[Cite as State v. Lundy, 2018-Ohio-2243.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-18-11

        v.

MICHAEL L. LUNDY,                                         OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2012 0236

                       Judgment Reversed and Cause Remanded

                             Date of Decision:   June 11, 2018




APPEARANCES:

        Michael Lundy, Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-11


PRESTON, J.

         {¶1} Although originally placed on our accelerated calendar, we have elected

pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry.

Defendant-appellant, Michael L. Lundy (“Lundy”), pro se, appeals the February 6,

2018 judgment entry of the Allen County Court of Common Pleas denying his

motion to waive, suspend, or modify payment of court costs. For the reasons that

follow, we reverse.

         {¶2} In 2013, Lundy was convicted of rape, kidnapping, and aggravated

burglary, and sentenced to a cumulative term of 40 years in prison. State v. Lundy,

3d Dist. Allen No. 1-3-52, 2014-Ohio-5003, ¶ 1-2. Lundy was classified as a Tier

III sex offender. (Doc. Nos. 216, 217). This court affirmed Lundy’s conviction.

Id. at ¶ 41, 64.1

         {¶3} On February 5, 2018, Lundy, pro se, filed a motion to waive, suspend,

or modify payment of court costs. (Doc. No. 245). On February 6, 2018, the trial

court denied Lundy’s motion after concluding that it was barred by the doctrine of

res judicata. (Doc. No. 246).

         {¶4} On February 23, 2018, Lundy filed a notice of appeal. (Doc. No. 248).

He raises one assignment of error for our review.




1
 In Lundy’s direct appeal, this court recited much of the factual and procedural background of this case, and
we will not duplicate those efforts here. See State v. Lundy, 3d Dist. Allen No. 1-3-52, 2014-Ohio-5003.

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Case No. 1-18-11


                               Assignment of Error

       The Trial Court Erred and Abused its Authority to Overrule
       Plaintiff [sic] Motion for Court Cost and Fines R.C. §2949.41 [sic],
       Allows for the Collection of Costs Only Against “Non” Indigent
       Persons Courts Deem Indigent

       {¶5} In his assignment of error, Lundy argues that the trial court erred by

denying his motion to waive, suspend, or modify payment of court costs.

       {¶6} “R.C. 2947.23 requires a trial court to assess costs against all criminal

defendants, even if the defendant is indigent.” State v. Clinton, ___ Ohio St.3d ___,

2017-Ohio-9423, ¶ 239. If a defendant moves to waive, suspend, or modify costs,

the trial court, in its discretion, may waive, suspend, or modify payment of those

costs. State v. Hanford, 8th Dist. Cuyahoga No. 106220, 2018-Ohio-1309, ¶ 17,

citing State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 13 and

State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. A “trial

court ‘retains jurisdiction to waive, suspend, or modify the payment of the costs of

prosecution * * *, at the time of sentencing or any time thereafter.’” Id., quoting

R.C. 2947.23(C).

       {¶7} We review a trial court’s decision denying an indigent-criminal

defendant’s post-judgment motion to waive, suspend, or modify payment of court

costs under an abuse-of-discretion standard. State v. Taylor, 2d Dist. Montgomery

No. 27539, 2018-Ohio-1649, ¶ 12, citing State v. Dunson, 2d Dist. Montgomery No.

26990, 2016-Ohio-8365, ¶ 6, appeal accepted, 150 Ohio St.3d 1442, 2017-Ohio-

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Case No. 1-18-11


7843 and State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797.

See also State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph four of the

syllabus. An abuse of discretion suggests that a decision is unreasonable, arbitrary,

or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

         {¶8} In this case, the trial court erroneously concluded that Lundy’s motion

to waive, suspend, or modify court costs is barred by the doctrine of res judicata.

R.C. 2947.23 was amended, effective March 22, 2013, granting a trial court

continuing jurisdiction to consider a defendant’s post-judgment motion to suspend,

vacate, or modify costs. See State v. Braden, 10th Dist. Franklin No. 17AP-48,

2017-Ohio-7903, ¶ 8, appeal accepted, 151 Ohio St.3d 1526, 2018-Ohio-557. As

such, a defendant—whose judgment of conviction and sentence became final after

March 22, 2013—may file a motion to suspend, vacate, or modify costs at any time.

See id.; Hanford at ¶ 17, citing State v. Williams, 8th Dist. Cuyahoga No. 105590,

2018-Ohio-845, ¶ 39, citing State v. Beasley, ___ Ohio St.3d ___, 2018-Ohio-493,

¶ 265.

         {¶9} The judgment of Lundy’s conviction and sentence became final on

November 10, 2014. Lundy, 2014-Ohio-5003, at ¶ 1, 64. Accordingly, the trial

court retained jurisdiction to consider Lundy’s post-judgment motion to waive,

suspend, or modify the payment court costs—that is, it is not barred by the doctrine

of res judicata. Therefore, the trial court abused its discretion by denying Lundy’s


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Case No. 1-18-11


motion to waive, suspend, or modify the payment of court costs without addressing

the merits of his motion. See Taylor, 2018-Ohio-1649, at ¶ 19.

         {¶10} Lundy’s assignment of error is sustained.

         {¶11} Having found error prejudicial to the appellant herein in the particulars

assigned and argued in his assignment of error, we reverse the judgment of the trial

court and remand the matter for the trial court to consider Lundy’s motion.2

                                                                            Judgment Reversed and
                                                                                 Cause Remanded

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr




2
  The Supreme Court of Ohio is presently considering what a trial court must consider when exercising its
discretion in ruling on a post-judgment motion to waive, suspend, or modify the payment of court costs. State
v. Dunson, 150 Ohio St.3d 1442, 2017-Ohio-7843. See also State v. Braden, 151 Ohio St.3d 1526, 2018-
Ohio-557 (considering whether a trial court has jurisdiction under R.C. 2947.23(C) to waive, suspend, or
modify the payment of court costs in cases in which a defendant’s conviction and sentence became final prior
to the enactment of R.C. 2947.23(C)).

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