[Cite as State v. Horner, 2016-Ohio-7113.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                          Court of Appeals No. WD-15-065

        Appellee                                       Trial Court No. 2014CR0395

v.

Megan Horner                                           DECISION AND JUDGMENT

        Appellant                                      Decided: September 30, 2016

                                                *****

        Paul A. Dobson, Wood County Prosecuting Attorney, Alyssa Blackburn,
        David T. Harold, Channa B. Beard, Assistant Prosecuting Attorneys, for appellee.

        Lawrence A. Gold, for appellant.

                                                *****

        YARBROUGH, J.

                                             I. Introduction

        {¶ 1} Appellant, Megan Horner, appeals the judgment of the Wood County Court

of Common Pleas, sentencing her to 17 months in prison and ordering her to pay the
costs of prosecution upon a finding that she violated the terms of her community control.

Finding no error, we affirm.

                         A. Facts and Procedural Background

       {¶ 2} On December 19, 2014, appellant was found guilty of one count of trespass

in a habitation, and was consequently sentenced to three years of community control and

ordered to complete a correctional treatment facility (CTF) program. Shortly thereafter,

appellant was unsuccessfully terminated from the CTF program due to inappropriate

sexual comments and touching, in violation of the Prison Rape Elimination Act. Because

of appellant’s termination from the CTF program, the state filed a petition for revocation

of her community control on January 7, 2015. Following several continuances of the

petition, the court ultimately continued appellant’s community control and ordered her to

reenter the CTF program.

       {¶ 3} On August 24, 2015, appellant was once again terminated from the CTF

program for making inappropriate sexual comments. Once again, the state filed a petition

to have appellant’s community control revoked. This time, the trial court held a hearing

on the petition and decided to revoke appellant’s community control. As a result,

appellant was ordered to serve 17 months in prison and pay the costs of her prosecution.

It is from this order that appellant now appeals.

                                B. Assignments of Error

       {¶ 4} On appeal, appellant presents the following assignments of error:




2.
               1. The trial court committed error to the prejudice of Appellant by

       imposing the costs of prosecution without consideration of Appellant’s

       present or future ability to pay.

               2. Appellant received ineffective assistance of counsel in violation

       of [her] rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, §10 of the Constitution of the State of

       Ohio.

                                           II. Analysis

       {¶ 5} In her first assignment of error, appellant argues that the trial court erred in

ordering her to pay the costs of prosecution without first finding that she had the present

or future ability to pay such costs. Concerning mandatory costs such as the costs of

prosecution, it is well settled that “an indigent defendant must move a trial court to waive

payment of costs at the time of sentencing. If the defendant makes such a motion, then

the issue is preserved for appeal and will be reviewed under an abuse-of-discretion

standard. Otherwise, the issue is waived and costs are res judicata.” State v. Threatt, 108

Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23. Here, the record is clear that no

motion was made to waive payment of the costs of prosecution. Therefore, the

application of res judicata bars appellant’s challenge to these costs on appeal and

appellant’s first assignment of error is not well-taken. State v. Maloy, 6th Dist. Lucas No.

L-10-1350, 2011-Ohio-6919, ¶ 10.




3.
       {¶ 6} In appellant’s second assignment of error, she argues that her trial counsel

was ineffective for failing to move the court to waive the costs of prosecution. To

demonstrate ineffective assistance of counsel, appellant must satisfy the two-prong test

developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). That is, appellant must show that counsel’s performance fell below an

objective standard of reasonableness, and that a reasonable probability exists that, but for

counsel's error, the result of the proceedings would have been different. Strickland at

687-688. Here, appellant has failed to demonstrate that the result of the proceedings

would have been different had the alleged errors not occurred.

       {¶ 7} R.C. 2947.23(A)(1) provides, “In all criminal cases * * * the judge or

magistrate shall include in the sentence the costs of prosecution * * *.” This requirement

has been held to apply even to indigent defendants. State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. Nevertheless, a trial court may, in its discretion,

waive these costs. Id.; State v. Phillips, 6th Dist. Fulton No. F-05-032, 2006-Ohio-4135,

¶ 15. However, in order to establish ineffective assistance of counsel based upon

counsel’s failure to object to the imposition of mandatory costs of prosecution, an

appellant must demonstrate that a “reasonable probability” exists that the lower court

would have waived payment of the costs had appellant so moved. See Maloy at ¶ 12,

citing State v. King, 6th Dist. Wood No. WD-09-069, 2010-Ohio-3074, ¶ 11. Here,

appellant has made no such demonstration. Thus, we find that appellant was not deprived




4.
of the effective assistance of trial counsel. Accordingly, appellant’s second assignment

of error is not well-taken.

                                     III. Conclusion

       {¶ 8} The judgment of the Wood County Court of Common Pleas is affirmed.

Costs are hereby assessed to appellant in accordance with App.R. 24.

                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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