State v. Pettygrove

2013 Ohio 1062

• Court: Ohio Court of Appeals
• Decided: March 11, 2013
• Docket: 12CA941
• Status: Published

Opinion

[Cite as State v. Pettygrove, 2013-Ohio-1062.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, :

Plaintiff-Appellant, : Case No. 12CA941

vs. :

TANGELA PETTYGROVE, : DECISION AND JUDGMENT ENTRY

Defendant-Appellee. :

______________________________________________________________

APPEARANCES:

COUNSEL FOR APPELLANT: C. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County Assistant Prosecuting Attorney, 110 West Main Street, Room 112, West Union, Ohio 45693-13891 _________________________________________________________ CRIMINAL APPEAL FROM COUNTY COURT DATE JOURNALIZED: 3-11-13 ABELE, J.

{¶ 1} This is an appeal from an Adams County Court judgment that

dismissed a criminal proceeding, without prejudice, against Tangela

Pettygrove, defendant below and appellee herein. The State of Ohio,

plaintiff below and appellant herein, challenges the portion of the

judgment that assessed court costs against the Office of the

Prosecuting Attorney. Appellant assigns the following error for

review:

“THE TRIAL COURT INCORRECTLY ORDERED THE STATE OF OHIO TO PAY COURT COSTS AFTER THE STATE MOVED

1 Appellee did not enter an appearance in this matter. ADAMS, 12CA941 2

TO DISMISS THE ACTION AGAINST THE DEFENDANT.”

{¶ 2} On June 27, 2011, a criminal complaint was filed that

charged appellee with driving under the influence in violation of

R.C. 4511.19(A)(1). Before the case came on for trial, appellant

moved to dismiss the matter.2 On February 14, 2012, the trial court

issued an entry that dismissed the case without prejudice. Although

the bulk of the entry was pre-printed, the trial court's handwritten

notation assessed “all costs to the P.A. office.”

{¶ 3} The appellant subsequently sought leave to appeal on

grounds that the trial court does not have the authority to assess

court costs in that manner. We granted the motion, and the case

is now before us.

{¶ 4} The appellant argues in its assignment of error that the

trial court erred by ordering it to pay the court costs. We disagree.

First, we recently addressed this issue. In State v. Hicks, 4th

Dist. No. 11CA933, 2012-Ohio-3831,3 we wrote:

“In its fourth assignment of error, the State complains that the trial court ordered it to pay court costs after dismissing the indictment. The State generally argues that the trial court lacked any authority to make this order. However, “ ‘[t]he duty to pay court costs is a civil obligation arising from an implied contract.’ “ State v. Joseph, 125 Ohio St.3d 76, 2010–Ohio–954, 926 N.E.2d 278, ¶ 20, quoting Strattman v. Studt, 20 Ohio St.2d 95, 253 N.E.2d 749 (1969), paragraph six of the syllabus. “That court costs are a civil obligation is true in both criminal and civil cases: ‘By being

2 It is not entirely clear from the record why the appellant requested to dismiss the case. However, shortly before trial appellant moved to amend the criminal complaint, and we find no indication that the trial court ruled on that motion. 3 Hicks was decided approximately three months after the appellant filed its brief in this matter. ADAMS, 12CA941 3

involved in court proceedings, any litigant, by implied contract, becomes liable for the payment of court costs if taxed as a part of the court's judgment.’ “ Id., quoting Strattman at 103. Therefore, we see no reason why as a general matter, the trial court could not order the State to pay court costs of its failed prosecution.” (Emphasis added.) Id. at ¶24.

{¶ 5} In Hicks, as in the case sub judice, the State relied on State

v. Songer, 5th Dist. No. 03COA051, 2004-Ohio-1281, (wherein the Ashland

County Court of Appeals held that in view of the fact that statutory

provisions exist for the payment of jury fees and indigent counsel fees

by county treasuries, the court should not have assessed these particular

types of fees against the State. Id. at ¶22) and State v. Christian, 7th

Dist. No. 04JE20, 2005-Ohio-905, (for the same general proposition and

involving prospective jury fees).

{¶ 6} However, in Hicks we rejected the application of Songer and

Christian because neither indigent counsel fees nor jury fees were involved

in the costs of that case. Likewise, in the case sub judice we find no

indication that those matters are at issue. Thus, Songer and Christian

are inappositive to the instant case.

{¶ 7} This brings us to the second reason we reject appellant's

argument. Specific statutes covered the fees and costs at issue

in Songer and Christian. In the case at bar, however, the appellant’s

brief does not cite a statute that the trial court allegedly violated

by assessing costs to the Office of the Prosecutor. Trial court

proceedings generally enjoy a presumption of correctness and an

appellant has the burden to affirmatively demonstrate error. See ADAMS, 12CA941 4

e.g., State v. Henry, 5th Dist. No. 2006- CA-00245, 2007-Ohio-5702,

at ¶33; State v. Freeman, 4th Dist. No. 06CA3, 2006-Ohio-5020, at

¶9. Without citation to a pertinent statute that the State believes

the trial court has violated, we are not inclined to find error or

to revisit Hicks.

{¶ 8} Finally, the appellant also relies on 2005 Ohio Atty. Gen.

Ops. No. 14, for the proposition that all court costs in criminal

cases are to be paid from the county treasury. We, however, rejected

that reasoning, in Hicks, supra, at ¶28.

{¶ 9} Thus, for all these reasons, we hereby overrule appellant's

assignment of error and affirm the trial court's judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee to

recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court

directing the Adams County Court to carry this judgment into

execution.

A certified copy of this entry shall constitute that mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion

For the Court ADAMS, 12CA941 5

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.