State v. McHenry

2017 Ohio 7672

• Court: Ohio Court of Appeals
• Decided: September 18, 2017
• Docket: 2017CA00119
• Status: Published

Opinion

[Cite as State v. McHenry, 2017-Ohio-7672.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : MARK MCHENRY : Case No. 2017CA00119 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2013-CR-0944

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 18, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellee

JOHN D. FERRERO MARK MCHENRY, Pro Se Prosecuting Attorney Belmont Correctional Institution, By: KRISTINE W. BEARD Inmate No. A642-840 Assistant Prosecuting Attorney 68518 Bannock Road 110 Central Plaza South, Suite 510 St. Clairsville, OH 43950 Canton, OH 44702-1413 Stark County, Case No. 2017CA00119 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant Mark A. McHenry appeals the June 6, 2017 judgment

entry denying his motion to terminate or suspend court costs, fines and fees. Plaintiff-

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In June 2013, McHenry pled guilty to a bill of information which charged

him with one count of rape in violation of R.C. 2907.02(A)(1), a felony of the first degree.

The trial court sentenced McHenry to ten years incarceration and ordered him to serve the

sentence consecutive to a previously imposed sentence in case number 2013CR0578 for

an aggregate sentence of 20 years. The trial court further ordered McHenry to pay the costs

of prosecution and a $25.00 non-refundable fee for the public defender’s application. No

fines or other financial sanctions were imposed. McHenry did not appeal or otherwise

challenge his conviction or sentence.

{¶ 3} On June 2, 2017, McHenry filed a Motion to Terminate and/or Suspend

Court Costs and Prosecution Fees pursuant to R.C. 2947.23(C) and R.C. 2929.18.

McHenry argued he makes $18.00 a month and the order to pay court costs posed a

financial hardship which prevented him from saving for items such as gym shoes, a radio,

or participating in the ODRC’s electronic mail system. He moved the court to find him

indigent with no present or future ability to pay the court costs.

{¶ 4} On June 6, 2016 the trial court issued a judgment entry denying McHenry’s

motion. McHenry filed an appeal and the matter is now before this court for consideration.

He presents one assignment of error: Stark County, Case No. 2017CA00119 3

{¶ 5} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED

IT’S DISCRETION BY FAILING TO CONCLUDE THE APPELLANT'S PRESENT AND

FUTURE ABILITY TO PAY FINES AND COURT COSTS."

{¶ 6} 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.”

{¶ 7} 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).

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

rules.

{¶ 9} McHenry argues that pursuant to R.C. 2929.19, the trial court erred in

denying his motion to terminate court costs because it failed to determine his

present or future ability to pay court costs. Because R.C. 2929.19 does not apply

to court costs, we disagree.

{¶ 10} We review the denial of McHenry’s motion to terminate court costs for an

abuse of discretion. An abuse of discretion is more than an error of judgment.

Rather, it implies that the trial court’s decision was unreasonable, arbitrary or Stark County, Case No. 2017CA00119 4

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶ 11} First, McHenry was originally sentenced in 2013 and the instant appeal is

the result of his first challenge to the imposition of court costs. The matter is not

barred, however, because R.C. 2947.23(C) provides that post-conviction, the trial

court retains jurisdiction to address the waiver, suspension, or modification of the

payment of the court costs. State v. Nelson, 8th Dist. Cuyahoga No. 104795, 2017-

Ohio-6883 ¶ 89.

{¶ 12} Next, the trial court must impose costs. R.C. 2947.23(A)(1)(a) states, “In all

criminal cases, including violations of ordinances, the judge or magistrate shall

include in the sentence the costs of prosecution, including any costs under section

2947.231 of the Revised Code, and render a judgment against the defendant for

such costs. * * * *.” Even if a defendant is indigent, a sentencing court must include

the costs of prosecution in the sentence and render a judgment against the

defendant for costs. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817

N.E.2d 393, ¶ 8. “A defendant's financial status is irrelevant to the imposition of

court costs.” State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d

589, ¶ 3.

{¶ 13} McHenry argues pursuant to R.C. 2929.19, the trial court was required to

inquire and consider his present and future ability to pay the court costs imposed.

However, court costs are not financial sanctions. Financial sanctions under R.C.

2929.19 includes, for example, fines, restitution, and reimbursement for the costs

of community control sanctions or monitoring devices. R.C. 2929.19 has no Stark County, Case No. 2017CA00119 5

application to the imposition of court costs. Rather, the imposition of court costs is

governed by R.C. 2947.23 which requires the trial court to impose costs and further

makes no requirement that the court make inquiry into the defendant’s present or

future ability to pay. State v. Dawson, 8th Dist. Cuyahoga No. 104509, 2017-Ohio-

965, ¶ 42.The trial court was thus not required to consider McHenry's future or

present ability to pay, as required by R.C. 2929.19 for the imposition of financial

sanctions, before imposing court costs.

{¶ 14} The sole assignment of error is overruled.

By Wise, Earle, J.

Delaney, J. and

Baldwin, J. concur.

EEW/sg 095