[Cite as State v. Taylor, 2017-Ohio-9270.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        EN BANC
                                       No. 104243




                                       STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                    RONELLE TAYLOR
                                                   DEFENDANT-APPELLANT



                      JUDGMENT:
   APPLICATION FOR REOPENING GRANTED IN PART AND
  DENIED IN PART (MOTION NO. 504514); AFFIRMED IN PART,
           REVERSED IN PART, AND REMANDED

                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-13-580285-A and CR-14-591206-A
                                   Application for Reopening
                                     Motion No. 504514

        BEFORE: En Banc Court
        RELEASED AND JOURNALIZED: December 28, 2017
APPELLANT

Ronnelle Taylor, pro se
Inmate No. 670688
Lake Erie Correctional Institution
501 Thompson Road
Conneaut, Ohio 44030


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Melissa Riley
       Brett Hammond
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




KATHLEEN ANN KEOUGH, A.J.:
       {¶1} This matter came before the court on Ronelle Taylor’s application to reopen

his direct appeal, based in part, on counsel’s failure to appeal the imposition of court

costs. In resolving this issue, the en banc court determined that a conflict exists between

decisions in this district on the question of whether the trial court’s failure to impose court

costs at the sentencing hearing, but ordering the defendant to pay court costs in the

judgment entry of conviction, constitutes reversible error or harmless error. Compare

State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99 (reversible error); State v.

Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106 (reversible error); State v. Elder,

8th Dist. Cuyahoga No. 104392 (reversible error); State v. Grant, 8th Dist. Cuyahoga No.

100497, 2014-Ohio-2656 (reversible error), with State v. Thomas, 8th Dist. Cuyahoga No.

104567, 2017-Ohio-4436 (harmless error); State v. Nelson, 8th Dist. Cuyahoga No.

104795, 2017-Ohio-6883 (harmless error). We took en banc consideration of this matter

sua sponte and convened an en banc conference in accordance with App.R. 26,

Loc.App.R. 26, and McFadden v. Cleveland State Univ., 120 Ohio St.3d 54,

2008-Ohio-4914, 896 N.E.2d 672.

Decision of the En Banc Court:

       {¶2} It is the opinion of the en banc court that the trial court’s failure to impose

court costs at the sentencing hearing, but ordering the defendant to pay court costs in the

judgment entry of conviction, constitutes reversible error.

       {¶3} It is axiomatic that a criminal defendant has a fundamental right to be present

at all critical stages of his criminal trial, including the imposition of sentence. Section 10,
Article I, Ohio Constitution, Crim.R. 43(A); State v. Hale, 119 Ohio St.3d 118,

2008-Ohio-3426, 892 N.E.2d 864. R.C. 2947.23 provides that “in all criminal cases * *

* the judge or magistrate shall include in the sentence the costs of prosecution, * * * and

render a judgment against the defendant for such costs.” Accordingly, it is error for a

trial court to order the payment of court costs in the judgment entry of conviction when it

did not advise the defendant during the sentencing hearing that costs would be imposed.

       {¶4} However, a violation of Crim.R. 43(A) does not necessarily always result in

prejudicial or constitutional error. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880

N.E.2d 31. “[T]he presence of a defendant is a condition of due process to the extent

that a fair and just hearing would be thwarted by his absence, and to that extent only.”

Id. Thus, the defendant’s absence in violation of Crim.R. 43(A), although improper, can

constitute harmless error where he suffers no prejudice. State v. Williams, 6 Ohio St.3d

281, 452 N.E.2d 1323 (1983), see also State v. Armas, 12th Dist. Clermont No.

CA2004-01-007, 2005-Ohio-2793 (a violation of Crim.R. 43(A) is not a structural error;

therefore, it is subject to the harmless error analysis).

       {¶5} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the

Ohio Supreme Court considered the issue of whether a trial court can impose court costs

pursuant to R.C. 2947.23 in its sentencing entry when it did not impose those costs in

open court at the sentencing hearing and whether a defendant suffers prejudice.

       {¶6} In analyzing the issue, the court explained that it previously held that a

motion to waive costs by a defendant must be made at the time of sentencing or the issue
was waived and costs would be considered res judicata. Id. at ¶ 12, citing State v.

Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23. The court reasoned

that if a trial court did not orally notify a defendant about costs at the sentencing hearing,

it deprived a defendant of the opportunity to request that the court waive costs. Id. at ¶

13. The court expressly rejected the state’s argument that any error by the defendant was

harmless — “Joseph was harmed here.               He was denied the opportunity to claim

indigency and seek a waiver of the payment of court costs before the trial court. He

should have had that chance.” Id. at ¶ 22.

       {¶7} Accordingly, the Ohio Supreme Court held that it was reversible error under

Crim.R. 43(A) for the trial court to impose costs in its sentencing entry when it did not

impose those costs in open court at the sentencing hearing, and that the proper remedy is

to reverse the imposition of costs and remand to the trial court for the limited purpose of

allowing the defendant to move for a waiver of court costs. Id. at ¶ 23.

       {¶8} Subsequent to Joseph, the General Assembly amended R.C. 2947.23 in

Am.Sub.H.B. 247, effective March 22, 2013. 1              The Ohio legislature added a new


       1
        The Joint Committee to Study Court Costs and Filing Fees was created in 2007 by the Ohio
General Assembly in Sub.H.B. 336 of the 126th General Assembly to study court costs and filing
fees. As a result of the study, the committee developed recommendations, including a
recommendation to the General Assembly to amend R.C. 2947.23:

       5. The General Assembly should amend current law to give trial courts the
       statutory authority to suspend the imposition or payment of costs after the court has
       imposed sentence.

       In State v. Clevenger, 114 Ohio St.3d 258 (2007), the Supreme Court held that a trial
       court does not have authority to either suspend the imposition or payment of court
provision in subsection (C), which states “the court retains jurisdiction to waive, suspend,

or modify the payment of costs of prosecution * * * at the time of sentencing, or at any

time thereafter.”2 Although R.C. 2947.23 no longer places limits on when a defendant

can move for waiver of court costs, a trial court cannot impose an aspect of a defendant’s

sentence outside of his presence. To do so defeats the requirements of notice and due

process. See, e.g., State v. Hess, 7th Dist. Jefferson No. 00-JE-40, 2001-Ohio-3463

(modification of defendant’s sentence outside her presence was reversible error);

Cleveland v. Clemons, 90 Ohio App.3d 212, 628 N.E.2d 141 (8th Dist.1993) (imposition

of additional probation condition of sentence outside defendant’s presence was reversible

error).

          {¶9} Notably, the General Assembly did not amend the statute to remove the

constitutional requirement that a defendant must be present during sentencing, nor does



          costs after the court has imposed sentence, even when the offender is indigent. The
          Court found trial courts lack this ability because they are not specifically authorized
          by statute to waive costs after sentencing.

          This serves little practical purpose. Although section 2947.23 of the Revised Code
          allows for community service in lieu of payment of costs, many offenders become
          debilitated or have a change of circumstances after sentencing and cannot perform
          community service. This means indigent offenders do not pay their court costs and
          do not perform community service. In order to rectify this problem, the General
          Assembly should amend the statute to allow the court discretion to suspend costs after
          sentencing.


        R.C. 2947.23(C) addresses the jurisdictional concerns raised in both State v. Clevenger, 114
          2

Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, and Threatt, 108 Ohio St.3d 277, 2006-Ohio-905,
843 N.E.2d 164.
the statute read that the “court retains jurisdiction to impose the payment of costs of

prosecution.” Accordingly, the authority now granted under R.C. 2947.23 presupposes

that court costs were properly imposed at the sentencing hearing where the defendant was

present, thus, the holding in Joseph still applies, and the amendment to R.C. 2947.23 does

not render this Crim.R. 43(A) violation harmless. “[T]he fact remains that (1) the trial

court imposed costs in its sentencing journal entry that it did not impose in open court at

the sentencing hearing and (2) [the defendant] did not have an opportunity to seek a

waiver of costs during sentencing when he was represented by counsel.”            State v.

Gardner, 8th Dist. Cuyahoga No. 104677, 2017-Ohio-7241, ¶ 54.

      {¶10} Finding the failure to notify the defendant at sentencing of court costs is

harmless error would place an improper burden on the defendant to move to waive an

aspect of his sentence that he was not made aware of during the sentencing hearing.

“The possibility that this error could be ‘fixed’ if the defendant were to file a proper

postconviction motion, seeking a waiver of payment of the improperly imposed court

costs under R.C. 2947.23(C), does not, in and of itself, render the error harmless.”

Gardner at ¶ 54.

      {¶11} The defendant is prejudiced because a postsentence motion to waive costs is

a postconviction proceeding where a defendant does not have a constitutional right to

legal representation. The notion that it could be a strategic decision by trial counsel to

not request a waiver of costs at sentencing ignores the very purpose why R.C. 2947.23

was amended — to request waiver of properly imposed court costs at a later date when a
change of circumstances presents themself, including a cooling-off period. See State v.

Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 15, citing State v. Farnese,

4th Dist. Washington No. 15CA11, 2015-Ohio-3533 (not requesting waiver of costs could

be strategic).3

       {¶12} Moreover, if the court denies the postconviction waiver request, the denial is

not a final appealable order that can be challenged. “‘An order denying a motion to

suspend court costs, fines, and/or restitution does not affect a substantial right because

there is no legally enforceable right to have these monetary assessments suspended.’”

State v. Jones, 11th Dist. Lake No. 2015-L-030, 2015-Ohio-2906, quoting State v. Evans,

4th Dist. Scioto No. 99CA2650, 1999 Ohio App. LEXIS 4331, *2 (Sept. 14, 1999), citing

R.C. 2949.09, et seq.; see also State v. Pasqualone, 140 Ohio App.3d 650, 748 N.E.2d

1153 (11th Dist.2000); State v. Arnett, 3d Dist. Shelby No. 17-95-25, 1996 Ohio App.

LEXIS 996 (Feb. 22, 1996); State v. Goodman, 11th Dist. Trumbull No. 2014-T-0047,

2014-Ohio-4884 (holding the denial of a postconviction motion to impose a payment plan

for court costs is not a final, appealable order).       Accordingly, the unrepresented

defendant continues to be prejudiced because he cannot appeal a denial of his

postconviction motion to waive costs — a motion that should have been raised at

sentencing with counsel and reviewed on direct appeal.


       The dissent takes issue that this court does not overrule Brown. The
       3

circumstances in Brown are factually distinguishable. In Brown, the court
imposed court costs in the defendant’s presence at sentencing. Only after they
were imposed did Brown’s trial counsel fail to request waiver, thus, constituting
Brown’s claim for ineffective assistance of counsel claim on appeal.
       {¶13} Following the holding in Joseph and the expressed language of R.C.

2947.23(A) and Crim.R. 43(A), we overrule Thomas and Nelson and hold that the trial

court’s failure to impose court costs at the sentencing hearing, but ordering the defendant

to pay court costs in the judgment entry of conviction, constitutes reversible error.

       {¶14} Our en banc proceeding was prompted only by this one issue.

Consequently, we will not address the other issues raised in the application for reopening

in this case en banc, but leave those issues to the merit panel’s judgment, which will be

addressed below.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

PATRICIA ANN BLACKMON, MARY J. BOYLE, FRANK D. CELEBREZZE, JR.,
EILEEN A. GALLAGHER, EILEEN T. GALLAGHER, SEAN C. GALLAGHER,
LARRY A. JONES, SR., MARY EILEEN KILBANE, TIM McCORMACK, and ANITA
LASTER MAYS, JJ., CONCUR

MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION

MELODY J. STEWART, J., DISSENTING:

       {¶15}    I agree that the court committed a prima facie violation of Taylor’s

Crim.R. 43(A) right to be present at every stage of the trial by not mentioning court costs

at sentencing and imposing them in a sentencing entry outside of Taylor’s presence.

State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 13.                That

violation was harmless, however, because Taylor has the ability to petition the court to

waive the payment of court costs under R.C. 2947.23(C). To hold otherwise disregards
legislative action no doubt meant to rectify the prejudice addressed in Joseph and creates

a de facto per se error.

       {¶16} The imposition of court costs is mandatory, regardless of the defendant’s

financial status. See R.C. 2947.23(A)(1)(a) (“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.”) (emphasis added); State v. Clevenger,

114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 3 (defendant’s financial status is

“irrelevant to the imposition of court costs.”); State v. Moore, 135 Ohio St.3d 151,

2012-Ohio-5479, 985 N.E.2d 432, ¶ 11.

       {¶17} Payment of court costs can, however, be waived by the trial court. See R.C.

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

the costs of prosecution, including any costs under section 2947.231 of the Revised Code,

at the time of sentencing or at any time thereafter.”).     “[W]aiver of court costs is

permitted — but not required — if the defendant is indigent.” State v. White, 103 Ohio

St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14.

       {¶18} Before Joseph, precedent held that a waiver of the payment of court costs

was allowed only if the defendant requested a waiver “at the time of sentencing.” State

v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of the

syllabus. If the defendant did not request a waiver of payment of costs at the time of

sentencing, the issue is “waived and costs are res judicata.” Id. at ¶ 23. This put the
defendant, who was not informed at sentencing that court costs would be imposed, in an

untenable position: if court costs were imposed in a sentencing entry only and not in open

court, it would be impossible for the defendant to request that payment of the costs be

waived at sentencing, yet the failure to object to that which had not been imposed became

res judicata and could not be raised on appeal. Any error would be unreviewable, thus

prejudicing the defendant.

      {¶19} Against this backdrop, Joseph held that a court that imposed court costs in a

sentencing entry, but not during sentencing, violates a defendant’s Crim.R. 43(A) right to

be present at all stages of the proceedings. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954,

926 N.E.2d 278, at ¶ 13. The violation occurs because the defendant is “not given an

opportunity at the sentencing hearing to seek a waiver of the payment of costs[.]” Id.

      {¶20} After the Supreme Court released Joseph, the General Assembly amended

R.C. 2947.23(C) to state that the trial court retains jurisdiction to waive, suspend, or

modify the payment of court costs “at the time of sentencing or any time thereafter. “It

is presumed that the General Assembly is fully aware of any prior judicial interpretation

of an existing statute when enacting an amendment.” Clark v. Scarpelli, 91 Ohio St.3d

271, 278, 744 N.E.2d 719 (2001), citing State ex rel. Huron Cty. Bd. of Edn. v. Howard,

167 Ohio St. 93, 96, 146 N.E.2d 604 (1957). A report by the Ohio Legislative Service

Commission4 on HB Sub. H.B. 247 stated that “[t]he bill updates the Revised Code to


      4
       “The Ohio Supreme Court has characterized Ohio Legislative Service
Commission’s analyses as ‘legislative history’ that it may refer to ‘when we find
them helpful and objective.’” Piazza v. Cuyahoga Cty., 8th Dist. Cuyahoga No.
reflect two recent Ohio Supreme Court decisions regarding court costs * * *.”

Undoubtedly, those two decisions were Threatt and Clevenger. If the Crim.R. 43(A)

violation in Joseph was based on the lack of “opportunity” to request a waiver of the

payment of costs, providing another opportunity would supersede the holdings in both

Threatt and Clevenger, and, by necessary implication, vitiate the rationale behind Joseph.



      {¶21} In fact, we explicitly stated this conclusion in State v. Nelson, 8th Dist.

Cuyahoga No. 104795, 2017-Ohio-6883, where we found that the addition of division (C)

to R.C. 2947.23 meant that “Threatt has been superseded by statute, and the holding in

Joseph is no longer applicable.” Id. at ¶ 89. See also State v. Black, 8th Dist. Cuyahoga

No. 105197, 2017-Ohio-8063, ¶ 51 (quoting Nelson for the proposition that Joseph “is no

longer applicable” after amendment of R.C. 2947.23(C)).           The availability of a

postsentence motion to request that payment of court costs be waived renders any Crim.R.

43(A) error harmless.        State v. Johnson, 6th Dist. Lucas No. L-16-1165,

2017-Ohio-8206, ¶ 23 (R.C. 2947.23 renders “the court’s failure to verbally notify the

defendant about costs non-prejudicial.”); State v. Copeland, 2d Dist. Montgomery No.

26842, 2016-Ohio-7797, ¶ 9, fn. 1 (dicta) (“now that R.C. 2947.23(C) allows

post-judgment waiver of payment, a defendant may not be able to establish that he or she

was prejudiced.”)


104724, 2017-Ohio-8163, ¶ 37, fn. 2, citing Meeks v. Papadopulos, 62 Ohio St.2d
187, 191, 404 N.E.2d 159 (1980), and R.C. 1.49(C) (Stewart, J., concurring in part
and dissenting in part).
       {¶22} The conclusion that a defendant is no longer prejudiced by the trial court’s

failure to notify the defendant of the imposition of costs at sentencing is also consistent

with decisions from this and several other appellate districts holding that R.C. 2947.23(C)

removes any prejudice from a trial counsel’s failure to request a waiver of the payment of

court costs at sentencing.    See State v. Mihalis, 8th Dist. Cuyahoga No. 104308,

2016-Ohio-8056, ¶ 33 (“it is nearly impossible to establish prejudice as a result of

counsel’s failure to move for a waiver of costs at sentencing[.]”); State v. Farnese, 4th

Dist. Washington No. 15CA11, 2015-Ohio-3533 (“prejudice resulting from a failure to

move at the sentencing hearing [for waiver of payment of court costs] is harder, if not

impossible, to discern.”); State v. West, 2d Dist. Greene No. 2015-CA-72,

2017-Ohio-7521, ¶ 31 (R.C. 2947.23(C) makes it “almost impossible to find” that trial

counsel was ineffective for failing to raise the issue of court costs at sentencing). If a

violation of a defendant’s Sixth Amendment right to counsel can be rendered harmless, so

too can the violation of a right contained in Crim.R. 43(A).

       {¶23} It follows that the basis for Joseph — that a Crim.R. 43(A) violation

occurred because the failure to mention court costs at sentencing deprived the defendant

of the “opportunity” to request a waiver of payment — was superseded by a statute that

gave the defendant another opportunity to request that payment of court costs be waived.

State v. Thomas, 8th Dist. Cuyahoga No. 104567, 2017-Ohio-4436, ¶ 15. Any error that

deprives a defendant of the opportunity to request that payment of court costs be waived

at sentencing is rendered harmless because the defendant can request a waiver,
suspension, or modification of payment postsentence. Id.

       {¶24} The en banc majority acknowledges that R.C. 2947.23(C) permits a

defendant to request that payment of court costs be waived at any time after sentencing,

but maintains that the statute “presupposes that court costs were properly imposed at the

sentencing hearing where the defendant was present[.]” Ante at ¶ 9. Not only does the

text of Crim.R. 43(A) fail to support this assertion, accepting the en banc majority’s

position would be tantamount to finding that there are no circumstances where a Crim.R.

43(A) error like the one in this case would ever be harmless. This raises the Crim.R.

43(A) violation in this case to structural error. It is only in the rarest of cases that an

error is held to be structural, thus requiring an automatic reversal.      Washington v.

Recuenco, 548 U.S. 212, 218, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006); State v. Perry,

101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23 (cautioning against applying a

structural-error analysis). None of this is to say that any error under Crim.R. 43(A) is

always rendered harmless by R.C. 2947.23(C).            But the Supreme Court’s clear

admonition against finding structural error compels the conclusion that the R.C.

2947.23(C) “fix” actually does, absent extraordinary facts, render any Crim.R. 43(A)

error harmless beyond any doubt.

       {¶25} The en banc majority argues that a defendant making an R.C. 2947.23(C)

request to waive the payment of court costs after sentencing is prejudiced because the

defendant would not have the benefit of legal representation when making the motion.

Ante at ¶ 11.
       {¶26} This argument needlessly confuses a Sixth Amendment right to counsel into

what is a Crim.R. 43(A) claim. And even if the right to counsel were implicated, the

majority fails to acknowledge the possibility that defense counsel might willingly choose

to not raise the issue of court costs at sentencing.

       {¶27} We have held that “[s]trategic timing may now play a role in trial counsel’s

decision not to seek a waiver at the time of sentencing.” State v. Brown, 8th Dist.

Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 15. Defense counsel “may decide as a matter

of strategy not to seek a waiver or modification of court costs until some later time ‘when

the trial court had time to either reflect upon its sanctions or the vividness of the impact of

[the defendant’s] conduct had faded.’” Id., quoting Farnese, 4th Dist. Washington No.

15CA11, 2015-Ohio-3533, at ¶ 16. Importantly, the en banc majority does not overrule

Brown, so that decision remains binding on this court.

       {¶28} This case is an excellent example of why defense counsel might not ask for

a waiver of the payment of court costs. The sentencing transcript shows that the court

questioned Taylor about how he never held a job yet possessed over $10,000 in cash

when arrested on the two trafficking cases. When Taylor told the court that he lived with

his parents but provided no financial assistance to them, the court stated, “so $10,000 you

have on you in a matter of months, and you don’t share any of that with your mom and

dad for living in their home; is that what you’re telling me?” Given this and other

statements made by the trial judge, defense counsel may well have thought that a motion

to waive court costs on grounds of indigence would have been futile and that Taylor
would have a better chance to file the motion at a later point in time.5 If defense counsel

can, as a matter of strategy, decide not to pursue a waiver of the payment of court costs at

sentencing, there can be no prejudice from the fact that an R.C. 2947.23(C) postsentence

motion to waive the payment of court costs is not one where the petitioner is entitled to

the assistance of counsel.

       {¶29} Finally, the en banc majority opines that a petitioner is prejudiced because

there is no right to appeal in the event the court were to deny a postsentence motion to

waive the payment of court costs.       The majority maintains that there is no legally

enforceable right to challenge the trial court’s decision on the payment of court costs,

postsentencing, whereas the defendant would have the right to raise the issue on a direct

appeal from the sentencing. This conclusion may be erroneous.

       {¶30} Appellate courts have jurisdiction over orders that are both final and

appealable. An order is “final” only if it meets the criteria set forth in R.C. 2505.02. As

applicable here, it appears that an order denying a postsentence motion to waive, suspend,

or modify the payment of court costs would be an order that affects a substantial right

made in a summary application in an action after judgment. See R.C. 2505.02(B)(2).

       {¶31} The enactment of R.C. 2947.23(C) gave the trial courts continuing

jurisdiction to modify or waive the payment of court costs. The statute explicitly gives a

defendant the right to request a waiver of the payment of court costs at any time. This


       It should also be noted that Taylor has not only been making some very
       5

small monthly payments, he asked the court to establish a payment schedule for the
payment of court costs.
would constitute a substantial right as defined by R.C. 2505.02(A)(1).            And a

postsentence motion to waive the payment of court costs could be considered a summary

application under R.C. 2505.02(B)(2).6 See State v. Wilkinson, 2d Dist. Montgomery No.

18286, 2000 Ohio App. LEXIS 5075, *5 (Sept. 25, 2000) (finding the term “summary

application” to apply to applications made “after judgment and do not involve lengthy

trial court proceedings[.]”).

       {¶32} At least one appellate court has heard an appeal from a trial court’s

postsentence refusal to waive the payment of court costs, without any consideration of

whether the order denying a postsentence motion to waive the payment of court costs was

a final appealable order under R.C. 2505.02.         See State v. Copeland, 2d Dist.

Montgomery No. 26842, 2016-Ohio-7797, ¶ 2. With the law unclear at this point, it is

premature for the en banc majority to make the blanket statement that there is no right to

appeal the denial of a postsentence motion to waive the payment of court costs and then

find prejudice on what is, at best, an uncertain legal conclusion. For the above reasons,

I dissent.

Decision of the Merit Panel:

KATHLEEN ANN KEOUGH, A.J.:

       {¶33} On February 14, 2017, the applicant, Ronelle Taylor, pro se, pursuant to


       6
         R.C. 2505.02(B)(2) does not define what constitutes a “summary
application,” and “[t]he case law offers no helpful explanation of what constitutes a
‘summary application in an action after judgment’ under R.C. 2505.02(B)(2).”
Painter & Pollis, Ohio Appellate Practice, Section 2:14 (2016).
App.R. 26(B), applied to reopen this court’s judgment in State v. Taylor, 8th Dist.

Cuyahoga No. 104243, 2016-Ohio-7894, in which this court affirmed Taylor’s

convictions and sentences for three counts of drug trafficking, possession of criminal

tools, and child endangering, but remanded the case to the trial court for a nunc pro tunc

sentencing entry to incorporate the statutory findings for consecutive sentences. Taylor

now maintains that his appellate counsel should have argued (1) that trial counsel was

ineffective for not filing a motion to suppress and (2) that the trial court improperly

imposed court costs. The state of Ohio filed its response on March 16, 2017. For the

following reasons, this court denies the application in part and grants it in part, reinstates

the appeal, reverses solely as to costs, and remands the case for a correct imposition of

costs.

         {¶34} In State v. Taylor, Cuyahoga C.P. No. CR-13-580285-A (“Case I”) the

grand jury indicted Taylor on four counts of drug trafficking, three counts of drug

possession, and one count of possession of criminal tools. In State v. Taylor, Cuyahoga

C.P. No. CR-14-591206-A (“Case II”) the grand jury indicted Taylor on single counts of

drug trafficking, drug possession, possession of criminal tools, and two counts of

endangering children.    In Case II on February 3, 2015, Taylor’s attorneys filed a motion

to suppress.    Before the court ruled on that motion, Taylor pleaded guilty to the

trafficking offense and to one count of endangering children.      In Case I, Taylor pleaded

guilty to two counts of drug trafficking and to possession of criminal tools. The trial

judge sentenced Taylor in Case I to 12 months on each of the counts to be served
concurrently and in Case II to seven years on the drug trafficking count and to time

served on the endangering children charge.     Further, the judge ordered the sentences in

Case I and Case II to be served consecutively.         Although the trial judge made the

necessary findings for consecutive sentences during the sentencing hearing, those were

not contained in the sentencing entries.

       {¶35} Appellate counsel argued that the facts of the case did not support

consecutive sentences and that the trial judge was biased against the defendant because

she called him a monster.      This court rejected those arguments, but noted that the

sentencing entries did not include the required findings for imposing consecutive

sentences.   Thus, this court remanded the case for nunc pro tunc entries that included the

necessary language.

       {¶36} Now Taylor argues his appellate counsel was ineffective for failing to raise

on appeal (1) that his trial counsel was ineffective for failing to file a motion to suppress

and (2) the trial court’s failure to impose court costs during the sentencing hearing, thus

depriving him of the opportunity to contest the imposition of costs based on indigency.

In order to establish a claim of ineffective assistance of appellate counsel, the applicant

must demonstrate that counsel’s performance was deficient and that the deficient

performance prejudiced the defense.        Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989).

       {¶37} Taylor’s first argument is not well-founded because trial counsel did file a
motion to suppress. Moreover, Taylor’s guilty plea bars the right to argue suppression,

including the court’s failure to rule on it. Montpelier v. Greeno, 25 Ohio St.3d 170, 495

N.E.2d 581 (1986).     In State v. Bogan, 8th Dist. Cuyahoga No. 84468, 2005-Ohio-3412,

Bogan pleaded guilty before the trial court had ruled on the motion to suppress. This

court ruled that by pleading guilty, Bogan waived any error regarding the motion to

suppress.      Id. at ¶ 14; see also State v. Collier, 8th Dist. Cuyahoga No 95572,

2011-Ohio-2791 (court denied an App.R. 26(B) application to reopen arguing failure to

file a motion to suppress). Accordingly, Taylor’s application on this basis is denied.

       {¶38} Taylor contends in his second argument that his appellate counsel was

ineffective for failing to raise on appeal that the imposition of court costs outside his

presence was error and prevented him from claiming indigency and seeking a waiver of

those costs.    The state concedes the argument raised.

       {¶39} Additionally, having determined in en banc proceedings that the trial court’s

failure to impose court costs at the sentencing hearing, but ordering the defendant to pay

court costs in the judgment entry of conviction, constitutes reversible error, Taylor’s

argument is well-taken.

       {¶40} Accordingly, this court denies Taylor’s claim based on the motion to

suppress but grants the application as to court costs. The court reinstates this appeal to

docket, reverses that portion of the trial court’s order imposing costs, and remands the

case for the sole purpose of allowing Taylor the opportunity to move for a waiver of costs

and then for the trial court’s resolution of costs.
       {¶41}    The application for reopening is granted in part and denied in part.

       It is ordered that appellant recover from appellee 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. Case remanded to the trial court for

resolution of court costs.

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

the Rules of Appellate Procedure.


KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR
