[Cite as State v. Dunson, 2016-Ohio-8365.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 26990 Plaintiff-Appellee : : Trial Court Case No. 12-CR-1991/2 v. : : (Criminal Appeal from JAMES L. DUNSON : Common Pleas Court) : Defendant-Appellant : :
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OPINION
Rendered on the 23rd day of December, 2016.
MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
JAMES DUNSON, #A678-445, Warren Correctional Institution, Post Office Box 120, Lebanon, Ohio 45036 Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant James L. Dunson appeals from an order of the trial -2-
court overruling his post-conviction motion to vacate or stay the execution of court-
imposed costs, fines, and restitution. Dunson argues that the financial obligations
imposed as part of his criminal sentence should be waived based on his indigency and
inability to pay. Alternatively, Dunson seeks a stay of execution or an affordable payment
plan. The State asserts that the trial court did not abuse its discretion in determining that
Dunson has the ability to pay based on the ability to attach his prison account, and that
any challenge to the attachment of his prison account is not properly before this court.
{¶ 2} We conclude that the trial court abused its discretion by overruling Dunson’s
motion to waive, suspend or modify the payment of the court ordered costs,1 without
considering his indigency and ability to pay. That part of the order of the trial court is
Reversed, and this cause is Remanded to allow the trial court to consider Dunson’s
motion based on his alleged indigency and inability to pay the court ordered costs. We
conclude that the trial court did not abuse its discretion in overruling Dunson’s motion
addressed to restitution. Accordingly, that part of the trial court’s order is Affirmed.
I. The Course of Proceedings
{¶ 3} In 2013, Dunson was convicted on two counts of Murder (proximate result),
in violation of R.C. 2903.02(B), along with two firearm specifications; one count of
Aggravated Robbery (deadly weapon), in violation of R.C. 2911.01(A)(1), along with a
firearm specification; and one count of Aggravated Robbery (serious harm), in violation
of R.C. 2911.01(A)(3), along with a firearm specification. For purposes of sentencing, the
trial court merged the two murder counts, and the State elected to proceed to sentencing
1 No fine was imposed. -3-
on Count 1. The trial court also merged the Aggravated Robbery counts into Count One,
merged the firearm specifications into one firearm specification, and sentenced Dunson
to 15 years to life for Murder, and to an additional three-year term on the firearm
specification. The termination entry also ordered Dunson to pay court costs, as well as
restitution in the amount of $3,869.10. No fines were imposed. After the termination entry
was filed, Dunson was sent a cost bill for $6,199.10. On appeal, we affirmed the judgment
of the trial court. State v. Dunson, 2d Dist. Montgomery No. 25693, 2014-Ohio-234. After
his original appeal, Dunson was sent a cost bill for $92.00 for court costs assessed in the
appeal. Two years after his conviction, Dunson moved to vacate or stay court costs,
fines, mandatory fines and/or restitution, or in the alternative, requested a payment plan
or extension to pay the stated obligation. Dunson stated that he “is not attempting to avoid
the financial obligations as properly determined by the court,” but seeks repayment terms
that are not unduly harsh. In the trial court, Dunson filed an affidavit of indigency with his
motion, averring that he works at the prison and is paid $17 to $21 monthly, and that he
is without sufficient funds to pay the required costs and fees. In his motion, Dunson further
asserted that his monthly expenses ranged from $11 to over $21 per month for basic
hygiene items and medical expenses. As an alternative, Dunson offered to set up a
payment plan of $5 per month, which exceeds 25% of his average monthly income.
{¶ 4} The trial court did not hold a hearing, did not order a responsive pleading to
the motion, and did not address the evidence Dunson submitted by affidavit. The State
did not file a reply to Dunson’s motion. Two days after Dunson’s motion was filed, the trial
court summarily overruled the motion, stating the following reasons:
Upon review, the Court notes that Defendant made the choices -4-
which led to the accrual of the fees at issue, and he must take responsibility
for his conduct, as well as the resulting consequences. Moreover, there is
no evidence that Defendant is unable to make any payment toward the
costs at this time, or that he will not be able to make payments toward the
fees once his term of incarceration ends. Therefore, the Court finds that it
is not necessary to vacate or stay Defendant’s fees in this matter, and
OVERRULES Defendant’s Motion to Vacate or Stay Court Costs, Fines,
Mandatory Fines and/or Restitution.
Dkt. #16.
{¶ 5} From the order overruling the motion to vacate or stay costs and fees,
Dunson appeals. We asked the parties to file additional briefing to address whether or
what standard of indigency or ability-to-pay factors must be considered by the trial court
to identify the basis of its discretion to grant or deny a post-conviction motion to waive,
suspend or modify costs or the payment of costs, fines, fees or restitution. We further
asked for the supplemental briefing to address the question of whether an inmate’s ability
to pay from the assets in his inmate’s prison account is affected by the state and federal
statutes governing collection of civil judgments found in Chapters 2329, 2715 and 2716
of the Revised Code, and any applicable federal statute or rule, and whether the
sentencing court or the trial court where the assets are located has jurisdiction over
execution of the civil judgment by attachment of the inmate’s assets. Our entry seeking
supplemental briefs also allowed Dunson to request the appointment of counsel for this
appeal. The State filed a supplemental brief. Dunson did not ask for the appointment of
counsel and did not file a supplemental brief. -5-
II. Standard of Review
{¶ 6} The Supreme Court has held that if an indigent person, at the time of
sentencing, moves a trial court to waive the payment of court costs, appellate review of
the trial court’s decision will be under an abuse-of-discretion standard. See State v.
Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164. We have applied that
same standard of review in the context of a post-judgment motion to waive court costs or
to stay the payment thereof. See State v. Copeland, 2d Dist. Montgomery No. 26842,
2016-Ohio-7797.
{¶ 7} Based on an abuse-of-discretion standard of review, we must determine
whether the trial court’s discretionary decision not to vacate or stay execution of court
imposed costs is grossly unsound, unreasonable, illegal, or unsupported by the evidence.
State v. Woods, 2d Dist. Clark No. 2015-CA-75, 2016-Ohio-1103, ¶ 10. “Abuse of
discretion” has been defined as an attitude that is unreasonable, arbitrary, or
unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248
(1985). A decision is unreasonable if there is no sound reasoning process that would
support that decision. AAAA Enterprises, Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990).
III. The Trial Court Abused its Discretion by Failing to
Consider Dunson’s Indigency and Ability to Pay
{¶ 8} For his sole assignment of error, Dunson asserts:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING -6-
DEFENDANT-APPELLANT’S REQUEST FOR MOTION TO STAY COURT
COSTS, FINES, MANDATORY FINES AND/OR RESTITUTION.
{¶ 9} Dunson argues that the trial court abused its discretion by not vacating,
staying, or modifying payment terms for his court-imposed costs, fees, fines and
restitution. Initially, we note that Dunson was not required to pay any fine or fee other than
court costs and restitution. Therefore, we will only address the laws regarding the
payment of costs and restitution ordered as part of a criminal felony sentence.
{¶ 10} Pursuant to R.C. 2929.18(A)(1), for any order of restitution imposed as part
of a felony sentence, the statute provides that the offender may move for modification of
the payment terms at any time. Dunson cites no authority for the proposition that the trial
court may, after judgment, modify the amount of restitution, and we are not aware of any
authority for that proposition.
{¶ 11} Pursuant to R.C. 2947.23(C), “[t]he 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.”
R.C. 2303.23 provides that the trial court may cancel the imposition of costs, fees and
fines imposed in felony cases, “if at any time the court finds that an amount owing the
court is due and uncollectible.” (Emphasis added.) R.C. 2949.092 provides that the
court shall not waive any mandatory costs imposed in connection with a criminal
conviction, “unless the court determines that the offender is indigent.” (Emphasis added.)
{¶ 12} We recently addressed the issue of a trial court’s discretion in considering
a post-conviction motion to waive, suspend or modify the payment of costs imposed in a
felony conviction in State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797. -7-
We held that the trial court abused its discretion by overruling a post-conviction request
to waive or suspend the payment of costs imposed as part of a felony sentence when the
trial court failed to consider the defendant’s indigency and ability to pay. Id. at ¶ 11. The
judgment in Copeland was reversed, and the cause was remanded for the trial court to
reconsider whether Copeland was indigent and had the ability to pay the court imposed
costs. Id. at ¶ 12. As explained in the concurring opinion, in the exercise of its discretion,
the trial court may be guided by the statutes and rules governing indigency and whether
the exemption statutes render the judgment uncollectible from an inmate’s prison
account. Id. at ¶ 19 (Donovan, P.J., concurring).
{¶ 13} The State argues that the exemption statutes may only be applied during
the grievance procedure provided by the Department of Corrections rules outlining the
process of attaching an inmate’s account. We agree that the issue before us is not
whether the Department of Corrections properly applied the exemption statutes.
However, we conclude that the laws governing exemptions are available guidance to help
the trial court make a discretionary decision whether a judgment is collectible, whether a
defendant is indigent, or whether he has the ability to pay from the inmate’s account.
Before summarily denying Dunson’s motion to vacate, modify, or suspend the payment
of costs or restitution, the trial court should “determine whether the exemption statute
permits attachment and whether any other applicable statute dictates a finding of
indigency.” Copeland at ¶ 19.
{¶ 14} For the reasons articulated in Copeland, we will reverse the order of the trial
court, and remand this cause for re-consideration of Dunson’s motion to vacate, suspend,
or modify his payment of court costs. -8-
{¶ 15} With respect to Dunson’s motion as it relates to restitution, we have already
noted that we are not aware of any authority permitting a trial court, after judgment, to
modify the amount of restitution ordered. Assuming, without deciding, that a trial court
has discretion to stay the enforcement of restitution, or to modify or establish terms of
payment of restitution, we find no abuse of discretion in the trial court’s decision not to do
so in the case before us. Because the amount that may be taken from Dunson’s prison
account each month is limited by administrative regulation, and balancing the respective
interests of Dunson -- the malefactor – and the victim, upon this record we conclude that
the trial court did not abuse its discretion in declining to stay the award of restitution, or to
modify or establish payment terms for restitution.
{¶ 16} Dunson’s sole assignment of error is sustained, in part, and overruled in
part.
IV. Conclusion
{¶ 17} Dunson’s sole assignment of error having been sustained, in part, that part
of the order of the trial court overruling his motion to vacate or stay execution of court
costs is Reversed, that part of the order pertaining to restitution is Affirmed, and this cause
is Remanded for re-consideration of the motion to vacate, stay, or modify payment terms
for court costs.
FROELICH, concurs.
HALL, J., concurring in part and dissenting in part:
{¶ 18} Because I believe the majority’s conclusions regarding Dunson’s court
costs are a departure from statute and precedent, I dissent from that part of the decision. -9-
I concur in the judgment that affirms the denial of Dunson’s motion regarding restitution
but on grounds different that that expressed by the majority.
{¶ 19} James “Blood” Dunson and his accomplices were convicted of the murder
of Geoffrey Andrews during an aggravated robbery that he planned and participated in to
obtain “a couple stacks and some weed.” State v. Dunson, 2d Dist. Montgomery No.
25693, 2014-Ohio-234, ¶ 11. As required by statute, supported by applicable case law,
court costs were imposed. The court also ordered restitution in the amount of $3,869.10
to be paid Geoffrey Andrews’ mother for his funeral bill. No challenges to the imposition
of either court costs or restitution were raised in Dunson’s direct appeal, and any issues
related to the imposition of costs or restitution therefore were waived. The propriety of the
imposition of both costs and restitution is now res judicata. State v. Perry, 10 Ohio St.2d
175, 176, 226 N.E.2d 104 (1967), paragraph nine of the syllabus; State v. Getz, 12th Dist.
Butler No. CA2015-08-159, 2016-Ohio-3397, ¶ 17.
{¶ 20} Dunson’s post-judgment motion to vacate or stay costs and restitution was
filed several years after his conviction. The majority is critical that the trial court “did not
hold a hearing, did not order a responsive pleading to the motion, and did not address
the evidence Dunson submitted by affidavit.” But there is no requirement that the trial
court do any of those things. Furthermore, R.C. 5120.133 specifically allows for payment
of prisoner obligations, as limited by Ohio Adm.Code 5120-5-03(D), “as long as the
account retains twenty-five dollars for inmate expenditures.” To that extent, statutorily and
by regulation, Dunson does have an ability to pay.
{¶ 21} The majority concludes that the trial court abused its discretion by not -10-
considering Dunson’s indigency or ability to pay court costs. In support, it cites State v.
Copeland, 2d Dist., Montgomery No. 26842, 2016-Ohio-7797. In Copeland, the trial
court’s decision overruling a motion to waive or stay payment of costs cited the fact “that
the defendant will only pay court costs only [sic] if there are sufficient funds in the inmate's
account—and only as long as the account retains twenty-five dollars for inmate
expenditures.” Id., ¶ 9. The apparent holding of Copeland is that a trial court abuses its
discretion by failing to indicate in its decision overruling a post-judgment motion to waive
or stay collection of costs that it considered an offender’s present or future ability to pay
in addition to the collection procedures in R.C. 5120.133, and applicable regulations,
which specifically permit collection from a prisoner’s account as long as $25.00 remains.
Because the trial court had explicitly considered R.C. 5120.133 in overruling Copeland’s
motion, the Copeland decision necessarily holds that the trial court must do something
more than apply the applicable statute. The case was remanded “for consideration of
whether Copeland had a present or future ability to pay the court costs imposed.” Id. at
¶ 12.
{¶ 22} I dissented in Copeland stating: “There is no case law, there is no statute,
there is no regulation and there is no exercise of discretion which requires a trial court to
explicitly consider an incarcerated defendant’s ability to pay court costs when ruling on a
post-judgment motion to waive or stay payment of court costs.” Id. at ¶ 24 (Hall, J.,
dissenting). I still believe my analysis of the issue is correct. However, stare decisis would
lead me to follow a majority decision of this court. The problem is discerning a majority
holding of Copeland. The lead Copeland opinion indicates “this appeal is not about
collection of court costs from an inmate, but whether the trial court erred in denying a -11-
waiver or stay of future payment of those costs; these are separate questions.” Id. at ¶
10. The concurring opinion focuses on and relates the abuse of discretion to failure to
consider “application of Ohio’s exemption statute.” Id. at ¶ 13 (Donovan, P.J., concurring).
Specifically, the concurring opinion expresses concern about whether the “exemption”
statute, R.C. 2329.66, permits the attachment of money in a prisoner’s account. Id. at ¶
14-19. That is fundamentally a collection procedure issue which the Copeland lead
opinion specifically avoided.
{¶ 23} The only common thread in the lead and concurring opinions in Copeland
is the conclusion, in the judgment entry, that “the case is remanded for consideration of
whether Copeland had a present or future ability to pay the court costs imposed.” (Final
Entry filed November 18, 2016). Accordingly, Copeland does not have precedential value
for deciding the terms of the trial court’s reconsideration other than that it must consider
ability to pay. Copeland does not hold that upon remand “the trial court may be guided by
the statutes and rules governing indigency and whether the exemption statutes render
the judgment uncollectible from an inmate’s prison account.” Majority Opinion at ¶ 12.
The majority’s subsequent quotation of the Copeland concurring opinion for this
proposition (Majority Opinion at ¶ 13) refers to precedent where none exists. If anything,
the Copeland lead opinion and dissent rejected application of the exemption statute to
Copeland’s post-judgment motion to waive or suspend costs. The lead and concurring
opinions reversed for consideration of ability to pay but for two different reasons. I
therefore dissent from that content of the majority opinion in this case suggesting that the
exemption statute should serve as a guideline in the trial court. At most, on the authority
of Copeland, I would remand for consideration of ability to pay without further instruction. -12-
{¶ 24} I agree with the majority’s conclusion to affirm the judgment of the trial court
with respect to Dunson’s motion to vacate or stay restitution, but for reasons different than
that expressed by the majority. In my opinion, Ohio law is settled that once restitution is
properly imposed a trial court’s limited authority is to modify the payment terms that it has
imposed. R.C. 2929.18(A)(1). Here, the trial court’s judgment of conviction and sentence
states: “The Defendant is ordered to pay complete restitution to [the deceased victim’s
mother] for economic loss in the amount of $3,869.10, upon which execution is hereby
awarded to be paid through the Montgomery County Clerk of Courts.” (Termination Entry
filed March 15, 2013, at 2). There is no payment plan or payment terms and therefore no
authority to modify what does not exist. In this regard, the Twelfth District analyzed the
issue as follows:
“In matters of criminal sentencing, the trial court does not have
inherent power to act, but has only such power as is conferred by statute or
rule.” State v. Purnell, 1st Dist. Hamilton No. C-060037, 2006-Ohio-6160, ¶
10. In Purnell, the First Appellate District considered whether a trial court
has jurisdiction under R.C. 2929.18(A)(1) to increase, in a post-sentence
order, the amount of restitution it had originally imposed at sentencing. The
appellate court held that the trial court had “no statutory authority to increase
the restitution amount” after imposing sentence: “There is no statutory
authority for the trial court to exercise continuing jurisdiction to modify the
amount of a financial sanction. It can, however, modify the ‘payment terms
of any restitution[.]’ ” Id. at ¶ 9-10. Subsequently, and relying upon Purnell,
the Fifth Appellate District held that a trial court has no jurisdiction, after it -13-
journalizes the offender’s sentence, to decrease the amount of restitution
originally imposed at sentencing. State v. Corbitt, 5th Dist. Richland No.
2011-CA-107, 2012-Ohio-3795, ¶ 10-18.
We recently addressed whether a defendant can request a restitution
hearing at any time under R.C. 2929.18(A)(1) and whether a trial court
retains jurisdiction over its restitution orders. [State v.] Getz, [12th Dist.
Butler No. CA2015-08-159], 2016-Ohio-3397. Relying upon Purnell and
Corbitt, we held that a trial court “[does] not possess continuing jurisdiction
under R.C. 2929.18(A)(1) to [either] hold a restitution hearing to reconsider
the imposed financial sanctions” or to modify the amount of restitution after
sentencing. Getz at ¶ 13. See also State v. Sekic, 8th Dist. Cuyahoga No.
95679, 2011-Ohio-4809, ¶ 47 (finding there is no statutory authority allowing
a trial court to exercise continuing jurisdiction to modify the amount of
restitution after sentencing).
In the case at bar, appellant filed a motion to modify or terminate
restitution, arguing he was financially unable to pay any sum at all. The
motion did not state that it was pursuant to R.C. 2929.18(A)(1) and (E). As
phrased, appellant’s motion seemingly seeks to decrease or terminate the
amount of restitution. The trial court obviously construed appellant’s motion
in this manner. However, as stated above, a trial court does not have
continuing jurisdiction under R.C. 2929.18(A)(1) to increase, decrease, or
otherwise modify the amount of restitution after sentencing. While R.C.
2929.18(A)(1) allows an offender to “file a motion for modification of the -14-
payment terms of any restitution ordered,” the statute does not, contrary to
appellant’s assertion, allow an offender’s post-sentence motion to modify
the amount of restitution. See State v. Naylor, 2d Dist. Montgomery No.
23459, 2010-Ohio-988 (there is no mechanism in place under R.C.
2929.18[A][1] for a defendant’s post-sentence motion to modify the amount
of restitution).
State v. Downey, 12th Dist. Clermont No. CA2016-02-006, 2016-Ohio-5778, ¶ 15-17. I
agree. Dunson was not ordered to pay restitution on any payment terms, and there is
therefore nothing for the trial court to modify. The trial court is without authority to vacate,
waive, suspend, stay, or modify the restitution owed. I conclude this is a matter of lack of
legal authority, not a question of exercise of the trial court’s discretion.
{¶ 25} For the foregoing reasons, I concur in part and dissent in part.
Copies mailed to:
Mathias H. Heck, Jr. Meagan D. Woodall James Dunson Hon. Dennis J. Adkins