[Cite as State v. Hicks, 2017-Ohio-8312.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105083



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       ROBERT HICKS
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-598310-B

        BEFORE:            Boyle, J., Keough, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: October 26, 2017
ATTORNEY FOR APPELLANT

Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Blaise D. Thomas
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Robert Hicks, appeals from the trial court’s judgment

regarding court costs.    He raises two assignments of error for our review:

       1. The trial court abused its discretion by imposing court costs on appellant
       who was found to be indigent and sentenced to a 17-year term of
       imprisonment, without making a determination, supported by the record,
       that he has or will have the ability to pay costs.

       2. The trial court committed prejudicial error by ordering appellant to do
       community work service after he serves the 17-year term of imprisonment
       (which includes a mandatory prison term) imposed by the trial court.

       {¶2} Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

       {¶3} In August 2015, the Cuyahoga County Grand Jury indicted Hicks on 11

counts: two counts of aggravated murder and aggravated robbery, one count of murder,

kidnapping, felonious assault, and carrying a concealed weapon, and three counts of

having a weapon while under disability.     Many of the counts carried one- and three-year

firearm specifications.   Hicks pleaded not guilty to all charges.

       {¶4} In June 2016, Hicks withdrew his former plea of not guilty and pleaded

guilty to an amended indictment of involuntary manslaughter in violation of R.C.

2903.04, a first-degree felony, with a three-year firearm specification, and attempted

aggravated robbery in violation of R.C. 2923.02 and 2911.01(A)(3), a second-degree

felony.

       {¶5} At the sentencing hearing, defense counsel spoke on behalf of Hicks.
Defense counsel requested the court to waive costs because Hicks was indigent.

       {¶6} The trial court sentenced Hicks to three years in prison for the firearm

specification and ordered that it be served prior to and consecutive to 11 years for

involuntary manslaughter.       The trial court further sentenced Hicks to two years for

aggravated robbery and ordered that it be served consecutive to the prison term for

involuntary manslaughter, for an aggregate sentence of 16 years in prison.     At the same

hearing, the trial court also sentenced Hicks to 12 months each for three separate

probation violations and ordered that they be served concurrent to each other but

consecutive to the sentence imposed in this case, for a total of 17 years in prison.

Further, the trial court notified Hicks that he would be subject to a mandatory term of five

years of postrelease control.

       {¶7} With respect to court costs, the trial court stated the following at the

hearing:

              You’re responsible for your court costs and, therefore, you may be
       required to do community work service. So although you’re indigent, I
       think the community work service is a good thing for you to do since you’re
       going to do 17 years in prison.

             So do the community work service and you can also pay whatever is
       remaining of your court costs on postrelease control.

       {¶8} In its judgment entry, the trial court ordered that Hicks perform community

work service “in lieu of paying costs.” It is from this judgment that Hicks now appeals.

II. Ability to Pay Costs

       {¶9} In his first assignment of error, Hicks argues that the trial court improperly
imposed costs after acknowledging that he was indigent without determining that he had

the ability to pay costs or would have the ability in the future.

       {¶10} R.C. 2947.23(A)(1) governs the imposition of court costs and provides in

relevant part: “In all criminal cases * * * the judge * * * shall include in the sentence the

costs of prosecution * * * and render a judgment against the defendant for such costs.”

Unlike financial sanctions issued pursuant to R.C. 2929.18, “the imposition of court costs

under R.C. 2947.23 does not require the trial court to first consider the defendant’s ability

to pay.”1 State v. Hodge, 9th Dist. Lorain No. 14CA010648, 2015-Ohio-3724, ¶ 15. A

defendant’s financial status is therefore “irrelevant to the imposition of court costs.”

State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 3

(superseded by statute on other grounds).        Accordingly, a sentencing court must include

the costs of prosecution in the sentence and render a judgment against the defendant for

costs even if the defendant is indigent.              State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.

       {¶11} In its discretion, however, a trial court may waive payment of court costs

upon a defendant’s motion if the defendant is indigent. R.C. 2949.092; State v. Walker,

8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. We review a trial court’s denial

of a motion to waive costs for abuse of discretion.

State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23. {¶12} Hicks


        R.C. 2929.19(B)(5) states that “[b]efore imposing a financial sanction under section 2929.18
       1


of the Revised Code or a fine under section 2929.32 of the Revised Code, the court shall consider the
offender’s present and future ability to pay the amount of the sanction or fine.”
cites to State v. John, 6th Dist. Lucas No. L-03-1261, 2005-Ohio-1218, which considered

a timely request to waive mandatory court costs. As Hicks contends, John held in part

that when a defendant requests the trial court to waive payment of mandatory court costs,

it:

       should examine the record and weigh, given defendant’s circumstances, the
       probability that he will be able to pay in the future. Considerations of a
       defendant’s conditions should include health, education, work history, and
       the length of the prison sentence imposed. A prior determination of
       indigency is a strong presumption supporting a lack of an ability to pay the
       mandatory costs, but it is not conclusive. However, if the record reflects a
       lack of support for a determination of future ability to pay such that it is
       unreasonable, arbitrary, or unconscionable, then the failure to waive those
       costs for the indigent defendant is an abuse of discretion.

Id. at ¶ 35.

       {¶13} At the sentencing hearing in this case, the trial court stated on the record that

it had reviewed Hicks’s presentence investigation report as well as his competency

evaluation.    According to these documents, Hicks received his GED when he was

committed to the Department of Youth Services (although he reported that he only

completed the tenth grade). Hicks’s physical health was good; he said that he did not

have any physical health issues.   Hicks further reported that he did not have any alcohol

or substance abuse issues; he stated that he did not have any alcohol or marijuana since

the beginning of 2015 (he was charged in August 2015).

       {¶14} Although Hicks does receive social security disability for a learning

disability and mental health issues, his competency report, dated September 4, 2015,

states that he was working for a landscaping company just before the charges in this case.
 Before that, he had worked full time at a restaurant for about six months until he failed

to report on a mandatory work day. Thus, Hicks is clearly capable of working.

       {¶15} Moreover, as the trial court indicated, Hicks will be in prison for a

considerable amount of time — 17 years.     Ohio Adm.Code 5120-5-03(D) authorizes the

garnishment of an inmate’s account to satisfy the inmate’s obligations to the court as long

as the account retains $25 for inmate expenditures.         State v. Duhamel, 8th Dist.

Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 70, discretionary appeal not allowed, State v.

Duhamel, 144 Ohio St.3d 1460, 2016-Ohio-172, 44 N.E.3d 289.              In Duhamel, we

explained:

              “‘[C]osts are taxed against certain litigants for the purpose of
       lightening the burden on taxpayers financing the court system.’”
       [Threatt], 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 14,
       quoting Strattman v. Studt, 20 Ohio St.2d 95, 102, 253 N.E.2d 749 (1969).
       “Although 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.” Id. Thus, the purpose of Ohio
       Adm. Code 5120-5-03 is the collection of a valid judgment to relieve the
       burden taxpayers would have to pay as a result of the convict’s criminal
       actions.

Id. at ¶ 71.

       {¶16} Further, R.C. 5120.133(A) permits the Department of Rehabilitation and

Correction to deduct payments toward a certified judgment from a prisoner’s account

without any other required proceeding in aid of execution.      The Ohio Supreme Court

explained that this provision “is merely one method of collection against defendants who

are incarcerated (and therefore are most likely indigent).” Threatt, 108 Ohio St.3d 277,

2006-Ohio-905, 843 N.E.2d 164, at ¶ 13.
       {¶17} Although the Sixth District in John, 6th Dist. Lucas No. L-03-1261,

2005-Ohio-1218, reversed the trial court’s order denying the defendant’s motion to waive

costs, we find John to be distinguishable.       The trial court in John sentenced the

defendant to 18 years in prison and stated that the defendant could pay costs out of his

prison earnings.   The Sixth District reversed, reasoning that the defendant’s presentence

investigation report detailed the defendant’s “health problems and his lack of education

and work history.” Id. at ¶ 31.   The court explained:

       Evidence in the record indicates that appellant has no ability to pay.
       Appellant is 55 years old, he has no employment history, and he lacks a
       high school diploma.       Appellant’s health is extremely poor and
       exacerbated by a long history of substance abuse. Appellant’s counsel
       stated at the sentencing hearing that appellant does not expect to live
       through his sentence due to a “plethora of medical problems,” including a
       recent stroke.
       ***

       Appellant’s circumstances clearly warrant a waiver of the payment of R.C.
       2947.23 costs. Given his extremely poor health, his lack of any
       employment history, his lack of education, and the length of his sentence, it
       is highly probable that he will be unable to pay. None of appellant’s
       circumstances, except for future prison earnings, indicate a future ability to
       pay; the potential of any future prison earnings is offset by his extremely
       poor health. Thus, the trial court abused its discretion by not granting
       appellant a waiver for the payment of R.C. 2947.23 costs.

Id. at ¶ 30, 36.

       {¶18} In this case, however, the evidence in the record indicates that Hicks was 21

years old at the time of the offenses. He had obtained his GED. And although he has

some mental health issues, his physical health is good. He is clearly capable of working.

 There is no reason that Hicks cannot pay his court costs while serving 17 years in prison.
 And if he does not pay them during prison, he will only be 38 years old when he is

released.   If at some point his circumstances change and he no longer has the ability to

pay costs, for example, if he becomes disabled such that he cannot work, then he can

move the court to waive, suspend, or modify payment of costs at that time. See R.C.

2947.23(C) (“The court retains jurisdiction to waive, suspend, or modify the payment of

the costs of prosecution * * *    at the time of sentencing or at any time thereafter.”).

       {¶19} Accordingly, we find no grounds to reverse the trial court’s decision

imposing court costs. We certainly do not find plain error on the record before us. But

we further find that the trial court properly exercised its discretion and ordered Hicks to

pay court costs despite Hicks’s indigency.     See State v. Minifee, 8th Dist. Cuyahoga No.

99202, 2013-Ohio-3146, ¶ 36 (“[A]lthough the trial court found appellant to be indigent,

it acted within its discretion under R.C. 2947.23(A)(1) in imposing court costs regardless

of appellant’s financial status.”).

       {¶20} Hicks’s first assignment of error is overruled.

III. Community Work Service

       {¶21} In his second assignment of error, Hicks contends that the trial court erred

when it ordered him to perform “community work service after he serves the17-year term

of imprisonment.” In support of his argument, Hicks cites to this court’s decision in

State v. Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044. He maintains that

under Anderson, where we held that courts cannot impose community control sanctions

consecutive to a prison term, the trial court’s order was improper because “community
work service is a community control sanction.”

       {¶22} Again, at the sentencing hearing in this case, the trial court stated the

following with respect to costs:

              You’re responsible for your court costs and, therefore, you may be
       required to do community work service. So although you’re indigent, I
       think the community work service is a good thing for you to do since you’re
       going to do 17 years in prison.

             So do the community work service and you can also pay whatever is
       remaining of your court costs on postrelease control.

       {¶23} In its judgment entry, the trial court ordered that Hicks perform community

work service “in lieu of paying costs.”2

       {¶24} After review, it is clear that the trial court did not impose community work

service as a nonresidential sanction.      Although community work service can be a

nonresidential sanction under R.C. 2929.17(C), it was not so in this case.             Thus,

Anderson has no application to the facts of this case.

       {¶25} Hicks’s second assignment of error is overruled.

       {¶26} Judgment 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.       The defendant’s conviction having



       The Ohio Department of Rehabilitation and Correction established the community service
       2


program in 1991. See http://www.drc.ohio.gov/community-service (accessed on Oct. 3, 2017).
been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
