State v. Parker

2015 Ohio 274

• Court: Ohio Court of Appeals
• Decided: January 28, 2015
• Docket: C-140170
• Status: Published

Opinion

[Cite as State v. Parker, 2015-Ohio-274.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-140179 TRIAL NO. B-0904917 Plaintiff-Appellee, :

vs. : O P I N I O N.

GILBERT PARKER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Vacated

Date of Judgment Entry on Appeal: January 28, 2015

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Gilbert Parker, pro se.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

F ISCHER , Judge.

{¶1} Gilbert Parker appeals pro se from the trial court’s March 5, 2014

judgment, ordering the probation department to “accept and distribute” his payment of

court costs and probation fees. Because the trial court had already terminated Parker’s

community control, closed his case, and ordered the court costs remitted in an entry

dated October 29, 2013, we conclude that the trial court had no authority to enter the

March 5, 2014 judgment. Therefore, we vacate the trial court’s March 5, 2014 judgment.

Factual and Procedural Posture

{¶2} Parker pleaded guilty to one count of attempted carrying a concealed

weapon, a fifth-degree felony, in violation of R.C. 2923.02(A). On May 18, 2010, the

trial court sentenced Parker to three years’ community control upon certain terms and

conditions, including that Parker “pay court costs herein, plus standard probation fees.”

{¶3} On October 29, 2013, the trial court journalized an entry terminating

Parker’s community control. It provided as follows:

On May 18, 2010, the Court placed the captioned defendant onto 3 years

of community control. The probationer was declared an absconder on

October 29, 2010 and a warrant duly issued. Community control was

restored April 5, 2011, and continued to an expiration date of October 22,

2013. The Court now comes to find that October 22, 2013 passed without

action to continue community control. The Court finds that upon time

the community control has expired. Being fully apprised of the premises

herein by the Adult Probation Department, the Court hereby comes to

order the community control terminated and the case closed, costs

remitted. This order is made nunc pro tunc to October 22, 2013.

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{¶4} On March 5, 2014, the trial court journalized an entry ordering the

probation department to accept and disburse funds paid by Parker. That entry

provided:

On May 18, 2010, the Court placed the captioned defendant onto 3 years

of community control. As a condition of supervision, the court ordered

the probationer to pay $1450.20 in court costs, and $900.00 for a

community control supervision fee. The probationer was declared an

absconder on October 29, 2010. The community control was restored on

April 5, 2011, and continued to an expiration date of October 22, 2013. It

appeared on October 29, 2013, the court came to order the community

control terminated nunc pro tunc to October 22, 2013. At the time of the

termination order, the probationer continued to owe the entire order for

court costs and the supervision fee. The Court finds that the order

terminating community control notwithstanding the order for the

probationer to pay the court costs and supervision fee remains a

judgment order of the Court.

The Court is now well advised by the Adult Probation Department

that the probationer now has the financial ability to satisfy the judgment.

The Court is further advised that the probationer has advised voluntary

willingness to settle the judgment in full. The Court hereby comes to

order the Adult Probation Department to accept the funds to thereafter

distribute them to the proper accounts.

{¶5} On March 24, 2014, the clerk noted on the transcript the receipt of

$1450.20 from “probation.” On April 4, 2014, Parker filed a notice of appeal.

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Analysis

{¶6} In his third assignment of error, Parker argues “the trial court erred in

reopening his case and ordering him to pay costs.”

{¶7} On May 18, 2010, the trial court, in its original order of community

control, imposed court costs and probation fees as a condition of Parker’s community

control. On October 29, 2013, the trial court terminated Parker’s community control

and remitted the court costs. Once the trial court had terminated Parker’s community

control, closed the case, and remitted the court costs, the trial court had no authority to

order the probation department to accept Gilbert’s payment of the court costs and fees.

See State v. Gilbert, Slip Opinion No. 2014-Ohio-4562, ¶ 9-10; State v. Hostetter, 6th

Dist. Sandusky No. 5-10-052, 2012-Ohio-5003, ¶ 4-9 (holding the trial court had no

jurisdiction to compel the defendant to pay court costs, fines, and restitution that had

been imposed as conditions of his community-control sentence once it had terminated

his community control); see also R.C. 2951.021(A)(3) (providing that the state may

recover any unpaid probation fees imposed by way of a civil action). We, therefore,

sustain Parker’s third assignment of error to the extent he challenges the trial court’s

authority to enter the March 5, 2014 judgment, and hereby vacate that judgment.

{¶8} Parker’s two remaining assignments of error, in which he argues that

the trial court erred by failing to inform him and his attorney of the October 29, 2013

and March 5, 2014 entries, and by failing to afford him counsel during those

hearings, are rendered moot by our disposition of his third assignment of error, and

we do not address them. The March 5, 2014 judgment of the trial court is hereby

vacated. Judgment vacated.

HENDON, P.J, concurs. DEWINE, J., concurs separately.

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DEWINE, J., concurring separately.

{¶9} I agree that the trial court lacked jurisdiction to take further action as

it relates to the collection of probation fees and court costs once it had terminated

probation. In addition, since costs had been remitted by order of the court, I would

remand with instructions to the trial court to vacate its March 5, 2014 order and to

order the return of the $1450.20 in court costs that had been improperly collected.

See App.R. 12(D).

Please note: The court has recorded its own entry this date.