[Cite as State v. Harris, 2020-Ohio-3056.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2019-CA-57
                                                  :
 v.                                               :   Trial Court Case No. 2017-CR-107
                                                  :
 TRAVONTE HARRIS                                  :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                             OPINION

                              Rendered on the 22nd day of May, 2020.

                                             ...........

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
     Attorney for Plaintiff-Appellee

TRAVONTE HARRIS, Inmate No. 733-495, London Correctional Institution, P.O. Box 69,
London, Ohio 43140
     Defendant-Appellant, Pro Se

                                             .............

WELBAUM, J.
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       {¶ 1} Defendant-appellant, Travonte Harris, appeals pro se from a judgment of the

Greene County Court of Common Pleas denying his motion to waive or stay the

imposition of court costs.      For the reasons outlined below, the judgment of the trial court

will be reversed, and the matter will be remanded for further proceedings consistent with

this opinion.



                                Facts and Course of Proceedings

       {¶ 2} On March 10, 2017, Harris pled no contest to one count of felonious assault

in violation of R.C. 2903.11(A)(2) and one count of having weapons while under disability

in violation of R.C. 2923.13(A)(2). The trial court accepted Harris’s no contest pleas and

found him guilty of both charges.      After finding Harris guilty, the trial court sentenced him

to a total of five years in prison and ordered him to pay court costs.

       {¶ 3} In the sentencing entry, the trial court stated that it had considered Harris’s

present and future ability to pay financial sanctions, and that Harris would not be required

to pay a fine or restitution.    However, with regard to court costs, the trial court noted that

if Harris failed to pay the costs, the court may order him to perform community service

until the costs were paid or until the court was satisfied that Harris was in compliance with

a payment schedule. The record indicates that Harris owed $1,037 in court costs.

       {¶ 4} On March 24, 2017, Harris appealed from his conviction.           In support of his

appeal, Harris challenged the knowing, intelligent, and voluntary nature of his no contest

plea. This court, however, found that Harris’s plea was valid and affirmed his conviction.

See State v. Harris, 2d Dist. Greene No. 2017-CA-19, 2017-Ohio-8419.

       {¶ 5} While Harris’s appeal was pending, on September 11, 2017, Harris wrote and
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filed a letter to the Greene County Clerk of Courts advising that he had recently learned

that the funds in his prison account were going to be garnished. In the letter, Harris

requested the Clerk of Courts to advise the prison not to proceed with the garnishment

because, according to Harris, the trial court had waived all fines, restitution, and court

costs.

         {¶ 6} After this court affirmed Harris’s conviction, on December 18, 2017, the trial

court issued a judgment entry addressing the claims in Harris’s letter.        In doing so, the

trial court treated Harris’s letter as a pro se motion to waive court costs.    The trial court

denied the motion and stated the following in its judgment entry:

                This matter is before the Court upon the Defendant’s Motion to Waive

         Fines and Costs. The Court does not find the Motion well-taken and the

         same is DENIED.     However, the Defendant may perform above [sic] up to

         40 hours per month community service at the direction of the institution’s

         staff to be credited toward the payment of costs at an hourly rate equal to

         the Federal Minimum Wage.

Judgment Entry (Dec. 18, 2017).

         {¶ 7} Four months later, the trial court issued a judgment entry crediting Harris for

19 hours of community service that he performed in November 2017 and January 2018.

In doing so, the trial court reduced the amount of court costs Harris owed by $137.75.

Over the next two months, Harris filed two pro se motions seeking additional credit for

community service that he allegedly performed. The trial court never ruled on those

motions.

         {¶ 8} On May 31, 2019, Harris filed a pro se motion to waive or stay court costs
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with an accompanying affidavit of indigency.      In support of his motion, Harris claimed

that he earned $18 per month working his job assignment in prison.              From those

earnings, Harris claimed that he was required to pay for his medication and personal

hygiene supplies.    Harris also claimed that he had to pay a $2.00 copay for any medical

attention he received while in prison.   According to Harris, paying court costs on top of

these expenses “fall[s] below contemporary standards of human decency.” Harris also

argued that because the trial court had not collected a payment from him “in well over a

year,” it is highly unlikely that his court costs will ever be collected and therefore should

be deemed uncollectible and waived under R.C. 2303.23. As an alternative to waiving

or staying his court costs, Harris requested that the trial court permit him to pay $3.00 per

month toward the amount owed.

       {¶ 9} On August 27, 2019, the trial court issued a judgment entry denying Harris’s

motion to waive or stay court costs. The judgment entry stated only the following:

              This matter is before the Court on Defendant’s Motion to

       Vacate/Waive or Grant a Stay on Court Costs and Fines, filed May 31, 2019.

       In support of his motion, Harris has attached an affidavit of indigency, and

       has stated a superior need to purchase hygienic and medical supplies.

       Indeed, this Court was aware of the Defendant’s indigent status and

       considered his present and future ability to pay financial sanctions when

       court costs were imposed. Therefore, the Defendant’s request that court

       costs be vacated is not-well taken and is DENIED in its entirety.         The

       Defendant may, however, perform community service at the direction of the

       institution’s staff to be credited toward the payment of court costs at an
                                                                                         -5-


      hourly rate equal to the Federal Minimum Wage.

Judgment Entry (Aug. 27, 2019).

      {¶ 10} Harris now appeals from the trial court’s decision denying his motion to

waive or stay court costs, raising two assignments of error for review.



                                 First Assignment of Error

      {¶ 11} Under his first assignment of error, Harris contends that the trial court erred

by denying his motion to waive or stay court costs without first considering his present or

future ability to pay the court costs imposed. We agree.

      {¶ 12} Pursuant to R.C. 2947.23(A)(1)(a), a trial court is required to impose court

costs against all convicted defendants, even those who are indigent. State v. Snowden,

2019-Ohio-3006, 140 N.E.3d 1112, ¶ 90 (2d Dist.); State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.        However, a trial court retains jurisdiction to

waive, suspend, or modify court costs at the time of sentencing or at any time thereafter.

R.C. 2947.23(C); State v. Tucker, 2d Dist. Montgomery No. 27694, 2019-Ohio-652, ¶ 23.

      {¶ 13} If the defendant makes a motion to waive court costs, it is within the trial

court’s discretion whether to grant the motion. Tucker at ¶ 23, citing State v. Hawley, 2d

Dist. Montgomery No. 25897, 2014-Ohio-731, ¶ 13.               (Other citations omitted.)

Therefore, we review a trial court’s decision on whether to waive court costs for an abuse

of discretion. State v. Reed, 2d Dist. Montgomery No. 27707, 2018-Ohio-1944, ¶ 12.

“A trial court abuses its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary.”    (Citation omitted.) State v. Darmond, 135 Ohio St.3d

343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
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       {¶ 14} This court has held that, “[a]lthough a trial court need not consider whether

a defendant has a present or future ability to pay court costs when court costs are

assessed, the trial court should consider the defendant’s ability to pay when a defendant

subsequently moves for a waiver, modification, or stay of the payment of court costs.”

State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797, ¶ 11.

Furthermore, “[i]n order for a reviewing court to determine whether the trial court abused

its discretion, the trial court must provide an explanation of the reason(s) for its decision

not to stay the execution of court costs.” (Citation omitted.) Reed at ¶ 13.

       {¶ 15} In State v. Dunson, 2d Dist. Montgomery No. 26990, 2016-Ohio-8365, and

State v. Taylor, 2d Dist. Montgomery No. 27539, 2018-Ohio-1649, this court concluded

that the trial court abused its discretion by denying a defendant’s motion to waive the

payment of court costs without considering the defendant’s indigency and ability to pay.

Dunson at ¶ 8-14; Taylor at ¶ 17-19.    Similarly, in State v. Sibrian, 2d Dist. Montgomery

No. 27964, 2019-Ohio-1262, this court concluded that the trial court abused its discretion

by denying a defendant’s motion to vacate court costs without providing an explanation

of the reasons why it decided to deny the motion. Id. at ¶ 14-17. We found that the

trial court’s failure to provide such an explanation prevented this court from performing a

meaningful appellate review.    Id.

       {¶ 16} The Supreme Court of Ohio has accepted review of our holdings in

Dunson,1 Taylor, and Sibrian.     See State v. Dunson, 150 Ohio St.3d 1442, 2017-Ohio-



1 The Supreme Court recently vacated its original decision reversing this court’s holding
in Dunson and reinstated the appeal. See State v. Dunson, 157 Ohio St.3d 1502, 2019-
Ohio-4768, 134 N.E.3d 1227.
                                                                                          -7-


7843, 82 N.E.3d 1175; State v. Taylor, 153 Ohio St.3d 1467, 2018-Ohio-3450, 106 N.E.3d

65; State v. Sibrian, 156 Ohio St.3d 1476, 2019-Ohio-3148, 128 N.E.3d 232.        In Dunson

and Taylor, the Supreme Court was asked to review whether a trial court is required to

consider an inmate’s present or future ability to pay court costs when ruling on a post-

conviction motion to waive costs.     See State v. Dunson, Memorandum in Support of

Jurisdiction, Ohio Sup. Ct. Case No. 2017-186; State v. Taylor, Memorandum in Support

of Jurisdiction, Ohio Sup. Ct. Case No. 2018-797.        Similarly, in Sibrian the Supreme

Court was asked to review whether a trial court is required to consider an inmate’s present

or future ability to pay court costs and to explain its reasoning when ruling on a post-

conviction motion to waive costs.     See State v. Sibrian, Memorandum in Support of

Jurisdiction, Ohio Sup. Ct. Case No. 2019-697.     The Supreme Court’s decision on those

matters is currently pending.2 Therefore, until the Supreme Court directs otherwise, we

will follow the doctrine of stare decisis and continue to follow our holdings in Dunson,

Taylor, and Sibrian.

       {¶ 17} In this case, when ruling on Harris’s motion to waive or stay court costs, the

trial court did not indicate that it had considered Harris’s present or future ability to pay

the court costs imposed at the time it ruled on the motion. The trial court also did not

explain its reasons for denying Harris’s motion.    In light of those deficiencies, the State

concedes that the trial court’s judgment denying Harris’s motion to waive or stay court

costs should be reversed and remanded to the trial court for purposes of making the



2 The Supreme Court has stayed the proceedings on Sibrian and Dunson for purposes
of awaiting its decision in Taylor. See Sibrian, 156 Ohio St.3d 1476, 2019-Ohio-3148,
128 N.E.3d 232; Dunson, 157 Ohio St.3d 1502, 2019-Ohio-4768, 134 N.E.3d 1227.
                                                                                            -8-


appropriate considerations and to provide an explanation for its decision.      Based on our

holdings in Dunson, Taylor, and Sibrian, we agree.        Therefore, because the trial court

failed to consider Harris’s present and future ability to pay court costs and failed to explain

its reasons for denying Harris’s motion to waive or stay court costs, we find that the trial

court abused its discretion in denying Harris’s motion.

       {¶ 18} Harris’s first assignment of error is sustained.



                              Second Assignment of Error

       {¶ 19} Under his second assignment of error, Harris contends that pursuant to R.C.

2303.23, the trial court should have waived his court costs because they are

uncollectable.   Harris asserts that the court costs are uncollectable because the trial

court has not collected a payment from him “in years” and because it is “highly unlikely

that the trial court will ever receive the court costs owed[.]”     We do not find Harris’s

argument to be persuasive.

       {¶ 20} R.C. 2303.23 provides that: “If at any time the court finds that an amount

owing to the court is due and uncollectible, in whole or in part, the court may direct the

clerk of the court to cancel all or part of the claim.” As previously noted, we review the

trial court’s decision to grant or deny a waiver of court costs for an abuse of discretion.

Reed, 2d Dist. Montgomery No. 27707, 2018-Ohio-1944 at ¶ 12.

       {¶ 21} R.C. 5120.133(A) “permits the Department of Rehabilitation and Correction

to deduct payments toward a certified judgment from a prisoner’s account without any

other required proceeding in aid of execution[.]” State v. Threatt, 108 Ohio St.3d 277,

2006-Ohio-905, 843 N.E.2d 164, ¶ 13.        Such deductions may be made so long as the
                                                                                           -9-


prisoner’s account retains a balance of $25 for inmate expenditures.       Ohio Adm. Code

5120-5-03(D).

       {¶ 22} In this case, Harris admitted to having a job assignment in prison that pays

$18 a month.    Therefore, in the event that Harris’s prison account ever accumulates a

balance over $25, the account can be garnished to pay Harris’s court costs.

Furthermore, the trial court advised Harris that he can pay off his court costs by

performing community service.       The record indicates that Harris has exercised that

option in the past and has had his court costs reduced by $137.75. Because there are

at least two methods by which it would be possible for the trial court to collect court costs

from Harris, we do not find that the trial court abused its discretion in failing to find that

Harris’s court costs were uncollectable for purposes of granting a waiver of the costs

under R.C. 2303.23.

       {¶ 23} Harris’s second assignment of error is overruled.



                                        Conclusion

       {¶ 24} Having sustained Harris’s first assignment of error, the judgment of the trial

court is reversed and the matter is remanded for the trial court to reconsider Harris’s

motion to waive or stay court costs in a manner consistent with this opinion.

                                      .............



DONOVAN, J. and HALL, J., concur.
                       -10-




Copies sent to:

Marcy A. Vonderwell
Travonte Harris
Hon. Stephen Wolaver
