[Cite as State v. Burmeister, 2019-Ohio-4927.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2019-P-0053 - vs - :
JESSICA D. BURMEISTER a.k.a. : JESSICA D. NAGY,
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00769.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, Theresa M. Scahill¸ Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266. (For Plaintiff-Appellee).
Jessica Burmeister, a.k.a. Jessica D. Nagy, pro se, W099-552, Northeast Reintegration Center, 2675 East 30th Street, Cleveland, Ohio 44115. (Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Jessica D. Burmeister (a.k.a. Jessica D. Nagy) (“Ms. Nagy”),
appeals from the Portage County Court of Common Pleas’ judgment denying her motion
to use community service hours performed in prison in lieu of costs and/or fines. The trial
court denied her motion but granted her the option to do community work service through
the adult probation department until her costs and fine are paid in full. {¶2} Ms. Nagy appealed, contending the trial court abused its discretion in
denying her motion and violated her rights to equal protection and due process.
{¶3} We find Ms. Nagy’s contentions to be without merit as we are unaware of
any authority that would allow past community service performed in prison to apply to
court costs or fines. Ms. Nagy, however, is free to file a motion with the trial court to allow
her future community service hours performed in prison to be applied toward her court
costs and fine and/or to waive her costs due to her indigent status pursuant to R.C.
2947.23. Thus, finding the trial court did not abuse its discretion, we affirm the judgment
of the Portage County Court of Common Pleas.
Substantive and Procedural Facts
{¶4} On October 31, 2016, on bindover from the Portage County Municipal Court
to the Portage County Court of Common Pleas, the grand jury charged Ms. Nagy with
one count of unauthorized use of a motor vehicle, a fifth-degree felony, in violation of R.C.
2913.03(B).
{¶5} Ms. Nagy subsequently entered a written guilty plea. On April 11, 2017,
Ms. Nagy was sentenced to a term of community control and ordered to pay a $300 fine
and $488 in costs within 36 months. If she was unable to pay her court costs or fine or
follow her payment schedule, the court ordered her “to perform 79 hours of community
service in an amount of $10.00 per hour, not more than forty hours per week until the
judgment is paid or until the court is satisfied that [she] is in compliance with the approved
payment schedule.”
{¶6} The adult probation department filed a motion to modify or revoke Ms.
Nagy’s community control sanctions for violating the terms of her community control. The
2 court sentenced Ms. Nagy to a one-year term of imprisonment concurrent to a prison
sentence Ms. Nagy was already serving in an unrelated case.
{¶7} On March 20, 2018, Ms. Nagy filed a “motion to credit prison community
service towards court costs and fines.” Ms. Nagy then filed two more motions to credit
her prior prison community service toward her court costs and fine on May 15, 2018, and
March 19, 2019, respectively. In her motions, Ms. Nagy requested that a portion (250
hours) of the 1310 hours of her prior prison community service be applied toward her
outstanding costs and fine. In denying her motion without a hearing, the court stated that
“Defendant is granted until March 17, 2020 to pay in full. The Defendant may do
Community Work Service of up to forty (40) hours per week at $10.00 per hour to pay
towards Defendant’s cost until paid in full through the Adult Probation Department.”
{¶8} Ms. Nagy now appeals, raising two assignments of error for our review:
{¶9} “[1.] The trial court abused its discretion when it denied the defendant’s
motion requesting to use community work service hours performed in prison to pay off
her court costs and fines.
{¶10} “[2.] The denial of crediting defendant’s community service against costs
and fines is a violation of defendant’s rights under the Equal Protection Clause of the
Fourteenth Amendment to the United states Constitution and Section 16, Article I of the
Ohio Constitution, and Due Process Clause of the Fifth Amendment, and Ohio Revised
Code section 2947.23.”
Standard of Review
{¶11} “R.C. 2947.23 requires a trial court to assess costs against all criminal
defendants, even if the defendant is indigent.” State v. Clinton, 153 Ohio St.3d 422, 2017-
3 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. Lundy,
3d Dist. Allen No. 1-18-11, 2018-Ohio-2243, ¶6, citing 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).
{¶12} We review a trial court's decision denying an indigent criminal defendant's
postjudgment motion to waive, suspend, or modify payment of court costs under an abuse
of discretion standard. State v. Fomby, 11th Dist. Lake No. 2012-L-073, 2013-Ohio-2821,
¶58, citing State v. Anderson, 11th Dist. Geauga No. 2011-G-3044, 2012-Ohio-4203, ¶42.
See also State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph four of the
syllabus (“A court’s denial of an indigent criminal defendant’s motion for waiver of
payment of costs is reviewed under an abuse-of-discretion standard”).
{¶13} An abuse of discretion is a term of art, “connoting judgment exercised by a
court, which does not comport with reason or the record.” State v. Underwood, 11th Dist.
Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667,
676-78 (1925). Stated differently, an abuse of discretion is the trial court’s “‘failure to
exercise sound, reasonable, and legal decision-making.’” Id., quoting State v. Beechler,
2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11
(8th Ed.Rev.2004).
4 {¶14} In Ms. Nagy’s first assignment of error, she contends the trial court abused
its discretion in denying her motion to credit prison community service towards her court
costs and fine. In her second assignment of error, she contends the trial court’s denial of
her motion violated her rights under the Equal Protection Clause and Due Process Clause
of the Fourteenth and Fifth Amendment to the United States Constitution and Section 16,
Article I of the Ohio Constitution. As these assignments are interrelated, we will address
them together.
{¶15} Ms. Nagy fails to establish how the trial court abused its discretion in
denying her motion to credit her past community service hours performed in prison toward
her court costs and fine. We are unaware of any authority, nor does Ms. Nagy cite to any
authority, that would allow a court to apply community service already performed as a
credit toward imposed court costs and fines. Ms.
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[Cite as State v. Burmeister, 2019-Ohio-4927.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2019-P-0053 - vs - :
JESSICA D. BURMEISTER a.k.a. : JESSICA D. NAGY,
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00769.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, Theresa M. Scahill¸ Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266. (For Plaintiff-Appellee).
Jessica Burmeister, a.k.a. Jessica D. Nagy, pro se, W099-552, Northeast Reintegration Center, 2675 East 30th Street, Cleveland, Ohio 44115. (Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Jessica D. Burmeister (a.k.a. Jessica D. Nagy) (“Ms. Nagy”),
appeals from the Portage County Court of Common Pleas’ judgment denying her motion
to use community service hours performed in prison in lieu of costs and/or fines. The trial
court denied her motion but granted her the option to do community work service through
the adult probation department until her costs and fine are paid in full. {¶2} Ms. Nagy appealed, contending the trial court abused its discretion in
denying her motion and violated her rights to equal protection and due process.
{¶3} We find Ms. Nagy’s contentions to be without merit as we are unaware of
any authority that would allow past community service performed in prison to apply to
court costs or fines. Ms. Nagy, however, is free to file a motion with the trial court to allow
her future community service hours performed in prison to be applied toward her court
costs and fine and/or to waive her costs due to her indigent status pursuant to R.C.
2947.23. Thus, finding the trial court did not abuse its discretion, we affirm the judgment
of the Portage County Court of Common Pleas.
Substantive and Procedural Facts
{¶4} On October 31, 2016, on bindover from the Portage County Municipal Court
to the Portage County Court of Common Pleas, the grand jury charged Ms. Nagy with
one count of unauthorized use of a motor vehicle, a fifth-degree felony, in violation of R.C.
2913.03(B).
{¶5} Ms. Nagy subsequently entered a written guilty plea. On April 11, 2017,
Ms. Nagy was sentenced to a term of community control and ordered to pay a $300 fine
and $488 in costs within 36 months. If she was unable to pay her court costs or fine or
follow her payment schedule, the court ordered her “to perform 79 hours of community
service in an amount of $10.00 per hour, not more than forty hours per week until the
judgment is paid or until the court is satisfied that [she] is in compliance with the approved
payment schedule.”
{¶6} The adult probation department filed a motion to modify or revoke Ms.
Nagy’s community control sanctions for violating the terms of her community control. The
2 court sentenced Ms. Nagy to a one-year term of imprisonment concurrent to a prison
sentence Ms. Nagy was already serving in an unrelated case.
{¶7} On March 20, 2018, Ms. Nagy filed a “motion to credit prison community
service towards court costs and fines.” Ms. Nagy then filed two more motions to credit
her prior prison community service toward her court costs and fine on May 15, 2018, and
March 19, 2019, respectively. In her motions, Ms. Nagy requested that a portion (250
hours) of the 1310 hours of her prior prison community service be applied toward her
outstanding costs and fine. In denying her motion without a hearing, the court stated that
“Defendant is granted until March 17, 2020 to pay in full. The Defendant may do
Community Work Service of up to forty (40) hours per week at $10.00 per hour to pay
towards Defendant’s cost until paid in full through the Adult Probation Department.”
{¶8} Ms. Nagy now appeals, raising two assignments of error for our review:
{¶9} “[1.] The trial court abused its discretion when it denied the defendant’s
motion requesting to use community work service hours performed in prison to pay off
her court costs and fines.
{¶10} “[2.] The denial of crediting defendant’s community service against costs
and fines is a violation of defendant’s rights under the Equal Protection Clause of the
Fourteenth Amendment to the United states Constitution and Section 16, Article I of the
Ohio Constitution, and Due Process Clause of the Fifth Amendment, and Ohio Revised
Code section 2947.23.”
Standard of Review
{¶11} “R.C. 2947.23 requires a trial court to assess costs against all criminal
defendants, even if the defendant is indigent.” State v. Clinton, 153 Ohio St.3d 422, 2017-
3 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. Lundy,
3d Dist. Allen No. 1-18-11, 2018-Ohio-2243, ¶6, citing 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).
{¶12} We review a trial court's decision denying an indigent criminal defendant's
postjudgment motion to waive, suspend, or modify payment of court costs under an abuse
of discretion standard. State v. Fomby, 11th Dist. Lake No. 2012-L-073, 2013-Ohio-2821,
¶58, citing State v. Anderson, 11th Dist. Geauga No. 2011-G-3044, 2012-Ohio-4203, ¶42.
See also State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph four of the
syllabus (“A court’s denial of an indigent criminal defendant’s motion for waiver of
payment of costs is reviewed under an abuse-of-discretion standard”).
{¶13} An abuse of discretion is a term of art, “connoting judgment exercised by a
court, which does not comport with reason or the record.” State v. Underwood, 11th Dist.
Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667,
676-78 (1925). Stated differently, an abuse of discretion is the trial court’s “‘failure to
exercise sound, reasonable, and legal decision-making.’” Id., quoting State v. Beechler,
2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11
(8th Ed.Rev.2004).
4 {¶14} In Ms. Nagy’s first assignment of error, she contends the trial court abused
its discretion in denying her motion to credit prison community service towards her court
costs and fine. In her second assignment of error, she contends the trial court’s denial of
her motion violated her rights under the Equal Protection Clause and Due Process Clause
of the Fourteenth and Fifth Amendment to the United States Constitution and Section 16,
Article I of the Ohio Constitution. As these assignments are interrelated, we will address
them together.
{¶15} Ms. Nagy fails to establish how the trial court abused its discretion in
denying her motion to credit her past community service hours performed in prison toward
her court costs and fine. We are unaware of any authority, nor does Ms. Nagy cite to any
authority, that would allow a court to apply community service already performed as a
credit toward imposed court costs and fines. Ms. Nagy, however, is free to file a motion
to allow her community service hours performed while in prison to be applied toward her
costs or fine, for an extension of time to pay, and/or to waive her court costs due to her
indigent status. 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.” (Emphasis added.) R.C.
2947.23(C). She simply needs to file the appropriate motion requesting the appropriate
relief, which the trial court may grant in its discretion.
{¶16} Ms. Nagy argues that the trial court improperly interchanged “community
control” with “community service” and ordered her to pay her court costs and fine through
community service when it sentenced her to a term of community control. A review of the
trial court’s original sentencing entry, however, reveals no such confusion. The trial court
5 never ordered Ms. Nagy to perform community service in lieu of payment of her court
costs and fine. Rather, as part of Ms. Nagy’s initial sentence to community control, the
court imposed courts costs and a fine and properly notified Ms. Nagy in accordance with
R.C. 2947.23 of the consequences should she fail to pay her court costs .
{¶17} Thus, in relevant part, R.C. 2947.23(A)(1)(a) states “* * * If the judge * * *
imposes a community control sanction * * * , the judge * * *, when imposing the sanction,
shall notify the defendant of both of the following:
{¶18} “(i) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule approved by the court, the
court may order the defendant to perform community service until the judgment is paid or
until the court is satisfied that the defendant is in compliance with the approved payment
schedule.
{¶19} “(ii) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly credit rate per hour
of community service performed, and each hour of community service performed will
reduce the judgment by that amount.”
{¶20} In Ms. Nagy’s case, the trial court ordered “that the Defendant is assessed
a $300.00 fine, the indigent assessment and recoupment fee and the approximate
$488.00 costs (as of today’s date) of these proceedings, to be paid within thirty-six
months. If you are unable to pay the judgment for fines or court costs or are unable to
follow your payment schedule the court orders you to perform 79 hours of community
service in an amount of $10.00 per hour, not more than forty hours per week until the
6 judgment is paid or until the court is satisfied that you are in compliance with the approved
{¶21} The notifications at her initial sentencing were conditional consequences
should Ms. Nagy fail to pay her court costs and fine, a happenstance that is pure
conjecture at this point in time. In its most recent judgment, the subject of this appeal,
the trial court modified its order to allow Ms. Nagy the option of payment or community
service.
{¶22} Quite simply, the “discretion to [modify or] waive court costs includes the
discretion not to [modify or] waive them.” State v. Gilbert, 8th Dist. Cuyahoga No. 104355,
2016-Ohio-8308, ¶6, citing State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-
1546, ¶13. This is especially so, where, as here, the appropriate relief was not requested.
{¶23} The judgment of the Portage County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.