State v. Hill

2015 Ohio 335

• Court: Ohio Court of Appeals
• Decided: January 29, 2015
• Docket: 14CA71
• Status: Published

Opinion

[Cite as State vs. Hill, 2015-Ohio-335.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : KENNETH HILL : Case No. 14CA71 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2005-CR-0147D

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 29, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BAMBI COUCH PAGE KENNETH HILL, Pro Se Prosecuting Attorney Inmate No. A553-178 Lebanon Correctional Institution By: JOHN C. NIEFT P.O. Box 56 Assistant Prosecuting Attorney Lebanon, OH 45036-0056 38 South Park Street Mansfield, OH 44902 Richland County, Case No. 14CA71 2

Baldwin, J.

{¶1} Defendant-appellant Kenneth Hill appeals from the August 19, 2014

Judgment Entry of the Richland County Court of Common Pleas overruling his Motion of

Waiver of Payment of Court Costs. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 9, 2005, the Richland County Grand Jury indicted appellant on

one count of attempted murder with a firearm specification, one count of felonious

assault with a firearm specification, and one count of having weapons under disability.

At his arraignment on March 11, 2008, appellant entered a plea of not guilty to the

charges.

{¶3} At the conclusion of appellant’s trial, the jury found appellant guilty of all

charges and specifications in the indictment. Pursuant to a Sentencing Entry filed on

August 22, 2008, the trial court sentenced appellant to ten years on the attempted

murder charge, three years consecutive on the firearm specification, and five years

consecutive on the weapons under disability charge. Thus, appellant’s aggregate

sentence was 18 years. The trial court also ordered appellant to pay court costs and

restitution to the victim for medical expenses and imposed five years of post release

control on appellant. The amount of the restitution, however, was not specified.

{¶4} After finding that there was no final appealable order from which an appeal

could be taken because the manner of conviction was not specified, this Court sua

sponte dismissed appellant's original appeal. Appellant was resentenced as

memorialized in an Amended Sentencing Entry that was filed on February 5, 2009. The

Amended Sentencing Entry also ordered appellant to pay court costs and restitution and Richland County, Case No. 14CA71 3

imposed five years of post release control on appellant. Appellant then appealed,

arguing that his right to a speedy trial was violated and that his convictions were against

the manifest weight of the evidence. This Court, in an Opinion filed on June 30, 2010 in

State v. Hill, 5th Dist. Richland No. 2009-CA-25, 2010-Ohio-3102, affirmed the judgment

of the trial court.

{¶5} Thereafter, on July 28, 2011, appellant filed a Motion to Resentence

Defendant, arguing that the August 22, 2008 Sentencing Entry was not a final

appealable order because it did not specify the manner of conviction. Appellee, in its

response to such motion, noted that the August 22, 2008 Sentencing Entry had been

amended after appellant’s first appeal was dismissed and that the subsequent

Amended Sentencing Entry that was filed on February 5, 2009 did contain the manner

of conviction. The trial court overruled appellant’s motion as memorialized in a

Judgment Entry filed on December 21, 2011.

{¶6} On July 11, 2012, appellant filed a Motion for Issuance of a Final

Appealable Order. Appellant, in his motion, argued that the February 5, 2009 Amended

Sentencing Entry was not final because it did not specify an amount of restitution. In an

Order filed on November 14, 2012, the trial court stated that such Entry was a final

appealable order and noted that appellant had already appealed such Entry to this

Court. The trial court stated that appellant “had a final appealable entry or he would not

have been able to prosecute his appeal.” The trial court, however, stated that it was

amending the Sentencing Entry to show that no restitution was owed because no

medical bills had been submitted to the trial court. A Second Amended Sentencing Richland County, Case No. 14CA71 4

Entry was filed on November 14, 2012 that did not order appellant to pay restitution to

the victim.

{¶7} Subsequently, appellant, on July 28, 2014, filed a Motion of Waiver of

Payment of Court Costs pursuant to Crim.R. 43(A) and R.C. 2947.23(A). Appellant, in

his motion, argued that the trial court, at his August 21, 2008 sentencing hearing, never

addressed court costs, thereby depriving him of his opportunity to challenge his ability to

pay the same. The trial court overruled appellant’s motion via a Judgment Entry filed on

August 19, 2014.

{¶8} Appellant now raises the following assignment of error on appeal:

{¶9} THE TRIAL COURT ERRED WHEN IT FAILED TO ADDRESS THE

IMPOSITION OF COURT COSTS IN OPEN COURT, BUT INCLUDED SUCH COSTS

IN THE SENTENCING ENTRY.

I

{¶10} Appellant, in his sole assignment of error, argues that the trial court erred

in overruling his July 28, 2014 Motion of Waiver of Payment of Court Costs.

{¶11} Pursuant to R.C. 2947.23(A)(1)(a), a trial court in all criminal cases shall

render judgment against a defendant for court costs. In this case, the trial court

accessed court costs against appellant as required by statute. Appellant did not object

to the payment of court costs at the time of sentencing, and did not raise the issue of

court costs in his direct appeal. Nor did appellant appeal from the trial court’s November

14, 2012 Second Amended Sentencing Entry which ordered appellant to pay court

costs. Richland County, Case No. 14CA71 5

{¶12} Because appellant failed to object or appeal the order of court costs, the

issue is res judicata as defined in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph nine of the syllabus:

Under the doctrine of res judicata, a final judgment of

conviction bars a convicted defendant who was represented

by counsel from raising and litigating in any proceeding

except an appeal from that judgment, any defense or any

claimed lack of due process that was raised or could have

been raised by the defendant at trial, which resulted in that

judgment of conviction, or on an appeal from that judgment.

{¶13} See, State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905,

843 N.E.2d 164; State v. Snelling, 5th Dist. Richland No. 13CA3, 2013–

Ohio–4180.

{¶14} Appellant’s sole assignment of error is, therefore overruled.

{¶15} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.