[Cite as State v. Jarvis, 2011-Ohio-6252.]




                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      JACKSON COUNTY

State of Ohio,                               :                   Case No. 10CA11

        Plaintiff-Appellee,                  :
                                                                 MEMORANDUM
        v.                                   :                   DECISION AND
                                                                 JUDGMENT ENTRY
Christopher M. Jarvis,                       :

     Defendant-Appellant.       :                RELEASED 12/02/11
______________________________________________________________________
                            APPEARANCES:

Timothy Young, Ohio State Public Defender, and Claire R. Cahoon, Ohio State
Assistant Public Defender, Columbus, Ohio, for appellant.

Jonathan D. Blanton, Jackson County Prosecuting Attorney, Jackson, Ohio, for
appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}     Christopher Jarvis appeals from his conviction by the Jackson County

Court of Common Pleas for one count of burglary and one count of escape. In June

2010, the court sentenced Jarvis to nine years of incarceration and ordered him to pay

courts costs. The trial court, however, failed to advise Jarvis that if he failed to pay

court costs, the court could order him to perform community service. This timely appeal

followed.

        {¶2}     Jarvis submits one assignment of error:

        The trial court erred by imposing court costs without notifying Mr. Jarvis
        that failure to pay court costs may result in the court’s ordering him to
        perform community service. June 23, 2010 Order on Sentencing;
        Sentencing Tr. 185.
Jackson App. No. 10CA11                                                                     2



         {¶3}   R.C. 2947.23(A)(1)(a) requires trial courts to inform defendants that if they

fail to pay court costs, they may be ordered to perform community service. The state

concedes that the court failed to provide Jarvis with this warning.

         {¶4}   We have struggled with this issue. Previously, we have held that until the

state has released the petitioner from prison, the petitioner has failed to pay courts

costs and the court has ordered him or her to perform community service, the issue was

not yet ripe for appellate review. See, e.g., State v. Welch, Washington App. No.

08CA29, 2009-Ohio-2655, at ¶14. Judges Harsha and Abele, however, have often

dissented from the application of the ripeness doctrine to situations related to R.C.

2947.23(A)(1). See, e.g., State v. Moore, Gallia App. No. 09CA2, 2009-Ohio-5732, at

¶8 (Harsha, J., dissenting); and State v. Knauff, Adams App. No. 09CA881, 2009-Ohio-

5535, at ¶7-8 (Abele, J., dissenting).

         {¶5}   In State v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930 N.E.2d 838,

in a per curiam opinion in which Judges Harsha and Abele comprised the majority of the

panel, this court concluded that it would not apply the ripeness doctrine and vacated the

portion of the entry that imposed court costs and remanded the case to the trial court for

resentencing. And in State v. Haught, Washington App. No. 10CA34, 2011-Ohio-4767,

an opinion written by Judge McFarland with Judge Harsha concurring, the panel agreed

with the result in Moss and concluded the issue was ripe for review. Thus, three of the

four judges on the court now agree the issue is ripe for review and that the failure to

provide the notice regarding community control required by R.C. 2947.23 is prejudicial

error.
Jackson App. No. 10CA11                                                                                     3


        {¶6}    Accordingly, we reverse the trial court’s judgment as it relates to the

imposition of court costs and remand for resentencing in compliance with R.C.

2947.23(A)(1)(a).1

                                                                          JUDGMENT REVERSED
                                                                         AND CAUSE REMANDED.




1
  The dissent concludes our remand defeats the goal of judicial economy and asks, “Why order the trial
court to do this?” The answer is simple. We do so because R.C. 2647.23(A)(1) requires the sentencing
judge to provide notice to the defendant at sentencing of the consequences of the failure to pay court
costs. Thus, rather than wasting judicial resources, we are applying the Supreme Court of Ohio’s
admonishment that no judge has the authority to disregard the law by ignoring a statutorily mandated
term. State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, at ¶19. Moreover, absent
resentencing and proper notice, the trial court cannot impose a community control sanction for failure to
pay costs. That result clearly does not promote the interests of justice.
Jackson App. No. 10CA11                                                                     4


Kline, J., dissenting.

       {¶7}   I respectfully dissent and would continue to follow the reasoning of State

v. Moore, Gallia App. No. 09CA2, 2009-Ohio-5732, at ¶7.

       {¶8}   I would continue to follow Moore for two reasons. First, as his assignment

of error demonstrates, Jarvis already knows that the trial court could order him to

perform community service if he fails to pay court costs. Second, the Supreme Court of

Ohio “has held that costs are distinct from criminal punishment.” State v. Joseph, 125

Ohio St.3d 76, 2010-Ohio-954, at ¶20. And because court costs are civil in nature, the

failure to properly impose “court costs does not create the taint on the criminal sentence

that the failure to [properly impose] postrelease control does.” Id. at ¶21.

       {¶9}   Accordingly, what Jarvis is asking us to do is unnecessary and completely

defeats the goal of judicial economy. On remand, the trial court will tell Jarvis what he

already knows. Why order the trial court to do this? Furthermore, how exactly has

Jarvis been prejudiced? He has actual knowledge of the community-service issue. And

because the trial court has not yet imposed community service, there is no taint on

Jarvis’s sentence that requires reversal. What a complete waste of judicial resources.

If this is the law, then “[t]he law is an ass[.]” State v. Bowie, Washington App. No.

01CA34, 2002-Ohio-3553, at ¶19 (Harsha, J., concurring in judgment only) (internal

quotation omitted).

       {¶10} Thus, I dissent.
Jackson App. No. 10CA11                                                                       5


                                    JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED AND THE CAUSE
REMANDED and that Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Jackson
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents with Dissenting Opinion.


                                            For the Court



                                            BY: _________________________
                                                 William H. Harsha
                                                 Presiding 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.
