[Cite as State v. Stapleton, 2020-Ohio-852.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,
                                                           CASE NO. 1-19-66
       PLAINTIFF-APPELLEE,

       v.

LEO J. STAPLETON,                                          OPINION

       DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2016 0520

                                       Judgment Affirmed

                              Date of Decision: March 9, 2020



APPEARANCES:

        Leo Stapleton Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-66


WILLAMOWSKI, J.

         {¶1} Defendant-appellant Leo Stapleton (“Stapleton”) brings this appeal

from the judgment of the Court of Common Pleas of Allen County imposing court

costs.    Stapleton argues that the trial court erred by imposing costs without

considering his ability to pay. For the reasons set forth below, the judgment is

affirmed.

         {¶2} On September 6, 2017, Stapleton entered pleas of guilty to one count of

murder and one count of burglary. Doc. 122. Stapleton entered a plea of no contest

to the repeat violent offender specification. Id. The trial court accepted the pleas

of guilty, found Stapleton guilty of the specification, and entered a judgment of

conviction. Id. The trial court held a sentencing hearing on October 20, 2017. Doc.

134. On November 6, 2017, the trial court entered judgment sentencing Stapleton

to a prison term of 15 years to life for the murder conviction, 10 years for the repeat

violent offender specification, and 36 months for the burglary conviction. Id. The

sentences for murder and the repeat violent offender specification were set to run

consecutive to each other, but the sentence for burglary ran concurrent to the others

for an aggregate term of 25 years to life in prison. Id. As part of the sentence, the

trial court ordered Stapleton to pay court costs. Id. Stapleton filed a direct appeal

from this judgment. Doc. 135. The appeal was dismissed pursuant to the guidelines

set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), on February 7, 2018. Doc. 146.

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       {¶3} On April 26, 2018, Stapleton filed a motion to vacate or suspend court

costs. Doc. 148. The trial court denied the motion on April 30, 2018. Doc. 149.

On April 23, 2019, Stapleton filed a motion to suspend of modify the court costs.

Tr. 152. The trial court denied the motion on April 24, 2019. Doc. 153. On

September 23, 2019, Appellant again filed a motion to vacate the court costs. Tr.

155. The trial court denied this motion on that same day. Tr. 156. Stapleton

appealed from this judgment. Doc. 158. On appeal, Stapleton raises the following

assignment of error.

       Trial court erred when it imposed court costs without assessing
       Defendant’s ability to pay.

       {¶4} The sole assignment of error in this case is that the trial court erred in

imposing court costs without first assessing Stapleton’s ability to pay the costs.

Initially, this court notes that this issue was one that could have been raised on direct

appeal. “‘[A] convicted defendant is precluded under the doctrine of res judicata

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 the trial which resulted in that judgment of conviction or

on appeal from that judgment.’” State v. Jones, 10th Dist. Franklin No. 17AP-431,

2018-Ohio-306, ¶ 13, quoting State v. Szefcyk, 77 Ohio St.3d 93, 96 (1996). Since

this issue could have been raised previously on direct appeal, the issue is barred by

the doctrine of res judicata.


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Case No. 1-19-66


       {¶5} Even if the issue was not precluded, the result would not change. “In

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.” R.C. 2947.23(A)(1)(a). The question of whether a trial court must first

determine a defendant’s ability to pay court costs before imposing them has

previously been addressed by this court in State v. Snuggs, 3d Dist. Henry Nos. 7-

16-03, 7-16-05, 2016-Ohio-5466. In Snuggs, the defendant challenged the trial

court’s denial of his motion to stay the payment of costs and fines. Id. at ¶ 16. This

Court first noted that there were no fines, only court costs. Id. Snuggs’ argument

was that the trial court erred by imposing court costs without first holding a hearing

to determine his ability to pay due to his indigent status. Id. This Court noted that

the imposition of court costs is not discretionary pursuant to R.C. 2947.23. Id. “This

applies without consideration of a defendant’s ability to pay.” Id. This Court then

noted that although the trial court retains jurisdiction to waive, suspend, or modify

the payment at any time from sentencing forward, that decision is left to the sound

discretion of the trial court. Id.

       {¶6} Here, like in Snuggs, the trial court did not impose any financial

sanction, only court costs. Stapleton claims that the trial court was required to

determine his ability to pay before doing so. This is an incorrect statement of the

law. Although R.C. 2929.18 permits a trial court to hold a hearing to determine

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Case No. 1-19-66


ability to pay financial sanctions such as restitution, that requirement does not apply

to court costs. State v. Smith, 3d Dist. Allen No. 1-07-32, 2007-Ohio-6552. The

statute specifically differentiates court costs from financial sanctions by saying that

financial sanctions may be imposed “in addition to” court costs. R.C. 2929.18(A).

Thus, the trial court did not err by imposing court costs without first determining

appellant’s ability to pay the costs. The assignment of error is overruled.

       {¶7} Having found no prejudice in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Allen County is affirmed.

                                                                 Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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