[Cite as State v. Hawley, 2014-Ohio-731.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :            C.A. CASE NO.    25897

v.                                                   :            T.C. NO.   06CR348

JAMIE HAWLEY                                         :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                            ..........

                                            OPINION

                         Rendered on the      28th       day of         February          , 2014.

                                            ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JAMIE HAWLEY, #545-292, Lebanon Correctional Institute, P. O. Box 56, Lebanon, Ohio
45036
      Defendant-Appellant

                                            ..........

FROELICH, P.J.

        {¶ 1}      Jamie Hawley appeals from the trial court’s denial of his motion to vacate

and/or suspend court costs. For the following reasons, the trial court’s judgment will be
affirmed.

       {¶ 2}     In 2007, Hawley was convicted after a jury trial in the Montgomery County

Court of Common Pleas of aggravated burglary, attempted felonious assault, kidnapping,

and grand theft of a motor vehicle. The trial court imposed a sentence of ten years for

aggravated burglary, five years for attempted felonious assault, six years for kidnapping, and

twelve months for grand theft. All counts were to be served consecutively to each other and

consecutively to a sentence imposed in Geauga County. The trial court did not orally notify

Hawley at sentencing that he would be required to pay court costs, but an order to pay court

costs was included in the trial court’s judgment entry.

       {¶ 3}     Hawley appealed from his convictions.          Hawley’s original appellate

counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967). However, upon our independent review, we identified a non-frivolous

issue related to the denial of Hawley’s motion to suppress a show-up identification, and we

appointed new counsel. Hawley’s new counsel also filed an Anders brief, arguing that any

error in the failure to suppress the identification was harmless beyond a reasonable doubt.

Upon our independent review, we affirmed Hawley’s convictions. State v. Hawley, 2d Dist.

Montgomery Nos. 22019, 22053, 2010-Ohio-838.

       {¶ 4}     On March 4, 2013, Hawley filed a motion with the trial court to vacate

and/or suspend court costs totaling “over $2,000.” He argued that court costs were included

in the trial court's judgment entry, but he was not informed at sentencing that he would have

to pay court costs. In May 2013 (before the trial court ruled on his March 2013 motion),

Hawley filed a nearly identical motion, updating the amount of court costs to $2,500.

       {¶ 5}     On May 30, 2013, the trial court denied Hawley’s motions, reasoning that
                                                                                            3

Hawley had not asked for a waiver of court costs at sentencing and that there was no

statutory authority upon which the trial court could now waive or suspend court costs. The

court further stated that, even if such authority existed, the trial court would overrule the

motion. The trial court reasoned that a trial court may assess costs against an indigent

defendant and noted that, even when a defendant is required to pay court costs, the

defendant's inmate account must retain $10 for inmate expenditures. The trial court thus

denied the motions, but ordered that $10 remain in Hawley’s inmate account. Hawley did

not appeal the trial court’s ruling.

        {¶ 6}     On August 21, 2013, Hawley moved the trial court to vacate and/or suspend

court “fines” totaling $2,000. Hawley argued that his trial counsel provided ineffective

assistance by failing to seek a waiver of court costs at sentencing due to Hawley’s indigence.

 On August 27, 2013, in a decision identical to the one filed on May 30, the trial court again

denied Hawley’s motion.

        {¶ 7}     Hawley appeals from the denial of his motion to vacate and/or suspend

court “fines.” He argues that he is indigent and that he did not agree at sentencing to pay

court costs. Hawley asserts that his trial counsel was ineffective in failing to seek a waiver

of the payment of court costs at sentencing.

        {¶ 8}     Under R.C. 2947.23, a trial court is required to impose “the costs of

prosecution” against all convicted defendants and render a judgment against the defendant

for such costs, even those who are indigent. See State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. On March 18, 2010, two weeks after we affirmed

Hawley’s convictions on direct appeal, the Ohio Supreme Court held that a trial court must
                                                                                              4

orally notify a defendant at sentencing that the court is imposing court costs. State v.

Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22, citing Crim.R. 43(A). A

trial court may waive the payment of costs but, pursuant to the laws applicable to Joseph, an

indigent defendant must move for such waiver at sentencing. Joseph at ¶ 11-12.

       {¶ 9}     When the trial court fails to impose court costs at sentencing, a defendant

does not waive for appeal any challenge to the court's imposition of court costs in the

sentencing entry. See State v. Lewis, 2d Dist. Montgomery No. 25225, 2013-Ohio-1581, ¶

13; Joseph at ¶ 22. The trial court’s failure “is not harmless because it deprives the

defendant of an opportunity to contest the imposition of court costs.” State v. Lunsford, 193

Ohio App.3d 195, 2011-Ohio-964, 951 N.E.2d 464, ¶ 15 (2d Dist.).

       {¶ 10}    Hawley claims that the trial court should have vacated the requirement that

he pay court costs, because he was prejudiced by his trial counsel’s failure to request a

waiver of payment at sentencing. Hawley’s claim of ineffective assistance of trial counsel

is barred by res judicata. “Pursuant to the doctrine of res judicata, a valid final judgment on

the merits bars all subsequent actions based on any claim arising out of the transaction or

occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.

Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Township, 73 Ohio

St.3d 379, 653 N.E.2d 226 (1995). Res judicata applies to any defense that was raised or

could have been raised in a criminal defendant’s prior direct appeal from his conviction

and/or sentence. Id., citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). The

issues of the trial court’s alleged failure to orally notify Hawley of court costs at sentencing

and of his trial counsel’s alleged ineffectiveness were not raised in Hawley’s direct appeal.
                                                                                              5

Because he failed to challenge the court’s imposition of court costs in his direct appeal, res

judicata bars those claims.

       {¶ 11}    We recognize that both of Hawley’s appellate counsel filed an Anders brief.

 To the extent that Hawley believes that his appellate counsel in his direct appeal rendered

ineffective assistance by failing to raise either the court’s imposition of court costs or his

trial counsel’s ineffectiveness in failing to seek a waiver of court costs, the proper remedy is

to seek to reopen his direct appeal and/or to file a timely petition for post-conviction relief.

We state no opinion about whether either of those remedies remains available to Hawley

and/or would be successful.

       {¶ 12}    The trial court denied Hawley’s motion to vacate court costs, in part, on the

ground that it had no statutory authority to do so. We note that 2012 Sub.H.B. 247 made

several substantive changes to R.C. 2947.23, effective March 22, 2013. R.C. 2947.23(C)

now provides: “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.” 2012 Sub.H.B. 247 also authorized courts

to cancel claims for costs due the court, if the amounts are uncollectible. The provisions

state, “If at any time the court finds that an amount owing to the court is due and

uncollectible, in whole or in part, the court may direct the clerk of the court to cancel all or

part of the claim. The clerk shall then effect the cancellation.” See R.C.1901.263 (municipal

court); R.C.1905.38 (mayor's court); R.C.1907.25 (county court); R.C.1925.151 (small

claims division); R.C. 2101.165 (probate court); R.C. 2151.542 (juvenile court); R.C.

2303.23 (common pleas court); R.C. 2501.161 (court of appeals); R.C. 2503.33 (supreme
                                                                                            6

court). We believe these statutory provisions give authority to the trial court to consider

waiving court costs even after sentencing.      We find no indication that the trial court

considered these statutory provisions.

       {¶ 13}    Regardless, the trial court held that it would deny Hawley’s request to

vacate court costs even if it had statutory authorization to do so. As stated above, R.C.

2947.23 requires the trial court to impose court costs, regardless of indigency. State v. Lux,

2d Dist. Miami No.2010 CA 30, 2012-Ohio-112, ¶ 46, citing White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, at ¶ 8. “A trial court has no duty to waive court costs; it

has discretion whether to do so, and R.C. 2949.092 does not provide standards for the

exercise of that discretion.”      State v. Fuller, 2d Dist. Montgomery No. 25380,

2013-Ohio-3274, ¶18, citing Lux at ¶ 47. We cannot find that the trial court abused its

discretion when it determined that Hawley should be required to pay court costs, provided

that a minimum balance of $10 remained in his inmate account for inmate expenditures.

       {¶ 14}    Hawley’s assignment of error is overruled.

       {¶ 15}    The trial court’s judgment will be affirmed.

                                         ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Michele D. Phipps
Jamie Hawley
Hon. Dennis J. Langer
