[Cite as State v. Cummings, 2016-Ohio-5931.]




                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 103892




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                            MICHAEL D. CUMMINGS
                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-15-594094-A

        BEFORE: E.A. Gallagher, J., Jones, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 22, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian Radigan
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

      {¶1}    Defendant-appellant Michael Cummings appeals his sentence from the

Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.

      Facts and Procedural Background

      {¶2} Cummings pled guilty to involuntary manslaughter with a three-year firearm

specification, felonious assault, having a weapon while under disability and tampering

with evidence.   The trial court merged Cummings’ felonious assault charge with the

involuntary manslaughter charge and imposed a prison term of 11 years on the latter

count to run consecutive to the three-year firearm specification.    The trial court also

imposed a prison term of three years for Cummings’ having a weapon while under

disability charge and a one-year prison term for the tampering with evidence charge.   All

of the prison terms were ordered to be served consecutively for an agreed upon,

cumulative prison sentence of 18 years. The trial court found Cummings to be indigent

but ordered him to pay the costs of prosecution. The trial court noted that the costs

would only become payable when Cummings was on postrelease control and that no

deductions would be made while he was incarcerated on these charges.

      I. Costs

      {¶3} In his sole assignment of error, Cummings argues that the trial court

improperly ordered him to pay court costs. Cummings argues that the imposition of

court costs in this instance violates R.C. 2929.11(A) because it would impose an
“unnecessary burden” on the Cuyahoga County Clerk’s office to maintain an account of

Cummings’ costs for 18 years while he remains in prison.

      {¶4} R.C. 2947.23 requires a trial court to assess the costs of prosecution against

all convicted defendants, even those who are indigent. State v. Dean, 146 Ohio St.3d

106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 231. Nevertheless, an indigent defendant may

make a motion for the waiver of costs at the time of sentencing and the trial court is

permitted to waive the payment of costs if the trial court finds that the defendant is

indigent. Id.   Although a waiver of court costs against an indigent defendant is

permissible, it is not required. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817

N.E.2d 393, ¶ 14. In White, the Ohio Supreme Court examined R.C. 2949.23 and

concluded that “a trial court may assess court costs against an indigent defendant

convicted of a felony as part of the sentence.” Id. at ¶ 15. The decision to impose costs

will not be reversed absent an abuse of discretion. State v. Perry, 8th Dist. Cuyahoga

No. 97696, 2012-Ohio-3573, ¶ 12.

      {¶5} Cummings bases his argument on R.C. 2929.11(A) which provides:

      A court that sentences an offender for a felony shall be guided by the
      overriding purposes of felony sentencing. The overriding purposes of felony
      sentencing are to protect the public from future crime by the offender and
      others and to punish the offender using the minimum sanctions that the
      court determines accomplish those purposes without imposing an
      unnecessary burden on state or local government resources. To achieve
      those purposes, the sentencing court shall consider the need for
      incapacitating the offender, deterring the offender and others from future
      crime, rehabilitating the offender, and making restitution to the victim of
      the offense, the public, or both. (Emphasis added.)
       {¶6} Cummings argues that the Ohio Legislature’s amendment of R.C. 2929.11(A)

via H.B. 86 in 2011, which added the above highlighted text concerning the avoidance of

unnecessary burdens, supersedes the Ohio Supreme Court’s decision in White.             We

disagree.   The H.B. 86 amendments cited by Cummings did not alter any of the relevant

statutory provisions relied upon by the court in White.    Furthermore, there is no evidence

on the record demonstrating what burden, if any, the clerk’s office would bear in

maintaining documentation pertaining to Cummings’s duty to pay costs following his

prison term. We find no abuse of discretion in this instance.

       {¶7} Cummings’ sole assignment of error is overruled.

       {¶8} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.



       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

___________________________________
EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, SR., A.J., and
MELODY J. STEWART, J., CONCUR
