[Cite as State v. Scott, 2014-Ohio-2374.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :       Hon. Sheila G. Farmer, J.
                                              :       Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
RANDY L. SCOTT                                :       Case No. 13CA110
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 2010-CR-313H




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     June 2, 2014




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN C. NIEFT                                         RANDY L. SCOTT, Pro Se
38 South Park Street                                  Inmate No. A604-323
Mansfield, OH 44902                                   Trumbull Correctional Institution
                                                      5701 Burnett Road
                                                      Leavittsburg, OH 44430
Richland County, Case No. 13CA110                                                            2

Farmer, J.

       {¶1}     On August 22, 2011, appellant, Randy Lamont Scott, was convicted of

four counts of rape in violation of R.C. 2907.02, four counts of sexual battery in violation

of R.C. 2907.03, four counts of gross sexual imposition in violation of R.C.

2907.05(A)(1), and one count of kidnapping with a sexual motivation specification in

violation of R.C. 2905.01. By sentencing entry filed August 26, 2011, the trial court

sentenced appellant to an aggregate term of twenty-six and a half years in prison and

ordered him to "pay any restitution, all costs of prosecution, court appointed counsel

costs and any fees permitted pursuant to R.C. 2929.18."

       {¶2}     Appellant filed an appeal. Appellant did not assign as error the order to

pay fines and costs.       This court affirmed in part and reversed in part appellant's

convictions, finding the trial court erred in sentencing appellant in light of the merger

doctrine.     State v. Scott, 5th Dist. Richland No. 11CA80, 2012-Ohio-3482.             Upon

remand, by resentencing entry filed October 31, 2012, the trial court merged some of

the counts and again sentenced appellant to an aggregate term of twenty-six and a half

years in prison, and ordered him to "pay any restitution, all costs of prosecution, court

appointed counsel costs and any fees permitted pursuant to R.C. 2929.18." Appellant

did not appeal his resentence or the issue of paying fines and costs.

       {¶3}     On July 29, 2013, appellant filed a motion for waiver of restitution, all costs

of prosecution, court appointed counsel costs and any fees permitted pursuant to R.C.

2929.18 and 2949.092. Appellant argued the trial court had erred in failing to inform

him in court of having to pay fines and costs. By judgment entry filed August 16, 2013,

the trial court denied the motion.
Richland County, Case No. 13CA110                                                       3


      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶5}   "THE TRIAL JUDGE, ABUSED HIS DISCRETION BY DENYING THE

APPELLANT OF HIS FIFTH AND FOURTEENTH AMENDMENT RIGHT UNDER THE

DUE PROCESS CLAUSE OF THE CONSTITUTION OF THE UNITED STATES BY

NOT HOLDING A HEARING TO DETERMINE THE APPELLANT'S ABILITY TO PAY

FINES AND COSTS RELATED TO THIS CASE."

                                            II

      {¶6}   "THE     TRIAL    JUDGE     DENIED       APPELLANT      HIS   FIFTH     AND

FOURTEENTH AMENDMENT RIGHT UNDER THE DUE PROCESS CLAUSE BY NOT

INFORMING THE APPELLANT DURING SENTENCING THAT HE WOULD BE

RESPONSIBLE FOR SAID COST AND FINES, TO ALLOW THE APPELLANT TO

OBJECT, THEN UNCONSTITUIONALLY WITHDRAWING PAYMENT FROM THE

INDIGENT APPELLANT'S INMATE ACCOUNT."

                                           I, II

      {¶7}   Appellant claims the trial court erred in failing to hold a hearing on his

ability to pay fines and costs, and not informing him during sentencing that he would be

responsible for said fines and costs. We disagree.

      {¶8}   A review of the resentencing entry indicates the trial court did not access

restitution or fines. Therefore, this assignment pertains to court costs only. Pursuant to

R.C. 2947.23(A)(1)(a), a trial court in all criminal cases shall render judgment against a

defendant for court costs. In this case, the trial court accessed court costs against
Richland County, Case No. 13CA110                                                       4


appellant as required by statute. Appellant did not object to the payment of court costs

at the time of resentencing, and did not appeal the order. In fact, on June 24, 2013 after

resentencing, appellant filed a motion to establish a payment plan for court costs,

asking the trial court to raise his monthly payment from $2.00 to $3.00. The trial court

denied the motion. See, Judgment Entry filed July 2, 2013.

       {¶9}   Because appellant failed to object or appeal the order of court costs, the

issue is res judicata as defined in State v. Perry, 10 Ohio St.2d 175 (1967), paragraph

nine of the syllabus:



              Under the doctrine of res judicata, a final judgment of conviction

       bars a convicted defendant who was represented by counsel from raising

       and litigating in any proceeding except an appeal from that judgment, any

       defense or any claimed lack of due process that was raised or could have

       been raised by the defendant at trial, which resulted in that judgment of

       conviction, or on an appeal from that judgment.



See, State v. Threatt, 108 Ohio St.3d 277 (2006); State v. Snelling, 5th Dist. Richland

No. 13CA3, 2013-Ohio-4180.



       {¶10} Assignments of Error I and II are denied.
Richland County, Case No. 13CA110                                              5


      {¶11} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




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