State v. Young , 2013 Ohio 5061 ( 2013 )


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  • [Cite as State v. Young, 2013-Ohio-5061.]
    IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
    STATE OF OHIO                                        :
    Plaintiff-Appellee                           :        C.A. CASE NO.         25680
    v.                                                   :        T.C. NO.      08CR4839
    RODNEY T. YOUNG                                      :            (Criminal appeal from
    Common Pleas Court)
    Defendant-Appellant                          :
    :
    ..........
    OPINION
    Rendered on the      15th       day of          November           , 2013.
    ..........
    MATTHEW T. CRAWFORD, Atty. Reg. No. 0089205, Assistant Prosecuting Attorney, 301
    W. Third Street, 5th Floor, Dayton, Ohio 45422
    Attorney for Plaintiff-Appellee
    RODNEY T. YOUNG, #616224, Warren Correctional Institute, P. O. Box 120, Lebanon,
    Ohio 45036
    Defendant-Appellant
    ..........
    FROELICH, J.
    {¶ 1} Rodney T. Young appeals from a judgment of the Montgomery
    2
    County Court of Common Pleas, which denied his “motion to vacate improperly imposed
    court costs.” For the following reasons, the trial court’s judgment will be affirmed.
    {¶ 2}    In 2008, a jury found Young guilty of murder, twelve counts of felonious
    assault, carrying a concealed weapon, and illegal possession of a firearm in a liquor permit
    premises; fourteen of the fifteen counts included a firearm specification. The court also
    found Young guilty of two counts of having a weapon while under disability. The court
    merged six of the felonious assault counts and numerous firearm specifications, and
    sentenced Young to an aggregate term of 89 years to life in prison. In its judgment entry,
    the trial court did not impose any fines, but it ordered Young to pay court costs.
    {¶ 3}    Young appealed from his convictions, claiming that the trial court failed to
    merge allied offenses of similar import and should have merged additional firearm
    specifications. We affirmed in part and reversed in part, and remanded the matter to the
    trial court for further proceedings.    State v. Young, 2d Dist. Montgomery No. 23642,
    2011-Ohio-747.
    {¶ 4}    Young was resentenced in March 2011.             The trial court imposed an
    aggregate sentence of 63 years to life in prison. The trial court’s judgment entry again
    required Young to pay court costs. Young did not appeal from this judgment.
    {¶ 5}    In May 2011, Young filed an application to reopen his direct appeal, which
    we denied. None of the bases for his application concerned the imposition of court costs.
    {¶ 6}    On February 11, 2013, Young filed a “motion to vacate unlawfully imposed
    court costs.” Young argued that the trial court did not notify him at his September 2009
    sentencing hearing that he would be required to pay court costs. Young asked the court to
    3
    issue a nunc pro tunc entry, removing the requirement that he pay court costs. On February
    15, 2013, the trial court denied the motion, noting that no fines had been imposed and that it
    was “without jurisdiction to sustain Defendant’s motion as to Court Costs.”
    {¶ 7}    Young appeals from the denial of his motion. He raises one assignment of
    error, which states: “The trial court erred by imposing court costs in Appellant’s judgment
    entry without imposing them at the sentencing hearing.”
    {¶ 8}    On appeal, Young argues that the trial court did not orally impose court costs
    at the September 2009 sentencing hearing and that he was thereby denied an opportunity to
    object to the imposition of court costs. Young asks that we order the trial court to vacate
    the imposition of court costs or to allow him an opportunity to contest the court costs.
    Young relies on State v. Joseph, 
    125 Ohio St. 3d 76
    , 2010-Ohio-954, 
    926 N.E.2d 278
    .
    {¶ 9}     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. The Ohio Supreme Court has made clear that the
    trial court must orally notify a defendant at sentencing that the court is imposing court costs.
    Joseph at ¶ 22, citing Crim.R. 43(A). A trial court may waive the payment of costs, but an
    indigent defendant must move for such waiver at sentencing. Joseph at ¶ 11-12.
    {¶ 10}    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
    4
    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.).                                                 “Under such
    circumstances, principles of waiver and res judicata do not apply.” 
    Id. {¶ 11}
    Even assuming, arguendo, that the trial court failed to orally notify Young at
    the 2009 sentencing hearing that it was going to impose court costs, 1 Young’s claim is
    nevertheless barred by res judicata. Young filed a direct appeal from the 2009 judgment
    entry, but he failed to raise any assignment of error concerning the court’s imposition of
    court costs. Young sought to reopen his direct appeal, but he again did not raise the trial
    court’s failure to properly impose court costs.
    {¶ 12}        “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).
    Because Young failed to challenge the court’s imposition of court costs in his direct appeal,
    res judicata bars that claim.
    1
    Young attached a transcript of his September 3, 2009 sentencing hearing to his appellate brief. That transcript
    reflects that the trial court did not notify Young that he would be required to pay court costs. However, the transcript was not
    made part of the record on appeal. Accordingly, we cannot say, based on the record, that the trial court failed to notify Young at
    sentencing that he would be required to pay court costs. See State v. Mullett, 2013-Ohio-3041, 
    995 N.E.2d 924
    , ¶ 15 (2d Dist.)
    (video attached to the State’s reply appellate brief was not part of the record on appeal).
    5
    {¶ 13} Young’s assignment of error is overruled.
    {¶ 14} The trial court’s judgment will be affirmed.
    ..........
    HALL, J. and WELBAUM, J., concur.
    Copies mailed to:
    Matthew T. Crawford
    Rodney T. Young
    Hon. Mary L. Wiseman
    

Document Info

Docket Number: 25680

Citation Numbers: 2013 Ohio 5061

Judges: Froelich

Filed Date: 11/15/2013

Precedential Status: Precedential

Modified Date: 10/30/2014