[Cite as State v. Walker, 2011-Ohio-5270.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 96305



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 GREGORY WALKER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Case CR-466934

        BEFORE:           Boyle, P.J., Rocco, J., and Keough, J.

        RELEASED AND JOURNALIZED:                       October 13, 2011
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FOR APPELLANT

 Gregory Walker, pro se
 Inmate No. 502-304
 Southern Ohio Correctional Facility
 P.O. Box 45699
 Lucasville, Ohio 45699


 ATTORNEYS FOR APPELLEE

 William D. Mason
 Cuyahoga County Prosecutor
 BY: T. Allan Regas
 Assistant County Prosecutor
 The Justice Center, 8th Floor
 1200 Ontario Street
 Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

           {¶ 1} Defendant-appellant, Gregory Walker, appeals from the trial court’s order

denying his motion to vacate court costs.1 Finding no merit to his appeal, we affirm.

           {¶ 2} In 2006, Walker was convicted of murder with firearm specifications, and

having a weapon while under a disability.         The trial court sentenced him to 23 years to



        Walker titled his motion: “Motion to Vacate Fines/Court Costs.” But the trial court did not
       1


order him to pay fines as part of his sentence. Thus, we will only refer to court costs.
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life in prison.    The trial court also ordered Walker to pay court costs.   Walker appealed

his convictions, which this court upheld. See State v. Walker, 8th Dist. No. 87968,

2007-Ohio-3772, appeal not accepted for review, 116 Ohio St.3d 1458, 2007-Ohio-6803,

878 N.E.2d 35. Walker did not raise the issue of court costs in his direct appeal.

       {¶ 3} At some point in 2007 (the motion is not in the record), Walker filed a

motion to vacate court costs.      The trial court denied Walker’s motion on October 31,

2007 (the judgment entry denying Walker’s motion is in the record). In November

2010, Walker again moved the trial court to vacate court costs.        The trial court denied

his motion.       Walker appealed this denial, which is the subject of the present appeal.

He raises a single assignment of error:

       {¶ 4} “The trial court erred when it denied appellant’s motion to vacate fines and

court cost[s], when the court failed to impose court cost[s] in open court but incorporated

court cost[s] in appellant’s journal entry, as a result the court deprived appellant of his

fourteenth amendment rights to the U.S. Constitution.”

       {¶ 5} R.C. 2947.23 governs the imposition of court costs on a criminal

defendant. Pursuant to R.C. 2947.23(A)(1), a trial court must include “in the sentence

the costs of prosecution and render a judgment against the defendant for such costs.”

Id.   Further, Crim.R. 43(A) provides that, “the defendant shall be present at the

arraignment and every stage of the trial, including the impaneling of the jury, the return

of the verdict, and the imposition of sentence ***.”
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         {¶ 6} A defendant’s indigency does not shield him from the payment of court

costs.    State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶1.

Court costs must be assessed against all defendants. Id.; State v. White, 103 Ohio St.3d

580, 2004-Ohio-5989, 817 N.E.2d 393; R.C. 2947.23. Although a judge has discretion

to waive court costs assessed against an indigent defendant, such a person ordinarily

“must move a trial court to waive payment of costs at the time of sentencing.         If the

defendant makes such a motion, then

         {¶ 7} the issue is preserved for appeal and will be reviewed under an

abuse-of-discretion standard.    Otherwise, the issue is waived and costs are res judicata.”

 Threatt at ¶22.

         {¶ 8} Walker argues that although the trial court ordered him to pay court costs

in the sentencing entry, the trial court failed to orally inform him at the sentencing

hearing that he would have to do so. In support of his argument, he cites to the Ohio

Supreme Court’s decision in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926

N.E.2d 278.

         {¶ 9} In Joseph, the Supreme Court held that it is reversible error under Crim.R.

43(A) for the trial court to impose costs in its sentencing entry when it did not impose

those costs in open court at the sentencing hearing.     Id. at ¶22.   The Court reasoned

that the defendant was denied the opportunity to claim indigency and to seek a waiver of

the payment of court costs before the trial court because the trial court did not mention

costs at the sentencing hearing. Id.
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       {¶ 10} Significantly, however, Joseph was decided in the context of a direct

appeal from a resentencing judgment. The Supreme Court said nothing in Joseph to

suggest that a trial court’s failure to orally notify a defendant in open

       {¶ 11} court before imposing court costs can be corrected after the appeal period

expires.   See State v. Brown, 8th Dist. No. 95048, 2011-Ohio-1096 (addressing the

exact same argument that Walker now raises).         The appropriate forum for challenging

court costs is by way of direct appeal from the sentencing entry and          the defendant is

barred under the doctrine of res judicata from raising the issue in a subsequent motion or

proceeding. Brown at ¶5; State v. Lunsford, 2d Dist. No. 24122, 2011-Ohio-964, ¶13.

       {¶ 12} Here, Joseph failed to raise the issue of court costs in his direct appeal.

Accordingly, this court is barred by the doctrine of res judicata from addressing it.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE
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KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
