[Cite as State v. Drake, 2012-Ohio-2198.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97319




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      ROBERT DRAKE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-548282

        BEFORE: Keough, J., Sweeney, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: May 17, 2012
ATTORNEY FOR APPELLANT

David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Brett Kyker
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Robert Drake (“Drake”), appeals the trial court’s

decision to suspend court costs until after he is released from his ten-year prison sentence.

 For the reasons that follow, we affirm.

       {¶2} In March 2011, Drake was indicted on 17 counts stemming from a bank

robbery in December 2010. After discovery was completed, Drake pled guilty to an

amended indictment. He pled guilty to one count of aggravated robbery in violation of

R.C. 2911.01(A)(1), with a three-year firearm specification, and seven counts of robbery

in violation of R.C. 2911.02(A)(2), all containing one-year firearm specifications. The

remaining counts were dismissed. The trial court sentenced Drake to an aggregate prison

term of ten years and a mandatory five-year period of postrelease control. Additionally,

the trial court advised Drake that the court costs would be suspended until he was

released from prison and placed on postrelease control. Drake, in his delayed appeal,

challenges the suspension of court costs.

       {¶3} In his sole assignment of error, Drake contends “that the trial court erred by

suspending fines and court costs until the appellant began serving his postrelease

control.” Drake argues that the trial court failed to consider his current and future ability

to pay as required by R.C. 2929.19(B)(6),1 and that it may not suspend this hearing until

after he is released from prison.


           Pursuant to 2011 H.B. 86 and effective September 30, 2011, R.C. 2929.19(B)(6) was
       1
       {¶4} First, we note that the trial court did not impose a financial sanction or fine;

therefore, R.C. 2929.19(B)(6) does not apply. The trial court imposed court costs; thus

R.C. 2947.23 governs.

       {¶5} “R.C. 2947.23 requires a judge to assess costs against all convicted criminal

defendants, and waiver of costs is permitted — but not required — if the defendant is

indigent.” State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14.

The Ohio Supreme Court expressly stated that “a trial court may assess court costs against

an indigent defendant convicted of a felony as part of the sentence.” Id. at paragraph one

of the syllabus. Therefore, although a defendant is declared indigent, this declaration

does not prohibit a court from assessing costs against the indigent defendant.           “A

defendant’s financial status is irrelevant to the imposition of court costs.” State v.

Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 3. In fact, a court

may impose court costs without considering a defendant’s present or future ability to pay

those costs. State v. Stevens, 8th Dist. No. 95011, 2011-Ohio-729, ¶ 11. Accordingly,

the trial court did not err in assessing court costs against Drake.

       {¶6} Moreover, the trial court did not err in “suspending” the collection or

payment of costs until Drake is released from his term of incarceration. The trial court’s

entry of conviction provides: “Costs suspended until release. Court costs suspended.”

At sentencing, the trial judge advised Drake:




renumbered to R.C. 2929.19(B)(5).   The previous version will be referenced herein.
       Costs, payment of court costs will be suspended until you are placed on
       post-release [sic] control. And at that time if you fail to pay the judgment
       of costs or fail to timely make payments towards that judgment under any
       payment schedule approved by the Court, the Court may order you to
       perform community service in an amount of not more than 40 hours per
       month until the judgment is paid or until the Court is satisfied that you are
       in compliance with the approved payment schedule.

       If you are ordered to perform the community service, you 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.

       {¶7} After defense counsel requested that all fines and costs be waived because

Drake was indigent, the trial judge responded:

       Okay. And although the Defendant may be indigent now, while on
       post-release [sic] control the Court would expect a condition of that would
       be employment for payment of court costs. If not, he can look at it at that
       time, it can be revisited at that time. That’s why I suspended court costs
       until he’s on post-release [sic] control.

       {¶8} Although not expressly stated in the court’s judgment entry, we find that

reading the transcript in conjunction with the entry of conviction demonstrates that the

court directly imposed court costs, but stayed the collection or payment of the court costs.

 The trial court used the term “suspended,” but the sentencing transcript demonstrates

that the trial court intended to stay the payment of court costs. Contrary to Drake’s

assertion, the trial court’s decision to suspend the payment or collection of costs was not

an attempt by the trial court to retain jurisdiction to modify his sentence. The trial court

properly imposed court costs, advised Drake regarding the possibility of community

service to satisfy the costs, and then stayed the collection or payment of the costs until his

release from prison. We thus find no error. See generally State v. Walters, 7th Dist.
No. 08-CO-34, 2009-Ohio-6762; State v. Castle, 7th Dist. No. 08 MA 195,

2010-Ohio-3154, ¶ 12-13.

      {¶9} We note that the trial court could have merely ordered Drake to pay for court

costs while serving his prison sentence. See R.C. 5120.133; White; State v. Threatt, 108

Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164. Although the trial court suspended the

collection or payment of court costs until he begins serving postrelease control, we find

nothing that would prohibit Drake from making payments towards his court costs while

he is serving his time in prison. Accordingly, we overrule Drake’s assignment of error.

      {¶10} 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 appeal 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.



KATHLEEN ANN KEOUGH, JUDGE

JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
