State v. Priest , 2014 Ohio 1735 ( 2014 )

[Cite as State v. Priest, 2014-Ohio-1735.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100614
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MYRON PRIEST
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-06-481596
BEFORE: Keough, J., Jones, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: April 24, 2014
APPELLANT
Myron Priest, pro se
Inmate No. 520-029
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} This appeal was heard on the accelerated calendar pursuant to App.R. 11.1
and Loc.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a
brief and conclusory opinion. State v. Johnson, 8th Dist. Cuyahoga No. 98594,
2013-Ohio-1788, ¶ 1, citing Crawford v. Eastland Shopping Mall Assn., 11 Ohio App. 3d
158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1(E).
{¶2} Defendant-appellant Myron Priest appeals pro se from the trial court’s
judgment denying his motion to vacate court costs and/or for resentencing. We affirm.
{¶3} In October 2006, Priest was convicted of rape, kidnapping, felonious
assault, aggravated robbery, and having a weapon while under a disability. The trial
court sentenced him to 33 years in prison and determined that he is a sexual predator.
The trial court’s sentencing entry ordered that “[d]efendant is to pay court costs.”
{¶4} Priest filed a direct appeal of his conviction and sentence; this court
reversed Priest’s conviction for having a weapon while under a disability but affirmed in
all other respects. State v. Priest, 8th Dist. Cuyahoga No. 89178, 2007-Ohio-5958.
{¶5} In July 2011, Priest filed a pro se motion in which he asked the trial court to
order a monthly installment plan for the payment of court costs. In his brief in support of
his motion, Priest stated that “defendant acknowledges his obligations to pay these court
costs and wishes to do so within his personal means,” and requested that the court order a
monthly payment of $5 from the $19 per month he earns at his prison job so he could use
the balance for other necessities. The trial court granted Priest’s motion.
{¶6} Nevertheless, in September 2012, Priest filed a motion to vacate court costs
and/or for resentencing. In his motion, Priest argued that the trial court erred in imposing
court costs because it did not advise him in open court at sentencing that it would be
imposing costs. The trial court subsequently denied Priest’s motion, and this appeal
followed.
{¶7} In his single assignment of error, Priest argues that the trial court erred in
denying his motion because the court’s failure to advise him of costs at sentencing
deprived him of the opportunity to claim indigency and seek a waiver of court costs, in
violation of his due process rights. He argues that this court should resentence him and
waive those costs. In support of his argument, Priest relies on the decision of the Ohio
Supreme Court in State v. Joseph, 125 Ohio St. 3d 76, 2010-Ohio-954, 926 N.E.2d 278.
{¶8} Priest’s argument, however, is barred by the doctrine of res judicata. As
this court stated in State v. Pettway, 8th Dist. Cuyahoga No. 98836, 2013-Ohio-1348, ¶ 5:
In Joseph, the Supreme Court held that it was reversible error under
Crim.R. 43(A) for the trial court to impose costs in its sentencing entry
when it did not impose those costs at the sentencing hearing. Joseph,
however, was decided in the context of a direct appeal from the sentencing
judgment imposing court costs. As we have previously held, Joseph does
not support the argument that a trial court’s failure to orally notify a
defendant in open court before imposing court costs can be corrected after
the appeal period expires. State v. Appleton, 8th Dist. Cuyahoga No.
97942, 2012-Ohio-2778; State v. Walker, 8th Dist. Cuyahoga No. 96305,
2011-Ohio-5270. The appropriate forum for challenging court costs is by
way of direct appeal from the sentencing entry; a defendant is barred under
the doctrine of res judicata from raising the issue in a subsequent motion or
proceeding.
{¶9} Priest could have raised the issue of court costs in his 2007 direct appeal to
this court, and has made no showing that he was precluded from raising the issue at that
time based on information in the original record. Accordingly, he is now barred from
raising the issue in a motion after his direct appeal.
{¶10} Priest contends that his motion is not barred by res judicata, however,
because void sentences are not precluded from review on direct appeal or subsequent
collateral attack. He contends that just as a trial court’s failure to impose postrelease
control renders a sentence void, so too does a trial court’s failure to advise a defendant in
open court of court costs. Priest’s argument fails. As the Ohio Supreme Court explained
in State v. Moore, 135 Ohio St. 3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 11:
In Joseph, 125 Ohio St. 3d 76, 2010-Ohio-954, 926 N.E.2d 278, we held
that an offender’s sentence is not void when a trial court fails to inform an
offender in open court of court costs. Id. at ¶ 22. The court’s waiver of
payment of court costs is discretionary, although the imposition of court
costs is mandatory. Id. at ¶ 18. Moreover, court costs are a civil, not a
criminal, matter. Id. at ¶ 20-21. “[T]he civil nature of the imposition of
court costs does not create the taint on the criminal sentence that the failure
to inform a defendant of postrelease control does.” Id. at ¶ 21.
{¶11} Because Priest’s argument is barred by the doctrine of res judicata, the
assignment of error is overruled.
{¶12} Judgment affirmed.
It is ordered that appellee recover from appellant 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.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR