State v. Dolman

2024 Ohio 1175
CourtOhio Court of Appeals
DecidedMarch 28, 2024
DocketWM-23-003
StatusPublished

This text of 2024 Ohio 1175 (State v. Dolman) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dolman, 2024 Ohio 1175 (Ohio Ct. App. 2024).

Opinion

[Cite as State v. Dolman, 2024-Ohio-1175.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY

State of Ohio Court of Appeals No. WM-23-003

Appellee Trial Court No. 09CR00142

v.

Alan D. Dolman DECISION AND JUDGMENT

Appellant Decided: March 28, 2024

*****

Katherine J. Zartman, Williams County Prosecuting Attorney, for appellee.

Alan D. Dolman, pro se.

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, Alan D. Dolman, appeals the September 26, 2022 order of the

Williams County Court of Common Pleas denying appellant’s motion to vacate or waive

court costs. For the reasons that follow, we affirm the trial court’s order. A. Facts and Procedural Background

{¶ 2} In 2010, appellant was convicted of six counts of illegal use of a minor in

nudity-oriented material or performance in violation of R.C. 2907.323(A)(1), a second-

degree felony; five counts of illegal use of a minor in a nudity-oriented material or

performance in violation of R.C. 2907.323(A)(3), a fifth-degree felony; and two counts of

endangering children in violation of R.C. 2919.22(B)(5), a second-degree felony.

{¶ 3} On February 22, 2010, following a sentencing hearing, the trial court issued

a sentencing entry imposing several consecutive prison terms. In addition, the trial court

ordered appellant to “pay any restitution, all costs of prosecution, any court-appointed

counsel costs, and any supervision fees permitted.” The trial court noted in its sentencing

entry that it had considered “the record, oral statements, any victim impact statement, and

if applicable, any pre-sentence report prepared.”

{¶ 4} On March 2, 2010, appellant filed a notice of appeal to this court. In his

appeal, appellant asserted eight assignments of error challenging several aspects of his

trial and sentence. On January 10, 2011, this court found all eight assignments of error

not well-taken and affirmed the trial court’s judgment. The Supreme Court of Ohio did

not accept appellant’s appeal for review.

{¶ 5} Appellant has filed several motions since his direct appeal concluded.

Among these were two motions to convert court costs to community service, one filed on

April 25, 2011 and another filed on July 8, 2016. In support of his 2011 motion,

appellant argued that he could not afford to pay the costs on his prison income, and in

2. 2016, appellant argued that payment of the costs would place an undue burden on him.

On both occasions, the trial court denied appellant’s motions without hearing, and

appellant did not appeal either ruling.

{¶ 6} On September 26, 2022, appellant filed the motion at issue in this appeal.

Appellant’s motion is styled as a “Motion to Vacate/Waive Court Cost pursuant to

§2303.23 or Waive Court Cost in lieu of Partial Payment Plan pursuant to

§2947.23(A)(1)(a) of the Ohio Revised Code.” In his motion, appellant requested that

the trial court either vacate his “court cost” due to dormancy and inability to pay or

permit appellant to make monthly payments. Within his motion, appellant specifically

claimed that as part of his sentence, he had been “ordered to pay restitution in the amount

of approximately $6,504.87 to wit $8,879.34 [sic] this day to incurring appellate fees.”

Appellant argued that he had no means to pay that amount and the judgment had become

dormant pursuant to R.C. 2329.07. Accordingly, appellant contended, the court should

find that the cost was uncollectible and vacate or waive the court costs. In support of his

motion, appellant filed an “affidavit of indigence.”

{¶ 7} The trial court denied appellant’s motion without hearing and encouraged

the appellant to contact the clerk’s office to set up a payment plan. On October 18, 2022,

appellant filed a request for findings of fact and conclusions of law, and the trial court

denied the request on December 1, 2022. The trial court explained that R.C.

2947.23(A)(1)(a) requires a sentencing court to include the costs of prosecution in a

3. sentence, and given the pleadings, the record, and the pre-sentence investigation report,

the sentencing court had met its obligation under R.C. 2929.19(B)(5).

{¶ 8} The trial court’s record contains an invoice from the clerk’s office for

appellant’s case dated September 27, 2022. This invoice, which is eight pages long,

contains numerous entries for charges dating from 2009, with an invoice total of

$8,887.34. The entries contain various shorthand or abbreviated notations next to them,

with many charges containing the notation “clerk fees.” The last two entries on the

invoice were from September 26 and September 27, 2022, and these two entries together

were for $8.00. Accordingly, before appellant filed his motion on September 26, 2022,

appellant’s invoice total with the clerk’s office was $8,879.34, the amount cited by

appellant in his motion to vacate or waive court costs.

B. Assignment of Error

{¶ 9} Appellant timely1 appealed and asserts the following error for our review:

Trial counsel [sic] abused its discretion when it failed to conduct any inquiry as to

Appellant’s present or future ability to pay the amount of the sanction and its

denial of appellant’s Motion to Vacate/Waive Court Cost.

1 Appellant filed his notice of appeal on February 13, 2023 challenging the trial court’s September 26, 2022 order. In a previous order, this court held that appellant’s notice of appeal was timely filed pursuant to Civ.R. 58 and App.R. 4 because a notation of service of the September 26, 2022 order was not made on the trial court’s appearance docket, and therefore the time to appeal the judgment had not lapsed.

4. II. Law and Analysis

{¶ 10} Although the assignment of error is framed generically, appellant alleges in

his brief that the trial court ordered him to pay $6,503.87, now $8,879.34 due to interest

and/or fees, as restitution as part of his sentence. Appellant points out that no separate

restitution hearing was held in his case, he was sentenced to a prison term of over 50

years and will be over 90 years old at the completion of his sentence, and appellant did

not have any significant financial assets at the time of his sentence. Appellant argues that

because a sentencing court must consider an offender’s ability to pay before imposing a

financial sanction and appellant does not have the ability to pay, the trial court abused its

discretion in ordering restitution and in denying appellant’s motion to vacate or waive

court costs.

{¶ 11} The state responds that appellant’s assignment of error is barred by res

judicata because appellant’s appeal involves an issue—whether the trial court could have

ordered appellant to pay restitution—that could have been raised on direct appeal. The

state also contends that the trial court did consider appellant’s ability to pay when the

court ordered restitution in the amount of $6,503.87, pointing to the portion of the

sentencing entry in which the court noted its consideration of “the record, oral statements,

any victim impact statement, and if applicable, any pre-sentence report prepared.”

{¶ 12} In his reply brief, appellant recharacterizes the amount he owes as costs of

prosecution, arguing that R.C. 2947.23 permits a court to waive, suspend or modify the

costs of prosecution at any time and therefore res judicata should not apply. Appellant

5.

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Cite This Page — Counsel Stack

Bluebook (online)
2024 Ohio 1175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dolman-ohioctapp-2024.