[Cite as State v. Goodman, 2014-Ohio-4884.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                :        MEMORANDUM OPINION

                 Plaintiff-Appellee,          :
                                                       CASE NO. 2014-T-0047
        - vs -                                :

MICHAEL H. GOODMAN,                           :

                 Defendant-Appellant.         :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 04 CR
804.

Judgment: Appeal dismissed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Michael H. Goodman, pro se, PID: A520-070, Trumbull Correctional Institution, P.O.
Box 901, 5701 Burnett Road, Leavittsburg, OH 44430 (For Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Michael H. Goodman appeals from the judgment entry of the Trumbull

County Court of Common Pleas, denying his motion to establish a payment plan for

court costs. Finding ourselves without jurisdiction, we dismiss the appeal.

        {¶2}     In August 2006, Mr. Goodman was found guilty by a jury of numerous

crimes relating to a robbery spree he undertook in November 2004 to fuel his drug

addiction. See, e.g., State v. Goodman, 11th Dist. Trumbull No. 2006-T-0130, 2007-
Ohio-6252, ¶1, 15 (“Goodman I”) . The trial court sentenced him to a total term of

imprisonment of thirty-four and one-half years. Id. at ¶15. As part of its judgment entry

of sentence, the trial court entered judgment in an unspecified amount against Mr.

Goodman for the costs of prosecution. Mr. Goodman appealed, and this court affirmed.

Id. at ¶71. Mr. Goodman did not raise the issue of court costs on direct appeal. The

Supreme Court of Ohio declined jurisdiction. State v. Goodman, 117 Ohio St.3d 1477,

2008-Ohio-1841.

       {¶3}   In April 2009, Mr. Goodman filed a motion to vacate his sentence and

conviction. State v. Goodman, 11th Dist. Trumbull No. 2009-T-0068, 2010-Ohio-407,

¶1, 3 (“Goodman II”). In June 2009, the trial court denied the motion. Id. at ¶4-7. Mr.

Goodman appealed.       Id. at ¶8.    Treating the underlying motion as a petition for

postconviction relief, we affirmed the judgment of the trial court. Id. at ¶15, 29. The

issue of court costs was not included in the petition.

       {¶4}   April 4, 2014, Mr. Goodman moved the trial court to establish a payment

plan for his court costs. According to his motion, the state was not withdrawing any

funds from his prison account to pay these costs, and he wished the court to order that

five dollars per month be withdrawn. April 5, 2014, the trial court denied the motion.

Mr. Goodman did not appeal.

       {¶5}   May 22, 2014, the trial court received a letter from Mr. Goodman, again

requesting that court establish a payment plan for his court costs.      The trial court

construed the letter as a motion; filed it with the clerk; and, May 23, 2014, denied the

motion on grounds of res judicata.




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       {¶6}   Mr. Goodman timely noticed this appeal, assigning a single error: “The

trial court abused its discretion by denial of granting a (sic) approved payment plan

pursuant to Ohio Revised [Code] Section 2947.23(A)(1)(a) and (b).                 [I]n strict

constitutional violation of equal protection provisions and due process of law governing

notice and rights to redress property interests.”

       {¶7}   Mr. Goodman presents three issues under this assignment of error:

       {¶8}   “1. Did appellant retain a statutory right for a court approved payment

plan, upon timely motion for a payment plan approved order.

       {¶9}   “2. Does the trial court retain a mandated duty to treat each felony

conviction to a payment plan on court cost, when not waived or suspended at original

sentencing on each individual conviction and sentence regarding sanctions, penalties,

or a combination of both.

       {¶10} “3. Does denial to approve a payment plan by statutory construction

create an unequal application of state and federal law.”

       {¶11} Mr. Goodman reasons as follows. Pursuant to R.C. 2947.23(A)(1)(a), a

sentencing court is required to include the costs of prosecution as part of the sentence

in a criminal case. R.C. 2947.23(A)(1)(a)(i) and (B) both refer to the sentencing court’s

power to set a payment schedule for court costs.           As he notes, many trial courts

throughout Ohio do order such payment plans. Consequently, he asserts his equal

protection and due process rights are being violated by the trial court’s failure to provide

him with a payment plan. He further argues the doctrine of res judicata cannot apply to

the trial court’s denial of his second motion to establish a payment plan. He appears to

rely on the 2012 amendment to R.C. 2947.23, creating new division (C), which states:




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“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.” Mr. Goodman believes that since the trial

court retains jurisdiction of court costs, res judicata provides no impediment to setting a

court-ordered payment plan, even if one has not been in effect or has been previously

denied.

       {¶12} We disagree on each point.

       {¶13} According to Article IV, Section 3(B)(2), an appellate court may review

only the final orders of lower courts.

       {¶14} “The term ‘final order’ is defined within R.C. 2505.02 where three

categories of final orders exist: (1) those that affect a substantial right, determine an

action, and prevent a judgment, (2) those that affect a substantial right and are made in

a special proceeding or on a summary application after judgment, and (3) those that set

aside a judgment and grant a new trial.” State v. Pasqualone, 140 Ohio App.3d 650,

654 (11th Dist.2000).

       {¶15} Pursuant to R.C. 2505.02(A)(1), Ohio Consititution, a “substantial right” is

“a right that the United States Constitution, the Ohio Constitution, a statute, the common

law, or a rule of procedure entitles a person to enforce or protect.” This court, along

with others, has held the denial of a postconviction motion to suspend court costs does

not affect a substantial right and is not a final appealable order. Pasqualone, supra;

State v. Evans, 4th Dist. Scioto No. 99CA2650, 1999 Ohio App. LEXIS 4331 (Sept. 14,

1999); State v. Shinkle, 27 Ohio App.3d 54 (12th Dist.1986). We see no reason to treat

the denial of a postconviction motion to impose a payment plan for court costs any




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differently. Nothing in R.C. 2947.23 indicates a trial court is mandated to provide such a

plan.

        {¶16} It is well-settled that a final appealable order is required before there can

be a basis for an appeal. Pasqualone, supra, at 655. “‘If there is no final judgment or

other type of final order, then there is no reviewable decision over which an appellate

court can exercise jurisdiction, and the matter must be dismissed.’” Id., quoting BCGS,

L.L.C. v. Raab, 11th Dist. Lake No. 98-L-041, 1998 Ohio App. LEXIS 6584, *3-4 (July

17, 1998).

        {¶17} Based on the foregoing, we conclude the trial court’s judgment in this case

is not a final appealable order.

        {¶18} Assuming, arguendo, the trial court's judgment is a final appealable order,

Mr. Goodman’s claim is still barred by res judicata, despite new R.C. 2947.23(C), giving

the trial court continuing jurisdiction to modify the payment of court costs. Under res

judicata, a final judgment of conviction bars a defendant from raising any defense or any

claimed lack of due process that was or could have been raised at the trial resulting in

the judgment of conviction or on appeal from that judgment. State v. Perry, 10 Ohio

St.2d 175 (1967), paragraph nine of the syllabus. In this case, Mr. Goodman initially

moved the trial court for a payment plan April 4, 2014, and the trial court denied that

motion the following day. Mr. Goodman did not appeal that judgment, but instead sent

the trial court his letter on the same subject, which the court treated as a motion, and

denied on grounds of res judicata. The instant appeal lies from that second motion, and

second denial. The trial court could properly deny the second motion, relying on res

judicata, since it sought precisely the same relief as the first, un-appealed denial.




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      {¶19} The appeal is dismissed for lack of jurisdiction.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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