State v. Hawley , 2014 Ohio 731 ( 2014 )

[Cite as State v. Hawley, 2014-Ohio-731.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25897
v. : T.C. NO. 06CR348
JAMIE HAWLEY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of February , 2014.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JAMIE HAWLEY, #545-292, Lebanon Correctional Institute, P. O. Box 56, Lebanon, Ohio
45036
Defendant-Appellant
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FROELICH, P.J.
{¶ 1} Jamie Hawley appeals from the trial court’s denial of his motion to vacate
and/or suspend court costs. For the following reasons, the trial court’s judgment will be
affirmed.
{¶ 2} In 2007, Hawley was convicted after a jury trial in the Montgomery County
Court of Common Pleas of aggravated burglary, attempted felonious assault, kidnapping,
and grand theft of a motor vehicle. The trial court imposed a sentence of ten years for
aggravated burglary, five years for attempted felonious assault, six years for kidnapping, and
twelve months for grand theft. All counts were to be served consecutively to each other and
consecutively to a sentence imposed in Geauga County. The trial court did not orally notify
Hawley at sentencing that he would be required to pay court costs, but an order to pay court
costs was included in the trial court’s judgment entry.
{¶ 3} Hawley appealed from his convictions. Hawley’s original appellate
counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967). However, upon our independent review, we identified a non-frivolous
issue related to the denial of Hawley’s motion to suppress a show-up identification, and we
appointed new counsel. Hawley’s new counsel also filed an Anders brief, arguing that any
error in the failure to suppress the identification was harmless beyond a reasonable doubt.
Upon our independent review, we affirmed Hawley’s convictions. State v. Hawley, 2d Dist.
Montgomery Nos. 22019, 22053, 2010-Ohio-838.
{¶ 4} On March 4, 2013, Hawley filed a motion with the trial court to vacate
and/or suspend court costs totaling “over $2,000.” He argued that court costs were included
in the trial court's judgment entry, but he was not informed at sentencing that he would have
to pay court costs. In May 2013 (before the trial court ruled on his March 2013 motion),
Hawley filed a nearly identical motion, updating the amount of court costs to $2,500.
{¶ 5} On May 30, 2013, the trial court denied Hawley’s motions, reasoning that
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Hawley had not asked for a waiver of court costs at sentencing and that there was no
statutory authority upon which the trial court could now waive or suspend court costs. The
court further stated that, even if such authority existed, the trial court would overrule the
motion. The trial court reasoned that a trial court may assess costs against an indigent
defendant and noted that, even when a defendant is required to pay court costs, the
defendant's inmate account must retain $10 for inmate expenditures. The trial court thus
denied the motions, but ordered that $10 remain in Hawley’s inmate account. Hawley did
not appeal the trial court’s ruling.
{¶ 6} On August 21, 2013, Hawley moved the trial court to vacate and/or suspend
court “fines” totaling $2,000. Hawley argued that his trial counsel provided ineffective
assistance by failing to seek a waiver of court costs at sentencing due to Hawley’s indigence.
On August 27, 2013, in a decision identical to the one filed on May 30, the trial court again
denied Hawley’s motion.
{¶ 7} Hawley appeals from the denial of his motion to vacate and/or suspend
court “fines.” He argues that he is indigent and that he did not agree at sentencing to pay
court costs. Hawley asserts that his trial counsel was ineffective in failing to seek a waiver
of the payment of court costs at sentencing.
{¶ 8} Under R.C. 2947.23, a trial court is required to impose “the costs of
prosecution” against all convicted defendants and render a judgment against the defendant
for such costs, even those who are indigent. See State v. White, 103 Ohio St.3d 580,
2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. On March 18, 2010, two weeks after we affirmed
Hawley’s convictions on direct appeal, the Ohio Supreme Court held that a trial court must
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orally notify a defendant at sentencing that the court is imposing court costs. State v.
Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22, citing Crim.R. 43(A). A
trial court may waive the payment of costs but, pursuant to the laws applicable to Joseph, an
indigent defendant must move for such waiver at sentencing. Joseph at ¶ 11-12.
{¶ 9} When the trial court fails to impose court costs at sentencing, a defendant
does not waive for appeal any challenge to the court's imposition of court costs in the
sentencing entry. See State v. Lewis, 2d Dist. Montgomery No. 25225, 2013-Ohio-1581, ¶
13; Joseph at ¶ 22. The trial court’s failure “is not harmless because it deprives the
defendant of an opportunity to contest the imposition of court costs.” State v. Lunsford, 193
Ohio App.3d 195, 2011-Ohio-964, 951 N.E.2d 464, ¶ 15 (2d Dist.).
{¶ 10} Hawley claims that the trial court should have vacated the requirement that
he pay court costs, because he was prejudiced by his trial counsel’s failure to request a
waiver of payment at sentencing. Hawley’s claim of ineffective assistance of trial counsel
is barred by res judicata. “Pursuant to the doctrine of res judicata, a valid final judgment on
the merits bars all subsequent actions based on any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.
Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Township, 73 Ohio
St.3d 379, 653 N.E.2d 226 (1995). Res judicata applies to any defense that was raised or
could have been raised in a criminal defendant’s prior direct appeal from his conviction
and/or sentence. Id., citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). The
issues of the trial court’s alleged failure to orally notify Hawley of court costs at sentencing
and of his trial counsel’s alleged ineffectiveness were not raised in Hawley’s direct appeal.
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Because he failed to challenge the court’s imposition of court costs in his direct appeal, res
judicata bars those claims.
{¶ 11} We recognize that both of Hawley’s appellate counsel filed an Anders brief.
To the extent that Hawley believes that his appellate counsel in his direct appeal rendered
ineffective assistance by failing to raise either the court’s imposition of court costs or his
trial counsel’s ineffectiveness in failing to seek a waiver of court costs, the proper remedy is
to seek to reopen his direct appeal and/or to file a timely petition for post-conviction relief.
We state no opinion about whether either of those remedies remains available to Hawley
and/or would be successful.
{¶ 12} The trial court denied Hawley’s motion to vacate court costs, in part, on the
ground that it had no statutory authority to do so. We note that 2012 Sub.H.B. 247 made
several substantive changes to R.C. 2947.23, effective March 22, 2013. R.C. 2947.23(C)
now 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.” 2012 Sub.H.B. 247 also authorized courts
to cancel claims for costs due the court, if the amounts are uncollectible. The provisions
state, “If 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.” See R.C.1901.263 (municipal
court); R.C.1905.38 (mayor's court); R.C.1907.25 (county court); R.C.1925.151 (small
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. 2503.33 (supreme
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court). We believe these statutory provisions give authority to the trial court to consider
waiving court costs even after sentencing. We find no indication that the trial court
considered these statutory provisions.
{¶ 13} Regardless, the trial court held that it would deny Hawley’s request to
vacate court costs even if it had statutory authorization to do so. As stated above, R.C.
2947.23 requires the trial court to impose court costs, regardless of indigency. State v. Lux,
2d Dist. Miami No.2010 CA 30, 2012-Ohio-112, ¶ 46, citing White, 103 Ohio St.3d 580,
2004-Ohio-5989, 817 N.E.2d 393, at ¶ 8. “A trial court has no duty to waive court costs; it
has discretion whether to do so, and R.C. 2949.092 does not provide standards for the
exercise of that discretion.” State v. Fuller, 2d Dist. Montgomery No. 25380,
2013-Ohio-3274, ¶18, citing Lux at ¶ 47. We cannot find that the trial court abused its
discretion when it determined that Hawley should be required to pay court costs, provided
that a minimum balance of $10 remained in his inmate account for inmate expenditures.
{¶ 14} Hawley’s assignment of error is overruled.
{¶ 15} The trial court’s judgment will be affirmed.
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HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Michele D. Phipps
Jamie Hawley
Hon. Dennis J. Langer