[Cite as State v. Kearse, 2009-Ohio-4111.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY



STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                   CASE NO. 17-08-29

    v.

SAMUEL KEARSE,                                              OPINION

    DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 08CR000252

                                      Judgment Affirmed

                             Date of Decision: August 17, 2009




APPEARANCES:

         Katherine A. Szudy for Appellant

         Jeffrey J. Beigel for Appellee
Case No. 17-08-29




PRESTON, P.J.

          {¶1} Defendant-appellant, Samuel Kearse (hereinafter “Kearse”), appeals

the judgment of the Shelby County Court of Common Pleas sentencing him to two

four-year prison terms and imposing court costs. For the reasons that follow, we

affirm.

          {¶2} On August 29, 2008, Kearse pled guilty to two counts of felonious

assault in violation of R.C. 2903.11(A)(2), felonies of the second degree. On

November 10, 2008, the trial court sentenced Kearse to two four-year prison

terms, which were to be served consecutively for an aggregate term of eight years.

In addition, the trial court ordered Kearse to pay court costs.

          {¶3} Kearse now appeals and raises three assignments of error. Because

of the nature of his assignments of error, we will address his first and third

assignments together.

                        ASSIGNMENT OF ERROR NO. I

          THE TRIAL COURT ERRED BY IMPOSING COURT COSTS
          WITHOUT NOTIFYING MR. KEARSE THAT HIS FAILURE
          TO PAY SUCH COSTS MAY RESULT IN THE COURT’S
          ORDERING HIM TO PERFORM COMMUNITY SERVICE.
          (NOVEMBER 10, 2008 SENTENCING TRANSCRIPT, P. 8;
          NOVEMBER 10 2008 JUDGMENT ENTRY OF SENTENCE).

                        ASSIGNMENT OF ERROR NO. III

          THE TRIAL COURT COMMITTED PLAIN ERROR AND
          DENIED MR. KEARSE DUE PROCESS OF LAW WHEN IT


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       IMPOSED COURT COSTS WITHOUT THE PROPER
       NOTIFICATION THAT MR. KEARSE’S FAILURE TO PAY
       COURT COSTS MAY RESULT IN THE COURT’S
       ORDERING HIM TO PERFORM COMMUNITY SERVICE.
       FIFTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION; SECTION 16, ARTICLE
       I OF THE OHIO CONSTITUTION; R.C. 2947.23; CRIM.R.
       52(B). (SEPTEMBER 15, 2008 SENTENCING TRANSCRIPT,
       PP. 22-23; OCTOBER 3, 2008 JUDGMENT ENTRY OF
       SENTENCE) [SIC].

       {¶4} In his first and third assignments of error, Kearse argues that the trial

court erred when it failed to notify him that his failure to pay court costs could

result in the court’s ordering him to perform community service. Kearse claims

that the trial court was required to give him this notice pursuant to R.C. 2947.23.

In addition, Kearse cites two cases from the Court of Appeals for the Fourth

District, which have dealt with this issue, but have reached different conclusions.

Despite the different resolutions in the Fourth District, Kearse is asking this Court

to vacate the judgment and remand for re-sentencing.

       {¶5} The State admits that the trial court erred by failing to provide

Kearse with notice as required by R.C. 2947.23(A)(1).           Moreover, the State

acknowledges the validity of the remedies that have been applied to this issue, but

argues that the trial court’s error does not mean that the obligation to pay the court

costs is invalid. Instead, the State claims that the failure to adhere to R.C. 2947.23

simply prohibits the trial court from applying the penalties set forth therein at a

later date.



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       {¶6} R.C. 2947.23 governs the imposition of court costs and, in pertinent

part, provides:

       (A)(1) In all criminal cases, including violations of ordinances,
       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. At the time the judge or magistrate imposes sentence,
       the judge or magistrate shall notify the defendant of both of the
       following:

       (a)    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.

       (b)    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.

(Emphasis added). A review of the record confirms that, even though the trial

court imposed court costs, it did not notify Kearse that his failure to pay court

costs could result in the trial court imposing community service on him. (Nov. 10,

2008 Tr. at 7-9); (Nov. 10, 2008 JE). While we agree that the trial court was

required to give Kearse notice of its potential power to impose community service

for his failure to pay court costs pursuant to R.C. 2947.23, we do not believe that

this issue is properly before this Court to review. The ripeness doctrine generally

prevents “courts, through avoidance of premature adjudication, from entangling


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themselves in abstract disagreements.” Abbott Laboratories v. Gardner (1967),

387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681, overruled on other grounds in

Californo v. Sanders (1977), 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192. The

basic premise of the ripeness doctrine is that the judicial process should be

reserved for problems that are real or present and imminent, not utilized on

problems that are abstract, hypothetical, or remote. State ex rel. Elyria Foundry

Co. v. Indus. Comm. (1998), 82 Ohio St.3d 88, 89, 694 N.E.2d 459.

       {¶7} Here, the trial court clearly and unequivocally imposed court costs

on Kearse as part of his sentence, but it failed to notify him that if in the future he

fails to pay his court costs, then it may impose community service. (Nov. 10, 2008

Tr. at 8); (Nov. 10, 2008 JE at A-2). Kearse asks this Court to base its ruling on

conduct that has yet to happen and on an option that may not be exercised by the

trial court, in the event that this conduct occurs. Thus, we are constrained from

rendering an opinion concerning a potential controversy that may never occur.

See State v. Poppe, 3d Dist. No. 2-06-23, 2007-Ohio-688, ¶¶14-18 (finding an

appeal of reserved sentence of imprisonment that is part of a sentence of

community control is not ripe until an actual sentencing order imposes the prison

term for community control violation).

       {¶8} We note that even though the Ohio Supreme Court has yet to rule on

this specific sentencing error, there are two cases that may appear to lead to the

conclusion that a sentencing error of this kind should result in the remand and


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resentencing of the defendant (as Kearse argues). Nevertheless, we find those

cases distinguishable.

       {¶9} In State v. Simpkins, the Ohio Supreme Court was presented with the

issue of whether a defendant can be re-sentenced when the trial court imposes a

term of imprisonment but fails to include the statutorily required post-release

control.   117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶5.             In its

analysis, the Ohio Supreme Court stated that, “in the circumstances in which the

judge disregards what the law clearly commands, such as when a judge fails to

impose a nondiscretionary sanction required by a sentencing statute, the judge acts

without authority.” Id. at ¶21, citing State v. Beasley (1984), 14 Ohio St.3d 74, 75,

471 N.E.2d 774. As a result, the Court held that the sentence had to be vacated

and remanded the case for re-sentencing. Id. at ¶22.

       {¶10} In addition, in State v. Brooks, the Ohio Supreme Court had to

determine the effect of when a trial court imposes community control but fails to

give a defendant notice of the specific prison term reserved in the event of a

community control violation. 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d

837, ¶4. The Court held that when there is a failure to notify the defendant of the

specific prison term, and the defendant then appeals the imposition of a prison

term after a violation of his community control, “the matter must be remanded to

the trial court for a resentencing under that provision with a prison term not an

option.” Id. at ¶33 (footnote omitted).


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       {¶11} First of all, unlike the case in Simpkins, here the trial court did

impose the nondiscretionary sanction (court costs); rather, it only failed to notify

Kearse of its power to exercise its discretion and impose community service in the

event of his failure to pay the court costs. Therefore, this situation is more similar

to the issue presented in Brooks. Given the fact that the trial court did impose the

mandatory sanction of court costs on Kearse, we find the Court’s resolution in

Simpkins not dispositive. See, also, State v. Boice, 4th Dist. No. 08CA24, 2009-

Ohio-1755, ¶¶9-10; State v. Slonaker, 4th Dist. No. 08CA21, 2008-Ohio-7009,

¶¶5-6. However, even though this case and Brooks involved the issue of a trial

court’s failure to give notice when notice was required, we still find Brooks

distinguishable. In Brooks, the Court ruled on the issue regarding the failure to

give notice after there had been a hearing on a community control violation and

the reserved term of imprisonment had been imposed. Brooks, 2004-Ohio-4647,

at ¶3. Thus, the issue in Brooks was properly before the Court and it was ripe for

review. Here, there has yet to be a second hearing regarding Kearse’s failure to

pay his court costs, because Kearse has not failed to pay his court costs at this

time. See, also, Boice, 2009-Ohio-1755, at ¶¶9-11; Slonaker, 2008-Ohio-7009, at

¶¶5-7. Therefore, any holding by this Court would be speculative and based on

assumptions.

       {¶12} We also note that the Court of Appeals for the Twelfth District, and

more particularly the Fourth District, have been the only districts thus far to rule


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on this exact issue;1 however, as acknowledged by both parties and illustrated

below, there is an obvious variation in the outcomes of the Fourth District cases.

In State v. Slonaker, the Fourth District acknowledged that R.C. 2947.23 requires

the trial court to notify the defendant that he could be ordered to perform

community service if he fails to pay his court costs. 2008-Ohio-7009, at ¶7, citing

State v. Ward, 168 Ohio App.3d 701, 2006-Ohio-4847, 861 N.E.2d 823, ¶¶38-41

(finding that although the issue had not been properly raised in his appellate brief,

the issue was still not ripe for adjudication because defendant had not suffered any

prejudice). Nevertheless, the court reasoned that the defendant had “not suffered

any prejudice from the trial court’s failure to inform him that it may, in the future,

require him to perform community service to fulfill his obligation to pay costs.”

Id. Therefore, the court concluded that the matter was not ripe for adjudication

and affirmed the judgment of the trial court. Id.

         {¶13} The Fourth District was again presented with the same issue in State

v. Burns, 4th Dist. Nos. 08CA1, 08CA2, 08CA3, 2009-Ohio-878. Once again the

trial court had failed to notify the defendant that it could impose community

service for his failure to pay his court costs. Id. at ¶¶11-12. However, this time

instead of declining to address the defendant’s assignment of error as being not



1
  In State v. Nutter, the Twelfth District followed the Fourth District’s holding in Boice and Slonaker and
found that because the appellant had yet to fail to pay his court costs, the issue of the trial court’s failure to
notify him of its power to impose community service was not ripe for review. 12th Dist. No. CA2008-10-
009, 2009-Ohio-2964, ¶¶12-13.


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ripe for adjudication, the court sustained the defendant’s assignment of error and

remanded the case for re-sentencing. Id. at ¶12. The court addressed its previous

use of the ripeness doctrine in a footnote, and stated:

       Appellee counters that appellant has not been prejudiced by the
       trial court’s failure to inform her that she may be required to
       perform community service to pay those costs as such an order
       has not yet been entered. In dicta, Judge Kline noted this
       “ripe[ness] issue in Ward, 2006-Ohio-4847, at ¶41, 168 Ohio
       App.3d 701, 861 N.E.2d 823. But, carried to its logical
       conclusion, reductio ad absurdum, no failure to inform someone
       of this provision would ever be appealable because they would
       not be prejudiced unless some time in the future. Further, it is
       also possible that someone ordered to pay such costs once they
       are out of prison may, while still in prison, find the prospect of
       community service so distasteful that they decide to liquidate
       assets or somehow obtain funds to pay those court costs.

Id. at ¶12, fn.3.

       {¶14} Nevertheless, in April of 2009, the Fourth District returned to its

original reasoning in Slonaker. State v. Boice, 4th Dist. No. 08CA24, 2009-Ohio-

1755. Again, the trial court had failed to notify the defendant that his failure to

pay court costs could result in the trial court imposing community service. Id. at

¶¶8-9. The Fourth District found that the defendant had not yet suffered any

prejudice from the trial court’s failure to inform him that it could impose

community control if he, in the future, failed to pay his court costs. Id. at ¶11.

Without discussing its prior decision in Burns, the Fourth District held, “we adhere




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to our prior reasoning set forth in Slonaker and conclude that the issue is not ripe

for adjudication.” Id. at ¶11, citing Slonaker, 2008-Ohio-7009, at ¶7.2

         {¶15} We agree with the Fourth District’s use of the ripeness doctrine in

Slonaker and Boice and find it dispositive that the court has returned to its original

reasoning. Kearse’s appeal requires this Court to speculate on an event that has

yet to occur (Kearse’s failure to pay court costs) and to consider a potential

consequence that may or may not be imposed (the discretionary imposition of

community service). Therefore, based on the above, we find that the issue is not

ripe for adjudication.

         {¶16} Kearse’s first and third assignments of error are, therefore,

overruled.

                             ASSIGNMENT OF ERROR NO. II

         TRIAL     COUNSEL     PROVIDED     INEFFECTIVE
         ASSISTANCE, IN VIOLATION OF THE SIXTH AND
         FOURTEENTH AMENDMENTS TO THE UNITED STATES
         CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE
         OHIO CONSTITUTION, FOR FAILING TO OBJECT TO
         THE TRIAL COURT’S IMPOSITION OF COURT COSTS, AS
         THE TRIAL COURT DID NOT NOTIFY MR. KEARSE THAT
         HIS FAILURE TO PAY COURT COSTS MAY RESULT IN
         THE COURT’S ORDERING HIM TO PERFORM
         COMMUNITY SERVICE.        (NOVEMBER 10, 2008
         SENTENCING TRANSCRIPT, P. 8; NOVEMBER 10 2008
         JUDGMENT ENTRY OF SENTENCE).




2
  More recently in June of 2009, the Fourth District again reaffirmed its original holding in Slonaker. State
v. Welch, 4th Dist. No. 08CA29, 2009-Ohio-2655, ¶¶13-14.


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       {¶17} In his second assignment of error, Kearse argues that his trial

counsel was ineffective for failing to object when the trial court imposed court

costs without notifying him that his failure to pay costs could result in the court

ordering him to perform community service. However, because this assignment of

error is based on the resolution of whether the trial court erred in failing to notify

him that his failure to pay court costs could result in imposing community service,

we find that his ineffective assistance of trial counsel argument is also not ripe for

adjudication. See Boice, 2009-Ohio-1755, at ¶11; Slonaker, 2008-Ohio-7009, at

¶7.

       {¶18} Kearse’s second assignment of error is, therefore, overruled.

       {¶19} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed.

ROGERS and SHAW, J.J., concur.

/jnc




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