[Cite as State v. Pettry, 2014-Ohio-3099.]


                                         COURT OF APPEALS
                                        PERRY COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Craig R. Baldwin, J.
-vs-
                                                    Case No. 14 CA 00002
TRAVIS PETTRY

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 09 CR 0054


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                          July 14, 2014



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOSEPH FLAUTT                                   STEVEN P. SCHNITTKE
PROSECUTING ATTORNEY                            SCHNITTKE & SMITH
111 North High Street                           114 South High Street
Post Office Box 569                             Post Office Box 536
New Lexington, Ohio 43764-0569                  New Lexington, Ohio 43764-0536
Perry County, Case No. 14 CA 00002                                                        2

Wise, J.

       {¶1}   Defendant-Appellant Travis Pettry appeals the December 17, 2013,

judgment entered in the Perry County Court of Common Pleas denying his motion to

vacate, set aside or suspend court costs, fines and/or restitution.

       {¶2}   Plaintiff-Appellee State of Ohio has not filed a brief in this matter.

                          STATEMENT OF THE FACTS AND CASE

       {¶3}   Appellant and Appellee agree on the following statements of the case as

set forth by Appellant:

       {¶4}   On August 28, 2009, Appellant Travis Pettry was indicted on one (1) count

of Aggravated Burglary, in violation of R.C. 2911.11(A)(1), with a gun specification, in

violation of R.C. §2941.141 and §2941.145; one (1) count of Aggravated Burglary R.C.

§2911.11(A)(2) with gun specifications, in violation of R.C. §2941.141 and R.C.

§2941.145; two (2) counts of Aggravated Burglary, in violation of R.C. §2911.01(A)(1)

with gun specifications, in violation of R.C. §2911.141 and R.C. §2941.145; all felonies

of the first degree; and four (4) counts of Kidnapping, in violation of R.C. §2905.0l(A)(2),

with gun specifications, in violation ofR.C. §2941.141 and R.C. §2941.145, felonies of

the second degree.

       {¶5}   On January 21, 2010, Appellant entered a plea of Guilty to one count of

Aggravated Burglary, one count of Aggravated Burglary and four counts of Kidnapping.

The State of Ohio entered a Nolle Prosequi to one count of Aggravated Robbery, one

count of Aggravated Burglary and all gun specifications.

       {¶6}   On January 20, 2010, Appellant was sentenced to a definite term of three

(3) years for one count of Aggravated Burglary, three (3) years for one count of
Perry County, Case No. 14 CA 00002                                                      3


Aggravated Burglary to be served consecutively with the sentence imposed for

Aggravated Burglary and two (2) years on each count of Kidnapping to be served

consecutively with each other with the sentences imposed for Aggravated Burglary and

Aggravated Robbery. All together Appellant was sentenced to an aggregate term of

fourteen (14) years.

      {¶7}      Appellant was given credit for 140 days served in jail. Additionally, this

sentence was ordered to be served consecutively with Case No. 2009-0175 and Case

No. 2009-181, Common Pleas Court, Muskingum County, Ohio.

      {¶8}      Finally, Appellant was ordered to pay restitution in the amount of Eight

Thousand Seven Hundred Forty-Three and No/100 Dollars ($8,743.00) to Medicare

CMIC; One Hundred Fifty-Eight and 99/100 Dollars ($158.99) to Auto Owners

Insurance; Five Thousand Four Hundred Sixty-Six and 49/100 Dollars ($5,466.49) to

Frank and Rachel Noll; and, Nine Hundred Ninety-One and 63/100 Dollars ($991.63) to

Josh and Sherry Noll.

      {¶9}      The Termination Judgment Entry was filed on February 8, 2010.

      {¶10} On October 8, 2010, Appellant filed a pro se Motion to Correct the Record

in which he contended that his sentence was illegal and that he should have only been

sentenced to three (3) years concurrent with related cases in Muskingum County, Ohio.

Appellee contended the sentences were the result of a negotiated plea agreement.

      {¶11} On October 25, 2010, the trial court denied the Motion.

      {¶12} On October 20, 2011, Appellant filed a Petition for Redress of Injury and in

the alternative, a civil suit against the State of Ohio, Perry County Prosecutor and Judge

Linton Lewis.
Perry County, Case No. 14 CA 00002                                                       4


       {¶13} On December 9, 2011, Appellee filed its response arguing that Appellant's

pleading was a Petition for Post Conviction Relief pursuant to RC. §2953.21, and that

this pleading was barred by State v. Szefcyk (1996) 77 Ohio State 3d 93. Appellee

further argued that Appellant failed to file the Petition pursuant to the statutes mandated

by R.C. §2953.21(A)(2).

       {¶14} On December 6, 2011, the trial court denied Appellant's Petition stating

that it was not timely filed pursuant to R.C. §2953.23. No Appeal was taken from this

judgment.

       {¶15} On January 20, 2012, Appellant filed a new Motion to Vacate, Set Aside

Count Fines and/or Restitution. In said Motion, Appellant alleged that he was not

informed of the mandated requirements of R.C. §2947.23. Appellant also filed a Motion

for Assignment of Counsel and Transcript at the State’s Expense.

       {¶16} On February 3, 2012, Appellee filed its Memorandum Contra.

       {¶17} On May 2, 2012, with respect to Appellant's Motion filed on January 20,

2012, the trial court appointed counsel for Appellant.

       {¶18} On September 5, 2012, Appellant filed a new Motion to correct

unauthorized sentence raising the argument of Merger of Allied Offenses pursuant to

R.C. §2945.25.

       {¶19} On July 26, 2013, a Motion for Transcript of Sentencing Hearing was filed

on behalf of Appellant. This Motion was denied on August 20, 2013.

       {¶20} On September 5, 2013, Appellant filed a new pro se Motion to Correct

Unauthorized Sentence pursuant to R.C. §2941.25.
Perry County, Case No. 14 CA 00002                                                      5


      {¶21} On September 6, 2013, Appellant, through counsel, filed a Motion to

supplement Appellant's Pro Se Motion. A Supplemental Memorandum was filed

pertaining to payment of costs pursuant to R.C. §2947.23.

      {¶22} On October 20, 2013, the trial court denied the Motion to Correct the

Unauthorized Sentence pursuant to R.C. §2941.25.

      {¶23} On October 29, 2013, Appellant filed a pro se Motion to run the

Muskingum County and Perry County sentences concurrent. This Motion was denied by

the trial court on October 31, 2013.

      {¶24} On November 21, 2013, a re-sentencing hearing was held on the Motion

of Appellant filed on January 20, 2012, requesting the Sentencing Entry be vacated, set

aside or suspend court costs, fine or restitution. The trial court denied the Motion as to

restitution and re-imposed sentence with Notice given to Appellant pursuant to R.C.

§2947.23. This Journal Entry was filed on December 17, 2013.

      {¶25} Appellant now appeals, assigning the following sole error for review:

                               ASSIGNMENT OF ERROR

      {¶26} “I. THE COURT ERRED ORDERING APPELLANT TO PAY COURT

COSTS.”

                                            I.

      {¶27} Appellant, in his sole Assignment of Error, argues that the trial court’s

imposition of court costs in this matter was an abuse of discretion. We disagree.

      {¶28} “Ohio law does not forbid a trial court from imposing court costs on an

indigent defendant convicted of a felony.” State v. Pasqualone, 140 Ohio App.3d 650,

748 N.E.2d 1153, 1158, at footnote 4, quoting State v. Payne (Dec. 20, 1999), Delaware
Perry County, Case No. 14 CA 00002                                                      6


App. Nos. 99CAA05024, 99CAA05025, 99CAA05026, 99CAA05027, and 99CAA05028,

2000 WL 1405, unreported. See also, State v. Threatt, supra. Further, while R.C.

2949.092 allows a trial court to waive payment of court costs for indigent defendants

under certain circumstances, it is not required to do so. See State v. White, supra.”

       {¶29} R.C. 2947.23 provides:

       {¶30} “In all criminal cases, including violations of ordinances, the judge or

magistrate shall include in the sentence the costs of prosecution and render a judgment

against the defendant for such costs. If a jury has been sworn at the trial of a case, the

fees of the jurors shall be included in the costs, which shall be paid to the public

treasury from which the jurors were paid.” 1953 H.B. No. 1.

       {¶31} Upon review, we find the trial court did not abuse its discretion by denying

Appellant's request for waiver without a hearing. A trial court is required by R.C.

2947.23 to impose court costs against all convicted defendants, even those who are

indigent. State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012–Ohio–112, ¶ 46, citing

State v. White, 103 Ohio St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393, ¶ 8. But a trial

court may waive the payment of costs. State v. Lux, ¶ 46, citing State v. Joseph, 125

Ohio St.3d 76, 2010–Ohio–954, 926 N.E.2d 278, ¶ 11. A trial court has no duty to waive

court costs; it has discretion whether to do so, and R.C. 2949.092 does not provide

standards for the exercise of that discretion. Lux, at ¶ 47.
Perry County, Case No. 14 CA 00002                                             7


      {¶32} Appellant’s sole Assignment of Error is overruled.

      {¶33} For the foregoing reasons, the judgment of the Court of Common Pleas,

Perry County, Ohio, is affirmed.



By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.




JWW/d 0630
