[Cite as State v. Mallory, 2020-Ohio-868.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                      :       OPINION

                 Plaintiff-Appellee,                :
                                                            CASE NO. 2019-T-0025
        - vs -                                      :

ANTONIO DARNELL MALLORY,                            :

                 Defendant-Appellant.               :


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2018 CR 00505.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor; Ashleigh Musick and Ryan J. Sanders,
Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
Warren, OH 44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Antonio Darnell Mallory, appeals from the April 30, 2019

judgment of the Trumbull County Court of Common Pleas, denying appellant’s motion to

vacate payment of fines and/or court costs. The judgment is affirmed.

        {¶2}     Appellant was charged with four drug-related offenses by way of

indictment on August 15, 2018.               On December 21, 2018, appellant appeared with

counsel and pled guilty to two counts: illegal conveyance of drugs of abuse onto
grounds       of     specified   governmental       facility   (F3),   in   violation   of   R.C.

2921.36(A)(2)&(G)(2), and possession of cocaine (F5), in violation of R.C.

2925.11(A)&(C)(4)(a). In exchange, the state agreed to nolle the remaining counts.

The trial court ordered a presentence investigation.

       {¶3}        Appellant was sentenced, on March 21, 2019, to a total prison term of nine

months. At sentencing, the trial court informed appellant that he would be assessed the

costs of the prosecution. Appellant neither objected nor requested a waiver of costs.

The trial court waived all fines in the matter.

       {¶4}        On March 27, 2019, appellant filed a “Motion to Suspend/Waive

Fines/Costs,” on the basis that he does not have the financial means to pay any fines or

costs. Appellant attached an affidavit of indigency, indicating he has no employment,

income, or assets.

       {¶5}        The trial court denied the motion on April 30, 2019, stating: “The Court

notes that no fine was imposed. The Court finds the motion is not well taken and is

denied. Defendant to pay all court costs.”

       {¶6}        Appellant appealed this order and raises one assignment of error for our

review:

                   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
                   IMPOSING COURT COSTS UPON APPELLANT.

       {¶7}        “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.” R.C. 2947.23(A)(1)(a). Nevertheless, “[a] trial court has

discretion to waive the payment of court costs if the defendant is indigent.” State v.



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Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, ¶264, citing State v. White, 103 Ohio

St.3d 580, 2004-Ohio-5989, ¶14.

       {¶8}   In its responsive brief, the state asserts that appellant forfeited appellate

review on the issue of court costs because he failed to move for waiver of costs at the

time of sentencing. The state relies on a case from this court that held as much: State

v. Jones, 11th Dist. Lake No. 2015-L-030, 2015-Ohio-2906 (holding, in part, that a

motion to vacate court costs is barred by res judicata).

       {¶9}   The Supreme Court of Ohio recently clarified, however, that “the statute

specifically provides an exception to res judicata when a defendant did not request

waiver at sentencing or challenge his court costs on direct appeal.” State v. Braden,

Slip Opinion No. 2019-Ohio-4204, ¶23.            “Effective March 22, 2013, the General

Assembly enacted R.C. 2947.23(C) as a part of 2012 Am.Sub.H.B. No. 247.” Id. at ¶18.

The statute provides that a sentencing 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.”

R.C. 2947.23(C) (emphasis added).

       {¶10} In light of Braden, it is evident that postconviction motions filed pursuant to

R.C. 2947.23 are not barred by the doctrine of res judicata, and a trial court’s ruling on

these motions are final appealable orders.           See Braden, supra, at ¶31 (“R.C.

2947.23(C) authorizes trial courts to waive, suspend or modify the payment of court

costs imposed both before and after its effective date. * * * On remand, the court of

appeals shall consider the substance of Braden’s claim that the trial court erred in

denying his motion to waive his court costs.”). Accordingly, we decline to follow our

holding in Jones.

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       {¶11} In sum, a sentencing court has discretion to waive the payment of court

costs if the defendant is indigent, and the court retains jurisdiction to do so at any time

after sentencing. A defendant does not forfeit appellate review of court costs if waiver is

not requested at the time of sentencing. Braden and Beasley, supra; R.C. 2947.23.

       {¶12} We therefore review a trial court’s decision to grant or deny a request to

waive court costs for an abuse of discretion. State v. Goodman, 11th Dist. Trumbull No.

2017-T-0068, 2018-Ohio-3015, ¶12, citing State v. Threatt, 108 Ohio St.3d 277, 2006-

Ohio-905, ¶23. An abuse of discretion occurs when a trial court fails to “‘exercise

sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No.

09-CA-54, 2010-Ohio-1900, ¶61, quoting Black’s Law Dictionary (8th Ed.2004) 11.

       {¶13} Appellant asserts “it [was] an abuse of discretion for [the] trial court to

impose court costs without expressing any reasoning whatsoever.” He contends “[t]he

financial status of a criminal defendant can no longer be deemed ‘irrelevant’ since trial

court[s] now have discretion in handling the imposition of court costs.”

       {¶14} The state responds that it was not an abuse of discretion for the trial court

to impose statutorily mandated court costs on a defendant who pled guilty to the offense

in question and who was fully aware of his requirement to pay court costs.

       {¶15} The issue properly before this court is whether the trial court erred by

failing to waive the payment of court costs—not whether the trial court erred in imposing

court costs.

       {¶16} When the trial court imposes court costs, the defendant’s ability to pay is,

in fact, irrelevant. R.C. 2947.23(A) requires a sentencing court to assess costs against

all convicted criminal defendants. Braden, supra, at ¶20, citing State v. Joseph, 125

Ohio St.3d 76, 2010-Ohio-954, ¶11. See also State v. White, 103 Ohio St.3d 580,

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2004-Ohio-5989, syllabus (“1. A trial court may assess court costs against an indigent

defendant convicted of a felony as part of the sentence. 2. A clerk of courts may

attempt the collection of court costs assessed against an indigent defendant.”).

       {¶17} If the defendant is indigent, however, the court is permitted—but not

required—to waive the payment of those costs. Braden, supra, at ¶20, citing Joseph,

supra, at ¶11, citing State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, ¶4.

Thus, the defendant’s ability to pay may be considered by the trial court when deciding

whether to waive the payment of costs, but it has no duty to do so. Court costs are not

financial sanctions, and a trial court is not required to consider an offender’s ability to

pay court costs. See State v. Chionchio, 11th Dist. Portage No. 2012-P-0057, 2013-

Ohio-4296, ¶70, citing State v. Taylor, 11th Dist. Portage No. 2011-P-0090, 2012-Ohio-

3890, ¶48. Nor is a trial court required to make findings when ruling on a motion to

waive the payment of court costs. See State v. Riley, 11th Dist. Portage No. 2018-P-

0031, 2019-Ohio-3327, ¶110 (“Ohio courts have consistently held that a sentencing

court is only required to make findings when the applicable statute requires a finding.”).

       {¶18} The trial court’s failure to consider appellant’s ability to pay court costs

was not error. We find no abuse of discretion in the trial court’s decision not to waive

the payment of court costs assessed against appellant.

       {¶19} Appellant’s sole assignment of error is without merit.

       {¶20} The judgment of the Trumbull County Court of Common Pleas is affirmed.



MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.

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