[Cite as State v. Bishop, 2014-Ohio-1797.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2013-06-098

                                                   :            OPINION
    - vs -                                                       4/28/2014
                                                   :

CHRISTOPHER L. BISHOP,                             :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2012-05-0700



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Christopher P. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Christopher Bishop, appeals a decision of the Butler

County Court of Common Pleas denying his request to waive court costs.

        {¶ 2} A jury found Bishop guilty of illegal assembly or possession of chemicals for the

manufacture of drugs, as well as a related complicity charge. After merging the counts, the

trial court imposed a four-year sentence, and also ordered Bishop to pay a mandatory fine of
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$7,500.

       {¶ 3} Bishop appealed his conviction and sentence to this court. Through an

accelerated judgment entry, this court affirmed Bishop's conviction and sentence, but

reversed the trial court's order regarding court costs because the trial court did not abide by

the mandates set forth in R.C. 2947.23. In the entry, this court stated, "we reverse the

portion of the trial court's judgment imposing court costs on Bishop * * * and remand this

cause to the trial court for the limited purpose of imposing court costs in accordance with

R.C. 2947.23, and advising Bishop that jury fees are included in costs and community service

can be imposed if he fails to pay court costs." State v. Bishop, 12th Dist. Butler No. CA2012-

09-186 (May 6, 2013) (Accelerated Calendar Judgment Entry).

       {¶ 4} Upon remand, the trial court held a resentencing hearing. Moments before the

hearing began, an attorney, who had been at the court on another matter, offered to step in

and assist Bishop during the hearing. Bishop's counsel made reference during the hearing to

Bishop having filed a motion with the trial court regarding the court cost issue, but did not

know exactly what the motion referenced. However, neither the state nor the trial court ever

received a copy of that motion, and Bishop did not have a copy of the motion with him at the

hearing. Given the lack of a motion, the trial court moved forward with resentencing and

informed Bishop of the jury fee, as well as the statutory provision regarding the imposition of

community service upon nonpayment of the costs. Bishop now appeals the trial court's

resentencing, raising the following assignment of error.

       {¶ 5} THE TRIAL COURT ERRED WHEN IT FAILED TO DETERMINE MR.

BISHOP'S ABILITY TO PAY COURT COSTS.

       {¶ 6} Bishop argues in his assignment of error that the trial court erred by not

addressing his motion to waive court costs.

       {¶ 7} As previously stated, this court remanded on the issue of compliance with R.C.

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2947.23 because the trial court did not assess costs and inform Bishop that he would be

ordered to perform community service if he was unable to pay the costs. In our judgment

entry, this court ordered the trial court to impose "court costs in accordance with R.C.

2947.23."1

        {¶ 8} Specific to the version of R.C. 2947.23 in place at the time of Bishop's

sentencing, a trial court errs by failing to orally inform the defendant during the sentencing

hearing that he will be subject to the mandates set forth in R.C. 2947.23. State v. Joseph,

125 Ohio St.3d 76, 2010-Ohio-954, ¶ 22. The Joseph court considered that "waiver of costs

is permitted" if the defendant is indigent, even though the statute requires a court to assess

the fees. Id. at ¶ 11. For this reason, the Joseph court determined that R.C. 2947.23 (as it

existed at that time) required a trial court to orally address the mandates of R.C. 2947.23 in

order to provide the defendant an opportunity to move the court to waive the fees. Id. at ¶

12.

        {¶ 9} The Joseph court further concluded that a motion by an indigent defendant

asking the court to waive "payment of costs must be made at the time of sentencing." Id. If

the defendant makes the motion, the trial court should rule on it, and if the defendant fails to

make the motion, then the issue is waived and the issue of costs is res judicata. Id.

        {¶ 10} During the resentencing hearing, Bishop's counsel asked the trial court to

address the pro se motion Bishop filed asking that court costs be waived. However, the trial

court stated that neither it nor the state had been provided a copy of the motion. The trial

court noted that in the absence of a motion to waive court costs, it would not rule upon the

issue, and instead, proceeded to inform Bishop of the costs and possibility of community




1. This court is aware that R.C. 2947.23 was amended on March 22, 2013 to require a trial court to inform the
defendant of the mandates only if the judge imposes a community control sanction or other nonresidential
sanction. However, Bishop was first sentenced in 2012, before the effective date of the amendment so that the
trial court was still under an obligation to inform Bishop of the R.C. 2947.23 mandates at the time of sentencing.

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service.

        {¶ 11} A review of the record indicates that Bishop filed his motion, and that such was

file-stamped by the clerk as having been filed in both the common pleas court and this court

on May 24, 2013, five days before Bishop was resentenced. Therefore, the trial court should

have addressed Bishop's motion to waive the court costs.2 However, a review of the record

indicates that the trial court did not have access to the properly-filed motion because the

motion was never properly docketed in the trial court and physically placed in the common

pleas court file. Rather, the motion was placed in the file jacket of appellant's prior appeal in

Case No. CA2012-09-186 Because of this clerical oversight, Bishop's motion was left

unaddressed by the trial court.

        {¶ 12} Through no fault of its own, the trial court did not have before it Bishop's motion

to waive the fees at the sentencing hearing. Nonetheless, and because the motion was

properly pending at the time of sentencing, the trial court must address the motion and either

deny or grant Bishop's request to waive the court costs in accordance with R.C. 2947.23.

        {¶ 13} Accordingly, and based on the unique facts and circumstances of this case, we

reverse the trial court's decision and remand for the limited purpose of imposing court costs

in accordance with R.C. 2947.23.

        {¶ 14} Judgment reversed and remanded for further proceedings.


        RINGLAND, P.J., and HENDRICKSON, J., concur.




2. While Bishop intimated during his resentencing hearing that he wanted his $7,500 mandatory fine waived, his
pro se motion was specific to the costs associated with R.C. 2947.23. R.C. 2947.23 expressly sets forth the trial
court's duty to impose court costs, including jury fees, but is not pertinent to the issue of mandatory fines.
Furthermore, the limited issue on remand pertained only to the R.C. 2947.23 court costs, and the remand did not
in any way implicate the mandatory fine.

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