[Cite as State v. Springs, 2015-Ohio-5016.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2015-CA-3 : v. : Trial Court Case No. 14-CR-231 : CORY M. SPRINGS, SR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 4th day of December, 2015.
KEVIN S. TALEBI, by JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
ROBERT A. BRENNER, Atty. Reg. No. 0067714, 120 West Second Street, Suite 706, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
.............
HALL, J.
{¶ 1} Cory M. Springs, Sr. appeals from his conviction and sentence following a
negotiated guilty plea to charges of petty theft, failure to comply with an order or signal of -2-
a police officer, and receiving stolen property.
{¶ 2} In his sole assignment of error, Springs contends the trial court erred in
ordering him to pay “court-appointed legal fees and expenses.”
{¶ 3} The record reflects that Springs pled guilty to the above-referenced charges
in exchange for dismissal of numerous other charges and the State’s recommendation of
an aggregate four-year prison sentence. The trial court accepted the plea and imposed
the recommended sentence. With regard to other sanctions, the trial court advised
Springs at sentencing as follows:
You are ordered to pay back the cost of the case. Judgment is
granted for cost. Execution for cost is awarded. Count One, fine is imposed
of $150. Count Three, fine is imposed of $250. Count Ten, fine is imposed
of $250. The fines are concurrent to one another. Restitution is due payable
in the amounts and to the persons named by the State, but they are payable
in reverse order. The victim of the stolen vehicle will be paid first. Speedway
will be paid second.
You are also ordered to pay back the cost of the court-appointed
legal fees and expenses. They won’t be collected as part of the cost of the
case. They will be separately collected by the Clerk. I’m just letting you know
of your obligation to be responsible for the repayment. Court costs, fines,
restitution, and court-appointed legal fees and expenses are to be paid at a
minimum $50 per month beginning the second month after release from
confinement and due the 28th of each month thereafter.
(Emphasis added) (Sentencing Tr. at 26-27). -3-
{¶ 4} In its subsequent judgment entry, the trial court stated:
Defendant is ordered to pay back the cost of the legal fees and
expenses in the case at bar and those fees and expenses shall be
separately collected by the Clerk. R.C. 2941.51(D).
The Court finds that R.C. 2941.51(D) does allow a county to seek
reimbursement of court appointed counsel fees if a Defendant has the
means to pay for some or all of the costs of services provide[d] to the
Defendant, but the right of action it confers must be prosecuted in a civil
action. Although, the fees and expenses shall not be taxed as part of the
costs, the Court sets forth notice of the Defendant’s obligation to be
responsible for such payment.
Judgment is granted for the legal fees and expenses and execution
for those fees and expenses is awarded.
(Doc. #41 at 12).
{¶ 5} After entering judgment against Springs for the payment of court-appointed
counsel fees and awarding execution on that judgment, the trial court’s judgment entry
proceeded to set forth the following “financial obligation payment schedule”:
Defendant shall pay court costs, fine, restitution, and court-appointed
legal fees at a minimum of $50.00 per month beginning the second month
after release from confinement and due the 28th of each month thereafter.
Clerk shall apply monies collected to court costs, fine, restitution, and court-
appointed legal fees in that order. -4-
(Emphasis added) (Id. at 12-13).
{¶ 6} On appeal, Springs challenges the trial court’s decision to order him to pay
his court-appointed counsel fees. He argues that such fees must be pursued by a county
against a defendant in a separate civil action. Therefore, he asks us to vacate the portion
of the judgment entry ordering him to pay court-appointed counsel legal fees and
expenses. (Appellant’s brief at 3).
{¶ 7} Upon review, we find Springs’ assignment of error to be persuasive, but only
in part. This court addressed the repayment of court-appointed counsel fees in State v.
Hill, 2d Dist. Clark No. 04CA0047, 2005-Ohio-3877, as follows:
R.C. 2929.18 prescribes the financial sanctions a court may impose
on conviction for a felony. The costs of or fees paid to court-appointed
counsel are not among them.
The State relies on R.C. 2941.51(D). That section confers a right of
action on a county for any claim it has for reimbursement of court-appointed
counsel fees and expenses, “if the person has, or may reasonably be
expected to have, the means to meet some part of the cost of the services
rendered to the person.”
The right of action R.C. 2941.51(D) confers must be prosecuted in a
civil action. State v. Crenshaw (2001), 145 Ohio App.3d 86, 761 N.E. 1121.
That fact is underscored by the further provision of R.C. 2941.51(D) which
states that “[t]he fees and expenses (for court-appointed counsel) approved
by the court . . . shall not be taxed as part of the costs,” as the court did
here. -5-
Id. at ¶ 4-6.
{¶ 8} This court discussed the issue more recently in State v. Hardwick, 2d Dist.
Montgomery No. 26283, 2015-Ohio-1748, as follows:
R.C. 2941.51(D) allows “a county to seek reimbursement of court-
appointed counsel fees if a defendant has the means to pay for some or all
of the costs of services provided to him, but we have held that the right of
action it confers ‘must be prosecuted in a civil action.’” State v. Breneman,
2d Dist. Champaign No. 2013 CA 15, 2014-Ohio-1102, ¶ 5, quoting State
v. Miller, 2d Dist. Clark No. 08CA0090, 2010-Ohio-4760, ¶ 61. (Other
citations omitted.) Therefore, requiring a defendant to pay his court-
appointed attorney fees as part of his sentence is not condoned under R.C.
2941.51. State v. Crenshaw, 145 Ohio App.3d 86, 90, 761 N.E.2d 1121 (8th
Dist.2001). Accord State v. Louden, 2d Dist. Champaign No. 2013 CA 30,
2013 CA 31, 2014-Ohio-3059, ¶ 5, 28-29 (finding the trial court erred in
ordering appellant to pay court-appointed attorney fees as part of his
sentence after his community control sanctions were revoked, as attorney
fees “must be pursued in a separate civil action”).
Hardwick at ¶ 29. On the other hand, if an offender is placed on probation, the “trial
court can impose and enforce repayment of attorney fees as a valid special condition of
probation.” Id. at ¶ 33, quoting State v. McLean, 87 Ohio App.3d 392, 396–397, 622
N.E.2d 402 (1st Dist.1993).
{¶ 9} The foregoing case law makes clear that although a defendant can indirectly
be required to repay his court-appointed counsel fees as a special condition of probation, -6-
he cannot be directly required to repay court-appointed counsel fees as a criminally
enforceable sanction and court-appointed counsel fees may not be taxed as costs. As
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[Cite as State v. Springs, 2015-Ohio-5016.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2015-CA-3 : v. : Trial Court Case No. 14-CR-231 : CORY M. SPRINGS, SR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 4th day of December, 2015.
KEVIN S. TALEBI, by JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
ROBERT A. BRENNER, Atty. Reg. No. 0067714, 120 West Second Street, Suite 706, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
.............
HALL, J.
{¶ 1} Cory M. Springs, Sr. appeals from his conviction and sentence following a
negotiated guilty plea to charges of petty theft, failure to comply with an order or signal of -2-
a police officer, and receiving stolen property.
{¶ 2} In his sole assignment of error, Springs contends the trial court erred in
ordering him to pay “court-appointed legal fees and expenses.”
{¶ 3} The record reflects that Springs pled guilty to the above-referenced charges
in exchange for dismissal of numerous other charges and the State’s recommendation of
an aggregate four-year prison sentence. The trial court accepted the plea and imposed
the recommended sentence. With regard to other sanctions, the trial court advised
Springs at sentencing as follows:
You are ordered to pay back the cost of the case. Judgment is
granted for cost. Execution for cost is awarded. Count One, fine is imposed
of $150. Count Three, fine is imposed of $250. Count Ten, fine is imposed
of $250. The fines are concurrent to one another. Restitution is due payable
in the amounts and to the persons named by the State, but they are payable
in reverse order. The victim of the stolen vehicle will be paid first. Speedway
will be paid second.
You are also ordered to pay back the cost of the court-appointed
legal fees and expenses. They won’t be collected as part of the cost of the
case. They will be separately collected by the Clerk. I’m just letting you know
of your obligation to be responsible for the repayment. Court costs, fines,
restitution, and court-appointed legal fees and expenses are to be paid at a
minimum $50 per month beginning the second month after release from
confinement and due the 28th of each month thereafter.
(Emphasis added) (Sentencing Tr. at 26-27). -3-
{¶ 4} In its subsequent judgment entry, the trial court stated:
Defendant is ordered to pay back the cost of the legal fees and
expenses in the case at bar and those fees and expenses shall be
separately collected by the Clerk. R.C. 2941.51(D).
The Court finds that R.C. 2941.51(D) does allow a county to seek
reimbursement of court appointed counsel fees if a Defendant has the
means to pay for some or all of the costs of services provide[d] to the
Defendant, but the right of action it confers must be prosecuted in a civil
action. Although, the fees and expenses shall not be taxed as part of the
costs, the Court sets forth notice of the Defendant’s obligation to be
responsible for such payment.
Judgment is granted for the legal fees and expenses and execution
for those fees and expenses is awarded.
(Doc. #41 at 12).
{¶ 5} After entering judgment against Springs for the payment of court-appointed
counsel fees and awarding execution on that judgment, the trial court’s judgment entry
proceeded to set forth the following “financial obligation payment schedule”:
Defendant shall pay court costs, fine, restitution, and court-appointed
legal fees at a minimum of $50.00 per month beginning the second month
after release from confinement and due the 28th of each month thereafter.
Clerk shall apply monies collected to court costs, fine, restitution, and court-
appointed legal fees in that order. -4-
(Emphasis added) (Id. at 12-13).
{¶ 6} On appeal, Springs challenges the trial court’s decision to order him to pay
his court-appointed counsel fees. He argues that such fees must be pursued by a county
against a defendant in a separate civil action. Therefore, he asks us to vacate the portion
of the judgment entry ordering him to pay court-appointed counsel legal fees and
expenses. (Appellant’s brief at 3).
{¶ 7} Upon review, we find Springs’ assignment of error to be persuasive, but only
in part. This court addressed the repayment of court-appointed counsel fees in State v.
Hill, 2d Dist. Clark No. 04CA0047, 2005-Ohio-3877, as follows:
R.C. 2929.18 prescribes the financial sanctions a court may impose
on conviction for a felony. The costs of or fees paid to court-appointed
counsel are not among them.
The State relies on R.C. 2941.51(D). That section confers a right of
action on a county for any claim it has for reimbursement of court-appointed
counsel fees and expenses, “if the person has, or may reasonably be
expected to have, the means to meet some part of the cost of the services
rendered to the person.”
The right of action R.C. 2941.51(D) confers must be prosecuted in a
civil action. State v. Crenshaw (2001), 145 Ohio App.3d 86, 761 N.E. 1121.
That fact is underscored by the further provision of R.C. 2941.51(D) which
states that “[t]he fees and expenses (for court-appointed counsel) approved
by the court . . . shall not be taxed as part of the costs,” as the court did
here. -5-
Id. at ¶ 4-6.
{¶ 8} This court discussed the issue more recently in State v. Hardwick, 2d Dist.
Montgomery No. 26283, 2015-Ohio-1748, as follows:
R.C. 2941.51(D) allows “a county to seek reimbursement of court-
appointed counsel fees if a defendant has the means to pay for some or all
of the costs of services provided to him, but we have held that the right of
action it confers ‘must be prosecuted in a civil action.’” State v. Breneman,
2d Dist. Champaign No. 2013 CA 15, 2014-Ohio-1102, ¶ 5, quoting State
v. Miller, 2d Dist. Clark No. 08CA0090, 2010-Ohio-4760, ¶ 61. (Other
citations omitted.) Therefore, requiring a defendant to pay his court-
appointed attorney fees as part of his sentence is not condoned under R.C.
2941.51. State v. Crenshaw, 145 Ohio App.3d 86, 90, 761 N.E.2d 1121 (8th
Dist.2001). Accord State v. Louden, 2d Dist. Champaign No. 2013 CA 30,
2013 CA 31, 2014-Ohio-3059, ¶ 5, 28-29 (finding the trial court erred in
ordering appellant to pay court-appointed attorney fees as part of his
sentence after his community control sanctions were revoked, as attorney
fees “must be pursued in a separate civil action”).
Hardwick at ¶ 29. On the other hand, if an offender is placed on probation, the “trial
court can impose and enforce repayment of attorney fees as a valid special condition of
probation.” Id. at ¶ 33, quoting State v. McLean, 87 Ohio App.3d 392, 396–397, 622
N.E.2d 402 (1st Dist.1993).
{¶ 9} The foregoing case law makes clear that although a defendant can indirectly
be required to repay his court-appointed counsel fees as a special condition of probation, -6-
he cannot be directly required to repay court-appointed counsel fees as a criminally
enforceable sanction and court-appointed counsel fees may not be taxed as costs. As
noted above, the trial court correctly recognized this court’s precedent precluded it from
taxing court-appointed counsel fees as costs in Springs’ criminal case. (Doc. #41 at 12).
The trial court also correctly recognized that under this court’s precedent, reimbursement
of court-appointed counsel fees must be pursued by the government in a separate civil
action. (Id.).
{¶ 10} We have traced the “separate civil action” language to City of Galion v.
Martin, 3rd Dist. Crawford No. 3–91-6, 1991 WL 261835 (Dec. 12, 1991). There, the court
held
Thus, the attorney fees may not be assessed against Appellant as part of
the state's costs of prosecuting the case. The court may however, require
Appellant to pay his attorney fees if there is a reasonable expectation that
Appellant has the funds to do so. An action to compel an indigent defendant
who has been ordered to repay the expenditures made to appointed
counsel, is civil in nature and the state cannot imprison a defendant until
such amount is paid.
Id. at *5. The court went on to hold that the trial court must determine whether the offender
has, or is expected to have, the means to pay all or some of the legal fees and if so then
render a “separate civil judgment” for that reimbursable attorney fees. Id. See also State
v. White, 3rd Dist. Crawford Nos. 3–97–18 and 3–97–19, 1998 WL 229785 (Apr. 21,
1998). We determine that it is proper to consider ability-to-pay and the amount thereof in
the criminal case pursuant to R.C. 2941.51(D), as alluded to in City of Galion, and for the -7-
trial court to enter judgment against the defendant for the determined ability-to-pay
amount. It is the enforcement of that judgment that can only be compelled by civil
collection proceedings. The Twelfth District observed a split of Ohio authority regarding
the necessity of a “separate civil judgment” ordering the payment of court-appointed
counsel fees in State v. Perry, 12th Dist. Preble No. CA2004-11-016, 2005-Ohio-6041, ¶
20-21. Perry indicated that the Third, Sixth, Eighth, and Ninth Districts refer to a “separate
civil judgment” for reimbursement of court-appointed counsel fees. But the Twelfth
District, in Perry and previous cases, does not require a two-step process, and permits
the ability-to-pay and order assessing the amount to be part of the criminal judgment of
conviction and sentence entry. We note that the “separate civil judgment” language has
crept into every one of the other districts’ decisions, including our own, from first or second
generation citations to City of Galion, supra. Although City of Galion at one point used
that phrase, it did not describe what it meant by it and that court was apparently referring
to the notion that enforcement of the fee obligation was “civil in nature” to emphasize that
the “state cannot imprison a defendant” for failure to pay the award. Id. *5
{¶ 11} Here the trial court proceeded to find that Springs would have the ability to
repay his court-appointed counsel fees after his release from prison (a finding he has not
challenged on appeal), and the court stated “Judgment is granted for the legal fees and
expenses and execution for those fees and expenses is awarded.”1 (Doc. #41 at 12). In
our view, nothing in R.C. 2941.51(D) or elsewhere precluded the trial court from making
1 We consider the “execution for those fees and expenses is awarded” language in the entry to mean that the county may utilize available civil execution-of-judgment proceedings to collect the judgment and to distinguish the court’s decision form one where execution of judgment is stayed. -8-
a finding regarding Springs’ ability to pay his court-appointed counsel fees upon his
release from prison. Based on its familiarity with the case, the trial court was well-
positioned to make this finding. We also conclude that the trial court had the ability to find
Springs obligated to pay those fees and to enter judgment for them.
{¶ 12} The concern we have in the trial court’s entry is that the obligation to
reimburse appointed-counsel fees blended into the court’s post-confinement repayment
schedule, which we construe to be an element of enforcement. If Champaign County, or
the clerk thereof, desires to enforce the reimbursement to which the trial court’s findings
entitle it, it must pursue civil execution collection proceedings. Cf. Galion v. Martin, 3d
Dist. Crawford No. 3-91-6, 1991 WL 261835, *5 (Dec. 12, 1991).
{¶ 13} Based on the reasoning set forth above, we hereby modify the trial court’s
final judgment entry by vacating and excising only the words “and court appointed legal
fees” from the “financial obligation payment schedule” to the extent that the schedule
compels Springs to make monthly payments toward his court-appointed counsel fees in
connection with his criminal case.2 As so modified, the trial court’s judgment is affirmed.
FROELICH, P.J., and FAIN, J., concur.
Copies mailed to:
Kevin S. Talebi Jane A. Napier
2 We are likewise concerned that the post-prison payment schedule for any of the other costs and fees is of no effect because after completion of a prison sentence the trial court has no authority to impose additional sanctions and no authority to enforce monetary obligations except through civil enforcement mechanisms. See, e.g., State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512 (Trial Court had no authority to impose a post-release no-contact order between offender and the victim.) However the efficacy of that part of the court’s order was not specifically challenged in this appeal. -9-
Robert A. Brenner Hon. Nick A. Selvaggio