State v. Lundy , 2018 Ohio 2243 ( 2018 )

[Cite as State v. Lundy, 2018-Ohio-2243.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-18-11
v.
MICHAEL L. LUNDY, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2012 0236
Judgment Reversed and Cause Remanded
Date of Decision: June 11, 2018
APPEARANCES:
Michael Lundy, Appellant
Jana E. Emerick for Appellee
Case No. 1-18-11
PRESTON, J.
{¶1} Although originally placed on our accelerated calendar, we have elected
pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry.
Defendant-appellant, Michael L. Lundy (“Lundy”), pro se, appeals the February 6,
2018 judgment entry of the Allen County Court of Common Pleas denying his
motion to waive, suspend, or modify payment of court costs. For the reasons that
follow, we reverse.
{¶2} In 2013, Lundy was convicted of rape, kidnapping, and aggravated
burglary, and sentenced to a cumulative term of 40 years in prison. State v. Lundy,
3d Dist. Allen No. 1-3-52, 2014-Ohio-5003, ¶ 1-2. Lundy was classified as a Tier
III sex offender. (Doc. Nos. 216, 217). This court affirmed Lundy’s conviction.
Id. at ¶ 41, 64.1
{¶3} On February 5, 2018, Lundy, pro se, filed a motion to waive, suspend,
or modify payment of court costs. (Doc. No. 245). On February 6, 2018, the trial
court denied Lundy’s motion after concluding that it was barred by the doctrine of
res judicata. (Doc. No. 246).
{¶4} On February 23, 2018, Lundy filed a notice of appeal. (Doc. No. 248).
He raises one assignment of error for our review.
1
In Lundy’s direct appeal, this court recited much of the factual and procedural background of this case, and
we will not duplicate those efforts here. See State v. Lundy, 3d Dist. Allen No. 1-3-52, 2014-Ohio-5003.
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Case No. 1-18-11
Assignment of Error
The Trial Court Erred and Abused its Authority to Overrule
Plaintiff [sic] Motion for Court Cost and Fines R.C. §2949.41 [sic],
Allows for the Collection of Costs Only Against “Non” Indigent
Persons Courts Deem Indigent
{¶5} In his assignment of error, Lundy argues that the trial court erred by
denying his motion to waive, suspend, or modify payment of court costs.
{¶6} “R.C. 2947.23 requires a trial court to assess costs against all criminal
defendants, even if the defendant is indigent.” State v. Clinton, ___ Ohio St.3d ___,
2017-Ohio-9423, ¶ 239. If a defendant moves to waive, suspend, or modify costs,
the trial court, in its discretion, may waive, suspend, or modify payment of those
costs. State v. Hanford, 8th Dist. Cuyahoga No. 106220, 2018-Ohio-1309, ¶ 17,
citing State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 13 and
State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. A “trial
court ‘retains jurisdiction to waive, suspend, or modify the payment of the costs of
prosecution * * *, at the time of sentencing or any time thereafter.’” Id., quoting
R.C. 2947.23(C).
{¶7} We review a trial court’s decision denying an indigent-criminal
defendant’s post-judgment motion to waive, suspend, or modify payment of court
costs under an abuse-of-discretion standard. State v. Taylor, 2d Dist. Montgomery
No. 27539, 2018-Ohio-1649, ¶ 12, citing State v. Dunson, 2d Dist. Montgomery No.
26990, 2016-Ohio-8365, ¶ 6, appeal accepted, 150 Ohio St.3d 1442, 2017-Ohio-
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Case No. 1-18-11
7843 and State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797.
See also State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph four of the
syllabus. An abuse of discretion suggests that a decision is unreasonable, arbitrary,
or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{¶8} In this case, the trial court erroneously concluded that Lundy’s motion
to waive, suspend, or modify court costs is barred by the doctrine of res judicata.
R.C. 2947.23 was amended, effective March 22, 2013, granting a trial court
continuing jurisdiction to consider a defendant’s post-judgment motion to suspend,
vacate, or modify costs. See State v. Braden, 10th Dist. Franklin No. 17AP-48,
2017-Ohio-7903, ¶ 8, appeal accepted, 151 Ohio St.3d 1526, 2018-Ohio-557. As
such, a defendant—whose judgment of conviction and sentence became final after
March 22, 2013—may file a motion to suspend, vacate, or modify costs at any time.
See id.; Hanford at ¶ 17, citing State v. Williams, 8th Dist. Cuyahoga No. 105590,
2018-Ohio-845, ¶ 39, citing State v. Beasley, ___ Ohio St.3d ___, 2018-Ohio-493,
¶ 265.
{¶9} The judgment of Lundy’s conviction and sentence became final on
November 10, 2014. Lundy, 2014-Ohio-5003, at ¶ 1, 64. Accordingly, the trial
court retained jurisdiction to consider Lundy’s post-judgment motion to waive,
suspend, or modify the payment court costs—that is, it is not barred by the doctrine
of res judicata. Therefore, the trial court abused its discretion by denying Lundy’s
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Case No. 1-18-11
motion to waive, suspend, or modify the payment of court costs without addressing
the merits of his motion. See Taylor, 2018-Ohio-1649, at ¶ 19.
{¶10} Lundy’s assignment of error is sustained.
{¶11} Having found error prejudicial to the appellant herein in the particulars
assigned and argued in his assignment of error, we reverse the judgment of the trial
court and remand the matter for the trial court to consider Lundy’s motion.2
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
2
The Supreme Court of Ohio is presently considering what a trial court must consider when exercising its
discretion in ruling on a post-judgment motion to waive, suspend, or modify the payment of court costs. State
v. Dunson, 150 Ohio St.3d 1442, 2017-Ohio-7843. See also State v. Braden, 151 Ohio St.3d 1526, 2018-
Ohio-557 (considering whether a trial court has jurisdiction under R.C. 2947.23(C) to waive, suspend, or
modify the payment of court costs in cases in which a defendant’s conviction and sentence became final prior
to the enactment of R.C. 2947.23(C)).
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