State v. Ayers , 2013 Ohio 2998 ( 2013 )


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  • [Cite as State v. Ayers, 2013-Ohio-2998.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 98927
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    RONALD AYERS
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case Nos. CR-548318 and CR-555008
    BEFORE:           Jones, P.J., Keough, J., and E.A. Gallagher, J.
    RELEASED AND JOURNALIZED:                      July 11, 2013
    ATTORNEYS FOR APPELLANT
    Timothy Young
    State Public Defender
    BY: Terrence K. Scott
    Assistant State Public Defender
    250 East Broad Street
    Suite 1400
    Columbus, Ohio 43215
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    BY: Brian R. Radigan
    Christopher D. Schroeder
    Assistant County Prosecutors
    The Justice Center, 8th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    LARRY A. JONES, SR., P.J.:
    {¶1} Defendant-appellant, Ronald Ayers, appeals the trial court’s failure to inform
    him that failure to pay court costs may result in the imposition of community service.
    We reverse.
    {¶2} In 2012, Ayers pleaded guilty in Case No. CR-548318 to one count of rape
    and pleaded guilty in Case No. CR-555008 to one count of sexual battery. The trial
    court sentenced him to a total of eight years in prison and classified him as a Tier III
    sexual offender.    The sentencing court ordered Ayers to pay court costs but waived the
    fine.
    {¶3} Ayers filed a timely appeal, raising the following assignments of error, which
    will be combined for review:
    [I]. The trial court erred by imposing court costs without notifying Mr.
    Ayers that his failure to pay such costs may result in the court’s ordering
    him to perform community service.
    [II]. The trial court committed plain error and denied Mr. Ayers due
    process of law when it imposed court costs without proper notification that
    Mr. Ayers’ failure to pay court costs may result in the court’s ordering him
    to perform community service.
    {¶4} In the assigned errors, Ayers argues that the trial court erred in imposing
    court costs without also informing him that his failure to pay the costs may result in the
    imposition of community service.      The state concedes the error.
    {¶5} R.C. 2947.23(A)(1)1 governs judgments for costs and provides:
    Am.Sub.H.B. No. 247, Section 1, effective March 22, 2013, amended R.C. 2947.23(A)(1)
    1
    making the provision applicable only when the court sentences an offender to community control or
    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. At the time the judge or
    magistrate imposes sentence, the judge or magistrate shall notify the
    defendant of both of the following:
    (a) If the defendant fails to pay that judgment or fails to timely make
    payments towards that judgment under a payment schedule approved by the
    court, the court may order the defendant to perform community service in
    an amount of not more than forty hours per month until the judgment is paid
    or until the court is satisfied that the defendant is in compliance with the
    approved payment schedule.
    (b) If the court orders the defendant to perform the community service, the
    defendant will receive credit upon the judgment at the specified hourly
    credit rate per hour of community service performed, and each hour of
    community service performed will reduce the judgment by that amount.
    {¶6} The statutory language is clear; the “notice is mandatory and * * * a court is
    to provide this notice at sentencing.”               State v. Smith, 
    131 Ohio St. 3d 297
    ,
    2012-Ohio-781, 
    964 N.E.2d 423
    , ¶ 10.
    {¶7} In this case, the trial court failed to inform Ayers that if he did not pay his
    court costs, the trial court could impose community service.
    {¶8} Ayers claims that the remedy for the trial court’s error is for this court to
    vacate the imposition of court costs and inform the trial court that it may not impose
    community service requirements.          We disagree.     The appropriate remedy in cases such
    other nonresidential sanction.   Since Ayers was sentenced in 2012, the former version of the statute
    applies.
    as these where a trial court fails to provide the notice required by R.C. 2947.23(A)(1) is to
    vacate the portion of the trial court’s entry relative to court costs and remand the case to
    the trial court for resentencing only as to the issue of court costs.    State v. Adams, 8th
    Dist. No. 95439, 2011-Ohio-2662, ¶ 3; see also State v. Cardamone, 8th Dist. No. 94405,
    2011-Ohio-818.
    {¶9} The assignments of error are sustained.
    {¶10} The judgment of the trial court is reversed to the extent that the trial court
    failed to inform Ayers of the consequences of not paying court costs.     The case is hereby
    remanded.    On remand, a hearing shall be held for only the proper notification of the
    penalty for a failure to pay court costs.
    It is ordered that appellant recover of appellee his costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    LARRY A. JONES, SR., PRESIDING JUDGE
    KATHLEEN ANN KEOUGH, J., and
    EILEEN A. GALLAGHER, J., CONCUR
    

Document Info

Docket Number: 98927

Citation Numbers: 2013 Ohio 2998

Judges: Keough

Filed Date: 7/11/2013

Precedential Status: Precedential

Modified Date: 3/3/2016