[Cite as Columbiana v. Clark, 2012-Ohio-4573.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

CITY OF COLUMBIANA,                              )
                                                 )   CASE NO. 11 CO 28
        PLAINTIFF-APPELLEE,                      )
                                                 )
        - VS -                                   )         OPINION
                                                 )
ERIC S. CLARK,                                   )
                                                 )
        DEFENDANT-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                            Criminal Appeal from Municipal
                                                     Court, Columbiana County, Ohio,
                                                     Case No. 11 TRD 894.

JUDGMENT:                                            Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                              Attorney Robert L. Herron
                                                     Prosecuting Attorney
                                                     Attorney Daniel Blasdell
                                                     Asst. Prosecuting Attorney
                                                     38832 Saltwell Road
                                                     Lisbon, OH 44432

For Defendant-Appellant:                             Attorney Peter Horvath
                                                     38294 Industrial Park
                                                     P.O. Box 501
                                                     Lisbon, OH 44432



JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio


                                                     Dated: September 24, 2012
[Cite as Columbiana v. Clark, 2012-Ohio-4573.]
DeGenaro, J.
        {¶1}    Defendant-Appellant, Eric S. Clark, appeals the judgment of the
Columbiana County Municipal Court convicting him of one count of speeding, fining him
accordingly, and ordering him to pay for the costs of prosecution. On appeal, Clark
argues that the trial court lacked the authority to order him to pay for the City's expert
witnesses fees, which totaled $950. Assuming arguendo the court had the authority to
order those costs, Clark asserts that the court abused its discretion by doing so.
        {¶2}    First, this appeal is moot because Clark paid his fine and court costs and did
not seek a stay of execution of the trial court's judgment pending appeal. However, this
court will nonetheless address the assigned errors which are meritless. The trial court
had the authority to assess the expert witness fee as a court cost pursuant to R.C.
2947.23(A)(1), and the decision to do so did not constitute an abuse of discretion.
Accordingly, the judgment of the trial court is affirmed.
                                 Facts and Procedural History
        {¶3}    On February 13, 2011, Clark was pulled over and cited for speeding in
violation of the City of Columbiana Code 434.03, a minor misdemeanor. The citing officer
used a Kustom Signals Pro 1000 Doppler Radar Unit, to determine that the vehicle driven
by Clark was travelling 68 miles per hour in a 45 mile-per-hour zone. The radar unit was
in "moving mode," which allowed the officer to register Clark's speed while his cruiser was
in motion.
        {¶4}    Clark pled not guilty to the charge in the Columbiana County Mayor's Court
and the case was transferred to the Columbiana County Municipal Court.
        {¶5}    The case proceeded to a bench trial on August 2, 2011, where the citing
officer, Clark, and Carl Fors, an expert in radar systems testified. There is no legal
precedent in this district regarding the reliability of the moving radar device used in this
case, thus necessitating the expert testimony. Based on Fors' testimony and other
evidence presented at trial, the trial found that the radar system used "will be subject to
judicial notice for purposes of measuring speed by the use of radar in either stationary or
moving mode."
        {¶6}    Clark filed a partial transcript of trial for inclusion in the appellate record; it
                                                                                          -2-


does not include testimony of the witnesses. It does include the closing arguments and
the sentencing, including arguments by both sides regarding the assessment of the
expert witness fee as a court cost. In the end, the trial court imposed a $70 fine for the
speeding violation along with court costs totaling $1,102.00, which included the $950
expert witness fee. The trial court asked Clark if he needed additional time to pay, but
Clark declined, stating he would pay immediately, which he did. The trial court issued a
sentencing entry on August 2, 2011, and Clark filed a timely notice of appeal with this
court on August 30, 2011. On September 14, 2011, the trial court issued a more detailed
judgment entry and opinion discussing the trial and its ruling, which is proper since it did
not modify the sentencing entry but instead was intended to aid this court in the
determination of this appeal. See In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829
N.E.2d 1207, ¶9, citing State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978).
                                         Mootness
       {¶7}   As a threshold matter, this appeal is moot.
       {¶8}   "At common law, courts considered appeals in criminal cases to be moot if
the appellant had completed the sentence prior to a ruling on the appeal on the basis that
if a sentence had been served, a favorable judgment could not 'operate to undo what has
been done or restore to petitioner the penalty of the term of imprisonment which he has
served.' " Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d
278, ¶17, quoting St. Pierre v. United States, 319 U.S. 41, 42-43, 63 S.Ct. 910, 87 L.E.
1199 (1943). In accordance with this rule, the Ohio Supreme Court held:

       where a criminal defendant, convicted of a misdemeanor, voluntarily
       satisfied the judgment imposed upon him or her for that offense, an appeal
       from the conviction is moot unless the defendant has offered evidence from
       which an inference can be drawn that he or she will suffer some collateral
       legal disability or loss of civil rights stemming from that conviction. State v.
       Golston, 71 Ohio St.3d 224, 226, 643 N.E.2d 109 (1994), citing State v.
                                                                                         -3-


       Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975), and State v. Berndt, 29
       Ohio St.3d 3, 504 N.E.2d 712 (1987). See also In re S.J.K., 114 Ohio St.3d
       23, 2007-Ohio-2621, 867 N.E.2d 408, ¶9, citing Wilson at syllabus.

       {¶9}   More recently, in Lewis, the Ohio Supreme Court considered what it means
to "voluntarily" complete a sentence for purposes of the mootness doctrine:

       the completion of a sentence is not voluntary and will not moot an appeal if
       the circumstances surrounding it demonstrate that the appellant neither
       acquiesced in the judgment nor abandoned the right to appellate review, that
       the appellant has a substantial stake in the judgment of conviction, and that
       there is subject matter for the appellate court to decide. Id. at ¶ 26.

       {¶10} The Lewis Court concluded that a misdemeanor defendant's completion of
his sentence was not voluntary where he contested charges at trial and, after being
convicted, sought a stay of execution of sentence from the trial court for the purpose of
preventing an intended appeal from being declared moot and thereafter appealed
because those circumstances demonstrate "no intent * * * to acquiesce in the judgment or
to intentionally abandon the right of appeal." Id. at ¶ 23.
       {¶11} By contrast, Clark failed to seek a stay of execution of the trial court's
judgment.     See State v. Henry, 9th Dist. No. 25479, 2011-Ohio-3566, ¶13-14
(distinguishing Lewis and concluding appeal was moot based on defendant's failure to
seek a stay in the trial court.) And, further, there are no civil collateral consequences to
be concerned with here. See Lewis at ¶28-34 (Lundberg Stratton, J., concurring)
(discussing the potential for significant collateral consequences stemming from a
misdemeanor conviction.) In fact, Clark does not challenge the trial court's finding of guilt,
only the imposition of court costs.         Accordingly, this appeal is moot.        But for
completeness, given this is an issue of first impression in this District, we will address the
assigned errors.
                     Authority to Assess Witness Fees as Costs
                                                                                      -4-


       {¶12} In his first of two assignments of error, Clark asserts:
       {¶13} "The trial court has no authority to assess witness fees in a moving violation
(non-criminal) case."
       {¶14} Clark asserts the trial court erroneously relied upon R.C. 2947.23 in
imposing the expert witness fees as court courts. His argument here is two-fold. First, he
asserts R.C. 2947.23 applies only to criminal offenses, and that the speeding violation at
issue here is not a criminal offense.
       {¶15} Clark is correct that R.C. 2947.23(A) applies only to criminal offenses. It
states that "[i]n 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." (Emphasis added) R.C. 2947.23(A)(1). However, the
speeding violation in this case is a criminal offense. A violation of City of Columbiana
Code 434.03, the speeding ordinance, constitutes a minor misdemeanor.              City of
Columbiana Code 434.03(j)(a)(A).        Minor misdemeanors are considered criminal
offenses. See R.C. 2901.02(A); State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552,
859 N.E.2d 532, ¶34. R.C. 2949.093 does not support Clark's argument that a moving
violation is not a criminal offense.      That provision concerns funding and other
requirements for participation in criminal justice regional information systems.
       {¶16} Second, Clark engages in a statutory interpretation exercise to conclude
that R.C. 2746.02 renders R.C. 2947.23(A) inapplicable to this case, making the
imposition of the expert witness fees as court costs improper. However, the major flaw in
his analysis is that R.C. 2746.02, which consolidated and clarified the Revised Code with
regard to the imposition of court costs, did not take effect until September 23, 2011, over
seven weeks after Clark was sentenced. Am.Sub.H.B. No. 5, 2011 Ohio Laws 25. See,
also, Ohio Final Bill Analysis, 2011 H.B. 5 (Jan. 17, 2012).
       {¶17} As the Ohio Supreme Court explained in State v. Ferguson, 120 Ohio St.3d
7, 2008-Ohio-4824, 896 N.E.2d 110, ¶15:
                                                                                         -5-


              Statutes are presumed to apply only prospectively unless the
       General    Assembly     specifically   indicates   that   a   statute   applies
       retrospectively. R.C. 1.48; Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d
       491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 40. In the typical case, "[i]n order
       to overcome the presumption that a statute applies prospectively, a statute
       must 'clearly proclaim' its retroactive application." Hyle [v. Porter, 117 Ohio
       St.3d 165, 2008-Ohio-542, 882 N.E.2d 899,] ¶10, citing [State v.] Consilio,
       114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, paragraph one of
       the syllabus.

       {¶18} Nothing in R.C. 2746.02 proclaims its retroactive application, thus it has no
bearing on the issues in this case.
       {¶19} The trial court had authority pursuant to R.C. 2947.23(A)(1) to assess the
expert witness fee as a court cost in this matter. The trial court relied on this court's
opinion in In re Conservatorship of Ahmed, 7th Dist. Nos. 01-BA-13, 01-BA-48, 2003-
Ohio-3272, in reaching this conclusion. In Ahmed, the appellant had been sentenced to
death after being convicted of murdering his estranged wife and four of her relatives.
Ahmed later established a conservatorship in order to pay the various expenses incurred
in the criminal case. On March 16, 2001, the probate court issued an order which
terminated the conservatorship and allowed depletion of conservatorship funds.
According to this court's recitation of the facts:

                                                                               th
              On March 21, 2001, before receiving notice of the above [March 16 ]
       entry, the conservator supplemented his motion by attaching a judgment
       entered in the general division on March 12, 2001 against Ahmed for the
       costs of his prosecution in the amount of $68,460.36. Some of the listed
       expenses were $5,769.20 for juror fees and other costs of prosecution;
       $5,200 for transcription; $28,341.06 in witness fees and trial preparation
       fees; $563.85 for the sheriff's department; and $28,586.25 for the public
       defender's office including the fees of the three experts mentioned above
                                                                                        -6-


       and a DNA expert. Id. at ¶18.

       {¶20} The prosecutor in the present case quoted this portion of Ahmed during the
sentencing hearing in support of his argument for the imposition of the expert witness fees
as court costs, and again relies upon it in his Appellee's Brief. However, the probate court
in Ahmed never ordered payment of the criminal court costs out of the conservatorship
funds since the supplemental motion of the conservator was filed after the probate court
terminated the conservatorship. This court did affirm the disbursement of other funds to
pay for expenses related to the criminal case, but these were for defense expert
witnesses, not for the payment of court costs. Id. at ¶30. Thus, Ahmed does not truly
stand for the proposition that expert witness fees may be assessed as court costs
pursuant to R.C. 2947.23(A)(1). At most, it establishes those costs were assessed as
part of the sentence in the criminal case. The Supreme Court did not discuss the
propriety of the court costs in the direct appeal from the criminal convictions, State v.
Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, as this was not raised as
an issue.
       {¶21} Support for the assessment of expert witness fees as court costs is found in
precedent from other districts and the Ohio Supreme Court. As the Court explained in
Middleburg Hts. v. Quinones, 120 Ohio St.3d 534, 2008-Ohio-6811, 900 N.E.2d 1005:

              [The Supreme Court of Ohio] clarified the term "costs" in State ex rel.
       Franklin Cty. Commrs. v. Guilbert (1907), 77 Ohio St. 333, 338, 83 N.E. 80:
       "Costs, in the sense the word is generally used in this state, may be defined
       as being the statutory fees to which officers, witnesses, jurors, and others
       are entitled for their services in an action or prosecution, and which the
       statutes authorize to be taxed and included in the judgment or sentence."
       See also State v. Perz, 173 Ohio App.3d 99, 2007–Ohio–3962, 877 N.E.2d
       702, at ¶ 36, 42 (holding that costs of prosecution are those expenses
       directly related to the court proceeding and remanding for the trial court to
       determine "the actual costs of prosecution"); State v. Christy, Wyandot App.
                                                                                       -7-


       No. 16–04–04, 2004–Ohio–6963, 2004 WL 2940888, at ¶ 22 ("The
       expenses which may be taxed as costs in a criminal case are those directly
       related to the court proceedings and are identified by a specific statutory
       authorization"); State v. Holmes, Lucas App. No. L–01–1459, 2002–Ohio–
       6185, 2002 WL 31521456, at ¶ 20 ("The 'costs of prosecution' * * * are the
       court costs incurred in the prosecution of the case"). Quinones at ¶8.

       {¶22} The expert witness fee in this case falls under the definition of court costs,
directly related to the proceeding and necessary for the City to prove its case at trial.
Accordingly, the trial court had the authority to assess the expert witness fee as a court
cost pursuant to R.C. 2947.23(A)(1), and therefore Clark's first assignment of error is
meritless.
                                  Abuse of Discretion
       {¶23} In his second assignment of error, Clark asserts:
       {¶24} "The trial court abused its discretion in awarding witness fees to a
municipality in a speed case."
       {¶25} "A trial court has broad discretion when imposing a financial sanction upon
an offender and a reviewing court should not interfere with its decision unless the trial
court abused that discretion by failing to consider the statutory sentencing factors." State
v. Weyand, 7th Dist. No. 07-CO-40, 2008-Ohio-6360, ¶7, citing State v. Keylor, 7th Dist.
No. 02 MO 12, 2003-Ohio-3491, ¶9. An abuse of discretion connotes more than an error
of law or judgment; it implies the trial court acted unreasonably, arbitrarily, or
unconscionably. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
       {¶26} Clark asserts it was unreasonable for the trial court to order him to pay the
$950 expert witness fee as a court cost. His argument is meritless for several reasons.
First, Clark does not dispute that he was given notice in advance of trial that the City
intended to seek repayment of the expert witness fee as a court cost. And Clark agrees
he did not challenge the reliability of the radar device during trial. Instead, we can glean
from the closing arguments that Clark's defense at trial was that his speed was
                                                                                             -8-


reasonable given the road conditions. Thus, Clark could have chosen to stipulate to the
reliability of the radar device and avoided the fee, but did not, instead forcing the City to
incur the expert witness expense at trial.
       {¶27} Further, Clark asserts that because the trial court took judicial notice of the
reliability of this radar device, the City will be able to use that determination "again and
again." In essence, Clark contends it is unfair for him to bear the sole burden of this cost,
when, according to his logic, the City will be able to use the trial court's judicial finding in
all subsequent speeding cases that involve this technology. This argument is meritless.
This trial court could take judicial notice of the reliability of this particular device in future
cases, however, the use of that finding is limited to this particular trial court, absent case
law on the subject. See Cincinnati v. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, 821
N.E.2d 613, ¶10 (1st Dist.) (Internal citations omitted): "Establishing the reliability of a
speed-measuring device can be accomplished for future cases by (1) a reported
municipal court decision, (2) a reported or unreported case from the appellate court, or (3)
the previous consideration of expert testimony about a specific device where the trial
court notes it on the record." See, also, Evid.R. 201(B)(2).
       {¶28} The trial court had the authority to assess the expert witness fee as a court
cost pursuant to R.C. 2947.23(A)(1), and the decision to do so did not constitute an
abuse of discretion. Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.
