[Cite as State v. Brazzel, 2024-Ohio-2752.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-23-1218 L-23-1219 Appellee Trial Court Nos. CR0202102490 CR0202102847
v.
Joshua Brazzel DECISION AND JUDGMENT
Appellant Decided: July 19, 2024
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
ZMUDA, J.
I. Introduction
{¶ 1} In this consolidated appeal, appellant, Joshua Brazzel, appeals the judgment
of the Lucas County Court of Common Pleas, following his admission to violating the
terms and conditions of his community control sanction in case Nos. CR 2021-2490 and CR 2021-2847.1 The trial court sentenced Brazzel to a prison term of 48 months in case
No. CR 2021-2490 and a prison term of 36 months in case No. CR 2021-2847, ordered
the sentences to be served concurrently, and imposed costs of prosecution, supervision,
and confinement in the written judgment entry of each case. Because the trial court failed
to address the discretionary costs on the record at the time of sentencing, we reverse in
part, as to imposition of discretionary costs.
II. Facts and Procedural History
{¶ 2} On September 20, 2021, Brazzel was indicted in case No. 2021-2490 on one
count of burglary in violation R.C. 2911.12(A)(2) and (D), a felony of the second degree.
On November 16, 2021, Brazzel was indicted in case No. 2021-2847 on one count of
aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(d) and one
count of aggravated possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(c),
each a felony of the second degree. Brazzel appeared for arraignment and entered pleas
of not guilty in each case.
{¶ 3} On July 19, 2022, Brazzel withdrew his previous pleas of not guilty and
entered guilty pleas to an amended charge of attempted burglary in violation of R.C.
2923.02 and 2911.12(A)(2) and (D) in case No. 2021-2490, and an amended charge of
possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(b) in case No. 2021-2847,
both felonies of the third degree. Pursuant to the plea agreement, the state requested
1 We note that Brazzel included case No. CR 2022-1274 in his appeal. On September 13, 2022, the trial court entered a dismissal by nolle prosequi as to that case; there is no final judgment to appeal in case No. CR 2022-1274.
2. dismissal of the trafficking charge in case No. 2021-2847 and dismissal of the indictment
in a third case, case No. 2022-1274. The trial court accepted the plea, found Brazzel
guilty, and continued the matter for sentencing.
{¶ 4} On September 13, 2022, the trial court held a sentencing hearing in both
cases. The trial court sentenced Brazzel to 3-year term of community control in both
cases and entered a nolle prosequi as to the trafficking count in case No. CR 2021-2847
and the indictment in case No. CR 2022-1274.
{¶ 5} In November 2022, notice of community control violations was filed in each
case, noting new criminal charges in Toledo Municipal Court and a conviction in
Sandusky County, for which Brazzel was serving a jail sentence. On November 29, 2022,
Brazzel appeared for a hearing on the community control violation. The trial court
appointed counsel and continued the hearing on the violation.
{¶ 6} On September 12, 2023, Brazzel appeared for hearing on the community
control violation, waived hearing, and admitted the violation. The trial court revoked the
community control previously imposed and ordered Brazzel to serve an aggregate prison
term of 48 months in the two cases. The trial court gave notice to Brazzel of his appellate
rights and concluded the hearing without any mention of costs.
{¶ 7} The trial court’s judgment entry in each case, however, contained an
identical order to pay costs, as follows:
Defendant found to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, and prosecution as authorized by law. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs. This order of
3. reimbursement is a judgment enforceable pursuant to law by the parties in whose favor it is entered. Defendant further ordered to pay the cost assessed pursuant to R.C. 9.92(C), 2929.18 and 2951.021 if not sentenced to ODRC. Notification pursuant to R.C. 2947.23 given.
{¶ 8} Brazzel filed a timely notice of appeal from this judgment.
III. Assignment of Error
{¶ 9} Brazzel asserts a single assignment of error on appeal, as follows:
The trial court abused its discretion when it found that appellant had, or reasonably was expected to have, the ability to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution in the judgment entry, but failed to impose such costs at sentencing, and without finding that appellant had the ability to pay.
IV. Analysis
{¶ 10} In challenging the judgment on appeal, Brazzel acknowledges that the costs
of prosecution, pursuant to R.C 2947.23, are mandatory and concedes that imposition of
costs of prosecution was not error. Therefore, Brazzel limits his appeal to imposition of
costs of supervision, confinement, and assigned counsel. The state, in opposition, argues
that the trial court retains continuing jurisdiction over “court costs” under R.C.
2947.23(C), and therefore any error may be “cured either by a nunc pro tunc order in the
trial court, by a defense motion filed in the trial court seeking to waive any costs
imposed, or by [the appellate court] directly modifying the sentencing entry related to
costs, under the provisions of R.C. 2953.08(G)(2).”
{¶ 11} We agree with Brazzel that the costs of prosecution are mandatory, and
therefore not at issue in this appeal. We disagree with the state that a trial court retains
continuing jurisdiction over all “court costs” under R.C. 2947.23, or that a nunc pro tunc
4. entry can correct the trial court’s failure to address the costs on the record at the
sentencing hearing.
{¶ 12} As we have previously noted, the costs of prosecution, imposed under R.C.
2947.23(A)(1), “do not include costs imposed under separate statutory provisions,
requiring separate determinations.” State v. Patterson, 2024-Ohio-2198, ¶ 10 (6th Dist.),
quoting State v. Walker, 2020-Ohio-839, ¶ 72 (6th Dist.), citing State v. Faulkner, 2011-
Ohio-2696, ¶ 9 (6th Dist.) (additional citation omitted.). Furthermore, a nunc pro tunc
entry is “limited in proper use to reflecting what the court actually decided, not what the
court might or should have decided or what the court intended to decide.” Patterson at ¶
9, quoting State ex rel. Davis v. Janas, 2020-Ohio-1462, ¶ 13 (additional citations
omitted.). A “nunc pro tunc entry cannot cure the failure to make the required findings at
the time of imposing sentence.” Patterson at ¶ 9, quoting State v. Bonnell, 2014-Ohio-
3177, ¶ 30, citing State v. Miller, 2010-Ohio-5705, ¶ 16.
{¶ 13} The parties also dispute the imposition of costs of supervision. However, in
this case, the trial court ordered Brazzel to pay the costs of supervision as applicable and
“if not sentenced to ODRC.” These costs are not “applicable” in appellant's case because
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[Cite as State v. Brazzel, 2024-Ohio-2752.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-23-1218 L-23-1219 Appellee Trial Court Nos. CR0202102490 CR0202102847
v.
Joshua Brazzel DECISION AND JUDGMENT
Appellant Decided: July 19, 2024
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
ZMUDA, J.
I. Introduction
{¶ 1} In this consolidated appeal, appellant, Joshua Brazzel, appeals the judgment
of the Lucas County Court of Common Pleas, following his admission to violating the
terms and conditions of his community control sanction in case Nos. CR 2021-2490 and CR 2021-2847.1 The trial court sentenced Brazzel to a prison term of 48 months in case
No. CR 2021-2490 and a prison term of 36 months in case No. CR 2021-2847, ordered
the sentences to be served concurrently, and imposed costs of prosecution, supervision,
and confinement in the written judgment entry of each case. Because the trial court failed
to address the discretionary costs on the record at the time of sentencing, we reverse in
part, as to imposition of discretionary costs.
II. Facts and Procedural History
{¶ 2} On September 20, 2021, Brazzel was indicted in case No. 2021-2490 on one
count of burglary in violation R.C. 2911.12(A)(2) and (D), a felony of the second degree.
On November 16, 2021, Brazzel was indicted in case No. 2021-2847 on one count of
aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(d) and one
count of aggravated possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(c),
each a felony of the second degree. Brazzel appeared for arraignment and entered pleas
of not guilty in each case.
{¶ 3} On July 19, 2022, Brazzel withdrew his previous pleas of not guilty and
entered guilty pleas to an amended charge of attempted burglary in violation of R.C.
2923.02 and 2911.12(A)(2) and (D) in case No. 2021-2490, and an amended charge of
possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(b) in case No. 2021-2847,
both felonies of the third degree. Pursuant to the plea agreement, the state requested
1 We note that Brazzel included case No. CR 2022-1274 in his appeal. On September 13, 2022, the trial court entered a dismissal by nolle prosequi as to that case; there is no final judgment to appeal in case No. CR 2022-1274.
2. dismissal of the trafficking charge in case No. 2021-2847 and dismissal of the indictment
in a third case, case No. 2022-1274. The trial court accepted the plea, found Brazzel
guilty, and continued the matter for sentencing.
{¶ 4} On September 13, 2022, the trial court held a sentencing hearing in both
cases. The trial court sentenced Brazzel to 3-year term of community control in both
cases and entered a nolle prosequi as to the trafficking count in case No. CR 2021-2847
and the indictment in case No. CR 2022-1274.
{¶ 5} In November 2022, notice of community control violations was filed in each
case, noting new criminal charges in Toledo Municipal Court and a conviction in
Sandusky County, for which Brazzel was serving a jail sentence. On November 29, 2022,
Brazzel appeared for a hearing on the community control violation. The trial court
appointed counsel and continued the hearing on the violation.
{¶ 6} On September 12, 2023, Brazzel appeared for hearing on the community
control violation, waived hearing, and admitted the violation. The trial court revoked the
community control previously imposed and ordered Brazzel to serve an aggregate prison
term of 48 months in the two cases. The trial court gave notice to Brazzel of his appellate
rights and concluded the hearing without any mention of costs.
{¶ 7} The trial court’s judgment entry in each case, however, contained an
identical order to pay costs, as follows:
Defendant found to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, and prosecution as authorized by law. Defendant ordered to reimburse the State of Ohio and Lucas County for such costs. This order of
3. reimbursement is a judgment enforceable pursuant to law by the parties in whose favor it is entered. Defendant further ordered to pay the cost assessed pursuant to R.C. 9.92(C), 2929.18 and 2951.021 if not sentenced to ODRC. Notification pursuant to R.C. 2947.23 given.
{¶ 8} Brazzel filed a timely notice of appeal from this judgment.
III. Assignment of Error
{¶ 9} Brazzel asserts a single assignment of error on appeal, as follows:
The trial court abused its discretion when it found that appellant had, or reasonably was expected to have, the ability to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution in the judgment entry, but failed to impose such costs at sentencing, and without finding that appellant had the ability to pay.
IV. Analysis
{¶ 10} In challenging the judgment on appeal, Brazzel acknowledges that the costs
of prosecution, pursuant to R.C 2947.23, are mandatory and concedes that imposition of
costs of prosecution was not error. Therefore, Brazzel limits his appeal to imposition of
costs of supervision, confinement, and assigned counsel. The state, in opposition, argues
that the trial court retains continuing jurisdiction over “court costs” under R.C.
2947.23(C), and therefore any error may be “cured either by a nunc pro tunc order in the
trial court, by a defense motion filed in the trial court seeking to waive any costs
imposed, or by [the appellate court] directly modifying the sentencing entry related to
costs, under the provisions of R.C. 2953.08(G)(2).”
{¶ 11} We agree with Brazzel that the costs of prosecution are mandatory, and
therefore not at issue in this appeal. We disagree with the state that a trial court retains
continuing jurisdiction over all “court costs” under R.C. 2947.23, or that a nunc pro tunc
4. entry can correct the trial court’s failure to address the costs on the record at the
sentencing hearing.
{¶ 12} As we have previously noted, the costs of prosecution, imposed under R.C.
2947.23(A)(1), “do not include costs imposed under separate statutory provisions,
requiring separate determinations.” State v. Patterson, 2024-Ohio-2198, ¶ 10 (6th Dist.),
quoting State v. Walker, 2020-Ohio-839, ¶ 72 (6th Dist.), citing State v. Faulkner, 2011-
Ohio-2696, ¶ 9 (6th Dist.) (additional citation omitted.). Furthermore, a nunc pro tunc
entry is “limited in proper use to reflecting what the court actually decided, not what the
court might or should have decided or what the court intended to decide.” Patterson at ¶
9, quoting State ex rel. Davis v. Janas, 2020-Ohio-1462, ¶ 13 (additional citations
omitted.). A “nunc pro tunc entry cannot cure the failure to make the required findings at
the time of imposing sentence.” Patterson at ¶ 9, quoting State v. Bonnell, 2014-Ohio-
3177, ¶ 30, citing State v. Miller, 2010-Ohio-5705, ¶ 16.
{¶ 13} The parties also dispute the imposition of costs of supervision. However, in
this case, the trial court ordered Brazzel to pay the costs of supervision as applicable and
“if not sentenced to ODRC.” These costs are not “applicable” in appellant's case because
the trial court sentenced him to a prison term. See State v. Eaton, 2020-Ohio-3208, ¶ 33
(6th Dist.) (“The costs of supervision are not at issue in this case because a prison term
was imposed.”).
5. {¶ 14} Finally, Brazzel challenges the costs of court-appointed counsel. We can
find nothing within the judgment entry imposing costs of court-appointed counsel and
based on this record, conclude the trial court did not impose this obligation on Brazzel.
{¶ 15} The sole challenge on appeal, therefore, concerns the trial court’s
imposition of costs of confinement in the judgment entry, after failing to include these
costs in the sentence imposed at the time of sentencing. We review the imposition of the
costs of confinement under R.C. 2953.08(A)(4) and (G)(2)(b) and will reverse if we find
it was contrary to law to impose these costs. State v. Ali, 2024-Ohio-486, ¶ 6 (6th Dist.),
citing State v. Velesquez, 2023-Ohio-1100, ¶ 6 (6th Dist.), quoting State v. Ivey, 2021-
Ohio-2138, ¶ 7 (6th Dist.), citing R.C. 2953.08(A)(4) and (G)(2)(b).
{¶ 16} R.C. 2929.18(A)(5)(ii) permits a trial court to impose costs of confinement
as part of the sentence. “Costs of confinement must be imposed on the record at the
sentencing hearing and in the judgment entry.” Patterson at ¶ 13, quoting Ali at ¶ 8
(additional citation omitted.). Because the trial court failed to impose costs of
confinement at sentencing, it could not add those costs to the judgment entry. See
Patterson at ¶ 13.
{¶ 17} Accordingly, based on the record on appeal, we find Brazzel’s sole
assignment of error well-taken, in part, as to the imposition of costs of supervision and
confinement. We otherwise affirm the judgment as to imposition of mandatory costs of
prosecution pursuant to R.C. 2947.23.
6. V. Conclusion
{¶ 18} We affirm the judgment, in part, and reverse only as to the imposition of
discretionary costs. We vacate the portion of the judgment imposing costs of supervision
and confinement. The parties are ordered to split the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed, in part, reversed, in part, and vacated.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
7.