State v. Hunter

2021 Ohio 2423

Opinion

[Cite as State v. Hunter, 2021-Ohio-2423.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200160 TRIAL NO. B-1400110 Plaintiff-Appellee, : O P I N I O N. vs. :

TRACIE HUNTER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: July 16, 2021

Croswell & Adams Co., LPA, R. Scott Croswell, III, Merlyn D. Shiverdecker, Shumaker, Loop & Kendrick, LLP, and David F. Axelrod, Special Prosecuting Attorneys, for Plaintiff-Appellee,

Santen & Hughes, LPA, and H. Louis Sirkin, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

C ROUSE , Judge.

{¶1} Defendant-appellant Tracie Hunter appeals from the judgment of the

Hamilton County Court of Common Pleas granting in part and denying in part her

motion to mitigate court costs. For the reasons set forth below, we affirm in part and

reverse in part the judgment of the trial court, and remand the cause to the trial

court for removal of postsentencing transcript costs from the cost statement and

reconsideration of postverdict transcript costs.

I. Facts and Procedure

{¶2} On January 10, 2014, in the case numbered B-1400110, Hunter was

indicted for two counts of tampering with evidence, two counts of forgery, two counts of

having an unlawful interest in a public contract, and two counts of theft in office. On

January 14, 2014, in the case numbered B-1400199, Hunter was indicted for one charge

of misusing credit cards. The cases were consolidated for purposes of trial and the

matter was tried before a jury.

{¶3} Following a three-week trial, the jury returned a guilty verdict on one

count of having an unlawful interest in a public contract as charged in B-1400110. The

jury was unable to reach a verdict on the seven remaining counts in B-1400110 and the

one count in B-1400199. In an entry dated October 15, 2014, the trial court declared a

mistrial on the eight remaining counts. On December 5, 2014, the court sentenced

Hunter to one year of community control and six months in the Hamilton County

Justice Center. The court also ordered Hunter to pay court costs. Hunter appealed, and

on January 14, 2015, the trial court stayed the execution of her sentence.

{¶4} While the appeal was pending, the state prepared to retry Hunter on the

eight remaining counts, and the parties selected a date for the retrial. On the day the

retrial was scheduled to begin, and four days after this court affirmed Hunter’s

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conviction, the state dismissed the matter “for the reason that the defendant stands

convicted and sentenced on Count 6 of indictment No. B-1400110.”

{¶5} After execution of her sentence, Hunter filed a “Motion To Mitigate Court

Costs.” The total costs assessed against Hunter were $34,559.66. Hunter did not

dispute her ability to pay, but instead argued that the court imposed statutorily

unauthorized costs. The state did not file a response to the motion and no hearing on

the motion was held. The trial court granted in part and denied in part the motion,

agreeing to mitigate $348.00 in unauthorized costs. Thus, the court held that Hunter

was required to pay a total of $34,211.66 in court costs. Hunter filed this timely appeal,

raising one assignment of error for our review.

II. Law and Analysis

{¶6} In a single assignment of error, Hunter contends that the trial court erred

in refusing to mitigate unreasonable court costs not fairly assessed to her under R.C.

2947.23. Specifically, Hunter argues that the trial court abused its discretion in failing to

mitigate court costs for charges that failed to yield a conviction, including transcripts

unrelated to the prosecution of the case.

{¶7} R.C. 2947.23(C) grants the trial court the discretion to decide whether to

waive, suspend, or modify an order imposing court costs. State ex rel. Martin v. Russo,

160 Ohio St.3d 21, 2020-Ohio-829, 153 N.E.3d 20, ¶ 10. Thus, we review a court’s

denial of a motion to modify court costs for an abuse of discretion. Id., citing State v.

Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 24.

1. Costs of prosecution must be assessed on a per case basis, not a per charge basis.

{¶8} Hunter contends that the trial court was not statutorily authorized to

impose costs for the eight unsuccessful charges, i.e., the charges not resulting in a

conviction.

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{¶9} The parties agree that costs of prosecution can be assessed against a

defendant only if the state is successful. In State v. Lykins, 2017-Ohio-9390, 102 N.E.3d

503, ¶ 23 (4th Dist.), the court explained:

We point out that the statute indicates that a judge can include the costs

of prosecution “in the sentence.” “[T]he meaning of word ‘sentence’ in

the context of a criminal case is ‘[t]he judgment formally pronounced by

the court or judge upon the defendant after his conviction in a criminal

prosecution.’ ” State v. Powers, 117 Ohio App.3d 124, 128, 690 N.E.2d 32

(6th Dist.1996), quoting Black’s Law Dictionary 1362 (6th Ed.1990).

“Accordingly, the intent of the statute is to impose costs on a defendant

after his or her conviction.” Id. Consequently, a judge can assess the

costs of prosecution “ ‘only if the state is successful.’ ” State v.

Weddington, 4th Dist. Scioto No. 15CA3695, 2015-Ohio-5249, ¶ 13,

quoting Powers at 128[.]

{¶10} Hunter claims that the trial court abused its discretion by failing to divide

the costs of prosecution on a pro rata basis. Hunter argues that because she was

convicted of only one out of nine charges, she should be responsible for only “1/9th” of

the total costs of prosecution of those charges.

{¶11} However, the plain language of R.C. 2947.23 and the controlling case law

do not support Hunter’s pro rata argument. R.C. 2947.23(A)(1) provides, “In all

criminal cases, * * * the judge or magistrate shall include in the sentence the costs of

prosecution and render a judgment against the defendant for such costs.” (Emphasis

added.) A “case” is defined as “a prosecution of all of the charges that result from the

same act, transaction, or series of acts or transactions and that are given the same case

type designator and case number.” R.C. 2947.23 (D)(1). Thus, the plain language of the

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statute states that costs of prosecution must be assessed on a per case basis, not a per

charge basis.

{¶12} This view was affirmed by the Ohio Supreme Court in City of Middleburg

Hts. v. Quinones, 120 Ohio St.3d 534, 2008-Ohio-6811, 900 N.E.2d 1005, ¶ 9, when it

stated, “[R.C. 2947.23 (A)(1)] does not specifically authorize imposition of these costs for

each offense committed.” The court held that “trial judges are obligated to render a

judgment for costs of prosecution on a per case basis, although they may be made up of a

number of charges * * *.” Id. at ¶ 10. Thus, the law does not support Hunter’s pro rata

argument.

{¶13} Here, Hunter was charged with nine counts under two separate cases.

The cases were consolidated for trial, but the charges originated from two separate

indictments and remained two separate case numbers. The jury returned a guilty

verdict on one charge in B-140110, and the state dismissed the sole charge in B-

140199. However, there is no indication that Hunter was assessed costs for the

unsuccessful prosecution of B-140199.

{¶14} Instead, a review of the record shows that Hunter was assessed costs

for only B-140110. Although that case was made up of eight charges, it was one case

for purposes of R.C. 2947.23(D)(1). The jury returned one multi-count indictment, the

counts were given the same case-type designator, and the counts were assigned a single

case number. Hunter was successfully prosecuted on one of the eight charges. Thus, the

trial court did not abuse its discretion in rejecting Hunter’s pro rata argument and

finding that costs must be assessed on a per case basis under the case numbered B-

140110.

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2. Costs of transcripts must be “costs of prosecution” under R.C. 2947.23(A)(1).

{¶15} Hunter also contends that the trial court was not statutorily authorized to

impose the costs of transcripts, which she claims were ordered solely for the use and

benefit of the prosecution.

{¶16} In support of her argument, Hunter points to R.C. 2301.24, which states,

“The compensation shall be paid by the party for whose benefit a transcript is made.”

However, Hunter fails to recognize the next sentence in that statute, which provides:

“The compensation for transcripts requested by the prosecuting attorney * * * in

criminal cases or by the trial judge in * * * criminal cases, * * * shall be paid from the

county treasury and taxed and collected as costs.” Thus, if the prosecution requests

transcripts and the court orders transcripts, then the compensation for them may be

taxed as costs in the case.

{¶17} But this does not end our analysis. The costs of transcripts may be

included in the sentence and rendered against the defendant only if they are a “cost

of prosecution.” R.C. 2947.23(A)(1). While this phrase has not been statutorily

defined, the Ohio Supreme Court has defined “costs” as “the statutory fees to which

officers, witnesses, jurors, and others are entitled for their services in an action or

prosecution, and which the statutes authorize to be taxed and included in the

judgment or sentence.” City of Middleburg Hts., 120 Ohio St.3d 534, 2008-Ohio-6811,

900 N.E.2d 1005, at ¶ 8, quoting State ex rel. Franklin Cty. Commrs. v. Guilbert, 77

Ohio St. 333, 338, 83 N.E. 80 (1907). The court referenced several Ohio appellate

courts that have generally defined “costs of prosecution” to mean “those [expenses]

directly related to the court proceedings,” State v. Perz, 173 Ohio App.3d 99, 2007-

Ohio-3962, 877 N.E.2d 702, ¶ 36 (6th Dist.), and “the court costs incurred in the

prosecution of the case,” State v. Holmes, 6th Dist. Lucas No. L–01–1459, 2002-

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Ohio-6185, ¶ 20. Thus, Hunter is responsible only for costs that are statutorily

authorized and directly related to the successful prosecution of the underlying case.

{¶18} In this case, the trial court ordered transcripts on 16 separate occasions,

totaling $22,415.26 in court costs. The cost statement identifies that $5,477.53 in

transcripts was incurred prior to the verdict, $15,792.08 was incurred between the

verdict and sentencing, and $1,145.65 was incurred after sentencing.

{¶19} It is generally accepted that a criminal prosecution begins with the filing

of a complaint, indictment, or information and ends with the imposition of a sentence.

See Crim.R. 4; Crim.R. 7; Bradley v. United States, 410 U.S. 605, 609, 93 S.Ct. 1151, 35

L.Ed.2d 528 (1973). Thus, as a matter of law, any transcripts ordered after sentencing

cannot be considered “costs of prosecution.” See State v. Watkins, 96 Ohio App.3d 195,

644 N.E.2d 1049 (1st Dist.1994) (holding that “costs of prosecution” should not include

costs of probation). Accordingly, the trial court abused its discretion in assessing

$1,145.65 in postsentencing transcript costs against Hunter.

{¶20} On the contrary, any transcripts ordered after the indictment and prior to

sentencing can be considered “costs of prosecution.” In this case, Hunter did not contest

the cost of transcripts ordered prior to the verdict. Therefore, the trial court did not

abuse its discretion in assessing $5,477.53 in preverdict transcript costs against Hunter.

{¶21} However, Hunter did contest the transcripts ordered after the verdict, but

prior to sentencing. It is undisputed that the state intended to retry Hunter on the

charges which resulted in a mistrial. It is also undisputed that the state ultimately

dismissed those remaining charges. In her motion to mitigate costs, Hunter argued, “It

is unclear whether [the postverdict transcript costs] were related to the sentencing

hearing * * *, to preparation for the retrial, or to both. To the extent the transcripts were

for the retrial, none of those costs should be charged to [her].” Hunter claimed that she

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cannot be assessed costs for transcripts ordered in preparation for the retrial because

she can only be assessed costs attributed to a successful prosecution.

{¶22} The state argues that Hunter failed to demonstrate that the postverdict

transcripts were generated exclusively for the prosecution of the dismissed charges. It

argues that Hunter filed numerous posttrial motions, which the prosecution could

defend only by having the subject transcripts. The state contends: “Absent proof that

the transcript charges related solely to the charges the State later dismissed, the trial

court acted within its discretion in assessing the transcript costs.”

{¶23} However, a review of the record raises serious questions about whether

those transcript costs were in fact for the purpose of opposing the posttrial motions. The

state incurred a total of $15,792.08 in postverdict transcript costs; $10,124.33 of

which occurred five days after the trial court declared a mistrial and two days before

Hunter’s first posttrial motion. All of Hunter’s posttrial motions were limited in

scope—the first concerning the trial court’s failure to poll the jury after declaring a

mistrial, the second concerning the sufficiency of the evidence supporting her

conviction, and the third concerning alleged juror misconduct. Notably, the state

responded only to the first and third motions, and did not cite any transcripts in its

responses. Thus, Hunter raised an important concern that the postverdict transcript

costs were for the state’s preparation of her retrial rather than her successful

prosecution, and therefore, not authorized by law.

{¶24} If the record presents strong evidence that costs of prosecution were

improperly assessed against a defendant, then the trial court’s failure to address that

issue may be an abuse of discretion. See, e.g., State v. Taylor, 161 Ohio St.3d 319, 2020-

Ohio-3514, 163 N.E.3d 486, ¶ 26 (O’Connor, C.J., concurring) (“The record in a

particular case might present such strong evidence regarding the defendant’s inability to

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pay court costs that the trial court’s failure to address that issue might be an abuse of

discretion.”).

{¶25} “The lynchpin of abuse-of-discretion review is the determination whether

the trial court’s decision is reasonable.” State v. Chase, 2d Dist. Montgomery No.

26238, 2015-Ohio-545, ¶ 17, citing AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Although a trial

court is not statutorily required to make findings supporting its decision upon a motion

to modify court costs, “[u]nless the reason or reasons for the trial court’s decision are

apparent from the face of the record, it is not possible to determine if the decision is

reasonable without some explanation of the reason or reasons for that decision.” Id.

Thus, meaningful appellate review requires either a decision from the trial court that

explains its reasoning, or a clear record from which the appellate court can discern the

trial court’s reasoning. Here, we have neither.

{¶26} In this case, the trial court did not make sufficient findings to permit

meaningful review of its decision not to mitigate $15,792.08 in postverdict transcript

costs. The court held: “Transcripts used by the prosecution especially when ordered by

the Court are legitimate costs of prosecution. * * * The prosecution asked the Court to

order the transcripts for use in their prosecution. The Court agreed and ordered the

transcripts. All of the transcript assessments are reasonable and fair and resultantly

must stand.” Addressing only the concerns of R.C. 2301.24, the court seemingly failed to

consider the highly fact-specific issue that was raised by Hunter in her motion to

mitigate: whether the postverdict transcripts were directly related to the successful

prosecution of the case or whether they were instead related to the unsuccessful

retrial.

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{¶27} Nor are the reasons for the trial court’s decision apparent from the face of

the record. In her motion to mitigate costs, Hunter legitimately questioned whether the

postverdict transcripts were related to the successful prosecution of her case or to the

retrial of charges that were ultimately dismissed. The state did not file responsive

pleadings to Hunter’s motion to mitigate, and there was no hearing on the motion.

Thus, a factual basis was not sufficiently developed in the record below to facilitate our

review.

{¶28} Because we cannot perform meaningful appellate review based on the

record before us, we must reverse the order of the trial court refusing to mitigate the

postverdict transcript costs and remand the cause for reconsideration of Hunter's

motion to mitigate costs on that basis.

{¶29} Hunter’s sole assignment of error is overruled in part and sustained in

part.

III. Conclusion

{¶30} For the foregoing reasons, we affirm the portion of the trial court’s

judgment assessing as costs $5,477.53 in preverdict transcripts against Hunter, and

reverse the portion of the court’s judgment assessing as costs $1,145.65 in

postsentencing transcripts against Hunter. We also reverse the portion of the trial

court’s judgment assessing as costs $15,792.08 in postverdict transcripts and we remand

that part of the cause to the trial court for further proceedings consistent with this

opinion.

Judgment accordingly.

B ERGERON , P.J., and G ALLAGHER , J., concur.

S EAN C. G ALLAGHER , from the Eighth District Court of Appeals, sitting by assignment.

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Please note: The court has recorded its own entry on the date of the release of this opinion.