[Cite as State v. Lux, 2012-Ohio-112.]
IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 30
v. : T.C. NO. 09CR521
CURTIS R. LUX : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 13th day of January , 2012.
JAMES D. BENNETT, Atty. Reg. No. 0022729, Assistant Prosecuting Attorney, 201 West Main Street, Safety Building, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
MARK A. DETERS, Atty. Reg. No. 0085094, 371 West First Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Curtis R. Lux was convicted of gross sexual imposition after a jury trial in the
Miami County Court of Common Pleas. The trial court sentenced him to one year in prison
and ordered him to pay court costs. Lux appeals from his conviction and sentence, raising
three assignments of error. We will address them in an order that facilitates our analysis. 2
I
{¶ 2} Lux’s second assignment of error states:
{¶ 3} “APPELLANT’S CONVICTION IS NOT SUPPORTED BY LEGALLY
SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶ 4} In his second assignment of error, Lux claims that his conviction was based
on insufficient evidence and was against the manifest weight of the evidence.
{¶ 5} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). When reviewing whether the State has presented sufficient evidence to support a
conviction, the relevant inquiry is whether any rational finder of fact, after viewing the
evidence in a light most favorable to the State, could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d. 560 (1979). A guilty verdict will not be disturbed on appeal unless “reasonable
minds could not reach the conclusion reached by the trier-of-fact.” Id.
{¶ 6} In contrast to the sufficiency of the evidence standard, “a weight of the
evidence argument challenges the believability of the evidence and asks which of the
competing inferences suggested by the evidence is more believable or persuasive.” Wilson
at ¶ 12. When evaluating whether a conviction is contrary to the manifest weight of the 3
evidence, the appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins, 78 Ohio St.3d at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983).
{¶ 7} Because the trier of fact sees and hears the witnesses at trial, we must defer to
the factfinder’s decisions whether, and to what extent, to credit the testimony of particular
witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,
1997). However, we may determine which of several competing inferences suggested by
the evidence should be preferred. Id.
{¶ 8} The fact that the evidence is subject to different interpretations does not
render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A
judgment of conviction should be reversed as being against the manifest weight of the
evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175.
{¶ 9} The State’s evidence at trial reveals the following facts:
{¶ 10} On October 30, 2009, twelve-year-old Brittany spent the evening with her
friends, D.B. and J.B., who are sisters. Brittany told her mother that she would spend the
night at D.B. and J.B.’s home, while the sisters told their parents that they planned to spend
the night at Brittany’s house. In fact, the girls planned to meet one of D.B.’s friends and to
stay at that girl’s house, but D.B.’s friend failed to meet them at the prearranged location.
The girls tried, unsuccessfully, to find another friend to stay with. Brittany ultimately 4
suggested that they go to Lux’s house. (Lux knew Brittany’s sisters.) At the time, Lux was
36 years old.
{¶ 11} When Lux answered his door, Brittany told him that they did not have
anywhere to stay and she asked him if they could stay at his house. Lux responded that they
could sleep in his van, and he unlocked the vehicle for them. Lux later brought the girls
some snacks, water, and blankets. J.B. got into the front passenger seat, D.B. took the
middle bench seat, and Brittany got into the rear seat of the van. Lux got into the rear seat
with Brittany.
{¶ 12} According to Brittany’s testimony at trial, at some point, Lux “got vertically
on top of me and *** started kissing my neck.” Lux put his hand under Brittany’s shirt,
unbuttoned and unzipped her blue jeans, and put his hand down her pants. Lux rubbed
Brittany’s “vaginal area.” After Lux pulled his hand away, Brittany rolled over and later
fell asleep. J.B. testified that she saw Lux and Brittany tickling each other, and D.B. heard
Brittany and Lux “giggling and talking;” neither sister saw any sexual activity between
Brittany and Lux.
{¶ 13} In the morning, the girls went to the sisters’ house. Brittany told J.B. that
she had “made out” with Lux; J.B. told D.B., who told her mother. J.B. and D.B.’s mother
contacted the police.
{¶ 14} On November 1, 2009, Brittany was interviewed at her home by Troy Police
Officer Joel Misirian. Brittany was hostile to the officer, and she told him that Lux “was
just kissing my neck.” Brittany denied that any other sexual activity had occurred.
{¶ 15} After leaving Brittany’s home, Officer Misirian talked with Lux at his 5
residence. Lux told the officer that the three girls had come to his house and appeared to be
scared. Because he lives with his mother, Lux was not able to have them stay in the house
and he offered to let them stay in his van. Lux indicated that he sat in the back of the van
with Brittany while the other girls sat near the front. Lux said that Brittany kissed him and
he kissed her back. Lux further said that Brittany let him touch her breasts and underwear
and that Brittany tried to guide his hand down her pants. Lux admitted that he had touched
her vaginal area, but denied that he had penetrated Brittany with his hand.
{¶ 16} After the interview, Officer Misirian contacted Detective Alex Hillman, who
advised the officer to ask Lux if he would be willing to come to the police station for a
further interview. Lux agreed, and Misirian drove Lux to the station. Detective Hillman
interviewed Lux, and Lux made statements consistent with his conversation with Officer
Misirian. A videotape of Hillman’s interview with Lux was shown to the jury.
{¶ 17} The following day, Brittany was interviewed at the police station by Detective
Alex Hillman and a victim advocate named Carmen. Brittany reiterated that Lux had kissed
her neck, but denied that any other sexual activity had happened. During defense counsel’s
cross-examination of Brittany, a portion of the videotape of this interview was played for the
jury. Brittany testified that she subsequently testified for a grand jury, during which she
stated that Lux had kissed her and put his hand down her pants.
{¶ 18} Lux testified on his own behalf at trial. He stated that the girls had come to
his housing looking for a place to spend the night, and he agreed to let them stay in his van.
Lux indicated that he sat in the back with Brittany, that she slapped him playfully, and he
tickled her to get her to stop. Afterward, they all fell asleep. Lux further testified that he 6
awoke to the feeling of “being messed with.” He felt Brittany kiss him and grab his hands.
Lux denied that he touched Brittany for his or her sexual gratification. Lux stated that, once
he realized what was happening, he sent the girls home.
{¶ 19} Based on the evidence, Lux was convicted of gross sexual imposition, in
violation of R.C. 2907.05(A)(4). That statute provides: “No person shall have sexual
contact with another, not the spouse of the offender; cause another, not the spouse of the
offender, to have sexual contact with the offender; or cause two or more other persons to
have sexual contact when any of the following applies: *** (4) The other person, or one of
the other persons, is less than thirteen years of age, whether or not the offender knows the
age of that person.” “Sexual contact” is defined as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing or gratifying either person.”
R.C. 2907.01(B).
{¶ 20} Upon review of the record, the State presented sufficient evidence to support
Lux’s conviction. According to the State’s witnesses, Brittany was 12 years old on October
30, 2009. Brittany testified that Lux kissed her on her neck and touched her breasts and
pubic area. Officer Misirian and Detective Hillman both testified that Lux confessed to
kissing Brittany, touching her breasts, and her vaginal area, and Lux’s videotaped statements
to Detective Hillman at the police station, which were consistent with the officers’
testimony, were played for the jury. Although there was no direct evidence that Lux
touched Brittany for the purpose of sexually arousing or gratifying himself or Brittany,
Brittany’s testimony and Lux’s statements to the officers supported such an inference. 7
Viewed in the State’s favor, there was ample evidence to support Lux’s conviction for gross
sexual imposition.
{¶ 21} Lux further claims that the jury lost its way and created a manifest injustice
when it found him guilty of gross sexual imposition. The credibility of the witnesses and
the weight to be given to their testimony were matters for the jury to determine. The jury
did not lose its way simply because it chose to believe the State’s version of the events,
which it had a right to do. Although Lux testified at trial that Brittany had kissed him and
grabbed his hands and that he did not touch her for the purpose of sexual gratification, the
evidence, including Lux’s interview with Detective Hillman, would allow a reasonable jury
to conclude that Lux was a willing participant in the sexual contact and that he received
sexual arousal or gratification from their sexual behavior. Reviewing the record as a whole,
we cannot say that the evidence weighs heavily against a conviction, that the jury lost its way
in choosing to believe the State’s witnesses, or that a manifest miscarriage of justice
occurred. Lux’s conviction was not against the manifest weight of the evidence.
{¶ 22} The second assignment of error is overruled.
II
{¶ 23} Lux’s third assignment of error states:
{¶ 24} “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.”
{¶ 25} In his third assignment of error, Lux claims that his trial counsel rendered
ineffective assistance when he failed to file a motion to suppress Lux’s statements to the
police. 8
{¶ 26} We review claims of ineffective assistance of counsel under the two prong
analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989). To reverse a conviction based on ineffective assistance of counsel,
it must be demonstrated that trial counsel’s conduct fell below an objective standard of
reasonableness and that his errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different. Strickland, 466
U.S. at 688. Trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. Id.
{¶ 27} Lux claims that he should have been informed of his Miranda rights by
Officer Misirian before being transported to the police station, because the officer had
probable cause to arrest him. Lux further claims that his statements to Detective Hillman
should have been suppressed because they were obtained in violation of Miranda. Lux
asserts that his counsel acted deficiently when he failed to raise these issues.
{¶ 28} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
the United States Supreme Court held that the State may not use statements stemming from a
defendant’s custodial interrogation unless it demonstrates the use of procedural safeguards to
secure the defendant’s privilege against self-incrimination. Id. at 444. Police are not
required to give Miranda warnings to every person that they question, even if the person
being questioned is a suspect. State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891
(1997). Instead, Miranda warnings are only required for custodial interrogations. Id.
{¶ 29} “Custodial interrogation” means questioning initiated by the police after the 9
person has been taken into custody or otherwise deprived of his freedom in any significant
way. State v. Wilson, 2d Dist. Montgomery No. 22665, 2009-Ohio-1279, ¶ 18, citing State
v. Steers, 2d Dist. Greene No. 89-CA-38, 1991 WL 82974 (May 14, 1991). In order for a
defendant’s statements made during a custodial interrogation to be admissible, the State
must establish that the accused knowingly, voluntarily, and intelligently waived his or her
rights. Miranda, supra; State v. Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976),
overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).
{¶ 30} Based on the record before us, we find no indication that Lux was in custody
when he was questioned by Officer Misirian or by Detective Hillman. Officer Misirian’s
testimony at trial reflects that the officer went to Lux’s home and that Lux voluntarily agreed
to speak with him. They spoke on Lux’s front porch. Nothing suggests that Lux was
restrained in any way or that he was threatened or otherwise coerced by, or under the control
of, the officer. Officer Misirian further testified that he had asked Lux if Lux “would be
willing to come to the police department for a further interview.” Misirian stated that Lux
agreed and Misirian “transported him as a courtesy ride” to the police station. There is no
evidence that Lux was in custody when he was transported to the Troy police department.
{¶ 31} Lux made incriminating statements to Officer Misirian during their
conversation, which may have provided probable cause for Lux’s arrest, but the existence of
probable cause did not convert Lux’s voluntary conversation with the officer to a custodial
interrogation. “The determination whether a custodial interrogation has occurred requires
an inquiry into ‘how a reasonable man in the suspect’s position would have understood his
situation.’” State v. Estepp, 2d Dist. Montgomery No. 16279, 1997 WL 736501 (Nov. 26, 10
1997), quoting Biros, 78 Ohio St.3d at 440. Neither an officer’s subjective intent nor the
defendant’s subjective belief is relevant to the determination of whether an individual is in
custody for purposes of Miranda. State v. Gaddis, 2d Dist. Montgomery No. 24007,
2011-Ohio-2822, ¶ 18; State v. Severt, 2d Dist. Montgomery No. 24074, 2010-Ohio-5389,
¶ 15.
{¶ 32} Upon his arrival at the police station, Lux was interviewed by Detective
Hillman. Even assuming that Lux was in custody during that interview, there is no support
in the record for Lux’s assertion that he made statements to Detective Hillman in violation of
Miranda. The videotape of Hillman’s interview with Lux shows that Hillman began the
interview by giving Miranda warnings to Lux. Lux indicated that he understood each of his
rights and that he was willing to talk with the detective. Lux signed a waiver of rights form.
{¶ 33} The fact that Lux had previously made incriminating statements to Officer
Misirian prior to Detective Hillman’s notification of Lux’s Miranda rights did not render
Lux’s statements inadmissible under Missouri v. Siebert, 542 U.S. 600, 124 S.Ct. 2601, 159
L.Ed.2d 643 (2004). Lux’s prior statements to Misirian were given voluntarily in a
non-custodian context. This case does not involve the “question-first, Mirandize-later”
interrogation practice that Siebert aimed to remedy. Accord State v. Sosnoskie, 2d Dist.
Montgomery No. 22713, 2009-Ohio-2327, ¶ 62 (concluding that, “[b]ecause the detectives
were not obliged to read Sosnoskie his Miranda warnings prior to the first confession, the
absence of those warnings do not affect the voluntariness of the second confession, given
several days later, after Sosnoskie waived his Miranda rights.”)
{¶ 34} Accordingly, we find no basis to conclude that Lux’s statements to the police 11
would have been suppressed had a motion to suppress been filed. The record does not
support a claim of ineffective assistance of counsel due to counsel’s failure to file such a
motion.
{¶ 35} Lux’s third assignment of error is overruled.
III
{¶ 36} Lux’s first assignment of error states:
{¶ 37} “APPELLANT’S SENTENCE IS VOID.”
{¶ 38} In his first assignment of error, Lux claims that his sentence is void for three
reasons. First, he asserts that his “sentencing” is void, because the judgment entry indicates
that he was classified as a sex offender under R.C. 2950.09 and 2950.01(E). Second, Lux
argues that the trial court improperly ordered him to pay court costs. Third, he claims that
the trial court did not properly notify him about post-release control.
{¶ 39} On April 12, 2010, Lux was brought before the trial court for “a 2950 hearing
and also for sentencing.” The trial court informed Lux that he was convicted of “a sexually
oriented offense by statute. *** [I]t’s a tier two offense[.]” The court told Lux of his
obligations as a Tier II sex offender and stated that a failure to comply with the requirements
could result in a separate felony charge. Lux signed a form which acknowledged that he
had been informed about his Tier II classification.
{¶ 40} The court then proceeding with Lux’s sentencing. The court heard from
defense counsel, the prosecutor, and Lux, and it indicated that it had reviewed the
presentence investigation report. The court stated that it considered “the purposes and
principles of the sentencing statutes and all the factors of record” and weighed the recidivism 12
and seriousness factors. The court concluded that Lux was not amenable to community
control, and it sentenced him to one year in prison and to pay court costs. The court further
informed Lux that he was subject to a mandatory five years of post-release control and told
him of the consequences if he violated post-release control.
A. Sex Offender Classification
{¶ 41} Lux raises that the caption of the judgment entry states, “Entry Determination
Hearing Pursuant to R.C. 2950.09 and Imposition of Sentence,” and the entry indicates that
his tier classification was pursuant to R.C. 2950.01(E). Lux argues that R.C. 2950.09 had
been repealed prior to his classification hearing and that R.C. 2950.01(E) defines Tier I – not
Tier II – sex offenders.
{¶ 42} Lux is correct that R.C. 2950.09 had been repealed and that R.C. 2950.01(E)
defines Tier I sex offenders. Nevertheless, the trial court was required under the current
version of R.C. Chapter 2950 to classify Lux as a sex offender, and the court properly
notified Lux that he was required to registered as a Tier II sex offender. See R.C.
2950.01(F). The improper statutory citations in the judgment entry were, perhaps,
typographical errors or from an old form, which amounted to harmless error. The errors in
the statutory citations may be corrected with a nunc pro tunc entry.
B. Court Costs
{¶ 43} Next, Lux asserts that he was improperly ordered to pay court costs. He
argues that the court failed to consider his present and future ability to pay in accordance
with R.C. 2929.19(B)(6), to specify the amount of costs at sentencing, and to provide certain
notifications under R.C. 2947.23(A)(1). 13
{¶ 44} R.C. 2929.19(B)(6) requires the trial court to consider defendant’s present
and future ability to pay before imposing any financial sanction under R.C. 2929.18. State
v. Twitty, 2d Dist. Montgomery No. 24296, 2011-Ohio-4725, ¶ 23. Financial sanctions
include, for example, restitution, fines, and reimbursement of the costs of community control
sanctions, confinement, or monitoring devices. R.C. 2929.18.
{¶ 45} Court costs are governed by R.C. 2947.23. Court costs are not financial
sanctions. State v. Smith, 3d Dist. Allen No. 1-07-32, 2007-Ohio-6552, ¶ 11.
Consequently, R.C. 2929.19 is inapplicable to court costs, and the trial court need not
consider a defendant’s ability to pay under R.C. 2929.19 prior to imposing court costs. E.g,
id.; Columbus v. Kiner, 10th Dist. Franklin No. 11AP-543, 2011-Ohio-6462.
{¶ 46} Under R.C. 2947.23, a trial court is required to impose court costs against all
convicted defendants, even those who are indigent. See State v. White, 103 Ohio St.3d 580,
2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. However, “despite the mandatory language ***
requiring the imposition of court costs, a trial court may waive the payment of costs.”
(Emphasis in original.) State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d
278, ¶ 11. It is also possible that, during the collection process, the clerk of courts may
waive the collection of court costs for indigent defendants. See White at ¶ 14 (noting that
R.C. 2929.14 was silent as to the collection of costs from indigent defendants).
{¶ 47} A defendant seeking a waiver of the payment of court costs must move for
such a waiver at sentencing. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843
N.E.2d 164; State v. Stutz, 2d Dist. Montgomery No. 24489, 2011-Ohio-5210, ¶ 16. The
trial court, however, has no duty to waive court costs, and R.C. 2949.092 does not provide 14
standards for such waiver. Id, citing State v. Costa, 2d Dist. Greene No. 99 CA 14, 1999
WL 957647 (Sept. 3, 1999). An appellate court reviews the denial of a motion to waive
payment of court costs under an abuse of discretion standard.
{¶ 48} Lux did not request a waiver of the payment of court costs at sentencing.
Accordingly, he cannot challenge the imposition of court costs on direct appeal.
{¶ 49} Moreover, the court’s imposition of court costs is not erroneous due to the
court’s failure to specify the amount of court costs at sentencing. (The judgment entry
imposes costs in the amount of $1,964.34.) The calculation of the amount of court costs is
a ministerial act. Threatt at ¶ 21. Thus, we have held that the failure to specify the amount
at sentencing does not affect the order’s finality and the itemized bill may be calculated later.
State v. Murillo, 2d Dist. Montgomery No. 21919, 2008-Ohio-201, ¶ 14.
{¶ 50} Lux asserts that the trial court’s imposition of court costs was nevertheless
erroneous, because the court did not notify him that any failure to pay court costs could be
addressed by an order to perform community service, pursuant to R.C. 2947.23(A)(1). R.C.
2947.23(A)(1) provides:
{¶ 51} “*** At the time the judge or magistrate imposes sentence, the judge or
magistrate shall notify the defendant of both of the following:
{¶ 52} “(a) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule approved by the court, the court
may order the defendant to perform community service in an amount of not more than forty
hours per month until the judgment is paid or until the court is satisfied that the defendant is
in compliance with the approved payment schedule. 15
{¶ 53} “(b) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly credit rate per hour of
community service performed, and each hour of community service performed will reduce
the judgment by that amount.”
{¶ 54} The trial court did not provide these notifications to Lux at the sentencing
hearing, and the failure do to so was contrary to the statute. The Ohio appellate districts are
split, however, as to whether we can review the lack of notification on direct appeal.
Several appellate districts have held that the issue is not ripe for adjudication until the
defendant has failed to pay court costs and the trial court has ordered the defendant to
perform community service. E.g., State v. Gates, 11th Dist. Portage No. 2011-P-0001,
2011-Ohio-5711; State v. Barkley, 185 Ohio App.3d 686, 2009-Ohio-5549, 925 N.E.2d 626
(10th Dist.); State v. Kearse, 3d Dist. Shelby No. 17-08-29, 2009-Ohio-4111; State v. Nutter,
12th Dist. Brown No. CA2008-10-009, 2009-Ohio-2964.
{¶ 55} On the other hand, other appellate districts have addressed the matter and
found the failure to provide the notice required by R.C. 2947.23 to be prejudicial error.
E.g., State v. Adams, 8th Dist. Cuyahoga No. 95439, 2011-Ohio-2662; State v. Ruby, 6th
Dist. Sandusky No. S-10-028, 2011-Ohio-4864; State v. Moss, 186 Ohio App.3d 787,
2010-Ohio-1135 (4th Dist.); State v. Gabriel, 7th Dist. Mahoning No. 09 MA 108,
2010-Ohio-3151; State v. Dansby, 5th Dist. Tuscarawas No. 08 AP 06 0047,
2009-Ohio-2975. Such courts have either vacated the order to pay costs and remanded for
resentencing, e.g., Adams, supra, or modified the sentence such that the trial court cannot
order community service for the failure to pay court costs, e.g., Gabriel, supra. 16
{¶ 56} The Ohio Supreme Court has accepted review of the lack of notification issue
on the Twelfth District’s certification of a conflict between its holding in State v. Smith, 12th
Dist. Warren No. CA2010-06-057, 2011-Ohio-1188, which concluded that the issue was
not ripe for review, and the Fourth District’s holding in Moss, which addressed the issue and
found prejudicial error.1 State v. Smith, 129 Ohio St.3d 1426, 2011-Ohio-3740, 951 N.E.2d
89 (S.Ct. No. 2011-0811).
{¶ 57} We have not previously addressed whether the trial court’s failure to provide
the required notification under R.C. 2947.23(A)(1) is ripe for review on direct appeal.
Neither approach is unreasonable. Given that a defendant has not been prejudiced, and
would not be prejudiced, until he has failed to pay court costs and been ordered to perform
community service, we understand the position that the appellate court should not address a
harm which may never materialize. Accordingly, there is some appeal to the approach
taken by several appellate districts that the issue is not ripe for review on direct appeal.
{¶ 58} Nevertheless, the Ohio Supreme Court has emphasized that “no judge has the
authority to disregard the law by ignoring a statutorily mandated term.” State v. Jarvis, 4th
Dist. Jackson No. 10CA11, 2011-Ohio-6252, ¶ 6, fn.1, citing State ex rel. DeWine v. Burge,
128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶ 19. “A trial court does not have the
discretion to exercise its jurisdiction in a manner that ignores mandatory statutory
1 The court ordered briefing on the following issue: “[W]hether a sentencing court’s failure to inform an offender, as required by R.C. 2947.23(A)(1), that community service could be imposed if the offender fails to pay the costs of prosecution or ‘court costs’ presents an issue ripe for review even though the record does not show that the offender has failed to pay such costs or that the trial court has ordered the offender to perform community service as a result of failure to pay.” 17
provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 20.
In addition, as noted by the Fourth District, “absent resentencing and proper notice, the trial
court cannot impose a community control sanction for failure to pay costs. That result
clearly does not promote the interests of justice.” Id. Accordingly, we believe the better
course is to find the issue ripe for determination and to review Lux’s claimed error.
{¶ 59} As stated above, the trial court did not notify Lux that he could be ordered to
perform community service if he failed to pay the costs of prosecution imposed under R.C.
2947.23. This was error. At this juncture, however, it appears that Lux has served his
one-year prison sentence, and we cannot remand the matter to the trial court for
resentencing. Accordingly, should Lux fail to pay the ordered court costs, he cannot be
ordered to perform community service.
C. Post-Release Control
{¶ 60} Finally, Lux claims that his sentence is void, because the trial court did not
properly impose post-release control. Lux states that the trial court incorrectly informed
him at the sentencing hearing that periods of post-release control “could be consecutive.”
He further asserts that the judgment entry erroneously states that post-release control was
optional and that he could be returned to prison for up to nine months if he violated
post-release control.
{¶ 61} According to R.C. 2967.28, the post-release control statute, Lux was subject
to a mandatory five years of post-release control based on his conviction for gross sexual
imposition, a felony sex offense. Under R.C. 2929.19(B)(2)(c), the trial court was required
to notify Lux of his post-release control at sentencing. 18
{¶ 62} At the sentencing hearing, the trial court informed Lux: “In your case, Mr.
Lux, there’s a mandatory five years post release control. When you get out you will have
rules and regulations you’ll have to follow for a five year period. This is a sex offense and
it carries mandatory five years.” Lux’s judgment entry included a mandatory term of five
years post-release control. It stated: “Once Defendant is released from his term of
incarceration at the Ohio Department of Rehabilitation and Corrections, he has been notified
that he is subject to mandatory Post Release Control for five years ordered by the Adult
Parole Authority.”
{¶ 63} Lux argues that the trial court imposed an optional period of post-release
control. He cites to another portion of the judgment entry that reads: “After prison release,
if post-release control is imposed, for violating post release control conditions, the adult
parole authority or parole board could impose a more restrictive or longer control sanction,
return defendant to prison for up to nine months for each violation, up to a maximum of 50
percent of the stated term.” This provision indicates the penalty that may be imposed if
post-release control were violated. Although it includes the phrase “if post-release control
is imposed,” the paragraph does not reflect that Lux’s period of post-release control was
optional.
{¶ 64} R.C. 2967.28(F)(3) authorizes a prison term to be imposed as a sanction for
violating post-release control. Unless a releasee’s stated prison term was reduced pursuant
to R.C. 5120.032, “the period of a prison term that is imposed as a post-release control
sanction under this division shall not exceed nine months, and the maximum cumulative
prison term for all violations under this division shall not exceed one-half of the stated 19
prison term originally imposed upon the offender as part of this sentence.” Id. R.C.
2929.19(B)(2)(e) requires the trial court to tell a defendant at sentencing that “if a period of
supervision is imposed following the offender’s release from prison, *** and if the offender
violates that supervision or a condition of post-release control ***, the parole board may
impose a prison term, as part of the sentence, of up to one-half of the stated prison term
originally imposed upon the offender. ***”
{¶ 65} At sentencing, the trial court told Lux, “If you violate any of those [rules and
regulations,] the Adult Parole Authority can send you back to the institution for a period not
to exceed one-half the amount of time you would have served in the first place.” As quoted
above, the judgment entry further states that “the adult parole authority or the parole board
could impose a more restrictive or longer control sanction, return defendant to prison for up
to nine months for each violation, up to a maximum of 50 percent of the stated term.”
{¶ 66} Lux asserts that the sentencing entry is incorrect, because it states that he
could be returned to prison for a period of nine months. We disagree. The judgment entry
reflects the language of R.C. 2967.28(F)(3). Although the entry references the nine-month
statutory maximum for each violation, the judgment entry further states that the maximum
period could not exceed one-half of Lux’s prison term, i.e., one-half of a one-year sentence.
Reading the paragraph as a whole, the judgment entry accurately states that the maximum
period would be one-half of Lux’s sentence, i.e., six months. We find no error with this
portion of the trial court’s judgment entry.
{¶ 67} Lux further claims that the trial court erroneously told him at sentencing that
post-release control could be imposed as a prison term consecutively to any prison term for a 20
felony committed while on post-release control. The trial court stated at sentencing:
{¶ 68} “If you were out and you picked up another felony charge and got convicted
of it after you got release on Post release control[,] your new sentencing Judge can take the
balance of your Post release control and run it consecutive to your new sentence and order
the whole thing to be served in the pen. So here’s how that happens. If you’re out and you
get picked up[,] let’s say hypothetically for a felony five theft offense, maximum penalty
twelve months, and you would get ten months in the pen and you’re still on post release
control, you’re in for your first year of post release control, you’d have four years post
release control left, your sentencing Judge could take that four years and run it consecutive
to the one and you’d be doing five years on a theft offense. That’s how that works.”
{¶ 69} Lux asserts that the trial court’s statement is contrary to R.C.
2967.28(F)(4)(d). R.C. 2967.28(F)(4), however, addresses the length of post-release control
to be imposed following an offender’s release from prison on a new felony committed while
on post-release control.2 We do not find R.C. 2967.28(F)(4)(d) to be applicable.
{¶ 70} Rather, R.C. 2929.141 addresses sentencing for an offense committed while
under post-release control. It provides:
{¶ 71} “(A) Upon the conviction of or plea of guilty to a felony by a person on
post-release control at the time of the commission of the felony, the court may terminate the
2 Specifically, R.C. 2967.28(F)(4)(d) states: “Any period of post-release control shall commence upon an offender’s actual release from prison. If an offender is serving an indefinite prison term or a life sentence in addition to a stated prison term, the offender shall serve the period of post-release control in the following manner: *** “(d) The period of post-release control for a releasee who commits a felony while under post-release control for an earlier felony shall be the longer of the period of post-release control specified for the new felony under division (B) or (C) of this section or the time remaining under the period of post-release control imposed for the earlier felony as determined by the parole board or court.” 21
term of post-release control, and the court may do either of the following regardless of
whether the sentencing court or another court of this state imposed the original prison term
for which the person is on post-release control:
{¶ 72} “(1) In addition to any prison term for the new felony, impose a prison term
for the post-release control violation. The maximum prison term for the violation shall be
the greater of twelve months or the period of post-release control for the earlier felony minus
any time the person has spent under post-release control for the earlier felony. In all cases,
any prison term imposed for the violation shall be reduced by any prison term that is
administratively imposed by the parole board as a post-release control sanction. A prison
term imposed for the violation shall be served consecutively to any prison term imposed for
the new felony. The imposition of a prison term for the post-release control violation shall
terminate the period of post-release control for the earlier felony.
{¶ 73} “(2) Impose a sanction under sections 2929.15 to 2929.18 of the Revised
Code for the violation that shall be served concurrently or consecutively, as specified by the
court, with any community control sanctions for the new felony.”
{¶ 74} In accordance with R.C. 2929.141, the trial court correctly informed Lux that
the balance of his post-release control (e.g., four years, in the trial court’s example) could be
imposed as prison time to be served consecutively to any prison sentence that Lux might
receive for the new felony.
{¶ 75} In summary, the trial court correctly classified Lux as a Tier II sex offender
and properly ordered him to pay court costs. The court properly informed Lux at the
sentencing hearing that he was subject to a mandatory five-year period of post-release 22
control and that a violation of his post-release control could result in his being returned to
prison for a term equaling one-half of his sentence; the judgment entry reflects these
statements. The court also correctly informed Lux at the sentencing hearing that, if he were
convicted of a felony while on post-release control, the balance of his post-release control
could be imposed as a prison sentence, to be served consecutively to his new sentence. The
court failed to inform Lux that he could be required to perform community service should he
fail to pay court costs. As a result, community service cannot be ordered should Lux fail to
pay the those costs.
{¶ 76} Lux’s first assignment of error is overruled in part and sustained in part.
IV
{¶ 77} The trial court’s judgment will be affirmed. The trial court may correct any
typographical errors in the judgment entry, consistent with this opinion, through a nunc pro
tunc entry.
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
James D. Bennett Mark A. Deters Hon. Robert J. Lindeman