[Cite as State v. Masters, 2017-Ohio-7482.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105241




                                       STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.


                                    TODD MASTERS, II

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-590723-A

        BEFORE:          Laster Mays, J., E.A. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 7, 2017
                               -i-
ATTORNEY FOR APPELLANT

Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Khalilah A. Lawson
Assistant County Prosecutor
Justice Center, 9th Floor
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

        {¶1} Defendant-appellant, Todd Masters, II (“Masters”), appeals the trial court’s

decision to impose court costs, and asks this court to vacate the trial court’s decision and

waive court costs.   We affirm.

        {¶2} Before this instant appeal, Masters previously appealed, in State v. Masters,

8th Dist. Cuyahoga No. 103022, 2016-Ohio-7391 (“Masters I”), his prison sentence.

Masters pleaded guilty to felonious assault, a second-degree felony in violation of R.C.

2903.11(A)(1) with a one-year firearm specification; and possessing a firearm in a liquor

permit premises, a fifth-degree felony, in violation of R.C. 2923.121(A).    The trial court

imposed a four-year prison sentence, which included three years for the felonious assault

charge to be served after the mandatory one-year firearm specification.

        At sentencing, the court imposed a three-year sentence on the felonious
        assault charge, which was to be served after the mandatory one-year for the
        firearm specification. For the possession of a firearm in a liquor permit
        premises, the court ordered that Masters be placed on community control
        sanctions for three years, with the first six-months to be served in a
        community-based correctional facility (“CBCF”). The court ordered that
        Masters’s prison term and community control term be served consecutively.

Id. at ¶ 3.

        {¶3} Masters appealed the trial court’s decision, and this court ruled in Masters I

that

        [T]he court’s decision ordering Masters to serve a three-year term of
        community control sanctions, including the first six months at a CBCF for
        the firearm possession charge, consecutive to the three-year prison sentence
        on the felonious assault charge was contrary to law. Recently, this court
      reviewed this precise situation en banc — whether a term of community
      control sanctions on one offense can be imposed and ordered to be served
      consecutively to a prison term on separate offenses.

Id. at ¶ 10, citing State v. Anderson, 2016-Ohio-7044, 62 N.E.3d 229 (8th Dist.).

      {¶4} In Masters I, this court remanded Masters’s case to the trial court for

resentencing.   At resentencing, the trial court stated,

      COURT:         With regard to Count 2, and for the reasons stated in the
                     original record, I’m going to impose the same sentence; a
                     one-year firearm specification to be served prior to and
                     consecutive with the underlying crime of felonious assault.
                     And a felonious assault, the time range in prison, there’s [a]
                     presumption of prison of two years to eight years. I’m going
                     to again impose the three years that I imposed at the first
                     sentence for a total of four years.

                     There is a [p]ostrelease [c]ontrol obligation that’s mandatory,
                     three-year time period. Upon release from prison, Mr.
                     Masters, you must serve that three years mandatory
                     [p]ostrelease [c]ontrol, and I’ll speak to that in a minute.

                     As to Count 4, the possessing firearm in a liquor permit
                     premises, felony of the fifth degree, I’m going to sentence
                     him to 12 months in prison and to run that concurrent with the
                     Count 2. That also has three years [p]ostrelease [c]ontrol,
                     but that is discretionary given the nature of the crime.

                     Upon your release from prison, Mr. Masters, you must serve
                     [p]ostrelease [c]ontrol for a mandatory period of time of three
                     years. You will be under the supervision of the Adult Parole
                     Authority of Ohio. If you abide by all the terms and
                     conditions of [p]ostrelease [c]ontrol, you’ll have no difficulty
                     with the Adult Parole Authority or this court as I will have
                     jurisdiction over you regarding any conduct that may arise
                     that’s a violation of [p]ostrelease [c]ontrol.

                     However, if you do violate, the following three things can
                     happen. You can return to prison for half the time you served.
                      If you draw a new case while you’re on [p]ostrelease
                    [c]ontrol and are found guilty of that new case, you’ll have to
                    serve whatever punishment that new case brings, and, because
                    it occurred on [p]ostrelease [c]ontrol, that’s a violation for
                    which you can be returned to prison for the greater of one
                    year or what remains of the three-year period, and you must
                    serve that consecutive with the sentence in the new case.
                    And, finally, if you don’t report on [p]ostrelease [c]ontrol, not
                    only is that a violation but you can also be charged with a
                    separate crime called escape.

(Tr. 11-13.)

       {¶5} The court then explained that Masters would have to pay court costs.        The

court stated,

       COURT:       Okay. Now, I am going to have you pay costs and expenses of
                    the case. And I will also make provisions in the order that
                    you can do community work service in prison to pay off the
                    costs and expenses of the case, and there is a procedure in
                    place to have that credited back to the Clerk of Courts here
                    and I will not have any commissary deduction for costs and
                    expenses and give you an opportunity to pay those costs and
                    expenses by doing work service. I happen to know that
                    Marion does have a community work service program
                    because I’ve been to Marion, so you’ll have the opportunity to
                    perform community work service and pay off your costs and
                    expenses without having deduction from your commissary.
                    If you do not do that, then you’ll be obligated to pay off costs
                    and expenses while you’re on [p]ostrelease [c]ontrol. I think
                    that’s all I need to do for purposes of resentencing.

(Tr. 14.)

       {¶6} Masters’s attorney objected to the trial judge imposing court costs and asked

the trial court to waive the costs because Masters was indigent.           The trial court

responded,

       COURT:       I’ll deny the motion and have him pay the court costs by
                    performing community work service that I’ve outlined.
                      There’s no Certificate of Indigency filed presently. But in
                      any event, even if there were, community work service is a
                      viable alternative in this situation, and he will not suffer any
                      deductions from his commissary account to pay costs. So I
                      don’t see any difficulty in him performing that service in
                      prison. I certainly think he has enough time left to do so, so
                      I’ll deny the motion.

(Tr. 15.)

       {¶7} Masters’s attorney again objected and informed the trial court that he would

file an appeal opposing court costs. Masters assigns two assignments of error for our

review:

       I.      The trial court erred by ordering appellant to pay costs when it did
               not properly comply with the statute; and

       II.     The court costs imposed at the sentencing hearing infringes upon
               appellant’s rights under the Eighth and Fourteenth Amendments to
               the United States Constitution, R.C. 2929.18, R.C. 2919(b)(5) [sic],
               R.C. 2947.14, and related sections of the Ohio Constitution.

I.     Court Costs

       A.      Standard of Review

       {¶8} We review felony sentencing appeals based on the dictates of

       R.C. 2953.08(G), which provides in part, The court hearing an appeal under
       division (A), (B), or (C) of this section shall review the record, including
       the findings underlying the sentence or modification given by the
       sentencing court. The appellate court may increase, reduce, or otherwise
       modify a sentence that is appealed under this section or may vacate the
       sentence and remand the matter to the sentencing court for resentencing.
       The appellate court’s standard for review is not whether the sentencing
       court abused its discretion. The appellate court may take any action
       authorized by this division if it clearly and convincingly finds either of the
       following:

          (a) That the record does not support the sentencing court’s findings under
      division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
      section 2929.14, or division (I) of section 2929.20 of the Revised Code,
      whichever, if any, is relevant;

        (b) That the sentence is otherwise contrary to law.

State v. Wells, 8th Dist. Cuyahoga No. 100365, 2014-Ohio-3032, ¶ 5.

      B.       Law and Analysis

      {¶9} In Masters’s first assignment of error, he argues that the trial court erred by

ordering him to pay costs when it did not properly comply with R.C. 2947.23(A)(1).

R.C. 2947.23(A)(1) states,

      (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. If the judge or magistrate
      imposes a community control sanction or other nonresidential sanction, the
      judge or magistrate, when imposing the sanction, shall notify the defendant
      of both of the following:

               (i) 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 until the judgment is paid or until the court is
               satisfied that the defendant is in compliance with the approved
               payment schedule.

               (ii) 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.

      {¶10} Masters argues that because the trial court did not impose a community

control sanction or other nonresidential sanction, the trial court should not have imposed

court costs.    Masters relies on the court’s decision in     State v. Huber, 8th Dist.
Cuyahoga No. 98206, 2012-Ohio-6139, to argue that the costs should be waived.

However, his reliance on Huber is incorrect.    The facts in Huber are not synonymous

with the facts in Masters’s case. Also,

       [s]ince the defendant in Huber was sentenced, R.C. 2947.23 has undergone
       three revisions. The statute was first revised by 2012 Am.Sub.S.B. 337
       (S.B. 337), effective September 28, 2012, then later revised by 2012
       Am.Sub.H.B. 247 (H.B. 247), effective March 22, 2013, and lastly revised
       by 2014 Am.Sub.S.B. 143 (S.B. 143), effective September 19, 2014. This
       statute no longer requires such notification when a trial court imposes a
       prison term. State v. Brown, 12th Dist. Butler No. CA2013-03-043,
       2014-Ohio-1317, fn. 3, quoting R.C. 2947.23(A)(1)(a) (“The current statute
       * * * provides that notification of possible court-ordered community service
       need only be given ‘[i]f the judge or magistrate imposes a community
       control sanction or other nonresidential sanction.’”).

State v. Brock, 8th Dist. Cuyahoga No. 104334, 2017-Ohio-97, ¶ 13.

       {¶11} Masters’s argument is not based on legal reasoning. He contends that costs

should only be imposed if the trial court imposes something other than a residential

sanction. However, the discretion to waive court costs includes the discretion not to

waive them, and rests soundly with the trial court.   Id. at ¶ 19.   Therefore, Masters’s

first assignment of the error is overruled.

       {¶12} In Masters’s second assignment of error, he contends that the court costs

imposed at the sentencing hearing infringes upon his rights because the trial court found

him to be indigent. The trial court noted that Masters did not file a Certificate of

Indigency, but declared him indigent in the journal entry. The trial court also noted that

Masters could perform community service to pay the court costs. Similarly, in State v.

Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 36,
       [T]he trial court informed appellant at the conclusion of the sentencing
       hearing that he would be responsible for court costs and that he may be
       required to do community service as a means of payment. On this
       determination, appellant stated that he was indigent and wished to have his
       fines and court costs waived. In response, the trial court found appellant
       to be indigent and informed him that it would not be imposing a fine.
       However, the court did not grant appellant’s request to waive court costs.
       These determinations were reflected in the sentencing journal entry dated
       October 1, 2012. Accordingly, although the trial court found appellant to
       be indigent, it acted within its discretion under R.C. 2947.23(A)(1) in
       imposing court costs regardless of appellant’s financial status.

       {¶13} Also in Brock,

       [a]t the conclusion of the sentencing hearing, defense counsel asked the trial
       court to waive court costs because Brock was indigent. The trial court
       nonetheless imposed court costs but told Brock that he would have the
       opportunity to pay the court costs by doing community service work in
       prison. We find no grounds to reverse the trial court’s decision imposing
       court costs. The trial court properly exercised its discretion and ordered
       Brock to pay court costs.

Brock, 8th Dist. Cuyahoga No. 104334, 2017-Ohio-97, at ¶ 19.

       {¶14} Although the trial court stated that Masters did not file a Certificate of

Indigency, the trial court did note that Masters was indigent in the journal entry.

However, “[a] finding of indigency for purposes of appointment of counsel is not

sufficient to warrant a waiver of costs and fines at sentencing. State v. Simpson, 8th

Dist. Cuyahoga No. 101088, 2014-Ohio-4580, ¶ 20.”              State v. Wilson, 8th Dist.

Cuyahoga No. 104333, 2017-Ohio-2980, ¶ 90. Therefore, Masters’s second assignment

of error is overruled.

       {¶15} Judgment is affirmed.

       It is ordered that the 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 appeal is terminated.

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

the Rules of Appellate Procedure.



______________________________________
ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY
