[Cite as State v. Woods, 2016-Ohio-545.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-15-1024

        Appellee                                 Trial Court No. CR0201401574

v.

Martin Cedric Woods                              DECISION AND JUDGMENT

        Appellant                                Decided: February 12, 2016

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Patricia Horner, for appellant.

                                           *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a February 4, 2015 judgment of the Lucas County

Court of Common Pleas, sentencing appellant to an 11-year term of incarceration,

following appellant’s conviction on one count of involuntary manslaughter, in violation

of R.C. 2903.04(A), ordered to be served consecutively to a term of life imprisonment
being served by appellant on a separate aggravated murder conviction. Material to this

appeal, the trial court further ordered appellant, “[T]o pay all or part of the applicable

costs of supervision, confinement, assigned counsel, and prosecution as authorized by

law.” For the reasons set forth below, this court affirms, in part, and reverses, in part, the

cost imposition portion of appellant’s sentence.

         {¶ 2} Appellant, Martin Cedric Woods, sets forth the following assignment of

error:

               I. THE IMPOSITION OF COSTS AGAINST DEFENDANT WAS

         NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND

         THUS MUST BE REVERSED.

         {¶ 3} The following undisputed facts are relevant to this appeal. On February 4,

1976, a 19-year-old woman residing in an apartment in the Old West End neighborhood

of Toledo was murdered by an intruder who slit her throat. Appellant was a person of

interest in the crime and was interviewed by the investigating police officers. During the

interview, appellant smoked cigarettes. The cigarette butts were retained by the police

for potential future DNA evidence utilization.

         {¶ 4} Rudimentary DNA testing available at the time of the 1976 murder was

unable to furnish the requisite definitive evidence necessary to pursue prosecution of

appellant. In 1990, appellant commenced serving a life sentence following his conviction

for aggravated murder and felonious assault in a subsequent, separate criminal case.




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       {¶ 5} In 2008, given intervening advances in DNA testing, the police utilized the

latest DNA testing methods to compare the DNA recovered at the scene of the 1976

murder with the DNA from the cigarette butts retained from appellant’s 1976 interview

by the police in connection to that murder. Appellant’s DNA was a definitive match to

the DNA recovered from the 1976 murder.

       {¶ 6} Appellant was subsequently indicted on one count of murder, in violation of

R.C. 2904.04(A), a felony of the first degree, in connection to the 1976 murder. On

January 16, 2015, appellant entered a plea to one amended count of involuntary

manslaughter, in violation of R.C. 2903.04, a felony of the first degree. Appellant was

sentenced to an 11-year term of incarceration, ordered to be served consecutively with the

life sentence being served by appellant for his conviction of aggravated murder in the

subsequent murder case.

       {¶ 7} In addition, as particularly relevant to this appeal, the trial court found that

appellant, “[R]easonably may be expected to have the means to pay the costs of

supervision, confinement, assigned counsel, and prosecution,” in connection to the instant

case. It is the above-referenced imposition of costs portion of the 2015 sentencing

judgment being appealed in this matter.

       {¶ 8} In the sole assignment of error, appellant maintains that the imposition of the

various costs against him in this case was not supported by the evidence and was

improper. In order to ascertain the veracity of appellant’s position, we must examine the

specific categories of costs imposed by the trial court in this matter, the associated




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governing statutes, and evaluate these specific cost items with the underlying record of

evidence.

       {¶ 9} On February 4, 2015, the trial court assessed the costs of prosecution,

assigned counsel, confinement, and supervision against appellant.

       {¶ 10} R.C. 2947.23(A)(1) establishes in relevant part that, “In all criminal cases,

including violations of ordinances, the judge or magistrate shall include in the sentence

the costs of the prosecution.” It is well-established that the imposition of the costs of

prosecution is valid regardless of a defendant’s ability to pay. State v. Maloy, 6th Dist.

Lucas No. L-10-1350, 2011-Ohio-6919, ¶ 12. Given this controlling legal framework

governing the costs of prosecution, we find that the imposition of prosecution costs upon

appellant was not improper.

       {¶ 11} R.C. 2941.51(D) governs the imposition of the costs of counsel in a

criminal case. It establishes in relevant part, “However, if the person represented has, or

reasonably may be expected to have, the means to meet some part of the cost of the

services rendered to the person, the person shall pay the county.” Accordingly, the costs

of counsel can only properly be imposed if the record of evidence supports an affirmative

finding to the above-described means test. Maloy at ¶ 14.

       {¶ 12} We have reviewed and considered the record in this matter and find that it

is devoid of any evidence in support of the 2015 trial court finding that appellant may

reasonably be expected to have the means to pay the cost of counsel. On the contrary, the

record of evidence reflects that appellant has been serving a term of incarceration of life




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imprisonment since 1990 on an unrelated aggravated murder conviction. In conjunction

with this, the 11-year term of incarceration for involuntary manslaughter in the instant

case has been ordered to be served consecutive to appellant’s existing life sentence.

       {¶ 13} The record in this matter contains no relevant or objective evidence

establishing the requisite earnings capability or financial means in support of the

conclusion that appellant reasonably may be expected to possess the means to pay the

costs of counsel services rendered. Accordingly, we find that the imposition of the costs

of counsel was improper.

       {¶ 14} R.C. 2929.18(A)(5) establishes that a defendant may have the costs of

confinement imposed subject to the record of evidence containing some indicia that the

trial court properly considered the ability to pay. As stated previously above, the record

in this matter possesses no such evidence. Accordingly, we find that the imposition of

the cost of confinement was improper.

       {¶ 15} Lastly, R.C. 2951.021 establishes that a felony offender placed under a

community control sanction may be required, “To pay a monthly supervision fee of not

more than fifty dollars for supervision services.” Given that appellant is serving a term of

incarceration of life in prison, in addition to a consecutive 11-year term of incarceration,

we find consideration of the propriety of community control supervision costs to be moot

in this matter.

       {¶ 16} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed, in part, and reversed, in part. The portion of the trial




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court sentencing order imposing the costs of prosecution upon appellant is hereby

affirmed. The portions of the trial court’s sentencing order imposing the costs of counsel

and costs of confinement upon appellant are hereby reversed. Pursuant to App.R.

24(A)(4), the costs of this appeal are hereby waived.


                                                               Judgment affirmed, in part,
                                                                    and reversed, in part.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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