State v. inzy

2018 Ohio 3179

• Court: Ohio Court of Appeals
• Decided: August 8, 2018
• Docket: 18CA46
• Status: Published

Opinion

[Cite as State v. inzy, 2018-Ohio-3179.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CAREES L. LINZY : Case No. 18CA46 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 12-CR-037

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 8, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP CAREES L. LINZY, Pro Se Richland County Prosecutor Inmate No. A623-469 By: JOSEPH C. SNYDER Lorain Correctional Institution Assistant Prosecuting Attorney 2075 South Avon-Belden Road 38 South Park Street Grafton, OH 44044 Mansfield, OH 44902 Richland County, Case No. 18CA46 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant Carees L. Linzy appeals the June 5, 2018 judgment of

the Court of Common Pleas of Richland County, Ohio overruling appellant's motion to

vacate payment of court costs and fines. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In early 2012, appellant was charged with two count of murder, each with a

firearm specification, having a weapon while under disability, carrying a concealed

weapon, tampering with evidence and possession of criminal tools.

{¶ 3} A jury convicted appellant on all six counts and specifications. The trial court

sentenced appellant on March 26, 2012, and a subsequent Sentencing Judgment Entry

was filed on March 29, 2012. Following the Sentencing Entry filed on March 29, 2012, an

amended Sentencing Entry was filed on April 10, 2012 after the court discovered that it

had neglected to include appellant's sentence on count six of the indictment (criminal

tools) in the previous sentencing entry. Appellant was sentenced to an aggregate total of

21 years to life with five years post-release control.

{¶ 4} Appellant filed a direct appeal raising six assignments of error. State v.

Linzy, 5th Dist. Richland No. 2012-CA-33, 2013-Ohio-1129. We overruled each

assignment of error and affirmed appellant's convictions and sentence.

{¶ 5} By Judgment Entry filed September 16, 2013, we granted in part Linzy's

Application for Reopening pursuant to App.R. 26(B). In that matter we vacated appellant's

sentences for two counts of murder and remanded the matter to the trial court for a de

novo sentencing. Appellant's resentencing took place on June 5, 2014. Appellant did not

appeal his resentencing. Richland County, Case No. 18CA46 3

{¶ 6} Since that time, appellant has filed several motions in the trial court

regarding his court costs. The most recent was filed on May 21, 2018 wherein appellant

requested the trial court vacate court costs and fines. The trial court issued a judgment

entry on June 5, 2018 denying the motion.

{¶ 7} Appellant now brings this appeal, raising one assignment of error:

I

{¶ 8} "THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION

TO VACATE COURT COSTS AND FINES WHEN IT IMPOSED COURT COSTS, FINES

AND COST OF THE PROSECUTION OUTSIDE HIS PRESENCE."

{¶ 9} Preliminarily, we note this case is before this court on the accelerated

calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment

on appeal, provides in pertinent part: “The appeal will be determined as provided by

App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the

reason for the court's decision as to each error to be in brief and conclusionary form.”

{¶ 10} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983).

{¶ 11} This appeal shall be considered in accordance with the aforementioned

rules.

{¶ 12} Appellant argues court costs in this matter were improperly imposed.

Specifically, appellant argues that while his sentencing judgment entry orders him to pay Richland County, Case No. 18CA46 4

court costs, he was not orally informed of this obligation at the time of sentencing. He

argues that a remand to the trial court is therefore required so that he may seek waiver

of court costs.

{¶ 13} In support of his argument, appellant cites State v. Joseph 125 Ohio St.3d

76, 2010-Ohio-954 926 N.E.2d 278. In that matter, the Ohio Supreme Court found a trial

court errs when it imposes court costs in the sentencing judgment entry after it fails to

impose those costs in open court at the sentencing hearing.

{¶ 14} The Court further found that “[t]he civil nature of the imposition of court costs

does not create the taint on the criminal sentence that the failure to inform a defendant of

postrelease control does.” State v. Joseph, 125 Ohio St.3d 76, 79, 2010-Ohio-954, 926

N.E.2d 278, 282, ¶ 21. “Therefore, the failure of the court to notify a defendant of the

obligation to pay costs so that he may move for a waiver of costs may be error cognizable

on direct appeal, but it does not render the sentence void.” State v. Chapman, 5th Dist.

Richland No. 15CA20, 2015-Ohio-3114 at ¶ 11 citing Joseph at 21.

{¶ 15} Joseph was decided in the context of a direct appeal from the sentencing

judgment imposing court costs. “Joseph does not support the argument that a trial court's

failure to orally notify a defendant in open court before imposing court costs can be

corrected after the appeal period expires.” State v. Pettway, 8th Dist. Cuyahoga No.

98836, 2013-Ohio-1348, ¶ 5.

{¶ 16} Appellant could have raised the issue of court costs in his 2012 direct

appeal to this court and failed to do so. Accordingly, appellant's argument is barred by

the doctrine of res judicata.

{¶ 17} The assignment of error is overruled. Richland County, Case No. 18CA46 5

{¶ 18} The judgement of the Richland County Court of Common Pleas is affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.

EEW/rw801