a writ of habeas corpus in the federal district court, asserting 20 claims for relief. The district court found merit in four of those claims. Joseph v. Coyle (Dec. 22, 2004), N.D.Ohio No. 1:98 CV 527. The district court issued the following order:

{¶ 4} “[T]his Court issues a writ of habeas corpus ordering that Mr. Joseph's death sentence be set aside and that he be re-sentenced according to the statutory guidelines for aggravated murder in the absence of a capital specification, as set forth in O.R.C. § 2929.03(A), which mandates a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment.”

{¶ 5} Joseph appealed the district court's judgment regarding his conviction; the state cross-appealed the district court's grant of the writ of habeas corpus. On November 9, 2006, the Sixth Circuit Court of Appeals affirmed the district court. Joseph v. Coyle (C.A.6, 2006), 469 F.3d 441. The United States Supreme Court declined to review the appellate court's decision. Houk v. Joseph (2007), 549 U.S. 1280, 127 S.Ct. 1827, 167 L.Ed.2d 321.

{¶ 6} Finally, the matter returned to the trial court for resentencing. On June 6, 2007, the common pleas court held a sentencing hearing wherein it sentenced Joseph to life in prison with eligibility for

926 N.E.2d 280

parole after 20 years. On June 14, 2007, the trial court filed its judgment entry. In that entry, the trial court imposed court costs on Joseph; however, the court had not mentioned court costs during the sentencing hearing.

{¶ 7} Joseph appealed the sentence to the Third District Court of Appeals, arguing that the trial court had erred when it included a punishment, court costs, in the written entry that it had not imposed from the bench at the sentencing hearing. The appellate court sustained the judgment of the trial court, holding that “a trial court is not required to orally address a defendant at the sentencing hearing to inform him that he is required by R.C. 2947.23 to pay for the costs of prosecution.” State v. Joseph, 2008-Ohio-1138, 2008 WL 697377, at ¶ 9, citing State v. Ward, 3d Dist. No. 8-04-27, 2004-Ohio-6959, 2004 WL 2940878, ¶ 16.

{¶ 8} This cause is before this court upon the acceptance of a discretionary appeal and upon the certification of a conflict between the judgment of the appellate court in this case and the judgments rendered in State v. Peacock, 11th Dist. No. 2002-L-115, 2003-Ohio-6772, 2003 WL 22952755; State v. Smoot, 10th Dist. No. 05AP-104, 2005-Ohio-5326, 2005 WL 2462046; and State v. Tripplett, 8th Dist. No. 87788, 2007-Ohio-75, 2007 WL 64690. This court ordered briefing on the following issue: “May a trial court impose court costs pursuant to R.C. 2947.23 in its sentencing entry, when it did not impose those costs in open court at the sentencing hearing?”

Law and Analysis

{¶ 9} At the time of Joseph's trial, former R.C. 2947.23 provided:

{¶ 10} “In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs. If a jury has been sworn at the trial of a case, the fees of the jurors shall be included in the costs, which shall be paid to the public treasury from which the jurors were paid.” 1953 H.B. No. 1.

{¶ 11} Despite the fact that former R.C. 2947.23 (like current R.C. 2947.23(A)) requires a judge to assess costs against all convicted criminal defendants, this court has held that “waiver of costs is permitted-but not required-if the defendant is indigent.” State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. The court arrived at that conclusion in White by reading R.C. 2947.23 in pari materia with R.C. 2949.092, which states that certain additional court costs associated with R.C. 2949.092 may be waived only “if the court determines that the offender is indigent and the court waives the payment of all court costs imposed upon the offender.” That is, despite the mandatory language of former R.C. 2947.23 requiring the imposition of court costs, a trial court may waive the payment of costs. State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 4.

{¶ 12} This court has held that a motion by an indigent criminal defendant to waive payment of costs must be made at the time of sentencing. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of the syllabus. The court stated in Threatt, “If the defendant makes such a motion, then the issue is preserved for appeal and will be reviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and costs are res judicata.” Id. at ¶ 23.

{¶ 13} Here, Joseph was not given an opportunity at the sentencing hearing to seek a waiver of the payment of costs, because the trial court did not mention

926 N.E.2d 281

costs at the sentencing hearing. Joseph argues that the court's failure to orally inform him of court costs is akin to a court's failure to alert a defendant at his sentencing hearing to the court's imposition of postrelease control. When postrelease control is statutorily mandated-thus leaving no discretion...