State v. Copeland , 2016 Ohio 7797 ( 2016 )


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  • [Cite as State v. Copeland, 2016-Ohio-7797.]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    STATE OF OHIO                                       :
    :
    Plaintiff-Appellee                          :  Appellate Case No. 26842
    :
    v.                                                  :  Trial Court Case No. 2014-CR-2192
    :
    JOSEPH L. COPELAND                                  :  (Criminal Appeal from
    :   Common Pleas Court)
    Defendant-Appellant                         :
    :
    ...........
    OPINION
    Rendered on the            18th     _   day of   November     , 2016.
    ...........
    MEAGAN D. WOODALL, Assistant Prosecuting Attorney, Atty. Reg. No. 0093466, 301
    West Third Street, 5th floor, Dayton, Ohio 45422
    Attorney for Plaintiff-Appellee
    JOSEPH L. COPELAND, #709-088, Madison Correctional Institution, P.O. Box 740,
    London, Ohio 43140
    Defendant-Appellant
    .............
    FROELICH, J.
    {¶ 1} Joseph Copeland appeals pro se from the trial court’s denial of his motion to
    waive court costs or stay payment.
    {¶ 2} Copeland pled guilty to one count of aggravated burglary.               The court
    sentenced him to a mandatory term of five years in prison and imposed court costs.
    Copeland did not appeal. Nine months later, he filed a “Motion to Vacate or Remit Court
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    Costs”; in the memorandum to the motion, he requested, in the alternative, that costs be
    stayed until his release from prison. Copeland alleged that the trial court had failed to
    inform him of court costs at the sentencing hearing, as it must under R.C. 2947.23(A)(1).
    Copeland also said that he earns only $17 each month for his work in prison and that
    anything he needs other than food, shelter, and clothing, he must pay for with that $17.
    He argues he cannot afford to make payments toward the court costs.
    {¶ 3} The trial court overruled the motion. The court stated that it had watched
    the video of the sentencing hearing and confirmed that it ordered Copeland to pay court
    costs. As to the stay request, the court pointed out that Ohio Adm.Code 5120-5-03
    establishes procedures for withdrawing money from an inmate’s account to satisfy court-
    ordered financial obligations. Division (D) states that withdrawals are allowed to satisfy
    these obligations “as long as the account retains twenty-five dollars for inmate
    expenditures.” The last line of the trial court’s decision “overrule[d] the defendant’s
    request to ‘grant him a stay on his court costs until his release.’ ” The court implicitly
    rejected Copeland’s request that court costs be vacated or waived in their entirety.
    {¶ 4} Copeland appeals from the denial of his motion to waive court costs or stay
    payment. His sole assignment of error alleges that “[t]he trial court abused its discretion
    when it failed to consider Appellant’s present and future ability to pay court costs pursuant
    to R.C. §2929.19(B)(6).”
    {¶ 5} On August 23, 2016, after a preliminary review, we informed the parties that
    “members of the panel have concerns that certain issues that may be pertinent to this
    appeal have not been addressed in the parties’ briefs.” We invited the parties to file
    supplemental briefs on “whether or what standard of indigency or ability-to-pay factors
    -3-
    must be considered by the trial court,” including whether taking court costs from an
    inmate’s prison account is affected by state or federal statutes governing collection of civil
    judgments, and if so, which court has jurisdiction over taking of court costs from a prisoner
    account. The State filed a supplemental brief on September 30, 2016; Copeland did not
    file a supplemental brief.
    {¶ 6} It is well established that court costs are properly assessed against a
    defendant, regardless of the defendant’s indigency. State v. White, 
    103 Ohio St. 3d 580
    ,
    2004-Ohio-5989, 
    817 N.E.2d 393
    . R.C. 2947.23(A)(1)(a) provides: “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.)
    {¶ 7} R.C. 2949.14 expressly authorizes the collection of court costs by the clerk
    of the common pleas courts against nonindigent persons convicted of felonies.
    However, the Ohio Supreme Court has recognized that “collection from indigent
    defendants is merely permissive.” White at ¶ 14.
    {¶ 8} Other statutes also address the collection of court costs. Effective March
    22, 2013, the Ohio legislature amended R.C. 2947.23 to expressly provide that a trial
    court “retains jurisdiction to waive, suspend, or modify the payment of the costs of
    prosecution, including any costs under section 2947.231 of the Revised Code, at the time
    of sentencing or at any time thereafter.” In addition, courts are authorized to cancel all
    or part of claims for costs due the court, “[i]f at any time the court finds that an amount
    owing to the court is due and uncollectible, in whole or in part.” R.C.1901.263 (municipal
    court); R.C.1905.38 (mayor’s court); R.C. 1907.251 (county court); R.C. 1925.151 (small
    -4-
    claims division); R.C. 2101.165 (probate court); R.C. 2151.542 (juvenile court); R.C.
    2303.23 (common pleas court); R.C. 2501.161 (court of appeals); R.C. 2503.18 (supreme
    court).
    {¶ 9} On appeal, Copeland claims that the trial court erred in failing to consider his
    present and future ability to pay court costs in denying his motion.1 In its decision, the
    trial court briefly discussed the administrative process for withdrawing money from an
    inmate’s account and denied a waiver or a stay of court costs “[g]iven that the defendant
    will only pay court costs only [sic] if there are sufficient funds in the inmate’s account –
    and only as long as the account retains twenty-five dollars for inmate expenditures.” In
    reaching this determination, the trial court apparently concluded that the Ohio
    Administrative Code provisions regarding garnishment from inmate accounts control
    when it is appropriate to require a criminal defendant to pay court costs that were
    imposed.
    {¶ 10} The Ohio Administrative Code contains numerous provisions specifying the
    sources from which monetary judgments can be collected from inmates and limitations
    on collection. However, this appeal is not about collection of court costs from an inmate,
    but whether the trial court erred in denying a waiver or stay of future payment of those
    costs; these are separate questions.
    {¶ 11} Although a trial court need not consider whether a defendant has a present
    1
    Copeland’s motion asserted that court costs were not properly imposed at sentencing,
    but he does not raise this issue on appeal. Regardless, such potential assignment is
    potentially either barred by res judicata or is moot since, now that R.C. 2947.23(C) allows
    post-judgment waiver of payment, a defendant may not be able to establish that he or
    she was prejudiced. See State v. Weddington, 4th Dist. Scioto No. 15CA3695, 2015-
    Ohio-5249, ¶ 3.
    -5-
    or future ability to pay court costs when court costs are assessed, the trial court should
    consider the defendant’s ability to pay when a defendant subsequently moves for a
    waiver, modification, or stay of the payment of court costs. The collection provisions of
    the   Ohio   Administrative    Code,   while   perhaps   relevant,   are   not   dispositive.
    Consequently, the trial court’s reliance on those provisions alone in denying Copeland’s
    motion was not an exercise of its discretion in determining whether the payment of court
    costs should be waived, modified, or stayed.
    {¶ 12} The trial court’s denial of Copeland’s motion will be reversed, and the case
    will be remanded for consideration of whether Copeland had a present or future ability to
    pay the court costs imposed.
    ..........
    DONOVAN, P.J., concurring:
    {¶ 13} I would find that the trial court did abuse its discretion by not determining
    whether Copeland had the ability to pay the court costs imposed as part of Copeland’s
    felony sentence after the application of Ohio’s exemption statute. R.C. 2949.092 does
    allow a court to waive mandatory costs if “the court determines that the offender is
    indigent.” In the present case, the trial court made no finding of Copeland’s indigency or
    ability to pay, or whether the funds in Copeland’s account were exempt from attachment.
    {¶ 14} The trial court’s reliance on Ohio Admin.Code 5120-5-03 for determining
    an inmate’s ability to pay is insufficient, by failing to consider the entire rule and the
    statutory authority for the rule, which both provide limitations on the attachment of assets
    in an inmate’s prison account. Most importantly, the statute and the rule mandate the
    application of Ohio’s exemption statute, R.C. 2329.66, which specifically exempts certain
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    assets from attachment.
    {¶ 15} The authority of the Department of Corrections to attach inmate accounts
    to pay court judgments and to establish rules for processing such payments is found in
    R.C. 5120.133, as follows:
    (A) The department of rehabilitation and correction, upon receipt of
    a certified copy of the judgment of a court of record in an action in which a
    prisoner was a party that orders a prisoner to pay a stated obligation, may
    apply toward payment of the obligation money that belongs to a prisoner
    and that is in the account kept for the prisoner by the department. The
    department may transmit the prisoner’s funds directly to the court for
    disbursement or may make payment in another manner as directed by the
    court. Except as provided in rules adopted under this section, when an
    amount is received for the prisoner’s account, the department shall use it
    for the payment of the obligation and shall continue using amounts received
    for the account until the full amount of the obligation has been paid. No
    proceedings in aid of execution are necessary for the department to take
    the action required by this section.
    (B) The department may adopt rules specifying a portion of an
    inmate’s earnings or other receipts that the inmate is allowed to retain to
    make purchases from the commissary and that may not be used to satisfy
    an obligation pursuant to division (A) of this section. The rules shall not
    permit the application or disbursement of funds belonging to an
    inmate if those funds are exempt from execution, garnishment,
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    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.
    (Emphasis added.)
    {¶ 16} The rule promulgated by the Department of Corrections to establish
    procedures for attaching an inmate’s assets for the payment of a court judgment, Ohio
    Adm.Code 5120-5-03(C), states:
    (C) When a certified copy of a judgment from a court of proper
    jurisdiction is received directing the DRC to withhold funds from an inmate’s
    account, the warden’s designee shall take measures to determine whether
    the judgment and other relevant documents are facially valid. If a facial
    defect is found then a letter of explanation shall be sent to the clerk or other
    appropriate authority and the collection process stops until the defect is
    cured. If no defect is found, 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 well as an opportunity to discuss these objections
    with the warden’s designee. This practice provides safeguards to
    minimize the risk of unlawful deprivation of inmate property.
    (Emphasis added.)
    {¶ 17} Ohio’s exemption statute, R.C. 2329.66, exempts specific types of assets
    from attachment. The record is not developed enough to establish whether the
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    compensation paid to inmates under the work program or under private employment is
    considered wages or personal earnings, triggering the exemptions for wages provided by
    R.C. 2329.66(A)(13)(a).     The Department of Corrections Rules describe the rate of
    compensation for different types of work assignments, which range from three dollars per
    month to a maximum of twenty-four dollars per month, to be paid to the inmate’s personal
    checking account. Ohio Adm.Code 5120-3-08(A)(1)-(7). Based on the limit of 140 hours
    per month, the maximum hourly rate available for the inmate work program is 17 cents
    per hour, although the rate of pay for private employment is not specified. Even if the
    inmate’s assets are not considered “personal earnings”, it is clear that the exemption
    statute, R.C. 2329.66, is applicable to the attachment of inmate assets held in their prison
    accounts, as recognized by statute, R.C. 5120.133 and by rule, Ohio Adm.Code 5120-5-
    03.
    {¶ 18} The procedure outlined in the Department of Corrections Rules for the
    attachment of inmate accounts, Ohio Adm.Code 5120-5-03, appears to be a continuous
    process, which begins upon receipt of a court judgment, and remains in effect until the
    court judgment is paid in full. The rule specifically provides that,
    If withdrawals are authorized and if there are insufficient funds in the
    inmate’s account to satisfy the amount shown as due, a monthly check shall
    be issued payable to the appropriate clerk’s office or in another matter as
    directed by the court, for the amount of monthly income received into the
    inmate’s account which exceeds twenty-five dollars until the full amount of
    the court obligation has been paid. The hold shall remain on the inmate’s
    account until sufficient funds have been paid to satisfy the amount shown
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    as due on the balance remaining thereon.
    Ohio Adm.Code 5120-5-03(E).
    {¶ 19} The Department of Corrections Rule that allows the attachment of all funds
    in an inmate’s account, as long as $25.00 remain in the account, appears to conflict with
    the exemption statute, R.C. 2329.66(A)(3), which exempts up to $4752 of money “on
    deposit with a bank, savings and loan association, credit union, public utility, landlord, or
    other person.” Before summarily denying Copeland’s motion to vacate costs, the trial
    court should determine whether the exemption statute permits attachment and whether
    any other applicable statute dictates a finding of indigency.
    {¶ 20} We have previously concluded that execution of a judgment for court costs
    entered in a criminal felony sentencing order must be conducted in the same manner as
    other civil judgments are collected. Galluzzo v. Galluzzo, 2d Dist. Champaign No. 2012
    CA 43, 2013-Ohio-3647, ¶¶ 6-7; State v. Springs, 2015-Ohio-5016, 
    53 N.E.3d 804
    (2d
    Dist.). Civil judgments are collected under the authority of R.C. 2333.21 which provides
    as follows:
    The judge may order any property of the judgment debtor that is not
    exempt by law to be applied toward the satisfaction of the judgment, but the
    earnings of the judgment debtor for personal services shall be applied only
    in accordance with sections 2329.66 and 2329.70 and Chapter 2716. of the
    Revised Code.
    {¶ 21} The method of collecting civil judgments outlined in R.C. 2333.21 appears
    2
    Exemption amounts are annually updated, pursuant to R.C. 2329.66(A)(18)(B).
    Current exemption amounts are found at http://www.ohiojudges.org/Document.ashx?
    DocGuid=c6a5f473-62f4-4466-9e4f-aaf7b59c1b66.
    -10-
    to be in direct conflict with the provision in R.C. 5120.133 which authorizes the
    Department of Corrections to assist the courts in collecting court ordered obligations
    without compliance with the procedures required for aid in executions including
    garnishments and attachments of judgment debtors under Chapter 2716 of the Revised
    Code. The record is not developed to determine whether an inmate’s compensation under
    the work program or private employment while incarcerated is considered “personal
    earnings”, as defined in R.C. 2716.01. If the trial court had conducted a hearing or
    ordered responsive pleadings to Copeland’s motion to vacate costs, the record would
    have developed a factual basis to facilitate our review.
    {¶ 22} In State v. Chase, 2d Dist. Montgomery No. 26238, 2015-Ohio-545, we
    reversed the trial court’s denial of a post-conviction motion to vacate costs because the
    trial court did not make sufficient findings to permit meaningful review of its decision under
    an abuse of discretion standard. 
    Id. at ¶
    17. The minimal facts presented to the court in
    Chase are nearly identical to the facts Copeland presented to the trial court in the case
    before us. Chase stated that he earns $18.00 a month and Copeland stated that he earns
    $17.00 a month while incarcerated, which is deposited into a personal prison account.
    Both stated that out of the prison account, they must pay for their own basic hygiene and
    health care products and a $2 co-pay each time they seek medical care. In both cases,
    the trial court summarily denied the motion to vacate costs, without a hearing and without
    factual findings. In Chase, we stated, “[b]ecause the trial court’s statutory authority to
    waive costs is permissive, its decision whether to do so is reviewed under an abuse-of-
    discretion standard of review. The trial court did not present any reasons or explanation
    for its decision.” 
    Id. at ¶
    14. “The lynchpin of abuse-of-discretion review is the
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    determination whether the trial court's decision is reasonable.” 
    Id. at ¶
    17, citing AAAA
    Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 
    50 Ohio St. 3d 157
    , 161, 
    553 N.E.2d 597
    (1990). “Unless the reason or reasons for the trial court’s
    decision are apparent from the face of the record, it is not possible to determine if the
    decision is reasonable without some explanation of the reason or reasons for that
    decision.” 
    Id. Without a
    full explanation, I am at a loss as to how the trial court could
    reasonably conclude that a judgment debtor who only earns $17.00 a month is not
    indigent or has the ability to pay a court ordered judgment for costs. As in the Chase
    case, we should reverse the order of the trial court and remand this cause to the trial court
    for re-consideration of Copeland’s motion, with directions to provide a sufficient
    explanation of the reason or reasons for the trial court’s decision which would permit us
    to review that decision, should either party choose to appeal, under an abuse-of-
    discretion standard of appellate review.
    {¶ 23} I also note that Copeland’s concerns about his inability to file a timely motion
    had he not been informed at sentencing that court costs were to be imposed are
    unfounded because his motion is in fact timely. R.C. 2947.23(C) provides: “The court
    retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution,
    including any costs under section 2947.231 of the Revised Code, at the time of sentencing
    or at any time thereafter.” Post-conviction, a defendant may also seek a cancellation of
    the debt under R.C. 2303.23, which provides, “[i]f at any time the court finds that an
    amount owing to the court is due and uncollectible, in whole or in part, the court may
    direct the clerk of the court to cancel all or part of the claim. The clerk shall then effect the
    cancellation.” Thus, the trial court has jurisdiction to consider a post-conviction motion
    -12-
    to waive or cancel an order for costs, and a defendant has the right to appellate review of
    the decision on that post-conviction motion. I also would reverse and remand this matter
    for re-consideration of Copeland’s ability to pay after application of the applicable
    exemption statutes to effectuate a meaningful review.
    ..........
    HALL, J., dissenting:
    {¶ 24} There is no case law, there is no statute, there is no regulation and there is
    no exercise of discretion which requires a trial court to explicitly consider an incarcerated
    defendant’s ability to pay court costs when ruling on a post-judgment motion to waive or
    stay payment of court costs. I therefore dissent.
    {¶ 25} The imposition of court costs is governed by R.C. 2947.23, and this statute
    requires a court to impose them “against all convicted defendants, even those who are
    indigent,” State v. Fuller, 2d Dist. Montgomery No. 25380, 2013-Ohio-3274, ¶ 18, citing
    
    id. and State
    v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 46, citing State v.
    White, 
    103 Ohio St. 3d 580
    , 2004-Ohio-5989, 
    817 N.E.2d 393
    , ¶ 8 (saying that R.C.
    2947.23 “requires a court to assess costs against all convicted defendants” (Emphasis
    sic.)). What a court may do, though, is “waive the payment of costs.” (Emphasis sic.) State
    v. Joseph, 
    125 Ohio St. 3d 76
    , 2010-Ohio-954, 
    926 N.E.2d 278
    , ¶ 11. No law requires a
    trial court to “consider a defendant’s ability to pay, as required by R.C. 2929.19 for the
    imposition of financial sanctions, before imposing court costs.” (Citation omitted.) Fuller
    at ¶ 19. Accord State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 45 (saying
    that “R.C. 2929.19 is inapplicable to court costs, and the trial court need not consider a
    defendant’s ability to pay under R.C. 2929.19 prior to imposing court costs”). Therefore,
    -13-
    the trial court here did not err if it did not consider Copeland’s ability to pay before
    imposing court costs. If there is no requirement to consider ability to pay at the time of
    court cost imposition, I fail to see how a trial court is required to consider ability to pay
    when a post-judgment motion to waive or suspend collection of court costs is filed one
    week, one year or five years later. There is simply no precedent or statute to support such
    a notion.
    {¶ 26} Because authority for a trial court to consider a request for waiver of court
    costs subsequent to sentencing did not exist until the amendment of R.C. 2947.23(C),
    effective March 22, 2013, there is little case law on what a post-sentence waiver entails.
    However, it is clear that the Supreme Court has previously held that a decision whether
    to waive payment of court costs, at least at sentencing, is reviewed on an abuse of
    discretion standard. State v. Threatt, 
    108 Ohio St. 3d 277
    , 2006-Ohio-905, 
    843 N.E.2d 164
    , ¶ 23. That case also concluded “R.C. 5120.133(A), which permits the Department of
    Rehabilitation and Correction to deduct payments toward a certified judgment from a
    prisoner's account without any other required proceeding in aid of execution, is merely
    one method of collection against defendants who are incarcerated (and therefore are
    most likely indigent).” 
    Id. ¶ 13.
    If a trial court is not required to consider ability to pay court
    costs upon imposition, and if deduction of payments from a prisoner account is specifically
    authorized by statute (R.C. 5120.133), “as long as the account retains twenty-five dollars
    for inmate expenditures” (Ohio Adm.Code 5120-5-03(D)), then a trial court does not
    abuse its discretion if it does not consider ability to pay when ruling on a post-sentence
    motion to waive court costs. We have previously found no abuse of discretion when a trial
    court refused to grant a waiver of court costs for a prisoner serving a 22-year sentence
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    who had costs collected from his meager prisoner account. State v. Hawley, 2d Dist.
    Montgomery No. 25897, 2014-Ohio-731. If we were unable to find an abuse of discretion
    in Hawley, then there is no abuse of discretion with respect to Copeland whose sentence
    will end in less than 3 more years.
    {¶ 27} Likewise, on this record, there is no basis upon which to consider potential
    exemptions from collection. Appellant does not assert that the Ohio Department of
    Rehabilitation and Corrections (ODRC) failed to comply with Ohio Adm.Code 5120-5-03
    or that he raised possible exemptions or defenses under those rules. Even if he did, the
    trial court in Montgomery County, Ohio does not have jurisdiction over ODRC actions at
    Madison Correctional Institution, in Madison County, where Copeland is incarcerated. On
    this record we have no assigned error, no record to support a claimed exemption, a
    statute that specifically authorizes the payment, and no authority to consider the
    possibility of any potential exemption that is superseded by R.C. 5120.133.
    {¶ 28} Finally, although I am firmly convinced that the trial court was not required
    to consider ability to pay, the record does not support a conclusion that the trial court
    failed to do so. The trial court pointed out that Ohio Adm.Code 5120-5-03 establishes
    procedures for withdrawing money from an inmate’s account to satisfy court-ordered
    financial obligations. Division (D) states that withdrawals are allowed to satisfy these
    obligations “as long as the account retains twenty-five dollars for inmate expenditures.”
    In my opinion, the trial court recognized that statutory policy decision that the legislature
    has made determining that a prisoner does have an ability to pay provided that a minimum
    of $25.00 remains in the prisoner’s account.
    {¶ 29}   For all these reasons, I dissent.
    -15-
    .............
    Copies mailed to:
    Meagan D. Woodall
    Joseph L. Copeland
    Hon. Dennis J. Langer