[Cite as State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954.]




             THE STATE OF OHIO, APPELLEE, v. JOSEPH, APPELLANT.
           [Cite as State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954.]
Criminal procedure — R.C. 2947.23 — Failure to inform defendant orally at
        sentencing hearing of imposition of court costs — Remand.
    (Nos. 2008-0711 and 2008-1005 — Submitted March 11, 2009 — Decided
                                     March 18, 2010.)
      APPEAL from and CERTIFIED by the Court of Appeals for Allen County,
                             No. 1-07-50, 2008-Ohio-1138.
                                  __________________
        PFEIFER, J.
        {¶ 1} In this case, we address the issue of whether a trial court may
impose court costs pursuant to former R.C. 2947.23 in its sentencing entry when it
did not impose those costs in open court at the sentencing hearing. We hold that a
court errs in imposing court costs without so informing a defendant in court but
that the error does not void the defendant’s entire sentence.       Instead, upon
remand, the trial court must address the defendant’s motion for waiver of payment
of court costs.
                        Factual and Procedural Background
        {¶ 2} Defendant-appellant, Richard E. Joseph, was convicted of the
aggravated murder of Ryan Young in 1991. He was sentenced to death. His
conviction and sentence were affirmed by the Allen County Court of Appeals in
State v. Joseph (Dec. 23, 1993), Allen App. No. 1-91-11, 1993 WL 531858, and
by this court in State v. Joseph (1995), 73 Ohio St.3d 450, 653 N.E.2d 285. The
United States Supreme Court denied Joseph’s petition for a writ of certiorari.
Joseph v. Ohio (1996), 516 U.S. 1178, 116 S.Ct. 1277, 134 L.Ed.2d 222.
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       {¶ 3} Joseph’s attempt at state postconviction relief was unsuccessful.
State v. Joseph (July 17, 1997), Allen App. No. 1-96-90, 1997 WL 404252
(affirming denial of relief); discretionary appeal not accepted, State v. Joseph
(1997), 80 Ohio St.3d 1449, 686 N.E.2d 276. Joseph then filed a petition for a
writ of habeas corpus in the federal district court, asserting 20 claims for relief.
The district court found merit in four of those claims. Joseph v. Coyle (Dec. 22,
2004), N.D.Ohio No. 1:98 CV 527. The district court issued the following order:
       {¶ 4} “[T]his Court issues a writ of habeas corpus ordering that Mr.
Joseph's death sentence be set aside and that he be re-sentenced according to the
statutory guidelines for aggravated murder in the absence of a capital
specification, as set forth in O.R.C. § 2929.03(A), which mandates a sentence of
life imprisonment with parole eligibility after serving twenty years of
imprisonment.”
       {¶ 5} Joseph appealed the district court’s judgment regarding his
conviction; the state cross-appealed the district court’s grant of the writ of habeas
corpus. On November 9, 2006, the Sixth Circuit Court of Appeals affirmed the
district court. Joseph v. Coyle (C.A.6, 2006), 469 F.3d 441. The United States
Supreme Court declined to review the appellate court’s decision. Houk v. Joseph
(2007), 549 U.S. 1280, 127 S.Ct. 1827, 167 L.Ed.2d 321.
       {¶ 6} Finally, the matter returned to the trial court for resentencing. On
June 6, 2007, the common pleas court held a sentencing hearing wherein it
sentenced Joseph to life in prison with eligibility for parole after 20 years. On
June 14, 2007, the trial court filed its judgment entry. In that entry, the trial court
imposed court costs on Joseph; however, the court had not mentioned court costs
during the sentencing hearing.
       {¶ 7} Joseph appealed the sentence to the Third District Court of
Appeals, arguing that the trial court had erred when it included a punishment,
court costs, in the written entry that it had not imposed from the bench at the




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sentencing hearing. The appellate court sustained the judgment of the trial court,
holding that “a trial court is not required to orally address a defendant at the
sentencing hearing to inform him that he is required by R.C. 2947.23 to pay for
the costs of prosecution.” State v. Joseph, 2008-Ohio-1138, ¶ 9, citing State v.
Ward, 3d Dist. No. 8-04-27, 2004-Ohio-6959, ¶ 16.
       {¶ 8} This cause is before this court upon the acceptance of a
discretionary appeal and upon the certification of a conflict between the judgment
of the appellate court in this case and the judgments rendered in State v. Peacock,
11th Dist. No. 2002-L-115, 2003-Ohio-6772; State v. Smoot, 10th Dist. No.
05AP-104, 2005-Ohio-5326; and State v. Tripplett, 8th Dist. No. 87788, 2007-
Ohio-75. This court ordered briefing on the following issue: “May a trial court
impose court costs pursuant to R.C. 2947.23 in its sentencing entry, when it did
not impose those costs in open court at the sentencing hearing?”
                                Law and Analysis
       {¶ 9} At the time of Joseph’s trial, former R.C. 2947.23 provided:
       {¶ 10} “In all criminal cases, including violations of ordinances, the judge
or magistrate shall include in the sentence the costs of prosecution and render a
judgment against the defendant for such costs. If a jury has been sworn at the trial
of a case, the fees of the jurors shall be included in the costs, which shall be paid
to the public treasury from which the jurors were paid.” 1953 H.B. No. 1.
       {¶ 11} Despite the fact that former R.C. 2947.23 (like current R.C.
2947.23(A)) requires a judge to assess costs against all convicted criminal
defendants, this court has held that “waiver of costs is permitted — but not
required — if the defendant is indigent.” State v. White, 103 Ohio St.3d 580,
2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. The court arrived at that conclusion in
White by reading R.C. 2947.23 in pari materia with R.C. 2949.092, which states
that certain additional court costs associated with R.C. 2949.092 may be waived
only if “the court determines that the offender is indigent and the court waives the



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payment of all court costs imposed upon the offender.” That is, despite the
mandatory language of former R.C. 2947.23 requiring the imposition of court
costs, a trial court may waive the payment of costs. State v. Clevenger, 114 Ohio
St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 4.
           {¶ 12} This court has held that a motion by an indigent criminal defendant
to waive payment of costs must be made at the time of sentencing. State v.
Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of
the syllabus. The court stated in Threatt, “If the defendant makes such a motion,
then 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.” Id.
at ¶ 23.
           {¶ 13} Here, Joseph was not given an opportunity at the sentencing
hearing to seek a waiver of the payment of costs, because the trial court did not
mention costs at the sentencing hearing. Joseph argues that the court’s failure to
orally inform him of court costs is akin to a court’s failure to alert a defendant at
his sentencing hearing to the court’s imposition of postrelease control. When
postrelease control is statutorily mandated–thus leaving no discretion with the
trial judge in regard to its imposition–we have held that failure of the judge to
notify the defendant on the record regarding postrelease control results in a void
sentence, necessitating complete resentencing. State v. Simpkins, 117 Ohio St.3d
420, 2008-Ohio-1197, 884 N.E.2d 568.
           {¶ 14} This court’s decision in Simpkins finds its roots in State v. Jordan,
104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. In Jordan, this court
pointed to the trial court’s statutory duty to authorize the executive branch to
exercise postrelease control in holding that the failure to mention postrelease
control in a sentencing hearing results in a void sentence. Id. at ¶ 22. First, this
court noted that postrelease-control statutes leave no discretion with the trial court
– the trial court must impose postrelease control:




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       {¶ 15} “Because a trial court has a statutory duty to provide notice of
postrelease control at the sentencing hearing, any sentence imposed without such
notification is contrary to law.” Jordan, ¶ 23.
       {¶ 16} Second, without the trial court’s proper imposition of postrelease
control, the Adult Parole Authority remains powerless to implement it. Thus,
there is a basis in the separation of powers for the mandatory nature of the trial
court’s imposition of postrelease control:
       {¶ 17} “In Woods v. Telb [2000], 89 Ohio St.3d 504, 733 N.E.2d 1103, we
detailed the constitutional significance of a trial court including postrelease
control in its sentence. We stated that because the separation-of-powers doctrine
precludes the executive branch of government from impeding the judiciary's
ability to impose a sentence, the problem of having the Adult Parole Authority
impose postrelease control at its discretion is remedied by a trial court
incorporating postrelease control into its original sentence. Id. at 512-513, 733
N.E.2d 1103. Consequently, unless a trial court includes postrelease control in its
sentence, the Adult Parole Authority is without authority to impose it. See id.”
Jordan at ¶ 19.
       {¶ 18} The concerns addressed by this court in Jordan in regard to
postrelease control are absent from this case in regard to court costs. There is a
significant difference between postrelease control and court costs in regard to the
duty of the trial court. Simply, the trial court has the power to waive the payment
of court costs; the court does not have the power to waive the imposition of
postrelease control. While the imposition of court costs is mandatory, the court’s
waiver of payment remains discretionary. The trial court does not act outside of
its jurisdiction when it fails to require payment of court costs.
       {¶ 19} Further, there are no implications or effects upon the powers of
other branches of government when a trial court fails to impose court costs. No
other entity derives its jurisdiction from the court’s imposition of costs.



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       {¶ 20} The other important distinction is in the very nature of court costs.
This court has held that costs are distinct from criminal punishment. “[A]lthough
costs in criminal cases are assessed at sentencing and are included in the
sentencing entry, costs are not punishment, but are more akin to a civil judgment
for money.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d
164, ¶ 15. This court has held that “[t]he duty to pay court costs is a civil
obligation arising from an implied contract.” Strattman v. Studt (1969), 20 Ohio
St.2d 95, 49 O.O.2d 428, 253 N.E.2d 749, paragraph six of the syllabus. That
court costs are a civil obligation is true in both criminal and civil cases: “By being
involved in court proceedings, any litigant, by implied contract, becomes liable
for the payment of court costs if taxed as a part of the court's judgment. A
judgment for costs in a criminal case is a civil, not a criminal, obligation, and may
be collected only by the methods provided for the collection of civil judgments.”
Id.
       {¶ 21} The civil nature of the imposition of court costs does not create the
taint on the criminal sentence that the failure to inform a defendant of postrelease
control does. Nor does the failure to inform a defendant orally of court costs
affect another branch of government. It affects only the court and the defendant.
       {¶ 22} While the failure of the court to orally notify Joseph that it was
imposing court costs on him does not void Joseph’s sentence, it was error:
Crim.R. 43(A) states that a criminal defendant must be present at every stage of
his trial, including sentencing.    The state urges that any error is harmless.
However, Joseph was harmed here. He was denied the opportunity to claim
indigency and to seek a waiver of the payment of court costs before the trial court.
He should have had that chance.
       {¶ 23} We therefore remand the cause to the trial court for the limited
purpose of allowing Joseph to move the court for a waiver of the payment of court




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costs. Should Joseph file such a motion, the court should rule upon it within a
reasonable time.
       {¶ 24} Accordingly, we affirm the judgment of the court of appeals
insofar as it held that Joseph is not entitled to a complete resentencing. We
reverse the appellate court’s holding that the trial court’s failure to mention court
costs during the sentencing hearing was not error. We remand the matter to the
trial court for further proceedings consistent with this opinion.
                                                          Judgment affirmed in part
                                                                and reversed in part,
                                                                and cause remanded.
       MOYER, C.J., and O’CONNOR and O’DONNELL, JJ., concur.
       LUNDBERG STRATTON, LANZINGER, and DICKINSON, JJ., concur in
judgment only.
       CLAIR E. DICKINSON, J., of the Ninth Appellate District, sitting for CUPP, J.
                               __________________
       LANZINGER, J., concurring in judgment only.
       {¶ 25} I would answer “No” to the certified question: a trial court may not
impose court costs pursuant to R.C. 2947.23 in its sentencing entry when it did
not impose those costs in open court at the sentencing hearing. I therefore concur
with the decision to remand this case to correct the sentencing error by allowing
Joseph the opportunity to submit a motion for waiver of payment of costs.
       {¶ 26} I do not, however, agree with the majority’s attempt to insulate this
case from the application of this court’s misbegotten line of cases that hold that a
sentence is void rather than voidable. These cases ignore res judicata and make
sentences vulnerable to attack beyond the usual 30-day appeal period. See, e.g.,
State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 12 (failure
to inform defendant of postrelease control renders a sentence void); State v.
Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568 (the state is



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entitled to a new sentencing hearing in order to impose postrelease control on the
defendant after an initial failure to impose postrelease control).
       {¶ 27} Joseph makes a plausible argument that error in notifying a
defendant of costs should be treated like error in notifying a defendant of
mandatory postrelease control. In overly simple terms, he contends that costs are
part of a sentence, just as is postrelease control. The parties here agree that court
costs shall be imposed as part of any sentence pursuant to R.C. 2947.23. State v.
White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.                 Joseph
concludes that because costs must be imposed by the court with every sentence, a
court that fails to impose court costs acts without jurisdiction, just as one that fails
to impose postrelease control acts without jurisdiction. Thus, Joseph contends
that his sentence is void. See Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197,
884 N.E.2d 568, at ¶ 14 (“a sentence that does not contain a statutorily mandated
term is a void sentence”). Joseph argues that he is entitled to a new sentence
because the remedy for a void sentence is total resentencing. See Bezak, 114
Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶ 13 (“the decision to vacate
[the] void sentence would require the trial court to resentence [the defendant] as if
there had been no sentence” [emphasis sic]).
       {¶ 28} The majority tries to distinguish between costs and postrelease
control and remarks that despite statutory language requiring the imposition of
court costs, a trial court may waive payment for an indigent defendant but that the
court has no discretion in the imposition of mandatory postrelease control. But
the point is that in both situations, the General Assembly has required specific
terms to be included within the sentence through mandatory language using the
word “shall.”    Whether the court has discretion to waive payment of costs
subsequently under a different statute is another matter.         For the purpose of
analyzing the court’s jurisdiction, I believe that the two sentencing requirements




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should be considered analogous in regard to the need to impose them in the
presence of the defendant, as required by Crim.R. 43(A).
        {¶ 29} I also do not agree that “there are no implications or effects upon
the powers of other branches of government when a trial court fails to impose
court costs.” Majority opinion at ¶ 19. The agencies that derive funding from the
imposition of court costs would be surprised at this conclusion. See, e.g., R.C.
2949.093 and 2949.094, which provide funding for criminal justice agency
programs through additional court costs imposed upon conviction of specified
offenses.
        {¶ 30} Furthermore, R.C. 2901.04(A) requires that statutes defining
offenses or penalties be strictly construed against the state and liberally in favor
of the defendant. Both postrelease control and costs are penalties, being sanctions
imposed as a consequence of an offense. R.C. 2967.01(O) and 2947.23. If the
state does not appeal an erroneous sentence within 30 days, it should not be
allowed to turn back the clock, as if the sentence did not occur. Error that is not
appealed should not languish in limbo subject to salvation, for this procedure does
not “effect the fair, impartial, speedy, and sure administration of justice” that R.C.
2901.04(B) anticipates. I urge reversal of the Bezak line of cases, for in making
sentences vulnerable to attack beyond the usual 30-day appeal period, it ignores
res judicata.
        {¶ 31} And so while I agree with the majority that “[t]he trial court does
not act outside of its jurisdiction when it fails to require payment of court costs,”
majority opinion ¶ 18, I would hold that the same is true when the court makes
other sentencing errors. My view has always been that all sentencing errors
should be corrected on direct appeal. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-
1197, 884 N.E.2d 568, ¶ 39–51 (Lanzinger, J., dissenting). After the appeal
period expires, the sentence should be final and thus one that can be relied upon
by the parties. To allow belated collateral attack in addition to appeal undermines



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the principles of res judicata. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-
1245, 846 N.E.2d 824.
       {¶ 32} In short, this case has a sentencing error that should be corrected.
The portion of the sentence that was improperly imposed outside the presence of
the defendant was error pursuant to Crim.R. 43(A). I concur in judgment only.
       LUNDBERG STRATTON and DICKINSON, JJ., concur in the foregoing
opinion.
                              __________________
       Juergen A. Waldick, Allen County Prosecuting Attorney, and Jana E.
Emerick, Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Katherine A. Szudy and
Randall L. Porter, Assistant Public Defenders, for appellant.
                           ______________________




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