[Cite as State v. Gomez, 2016-Ohio-674.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
          Plaintiff-Appellee                  :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 2015-CA-00118
DAMON ANDRE GOMEZ                             :
                                              :
          Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Stark County
                                                  Court of Common Pleas, Case No. 2013-
                                                  CR-1253(A)

JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           February 22, 2016

APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

JOHN D. FERERO                                    DAMON ANDRE GOMEZ PRO SE
PROSECUTING ATTORNEY                              #651-744
BY: RONALD MARK CALDWELL                          Marion Correctional Institute
110 Central Plaza S., Ste. 510                    Box 57
Canton, OH 44702                                  Marion, OH 43301-0057
Stark County, Case No. 2015-CA-00118                                                    2

Gwin, P.J.

       {¶1}   Appellant appeals the May 15, 2015 judgment entry of the Stark County

Court of Common Pleas denying his motion to modify court costs and consolidate court

costs. Appellee is the State of Ohio.

                                  Facts & Procedural History

       {¶2}   In 2013, appellant Damon Gomez was indicted with one count of

possession of heroin in violation of R.C. 2925.11. On October 9, 2013, appellant pled

guilty to the indictment charges. After a pre-sentence investigation report, appellant was

sentenced on January 22, 2014 to a prison term of twelve (12) months. In addition to this

sentence, the trial court ordered appellant to pay court costs. Appellant did not file a

direct appeal.

       {¶3}   On May 15, 2015, appellant filed a motion to modify court costs order and

consolidate court costs order per R.C. 2949.111, R.C. 2949.14, and R.C. 2929.28. On

May 19, 2015, the trial court denied appellant’s motion.

       {¶4}   Appellant appeals the trial court’s May 19, 2015 judgment entry and assigns

the following as error:

       {¶5}   “I. THE TRIAL COURT COMMITTED PREJUDICE [SIC] ERROR WHEN

THE TRIAL COURT, DURING THE SENTENCING PHASE UNDER CASE NO. 2013CR-

1253A, 2004CR1749, AND 2004CR1083 FAILED TO DETERMINE THE DEFENDANT’S

ABILITY TO PAY THE COSTS PURSUANT TO R.C. 2947.23 IN VIOLATION OF THE

DEFENDANT’S UNITED STATES CONSTITUTIONAL RIGHTS.”
Stark County, Case No. 2015-CA-00118                                                        3


                                                 I.

       {¶6}   We first note that, in his brief and in his assignment of error, appellant makes

reference to two other criminal cases which resulted in his conviction and sentence, as

well as the imposition of court costs. In each of these two cases, 2004-CR-1749 and

2004-CR-1083, both 2004 cases, appellant did not appeal or otherwise challenge the

imposition of court costs until 2015. Like in the instant case, appellant filed a motion to

consolidate court costs and to modify those court costs in both cases. The trial court

judge overruled those motions on June 1, 2015.

       {¶7} Appellant has not filed an appeal from these June 1, 2015 denials. While

appellant attempts to challenge the validity of the court costs in the 2004 cases in this

case, we find because appellant failed to file a timely appeal from the June 1, 2015

judgment entries, this Court lacks jurisdiction to entertain appellant’s arguments regarding

the judgment entries in the 2004 cases.

       {¶8} In the instant case, appellant argues the trial court failed to comply with R.C.

2947.23(A)(1)(a) because the trial court did not determine, at the time of sentencing, his

ability to pay court costs.

       {¶9} The version of R.C. 2947.23 in effect at the time appellant was sentenced

provides as follows:

       (A)(1)(a) In all criminal cases * * * the judge or magistrate shall include in

       the sentence the costs of prosecution, including any costs under section

       2947.231 of the Revised Code, and render a judgment against the

       defendant for such costs. If the judge or magistrate imposes a community

       control sanction or other nonresidential sanction, the judge or magistrate,
Stark County, Case No. 2015-CA-00118                                                     4


      when imposing the sanction, shall notify the defendant of both of the

      following:

             (i) If the defendant fails to pay that judgment or fails to timely make

      payments towards that judgment under a payment schedule approved by

      the court, the court may order the defendant to perform community service

      in an amount of not more than forty hours per month until the judgment is

      paid or until the court is satisfied that the defendant is in compliance with

      the approved payment schedule.

             (ii) If the court orders the defendant to perform the community

      service, the defendant will receive credit upon the judgment at the

      specified hourly credit rate per hour of community service performed, and

      each hour of community service performed will reduce the judgment by

      that amount.

      {¶10} In the instant case, appellant pled guilty to the charge set forth in the

indictment against him in October of 2013 and sentencing was deferred until the

completion of a presentence investigation report. Upon completion of the report, the trial

court sentenced him to a prison term of twelve (12) months. The trial court did not impose

“a community control sanction or other nonresidential sanction.” Therefore, R.C. 2947.23

is not applicable to appellant and the trial court did not err in failing to determine

appellant’s ability to pay pursuant to that section of the Ohio Revised Code.

      {¶11} Further, 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

assessed court costs against appellant as required by statute. Appellant did not object
Stark County, Case No. 2015-CA-00118                                                      5


to the payment of court costs or argue he did not have the ability to pay court costs at the

time of sentencing, and did not file a direct appeal. Accordingly, the issue is res judicata

as defined in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967):

       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-Ohio-905, 843 N.E.2d 164; State v. Scott,

5th Dist. Richland No. 13CA110, 2014-Ohio-2374.

       {¶12} Based on the foregoing, appellant’s assignment of error is overruled. The

May 15, 205 judgment entry of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur
