[Cite as State v. Donaldson, 2020-Ohio-3591.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                Plaintiff-Appellee,               :
                                                           No. 108778
                v.                                :

MONTREA DONALDSON,                                :

                Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: July 2, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-626435-A


                                            Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Daniel T. Van, Assistant Prosecuting
                Attorney, for appellee.

                Mark A. Stanton, Cuyahoga County Public Defender, and
                Paul A. Kuzmins, Assistant Public Defender, for
                appellant.


EILEEN T. GALLAGHER, A.J.:

                   Defendant-appellant, Montrea Donaldson, appeals the denial of his

request to waive court costs and claims the following error:
      The trial court erred in assessing court costs when the parties agreed
      that the appellant was indigent.

              We find no merit to the appeal and affirm.

                       I. Facts and Procedural History

              Donaldson was charged in a 96-count indictment alleging his

involvement in a criminal enterprise aimed at stealing money from local attorney

IOLTA accounts, insurance companies, and local businesses. Following several

months of pretrials and the exchange of discovery, Donaldson pleaded guilty to eight

counts of forgery, seven counts of money laundering, two counts of

telecommunications fraud, one count of theft, and one count of engaging in a pattern

of corrupt activity. The trial court sentenced Donaldson to an aggregate seven-year

prison term and five years of postrelease control. The trial court also ordered

Donaldson to pay restitution in the amount of $69,549.31 and court costs.

              With respect to court costs, the trial court indicated that it had

reviewed the record and the presentence investigation report, which contained

evidence regarding Donaldson’s present and future ability to pay any financial

sanctions. Defense counsel requested a waiver of court costs, arguing that any

money Donaldson earns should be used to pay the victims rather than court costs.

(Tr. 117.) The prosecutor agreed he would prefer Donaldson’s money go to the

victims, but deferred the imposition of court costs to the trial court’s discretion.

Based on the record, the presentence investigation and the statements of counsel,

the trial court ordered Donaldson to pay court costs and ordered that “restitution be
paid in advance of costs, fines, or fees.” (Tr. 118.) Having found that Donaldson was

indigent, the court appointed appellate counsel at the state’s expense. This appeal

followed.

                              II. Law and Analysis

              In the sole assignment of error, Donaldson argues the trial court erred

in requiring him to pay court costs when the parties agreed he was indigent.

              R.C. 2947.23(A)(1) governs the imposition of court costs and

provides, in relevant part, that “[i]n all criminal cases * * * the judge * * * shall

include in the sentence the costs of prosecution * * * and render a judgment against

the defendant for such costs.” Thus, a sentencing court must include in the sentence

the costs of prosecution 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.

              A trial court nevertheless has discretion to waive court costs if the

defendant is indigent. State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio-

4841, ¶ 9. And, the discretion to waive court costs includes the discretion not to

waive them. Id.

              Despite Donaldson’s statements to the contrary, the record does not

reflect that the state agreed to a finding that Donaldson was indigent. Rather, the

prosecutor stated on the record that he did not believe it was necessary for the state

to recover the cost of investigating and prosecuting its case against Donaldson.

(Tr. 88.) The prosecutor was referring to one of the financial sanctions listed in
R.C. 2923.32(B)(2), which include recover for “costs of investigation and

prosecution” as defined by R.C. 2923.31(B).1 The costs associated with investigating

and prosecuting corrupt activity under R.C. 2923.32(B) are different from the court

costs authorized under R.C. 2947.23(C). Costs imposed under R.C. 2923.32(B)(2)

are financial sanctions; court costs are not. State v. Davis, 8th Dist. Cuyahoga No.

104574, 2018-Ohio-1147, ¶ 58 (court costs imposed under R.C. 2947.23 are not

financial sanctions).

               Unlike fines and other financial sanctions, a trial court is not required

to consider a defendant’s present or future ability to pay court costs. Davis at ¶ 58;

State v. Jones, 8th Dist. Cuyahoga No. 105719, 2018-Ohio-847, ¶ 18. Therefore, the

fact that Donaldson was indigent at the time of the sentencing hearing was irrelevant

to the court’s decision requiring Donaldson to pay court costs.

               Nevertheless, Donaldson contends that even if the trial court has

discretion to impose court costs on an indigent defendant, the trial court abused its

discretion by imposing court costs on him since, in addition to being indigent,

Donaldson must serve a mandatory seven-year prison term. However, this court

has previously rejected the argument that a trial court abuses its discretion by


      1   R.C. 2923.32 prohibits one from engaging in a pattern of corrupt activity.
R.C. 2923.32(B)(2)(c) allows the court to require the defendant to repay reasonably
incurred costs of investigation and prosecution in addition to other financial sanctions.
R.C. 2923.31(B) defines “costs of investigation and prosecution” and “costs of
investigation and litigation” as “all of the costs incurred by the state or a county or
municipal corporation under sections 2923.31 to 2923.36 of the Revised Code in the
prosecution and investigation of any criminal action or in the litigation and investigation
of any civil action, and includes, but is not limited to, the costs of resources and
personnel.”
imposing court costs when an indigent defendant must also serve a prison term. See,

e.g., State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709,

¶ 11-13. Therefore, we cannot say that the trial court abused its discretion by

requiring Donaldson to pay court costs simply because he must also serve a seven-

year prison term.

               The sole assignment of error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant 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 been affirmed, any bail pending 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.



EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR
