[Cite as State v. Haught, 2011-Ohio-4767.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                            WASHINGTON COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 10CA34
                               :
     vs.                       : Decision Released: Sept. 2, 2011
                               :
LARRY D. HAUGHT, JR.,          : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

John A. Bay, Bay Law Office, L.L.C., Columbus, Ohio, for Appellant.

Roland W. Riggs, III, Marietta City Law Director, and Mark C. Sleeper,
Marietta City Assistant Law Director, Marietta, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from a Marietta Municipal Court entry,

convicting Appellant of driving under OVI suspension in violation of R.C.

4510.14, and sentencing him to sixty days in jail, as well as fines, costs and a

ten day license suspension. On appeal, Appellant contends that 1) the trial

court erred by imposing court costs without notifying him that his failure to

pay such costs may result in the court’s ordering him to perform community

service; 2) trial counsel was constitutionally ineffective for failing to object

to the trial court’s imposition of court costs, as the trial court did not notify
Washington App. 10CA34                                                           2


him that his failure to pay court costs may result in the court’s ordering him

to perform community service; and 3) the trial court committed plain error

and denied him due process of law when it imposed court costs without the

proper notification that his failure to pay court costs may result in the court’s

ordering him to perform community service.

      {¶2} We conclude that the trial court erred in failing to provide

Appellant the notice regarding community service required by R.C. 2947.23.

Thus, Appellant’s first assignment of error is sustained. As such, we must

vacate the portion of the entry that imposes court costs and remand this case

for re-sentencing as to the issue of court costs.

      {¶3} Further, in light of our disposition of Appellant’s first

assignment of error, the issues raised under Appellant’s second and third

assignments of error have been rendered moot and we decline to address

them pursuant to App.R. 12(A)(1)(c).

                                    FACTS

      {¶4} After a jury found him guilty of driving under OVI suspension in

violation of R.C. 4510.14, on October 7, 2010, Appellant was sentenced to

sixty days in jail, as well as fines, costs and a ten day license suspension.

Appellant’s sentence was stayed pending appeal. A review of the transcript

reveals that although the trial court ordered Appellant to pay costs, it did not
Washington App. 10CA34                                                            3


advise him that he could be ordered to perform community service in the

event he fails to pay costs, as required by R.C. 2947.23. Appellant now

brings his timely appeal, assigning the following assignments of error for

our review.

                         ASSIGNMENTS OF ERROR

“I.    THE TRIAL COURT ERRED BY IMPOSING COURTS COSTS
       WITHOUT NOTIFYING MR. HAUGHT THAT HIS FAILURE TO
       PAY SUCH COSTS MAY RESULT IN THE COURT’S
       ORDERING HIM TO PERFORM COMMUNITY SERVICE.

II.    TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, IN
       VIOLATION OF THE SIXTH AND FOURTEENTH
       AMENDMENTS TO THE UNITED STATES CONSTITUTION
       AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION,
       FOR FAILING TO OBJECT TO THE TRIAL COURT’S
       IMPOSITION OF COURT COSTS, AS THE TRIAL COURT DID
       NOT NOTIFY MR. HAUGHT THAT HIS FAILURE TO PAY
       COURT COSTS MAY RESULT IN THE COURT ORDERING HIM
       TO PERFORM COMMUNITY SERVICE.

III.   THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED
       MR. HAUGHT DUE PROCESS OF LAW WHEN IT IMPOSED
       COURT COSTS WITHOUT THE PROPER NOTIFICATION THAT
       HIS FAILURE TO PAY COURT COSTS MAY RESULT IN THE
       COURT ORDERING HIM TO PERFORM COMMUNITY
       SERVICE.”

                         ASSIGNMENT OF ERROR I

       {¶5} In his first assignment of error, Appellant contends that the trial

court erred by imposing costs without notifying him that the failure to pay

court costs may result in the court’s ordering him to perform community
Washington App. 10CA34                                                           4


service. The State concedes this error by the trial court, but contends that

the error is not ripe for review.

      {¶6} R.C. 2947.23(A)(1) provides as follows:

“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. At the time the judge or
magistrate imposes sentence, the judge or magistrate shall notify the
defendant of both of the following:

(a) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule approved by the
court, the court may order the defendant to perform community service in an
amount of not more than forty hours per month until the judgment is paid or
until the court is satisfied that the defendant is in compliance with the
approved payment schedule.

(b) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly credit
rate per hour of community service performed, and each hour of community
service performed will reduce the judgment by that amount.” (Emphasis
added.)

      {¶7} In State v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930

N.E.2d 838, we departed from our previous line of cases holding that

questions related to a trial court’s failure to provide defendants with R.C.

2947.23 community service notifications were not ripe for review, and

instead held that such issues were ripe for review. In changing course on the

ripeness question, we reasoned that “[s]uch a notification is mandatory; it is

not a matter of discretion, and, as such, we concluded that the trial court’s
Washington App. 10CA34                                                           5


imposition of costs without providing the notifications required by R.C.

2947.23(A)(1)(a) and (b) was clearly and convincingly contrary to law.

Moss at ¶ 21. As in Moss, we conclude that the trial court’s imposition of

costs without providing Appellant the necessary notifications contained in

R.C. 2947.23(A)(1)(a) and (b) was contrary to law.

      {¶7} Based upon the foregoing, Appellant is entitled to be re-

sentenced in order for the trial court to provide him with R.C. 2947.23’s

required notice that his failure to pay court costs may result in the trial

court’s ordering him to perform community service. Moss at ¶ 22; relying

on, State v. Burns, Gallia App. No. 08CA1, 08CA2, 08CA3, 2009-Ohio-878;

State v. Dansby, Tuscarawas App. No. 08AP060047, 2009-Ohio-2975 at ¶

21-23; see also, State v. Cardamone, Cuyahoga App. No. 94405, 2011-Ohio-

818 at ¶ 13-14.

      {¶8} Thus, in accordance with our reasoning in Moss, as well as the

reasoning in Dansby and Cardamone, supra, we vacate the portion of the

sentencing entry that imposes court costs and remand this case to the trial

court for re-sentencing as to the issue of court costs. Moss at ¶ 22.

                  ASSIGNMENTS OF ERROR II AND III

      {¶9} In his second assignment of error, Appellant contends that he

received ineffective assistance of counsel related to his counsel’s failure to
Washington App. 10CA34                                                         6


object to the imposition of costs when the trial court failed to provide the

proper notifications regarding community service required by R.C.

2947.23(A)(1)(a) and (b). Appellant further contends that the trial court

committed plain error when it imposed costs without providing these

notifications.

      {¶10} In State v. Burns, this Court was presented with an ineffective

assistance of counsel argument based upon facts essentially the same as the

facts sub judice. State v. Burns, Gallia App. No. 08CA2-3, 2009-Ohio-878.

In Burns, after deciding that the trial court had indeed erred in failing to

provide the notifications required by R.C. 2947.23(A)(1)(a) and (b), we

determined that the ineffective assistance of counsel argument raised by the

appellant was moot and thus declined to address it in accordance with

App.R. 12(A)(1)(c). Burns at ¶ 13. Based upon the same reasoning as set

forth in Burns, we conclude that the issues raised under Appellant’s second

and third assignments of error have been rendered moot. As a result, we

decline to address them.

      {¶11} Accordingly, having sustained Appellant’s first assignment of

error, the trial court’s imposition of costs is vacated and the matter is

remanded to the trial court for a limited re-sentencing consistent with this

opinion, with respect to the issue of costs.
Washington App. 10CA34                                                         7


                                         SENTENCE VACATED IN PART
                                         AND THE CAUSE REMANDED.

Kline, J. dissenting.

      {¶12} I respectfully dissent because I conclude that assignment of

error one is not ripe for review. I acknowledge that R.C. 2947.23 makes it

mandatory for the trial court to inform a defendant that he could be ordered

to perform community service. At this time, however, the defendant has not

suffered any prejudice from the trial court’s failure to inform him that it

may, in the future, require him to perform community service to fulfill his

obligation to pay costs. Thus, I would hold that assignment of error one is

not ripe for review.

      {¶13} Accordingly, I would adhere to our recent decisions in State v.

Knauff, Adams App. No. 09CA881, 2009-Ohio-5535, at ¶4-5, State v.

Welch, Washington App. No. 08CA29, 2009-Ohio-2655, at ¶14 (McFarland,

J.), State v. Bryant, Scioto App. No. 08CA3258, 2009-Ohio-5295, at ¶11,

and State v. Slonaker, Washington App. No. 08CA21, 2008-Ohio-7009, at

¶7 (McFarland, J.). See, also, State v. Moss, 186 Ohio App. 3d 787, 2010-

Ohio-1135, at ¶34 (Kline, J., dissenting); State v. Kearse, Shelby App. No.

17-08-29, 2009-Ohio-4111, at ¶12-15(noting the disagreement within the

Fourth District and applying the ripeness doctrine).
Washington App. 10CA34                                                          8



                           JUDGMENT ENTRY

       It is ordered that the SENTENCE BE VACATED IN PART AND
THE CAUSE REMANDED and that the Appellant recover of 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 Marietta Municipal Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents with Dissenting Opinion.
                                       For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
