State v. Scott

2014 Ohio 2374

Opinion

[Cite as State v. Scott, 2014-Ohio-2374.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : RANDY L. SCOTT : Case No. 13CA110 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2010-CR-313H

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 2, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN C. NIEFT RANDY L. SCOTT, Pro Se 38 South Park Street Inmate No. A604-323 Mansfield, OH 44902 Trumbull Correctional Institution 5701 Burnett Road Leavittsburg, OH 44430 Richland County, Case No. 13CA110 2

Farmer, J.

{¶1} On August 22, 2011, appellant, Randy Lamont Scott, was convicted of

four counts of rape in violation of R.C. 2907.02, four counts of sexual battery in violation

of R.C. 2907.03, four counts of gross sexual imposition in violation of R.C.

2907.05(A)(1), and one count of kidnapping with a sexual motivation specification in

violation of R.C. 2905.01. By sentencing entry filed August 26, 2011, the trial court

sentenced appellant to an aggregate term of twenty-six and a half years in prison and

ordered him to "pay any restitution, all costs of prosecution, court appointed counsel

costs and any fees permitted pursuant to R.C. 2929.18."

{¶2} Appellant filed an appeal. Appellant did not assign as error the order to

pay fines and costs. This court affirmed in part and reversed in part appellant's

convictions, finding the trial court erred in sentencing appellant in light of the merger

doctrine. State v. Scott, 5th Dist. Richland No. 11CA80, 2012-Ohio-3482. Upon

remand, by resentencing entry filed October 31, 2012, the trial court merged some of

the counts and again sentenced appellant to an aggregate term of twenty-six and a half

years in prison, and ordered him to "pay any restitution, all costs of prosecution, court

appointed counsel costs and any fees permitted pursuant to R.C. 2929.18." Appellant

did not appeal his resentence or the issue of paying fines and costs.

{¶3} On July 29, 2013, appellant filed a motion for waiver of restitution, all costs

of prosecution, court appointed counsel costs and any fees permitted pursuant to R.C.

2929.18 and 2949.092. Appellant argued the trial court had erred in failing to inform

him in court of having to pay fines and costs. By judgment entry filed August 16, 2013,

the trial court denied the motion. Richland County, Case No. 13CA110 3

{¶4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶5} "THE TRIAL JUDGE, ABUSED HIS DISCRETION BY DENYING THE

APPELLANT OF HIS FIFTH AND FOURTEENTH AMENDMENT RIGHT UNDER THE

DUE PROCESS CLAUSE OF THE CONSTITUTION OF THE UNITED STATES BY

NOT HOLDING A HEARING TO DETERMINE THE APPELLANT'S ABILITY TO PAY

FINES AND COSTS RELATED TO THIS CASE."

II

{¶6} "THE TRIAL JUDGE DENIED APPELLANT HIS FIFTH AND

FOURTEENTH AMENDMENT RIGHT UNDER THE DUE PROCESS CLAUSE BY NOT

INFORMING THE APPELLANT DURING SENTENCING THAT HE WOULD BE

RESPONSIBLE FOR SAID COST AND FINES, TO ALLOW THE APPELLANT TO

OBJECT, THEN UNCONSTITUIONALLY WITHDRAWING PAYMENT FROM THE

INDIGENT APPELLANT'S INMATE ACCOUNT."

I, II

{¶7} Appellant claims the trial court erred in failing to hold a hearing on his

ability to pay fines and costs, and not informing him during sentencing that he would be

responsible for said fines and costs. We disagree.

{¶8} A review of the resentencing entry indicates the trial court did not access

restitution or fines. Therefore, this assignment pertains to court costs only. Pursuant to

R.C. 2947.23(A)(1)(a), a trial court in all criminal cases shall render judgment against a

defendant for court costs. In this case, the trial court accessed court costs against Richland County, Case No. 13CA110 4

appellant as required by statute. Appellant did not object to the payment of court costs

at the time of resentencing, and did not appeal the order. In fact, on June 24, 2013 after

resentencing, appellant filed a motion to establish a payment plan for court costs,

asking the trial court to raise his monthly payment from $2.00 to $3.00. The trial court

denied the motion. See, Judgment Entry filed July 2, 2013.

{¶9} Because appellant failed to object or appeal the order of court costs, the

issue is res judicata as defined in State v. Perry, 10 Ohio St.2d 175 (1967), paragraph

nine of the syllabus:

Under the doctrine of res judicata, a final judgment of conviction

bars a convicted defendant who was represented by counsel from raising

and litigating in any proceeding except an appeal from that judgment, any

defense or any claimed lack of due process that was raised or could have

been raised by the defendant at trial, which resulted in that judgment of

conviction, or on an appeal from that judgment.

See, State v. Threatt, 108 Ohio St.3d 277 (2006); State v. Snelling, 5th Dist. Richland

No. 13CA3, 2013-Ohio-4180.

{¶10} Assignments of Error I and II are denied. Richland County, Case No. 13CA110 5

{¶11} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.

SGF/sg 512