[Cite as State v. Dunson, 2016-Ohio-8365.]




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

 STATE OF OHIO                                   :
                                                 :    Appellate Case No. 26990
       Plaintiff-Appellee                        :
                                                 :    Trial Court Case No. 12-CR-1991/2
 v.                                              :
                                                 :    (Criminal Appeal from
 JAMES L. DUNSON                                 :     Common Pleas Court)
                                                 :
       Defendant-Appellant                       :
                                                 :

                                              ...........

                                             OPINION

                         Rendered on the 23rd day of December, 2016.

                                              ...........

MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee


JAMES DUNSON, #A678-445, Warren Correctional Institution, Post Office Box 120,
Lebanon, Ohio 45036
     Defendant-Appellant

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

FAIN, J.

        {¶ 1} Defendant-appellant James L. Dunson appeals from an order of the trial
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court overruling his post-conviction motion to vacate or stay the execution of court-

imposed costs, fines, and restitution. Dunson argues that the financial obligations

imposed as part of his criminal sentence should be waived based on his indigency and

inability to pay. Alternatively, Dunson seeks a stay of execution or an affordable payment

plan. The State asserts that the trial court did not abuse its discretion in determining that

Dunson has the ability to pay based on the ability to attach his prison account, and that

any challenge to the attachment of his prison account is not properly before this court.

        {¶ 2} We conclude that the trial court abused its discretion by overruling Dunson’s

motion to waive, suspend or modify the payment of the court ordered costs,1 without

considering his indigency and ability to pay. That part of the order of the trial court is

Reversed, and this cause is Remanded to allow the trial court to consider Dunson’s

motion based on his alleged indigency and inability to pay the court ordered costs. We

conclude that the trial court did not abuse its discretion in overruling Dunson’s motion

addressed to restitution. Accordingly, that part of the trial court’s order is Affirmed.



                              I. The Course of Proceedings

        {¶ 3} In 2013, Dunson was convicted on two counts of Murder (proximate result),

in violation of R.C. 2903.02(B), along with two firearm specifications; one count of

Aggravated Robbery (deadly weapon), in violation of R.C. 2911.01(A)(1), along with a

firearm specification; and one count of Aggravated Robbery (serious harm), in violation

of R.C. 2911.01(A)(3), along with a firearm specification. For purposes of sentencing, the

trial court merged the two murder counts, and the State elected to proceed to sentencing


1   No fine was imposed.
                                                                                           -3-


on Count 1. The trial court also merged the Aggravated Robbery counts into Count One,

merged the firearm specifications into one firearm specification, and sentenced Dunson

to 15 years to life for Murder, and to an additional three-year term on the firearm

specification. The termination entry also ordered Dunson to pay court costs, as well as

restitution in the amount of $3,869.10. No fines were imposed. After the termination entry

was filed, Dunson was sent a cost bill for $6,199.10. On appeal, we affirmed the judgment

of the trial court. State v. Dunson, 2d Dist. Montgomery No. 25693, 2014-Ohio-234. After

his original appeal, Dunson was sent a cost bill for $92.00 for court costs assessed in the

appeal. Two years after his conviction, Dunson moved to vacate or stay court costs,

fines, mandatory fines and/or restitution, or in the alternative, requested a payment plan

or extension to pay the stated obligation. Dunson stated that he “is not attempting to avoid

the financial obligations as properly determined by the court,” but seeks repayment terms

that are not unduly harsh. In the trial court, Dunson filed an affidavit of indigency with his

motion, averring that he works at the prison and is paid $17 to $21 monthly, and that he

is without sufficient funds to pay the required costs and fees. In his motion, Dunson further

asserted that his monthly expenses ranged from $11 to over $21 per month for basic

hygiene items and medical expenses. As an alternative, Dunson offered to set up a

payment plan of $5 per month, which exceeds 25% of his average monthly income.

       {¶ 4} The trial court did not hold a hearing, did not order a responsive pleading to

the motion, and did not address the evidence Dunson submitted by affidavit. The State

did not file a reply to Dunson’s motion. Two days after Dunson’s motion was filed, the trial

court summarily overruled the motion, stating the following reasons:

              Upon review, the Court notes that Defendant made the choices
                                                                                        -4-


       which led to the accrual of the fees at issue, and he must take responsibility

       for his conduct, as well as the resulting consequences. Moreover, there is

       no evidence that Defendant is unable to make any payment toward the

       costs at this time, or that he will not be able to make payments toward the

       fees once his term of incarceration ends. Therefore, the Court finds that it

       is not necessary to vacate or stay Defendant’s fees in this matter, and

       OVERRULES Defendant’s Motion to Vacate or Stay Court Costs, Fines,

       Mandatory Fines and/or Restitution.

Dkt. #16.

       {¶ 5} From the order overruling the motion to vacate or stay costs and fees,

Dunson appeals. We asked the parties to file additional briefing to address whether or

what standard of indigency or ability-to-pay factors must be considered by the trial court

to identify the basis of its discretion to grant or deny a post-conviction motion to waive,

suspend or modify costs or the payment of costs, fines, fees or restitution. We further

asked for the supplemental briefing to address the question of whether an inmate’s ability

to pay from the assets in his inmate’s prison account is affected by the state and federal

statutes governing collection of civil judgments found in Chapters 2329, 2715 and 2716

of the Revised Code, and any applicable federal statute or rule, and whether the

sentencing court or the trial court where the assets are located has jurisdiction over

execution of the civil judgment by attachment of the inmate’s assets. Our entry seeking

supplemental briefs also allowed Dunson to request the appointment of counsel for this

appeal. The State filed a supplemental brief. Dunson did not ask for the appointment of

counsel and did not file a supplemental brief.
                                                                                      -5-




                                II. Standard of Review

      {¶ 6} The Supreme Court has held that if an indigent person, at the time of

sentencing, moves a trial court to waive the payment of court costs, appellate review of

the trial court’s decision will be under an abuse-of-discretion standard. See State v.

Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164. We have applied that

same standard of review in the context of a post-judgment motion to waive court costs or

to stay the payment thereof. See State v. Copeland, 2d Dist. Montgomery No. 26842,

2016-Ohio-7797.

      {¶ 7} Based on an abuse-of-discretion standard of review, we must determine

whether the trial court’s discretionary decision not to vacate or stay execution of court

imposed costs is grossly unsound, unreasonable, illegal, or unsupported by the evidence.

State v. Woods, 2d Dist. Clark No. 2015-CA-75, 2016-Ohio-1103, ¶ 10. “Abuse of

discretion” has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248

(1985). A decision is unreasonable if there is no sound reasoning process that would

support that decision. AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990).



               III. The Trial Court Abused its Discretion by Failing to

                  Consider Dunson’s Indigency and Ability to Pay

      {¶ 8} For his sole assignment of error, Dunson asserts:

             THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
                                                                                           -6-


       DEFENDANT-APPELLANT’S REQUEST FOR MOTION TO STAY COURT

       COSTS, FINES, MANDATORY FINES AND/OR RESTITUTION.

       {¶ 9} Dunson argues that the trial court abused its discretion by not vacating,

staying, or modifying payment terms for his court-imposed costs, fees, fines and

restitution. Initially, we note that Dunson was not required to pay any fine or fee other than

court costs and restitution. Therefore, we will only address the laws regarding the

payment of costs and restitution ordered as part of a criminal felony sentence.

       {¶ 10} Pursuant to R.C. 2929.18(A)(1), for any order of restitution imposed as part

of a felony sentence, the statute provides that the offender may move for modification of

the payment terms at any time. Dunson cites no authority for the proposition that the trial

court may, after judgment, modify the amount of restitution, and we are not aware of any

authority for that proposition.

       {¶ 11} Pursuant to R.C. 2947.23(C), “[t]he court retains jurisdiction to waive,

suspend, or modify the payment of the costs of prosecution, including any costs under

section 2947.231 of the Revised Code, at the time of sentencing or at any time thereafter.”

R.C. 2303.23 provides that the trial court may cancel the imposition of costs, fees and

fines imposed in felony cases, “if at any time the court finds that an amount owing the

court is due and uncollectible.” (Emphasis added.)        R.C. 2949.092 provides that the

court shall not waive any mandatory costs imposed in connection with a criminal

conviction, “unless the court determines that the offender is indigent.” (Emphasis added.)

       {¶ 12} We recently addressed the issue of a trial court’s discretion in considering

a post-conviction motion to waive, suspend or modify the payment of costs imposed in a

felony conviction in State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797.
                                                                                           -7-


We held that the trial court abused its discretion by overruling a post-conviction request

to waive or suspend the payment of costs imposed as part of a felony sentence when the

trial court failed to consider the defendant’s indigency and ability to pay. Id. at ¶ 11. The

judgment in Copeland was reversed, and the cause was remanded for the trial court to

reconsider whether Copeland was indigent and had the ability to pay the court imposed

costs. Id. at ¶ 12. As explained in the concurring opinion, in the exercise of its discretion,

the trial court may be guided by the statutes and rules governing indigency and whether

the exemption statutes render the judgment uncollectible from an inmate’s prison

account. Id. at ¶ 19 (Donovan, P.J., concurring).

       {¶ 13} The State argues that the exemption statutes may only be applied during

the grievance procedure provided by the Department of Corrections rules outlining the

process of attaching an inmate’s account. We agree that the issue before us is not

whether the Department of Corrections properly applied the exemption statutes.

However, we conclude that the laws governing exemptions are available guidance to help

the trial court make a discretionary decision whether a judgment is collectible, whether a

defendant is indigent, or whether he has the ability to pay from the inmate’s account.

Before summarily denying Dunson’s motion to vacate, modify, or suspend the payment

of costs or restitution, the trial court should “determine whether the exemption statute

permits attachment and whether any other applicable statute dictates a finding of

indigency.” Copeland at ¶ 19.

       {¶ 14} For the reasons articulated in Copeland, we will reverse the order of the trial

court, and remand this cause for re-consideration of Dunson’s motion to vacate, suspend,

or modify his payment of court costs.
                                                                                              -8-


        {¶ 15} With respect to Dunson’s motion as it relates to restitution, we have already

noted that we are not aware of any authority permitting a trial court, after judgment, to

modify the amount of restitution ordered. Assuming, without deciding, that a trial court

has discretion to stay the enforcement of restitution, or to modify or establish terms of

payment of restitution, we find no abuse of discretion in the trial court’s decision not to do

so in the case before us. Because the amount that may be taken from Dunson’s prison

account each month is limited by administrative regulation, and balancing the respective

interests of Dunson -- the malefactor – and the victim, upon this record we conclude that

the trial court did not abuse its discretion in declining to stay the award of restitution, or to

modify or establish payment terms for restitution.

        {¶ 16} Dunson’s sole assignment of error is sustained, in part, and overruled in

part.

                                       IV. Conclusion

        {¶ 17} Dunson’s sole assignment of error having been sustained, in part, that part

of the order of the trial court overruling his motion to vacate or stay execution of court

costs is Reversed, that part of the order pertaining to restitution is Affirmed, and this cause

is Remanded for re-consideration of the motion to vacate, stay, or modify payment terms

for court costs.

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

FROELICH, concurs.

HALL, J., concurring in part and dissenting in part:

        {¶ 18} Because I believe the majority’s conclusions regarding Dunson’s court

costs are a departure from statute and precedent, I dissent from that part of the decision.
                                                                                             -9-


I concur in the judgment that affirms the denial of Dunson’s motion regarding restitution

but on grounds different that that expressed by the majority.

       {¶ 19} James “Blood” Dunson and his accomplices were convicted of the murder

of Geoffrey Andrews during an aggravated robbery that he planned and participated in to

obtain “a couple stacks and some weed.” State v. Dunson, 2d Dist. Montgomery No.

25693, 2014-Ohio-234, ¶ 11. As required by statute, supported by applicable case law,

court costs were imposed. The court also ordered restitution in the amount of $3,869.10

to be paid Geoffrey Andrews’ mother for his funeral bill. No challenges to the imposition

of either court costs or restitution were raised in Dunson’s direct appeal, and any issues

related to the imposition of costs or restitution therefore were waived. The propriety of the

imposition of both costs and restitution is now res judicata. State v. Perry, 10 Ohio St.2d

175, 176, 226 N.E.2d 104 (1967), paragraph nine of the syllabus; State v. Getz, 12th Dist.

Butler No. CA2015-08-159, 2016-Ohio-3397, ¶ 17.



       {¶ 20} Dunson’s post-judgment motion to vacate or stay costs and restitution was

filed several years after his conviction. The majority is critical that the trial court “did not

hold a hearing, did not order a responsive pleading to the motion, and did not address

the evidence Dunson submitted by affidavit.” But there is no requirement that the trial

court do any of those things. Furthermore, R.C. 5120.133 specifically allows for payment

of prisoner obligations, as limited by Ohio Adm.Code 5120-5-03(D), “as long as the

account retains twenty-five dollars for inmate expenditures.” To that extent, statutorily and

by regulation, Dunson does have an ability to pay.

       {¶ 21} The majority concludes that the trial court abused its discretion by not
                                                                                            -10-

considering Dunson’s indigency or ability to pay court costs. In support, it cites State v.

Copeland, 2d Dist., Montgomery No. 26842, 2016-Ohio-7797. In Copeland, the trial

court’s decision overruling a motion to waive or stay payment of costs cited the fact “that

the defendant will only pay court costs only [sic] if there are sufficient funds in the inmate's

account—and only as long as the account retains twenty-five dollars for inmate

expenditures.” Id., ¶ 9. The apparent holding of Copeland is that a trial court abuses its

discretion by failing to indicate in its decision overruling a post-judgment motion to waive

or stay collection of costs that it considered an offender’s present or future ability to pay

in addition to the collection procedures in R.C. 5120.133, and applicable regulations,

which specifically permit collection from a prisoner’s account as long as $25.00 remains.

Because the trial court had explicitly considered R.C. 5120.133 in overruling Copeland’s

motion, the Copeland decision necessarily holds that the trial court must do something

more than apply the applicable statute. The case was remanded “for consideration of

whether Copeland had a present or future ability to pay the court costs imposed.” Id. at

¶ 12.

        {¶ 22} I dissented in Copeland stating: “There is no case law, there is no statute,

there is no regulation and there is no exercise of discretion which requires a trial court to

explicitly consider an incarcerated defendant’s ability to pay court costs when ruling on a

post-judgment motion to waive or stay payment of court costs.” Id. at ¶ 24 (Hall, J.,

dissenting). I still believe my analysis of the issue is correct. However, stare decisis would

lead me to follow a majority decision of this court. The problem is discerning a majority

holding of Copeland. The lead Copeland opinion indicates “this appeal is not about

collection of court costs from an inmate, but whether the trial court erred in denying a
                                                                                         -11-

waiver or stay of future payment of those costs; these are separate questions.” Id. at ¶

10. The concurring opinion focuses on and relates the abuse of discretion to failure to

consider “application of Ohio’s exemption statute.” Id. at ¶ 13 (Donovan, P.J., concurring).

Specifically, the concurring opinion expresses concern about whether the “exemption”

statute, R.C. 2329.66, permits the attachment of money in a prisoner’s account. Id. at ¶

14-19. That is fundamentally a collection procedure issue which the Copeland lead

opinion specifically avoided.

       {¶ 23} The only common thread in the lead and concurring opinions in Copeland

is the conclusion, in the judgment entry, that “the case is remanded for consideration of

whether Copeland had a present or future ability to pay the court costs imposed.” (Final

Entry filed November 18, 2016). Accordingly, Copeland does not have precedential value

for deciding the terms of the trial court’s reconsideration other than that it must consider

ability to pay. Copeland does not hold that upon remand “the trial court may be guided by

the statutes and rules governing indigency and whether the exemption statutes render

the judgment uncollectible from an inmate’s prison account.” Majority Opinion at ¶ 12.

The majority’s subsequent quotation of the Copeland concurring opinion for this

proposition (Majority Opinion at ¶ 13) refers to precedent where none exists. If anything,

the Copeland lead opinion and dissent rejected application of the exemption statute to

Copeland’s post-judgment motion to waive or suspend costs. The lead and concurring

opinions reversed for consideration of ability to pay but for two different reasons. I

therefore dissent from that content of the majority opinion in this case suggesting that the

exemption statute should serve as a guideline in the trial court. At most, on the authority

of Copeland, I would remand for consideration of ability to pay without further instruction.
                                                                                            -12-


       {¶ 24} I agree with the majority’s conclusion to affirm the judgment of the trial court

with respect to Dunson’s motion to vacate or stay restitution, but for reasons different than

that expressed by the majority. In my opinion, Ohio law is settled that once restitution is

properly imposed a trial court’s limited authority is to modify the payment terms that it has

imposed. R.C. 2929.18(A)(1). Here, the trial court’s judgment of conviction and sentence

states: “The Defendant is ordered to pay complete restitution to [the deceased victim’s

mother] for economic loss in the amount of $3,869.10, upon which execution is hereby

awarded to be paid through the Montgomery County Clerk of Courts.” (Termination Entry

filed March 15, 2013, at 2). There is no payment plan or payment terms and therefore no

authority to modify what does not exist. In this regard, the Twelfth District analyzed the

issue as follows:

               “In matters of criminal sentencing, the trial court does not have

       inherent power to act, but has only such power as is conferred by statute or

       rule.” State v. Purnell, 1st Dist. Hamilton No. C-060037, 2006-Ohio-6160, ¶

       10. In Purnell, the First Appellate District considered whether a trial court

       has jurisdiction under R.C. 2929.18(A)(1) to increase, in a post-sentence

       order, the amount of restitution it had originally imposed at sentencing. The

       appellate court held that the trial court had “no statutory authority to increase

       the restitution amount” after imposing sentence: “There is no statutory

       authority for the trial court to exercise continuing jurisdiction to modify the

       amount of a financial sanction. It can, however, modify the ‘payment terms

       of any restitution[.]’ ” Id. at ¶ 9-10. Subsequently, and relying upon Purnell,

       the Fifth Appellate District held that a trial court has no jurisdiction, after it
                                                                                  -13-


journalizes the offender’s sentence, to decrease the amount of restitution

originally imposed at sentencing. State v. Corbitt, 5th Dist. Richland No.

2011-CA-107, 2012-Ohio-3795, ¶ 10-18.

       We recently addressed whether a defendant can request a restitution

hearing at any time under R.C. 2929.18(A)(1) and whether a trial court

retains jurisdiction over its restitution orders. [State v.] Getz, [12th Dist.

Butler No. CA2015-08-159], 2016-Ohio-3397. Relying upon Purnell and

Corbitt, we held that a trial court “[does] not possess continuing jurisdiction

under R.C. 2929.18(A)(1) to [either] hold a restitution hearing to reconsider

the imposed financial sanctions” or to modify the amount of restitution after

sentencing. Getz at ¶ 13. See also State v. Sekic, 8th Dist. Cuyahoga No.

95679, 2011-Ohio-4809, ¶ 47 (finding there is no statutory authority allowing

a trial court to exercise continuing jurisdiction to modify the amount of

restitution after sentencing).

        In the case at bar, appellant filed a motion to modify or terminate

restitution, arguing he was financially unable to pay any sum at all. The

motion did not state that it was pursuant to R.C. 2929.18(A)(1) and (E). As

phrased, appellant’s motion seemingly seeks to decrease or terminate the

amount of restitution. The trial court obviously construed appellant’s motion

in this manner. However, as stated above, a trial court does not have

continuing jurisdiction under R.C. 2929.18(A)(1) to increase, decrease, or

otherwise modify the amount of restitution after sentencing. While R.C.

2929.18(A)(1) allows an offender to “file a motion for modification of the
                                                                                            -14-


       payment terms of any restitution ordered,” the statute does not, contrary to

       appellant’s assertion, allow an offender’s post-sentence motion to modify

       the amount of restitution. See State v. Naylor, 2d Dist. Montgomery No.

       23459, 2010-Ohio-988 (there is no mechanism in place under R.C.

       2929.18[A][1] for a defendant’s post-sentence motion to modify the amount

       of restitution).

State v. Downey, 12th Dist. Clermont No. CA2016-02-006, 2016-Ohio-5778, ¶ 15-17. I

agree. Dunson was not ordered to pay restitution on any payment terms, and there is

therefore nothing for the trial court to modify. The trial court is without authority to vacate,

waive, suspend, stay, or modify the restitution owed. I conclude this is a matter of lack of

legal authority, not a question of exercise of the trial court’s discretion.

       {¶ 25} For the foregoing reasons, I concur in part and dissent in part.

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



Copies mailed to:

Mathias H. Heck, Jr.
Meagan D. Woodall
James Dunson
Hon. Dennis J. Adkins
