[Cite as State v. Eubanks, 2017-Ohio-2681.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2015-CA-39
                                                    :
 v.                                                 :   Trial Court Case Nos. 2013-CR-361
                                                    :   and 2014-CR-09
 ANGELA R. EUBANKS                                  :
                                                    :   (Criminal Appeal from
         Defendant-Appellant                        :   Common Pleas Court)
                                                    :

                                               ...........

                                              OPINION

                              Rendered on the 5th day of May, 2017.

                                               ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 400 Wayne Avenue, Dayton, Ohio
45410
      Attorney for Defendant-Appellant

                                              .............




WELBAUM, J.
                                                                                         -2-




      {¶ 1} This case is before us on the appeal of Defendant-Appellant, Angela

Eubanks, from her convictions and sentences in two criminal actions. In one action,

Eubanks pled guilty to Operating a Vehicle Under the Influence of Alcohol, a Drug of

Abuse, or a Combination of Them (“OVI”), a fourth-degree felony under R.C.

4511.19(A)(1)(a),(G)(1)(d).   In the other action, Eubanks pled guilty to Theft, a fifth-

degree felony under R.C. 2913.02(A)(2),(B)(2). Following the guilty pleas, the trial court

sentenced Eubanks to 12 months in prison for the OVI conviction and 10 months in prison

for the Theft conviction. These terms were to be served concurrently with each other

and consecutively to a sentence previously imposed in Clark County Common Pleas

Court Case No. 2015-CR-134.

      {¶ 2} The trial court imposed total fines of $2,250 for both cases, and in the OVI

case, ordered restitution of $6,405.45 to Myers Auto Body, in connection with an

automobile that Eubanks had damaged while driving under the influence. In addition,

the court ordered Eubanks to pay court costs and legal fees for both cases. The court’s

judgment stated as follows in a paragraph entitled “Financial Obligation Repayment

Schedule”:

             Defendant shall pay court costs, fine, restitution, and court-appointed

      legal fees at a minimum of $50 per month beginning the second month after

      release from confinement and due the 28th of each month thereafter.

      Clerk shall apply monies collected to restitution, court costs, fine, and court-

      appointed legal fees in that order.

Journal Entry of Judgment, Conviction, and Sentence, Doc. #27, p. 15.
                                                                                        -3-


        {¶ 3} After Eubanks appealed, her appointed counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and asked to

withdraw as counsel. On July 15, 2016, we issued a decision and entry rejecting the

Anders brief and indicating that we would appoint new counsel. State v. Eubanks, 2d

Dist. Champaign No. 2015-CA-39 (July 15, 2016).1 Eubank’s new counsel then filed a

brief, raising two assignments of error, which deal with the order to pay court costs and

court-appointed legal fees and expenses.        The State has conceded error, and the

offending language will be excised from the judgment entry.



                I. Orders Pertaining to Payment of Court Costs and Legal Fees

        {¶ 4} Because the assignments of error are related, we will consider them together.

Eubanks’ First Assignment of Error raises the following issue:

               Whether the Trial Court Erred When It Ordered Court-Appointed

        Legal Fees and Expenses Be Included in the Defendant’s Post-Prison

        Payment Obligation Because Those Costs and Fees May Only Be

        Enforceable Through a Civil Action.

        {¶ 5} The Second Assignment of Error raises the following issue:

               Whether the Court Erred When It Ordered a Post-Prison Payment

        Schedule for Other Costs and Fees Because the Court Has No Authority to

        Impose Additional Sanctions or Authority to Enforce Post-Prison Monetary

        Obligations Except Through a Civil Action.

        {¶ 6} Under these assignments of error, Eubanks argues that court costs and legal


1   Our decision was filed in Champaign County on July 18, 2016.
                                                                                        -4-


fees and expenses may not be imposed on defendants as criminally enforceable

sanctions, but must be pursued in civil collection proceedings. The State has conceded

error, based on our prior decisions in State v. Kloeker, 2d Dist. Champaign No. 2015-CA-

38, 2016-Ohio-7801, ___ N.E.3d ___, and State v. Johnson, 2016-Ohio-5160, 69 N.E.3d

176 (2d Dist.), which clarified and extended our prior decision in State v. Springs, 2015-

Ohio-5016, 53 N.E.3d 804 (2d Dist.). The State points out that Kloeker and Johnson

were issued after the entry in the present case was filed. As a result, the State asks that

we modify the trial court judgment to exclude court costs and legal fees and expenses,

rather than reversing the judgment and remanding for resentencing.

      {¶ 7} In Springs, we considered whether courts can directly require defendants to

pay legal fees as a criminally enforceable sanction. We held that “although a defendant

can indirectly be required to repay his court-appointed counsel fees as a special condition

of probation, he cannot be directly required to repay court-appointed counsel fees as a

criminally enforceable sanction and court-appointed counsel fees may not be taxed as

costs.” Id. at ¶ 9, discussing State v. Hardwick, 2d Dist. Montgomery No. 26283, 2015-

Ohio-1748, ¶ 29 and 33. (Other citations omitted.)

      {¶ 8} Springs involved a provision in a judgment entry that is essentially identical

to the one involved in the case before us. Id. at ¶ 5. We expressed concern over “the

obligation to reimburse appointed-counsel fees blended into the court's post-confinement

repayment schedule,” which we construed as “an element of enforcement.” Id. at ¶ 12.

We, therefore, modified the judgment entry “by vacating and excising only the words ‘and

court appointed legal fees’ from the ‘financial obligation payment schedule’ to the extent

that the schedule compels [the defendant] to make monthly payments toward his court-
                                                                                          -5-

appointed counsel fees in connection with his criminal case.” Id. at ¶ 13.

       {¶ 9} In Johnson, the appellant relied on Springs and challenged the part of a

judgment entry that required him to pay court costs, fines, and court-appointed fees in a

post-prison repayment schedule. Johnson, 2016-Ohio-5160, 69 N.E.3d 176, at ¶ 33.

Notably, Springs had not considered the issue of whether court costs are properly

included in a post-prison repayment schedule. As in Springs, the payment provision in

Johnson was essentially same as the provision currently under consideration. Id. at ¶

34. In Johnson, we observed that:

       Pursuant to R.C. 2947.23, the trial court was required to “include in the

       sentence the costs of prosecution and render a judgment against the

       defendant for such costs.” However, court costs are distinct from criminal

       punishment.     This is because “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.” State v.

       Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15.

Johnson at ¶ 38.

       {¶ 10} We further commented that “[a]n order to pay court costs is essentially a

judgment on a contractual debt where the court is the creditor and the party ordered to

pay court costs is the debtor. State v. Lamb, 163 Ohio App.3d 290, 2005-Ohio-4741,

837 N.E.2d 833, ¶ 13 (2d Dist.). As such, the creditor, i.e., the court, can collect only the

money it is due by the methods provided for the collection of civil judgments.” (Emphasis

sic.) Id.

       {¶ 11} We then stressed that “the trial court did not have the authority to enforce
                                                                                         -6-

monetary obligations except through civil enforcement mechanisms.” (Emphasis sic.)

Id. at ¶ 39, citing Springs, 2015-Ohio-5016, 53 N.E.3d 804, at ¶ 13. In light of this

reasoning, we held that because “costs from a criminal action can only be collected

through civil enforcement mechanisms, the trial court erred when it ordered [the

defendant] to remit the costs from his criminal action through the fee schedule it created

and included in his judgment entry of conviction.” Id. Consistent with our approach in

Springs, we modified the trial court’s judgment by excising the incorrect language. Id. at

¶ 43.

        {¶ 12} We reached the same decision in Kloeker, where the trial court again had

required a defendant to pay court costs, fines, and legal fees as part of a post-release

payment order. Kloeker, 2d Dist. Champaign No. 2015-CA-38, 2016-Ohio-7801, ___

N.E.3d ___, at ¶ 7. Relying on Springs and Johnson, we modified the trial court judgment

to exclude the incorrect language, and affirmed the judgment as modified. Id. at ¶ 14-

16.

        {¶ 13} Based on our prior authority and the State’s concession of error, the First

and Second Assignments of Error are sustained. The judgment will be modified to

excise the offending language.



                                          II. Conclusion

        {¶ 14} All of Eubanks’ assignments of error having been sustained, the trial court’s

final judgment entry is vacated and modified as follows: Under the paragraph entitled

“Financial Obligation Payment Schedule,” the words “court costs” and the words “and

court appointed legal fees” are excised to the extent that the schedule compels Eubanks
                                                                                         -7-


to make monthly payments toward her court costs and court-appointed legal fees in

connection with her criminal case. As modified, the judgment of the trial court is affirmed.




                                     .............



DONOVAN, J. and TUCKER, J., concur.



Copies mailed to:


Jane A. Napier
Christopher C. Green
Hon. Nick A. Selvaggio
