[Cite as State v. McWay, 2020-Ohio-719.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-19-65

        v.

ROSS M. MCWAY,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR 2017 0036

                                     Judgment Affirmed

                            Date of Decision: March 2, 2020




APPEARANCES:

        Ross M. McWay, Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-65


ZIMMERMAN, J.

        {¶1} Defendant-appellant, Ross M. McWay (“McWay”), pro se, appeals the

September 23, 2019 judgment entry of the Allen County Court of Common Pleas

denying his motion to waive, suspend, or modify payment of costs. For the reasons

that follow, we affirm.

        {¶2} In 2017, McWay was convicted of aggravated murder and sentenced to

life without parole. State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618,

¶ 7; (Doc. No. 96). This court affirmed McWay’s conviction and sentence on

September 10, 2018. Id. at ¶ 29.1

        {¶3} On September 23, 2019, McWay, pro se, filed a motion to “vacate”

costs. (Doc. No. 131). That same day, the trial court denied McWay’s motion.

(Doc. No. 132).

        {¶4} On October 21, 2019, McWay filed a notice of appeal. (Doc. No. 135).

He raises one assignment of error for our review.

                                      Assignment of Error

        Trial court erred when it imposed court cost without assessing the
        defendant’s ability to pay. State-v-Maloy 6th dist. Lucas no. L-10-
        1350,2011-Ohio-6919,14 citing State-v-Jobe 6th dist. Lucas no. L-
        07 -1413,2009-Ohio-4066,80.




1
 In McWay’s direct appeal, this court recited much of the factual and procedural background of this case,
and we will not duplicate those efforts here. See State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-
3618.

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Case No. 1-19-65


       {¶5} In his assignment of error, McWay argues that the trial court erred by

denying his motion to “vacate” costs. Specifically, McWay argues that “the trial

court did not make a determination during sentencing in regards to [his] assets,

education, employment history or ability to pay, and [he] has been sentenced to life

without parole.” (Appellant’s Brief at 2).

                                Standard of Review

       {¶6} We review a trial court’s decision denying an indigent criminal

defendant’s post-judgment motion to waive, suspend, or modify payment of costs

under an abuse-of-discretion standard. State v. Burmeister, 11th Dist. Portage No.

2019-P-0053, 2019-Ohio-4927, ¶ 12; State v. Threatt, 108 Ohio St.3d 277, 2006-

Ohio-905, paragraph four of the syllabus, superseded by statute on other grounds,

State v. Braden, ___ Ohio St.3d ___, 2019-Ohio-4204. See also Braden at ¶ 30. An

abuse of discretion suggests that a decision is unreasonable, arbitrary, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

                                      Analysis

       {¶7} “R.C. 2947.23 requires a trial court to assess costs against all criminal

defendants, even if the defendant is indigent.” State v. Clinton, 153 Ohio St.3d 422,

2017-Ohio-9423, ¶ 239. If a defendant moves to waive, suspend, or modify costs,

the trial court, in its discretion, may waive, suspend, or modify payment of those

costs. State v. Hanford, 8th Dist. Cuyahoga No. 106220, 2018-Ohio-1309, ¶ 17,


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Case No. 1-19-65


citing State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 13 and

State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. A “trial

court ‘retains jurisdiction to waive, suspend, or modify the payment of the costs of

prosecution * * *, at the time of sentencing or any time thereafter.’” Id., quoting

R.C. 2947.23(C).

         {¶8} In this case, the trial court denied McWay’s motion after concluding

that he “has a present or future ability to pay the court costs imposed. Pursuant to

Ohio Admin. Code 5120-3-05, [McWay] can get paid if he works while in prison.”

(Doc. No. 132). Because the trial court considered whether to exercise its discretion

to waive McWay’s costs under R.C. 2947.23(C), we cannot say that the trial court

abused its discretion by denying McWay’s motion.2 See State v. Montgomery, 8th

Dist. Cuyahoga No. 108179, 2019-Ohio-4790, ¶ 19-20; State v. Kelley, 5th Dist.

Stark No. 2018CA00062, 2018-Ohio-5372, ¶ 19; State v. Braden, 10th Dist.

Franklin No. 17AP-48, 2019-Ohio-5256, ¶ 1, 5 (remanding the case to the trial court

for it to consider “whether to exercise its discretion to waive Braden’s court costs

pursuant to R.C. 2947.23(C)” following the Supreme Court of Ohio’s conclusion

that the statute “‘authorizes trial courts to waive, suspend or modify the payment of

court costs imposed both before and after its effective date’”), quoting Braden, ___



2
  The Supreme Court of Ohio is presently considering what a trial court must consider when exercising its
discretion in ruling on a post-judgment motion to waive, suspend, or modify the payment of court costs. State
v. Taylor, 153 Ohio St.3d 1467, 2018-Ohio-3450; State v. Taylor, 154 Ohio St.3d 1463, 2018-Ohio-5209.

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Case No. 1-19-65


Ohio St.3d ___, 2019-Ohio-4204, at ¶ 31. See also State v. Copeland, 2d Dist.

Montgomery No. 26842, 2016-Ohio-7797, ¶ 12; State v. Taylor, 2d Dist.

Montgomery No. 27539, 2018-Ohio-1649, ¶ 19, appeal accepted, 153 Ohio St.3d

1467, 2018-Ohio-3450.

       {¶9} McWay’s assignment of error is overruled.

       {¶10} 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

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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