[Cite as State v. Burmeister, 2019-Ohio-4927.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NO. 2019-P-0053
         - vs -                                  :

 JESSICA D. BURMEISTER a.k.a.                    :
 JESSICA D. NAGY,

                  Defendant-Appellant.           :


 Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR
 00769.

 Judgment: Affirmed.


 Victor V. Vigluicci, Portage County Prosecutor, Theresa M. Scahill¸ Assistant Prosecutor,
 241 South Chestnut Street, Ravenna, Ohio 44266. (For Plaintiff-Appellee).

 Jessica Burmeister, a.k.a. Jessica D. Nagy, pro se, W099-552, Northeast Reintegration
 Center, 2675 East 30th Street, Cleveland, Ohio 44115. (Defendant-Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Jessica D. Burmeister (a.k.a. Jessica D. Nagy) (“Ms. Nagy”),

appeals from the Portage County Court of Common Pleas’ judgment denying her motion

to use community service hours performed in prison in lieu of costs and/or fines. The trial

court denied her motion but granted her the option to do community work service through

the adult probation department until her costs and fine are paid in full.
       {¶2}   Ms. Nagy appealed, contending the trial court abused its discretion in

denying her motion and violated her rights to equal protection and due process.

       {¶3}   We find Ms. Nagy’s contentions to be without merit as we are unaware of

any authority that would allow past community service performed in prison to apply to

court costs or fines. Ms. Nagy, however, is free to file a motion with the trial court to allow

her future community service hours performed in prison to be applied toward her court

costs and fine and/or to waive her costs due to her indigent status pursuant to R.C.

2947.23. Thus, finding the trial court did not abuse its discretion, we affirm the judgment

of the Portage County Court of Common Pleas.

                               Substantive and Procedural Facts

       {¶4}   On October 31, 2016, on bindover from the Portage County Municipal Court

to the Portage County Court of Common Pleas, the grand jury charged Ms. Nagy with

one count of unauthorized use of a motor vehicle, a fifth-degree felony, in violation of R.C.

2913.03(B).

       {¶5}   Ms. Nagy subsequently entered a written guilty plea. On April 11, 2017,

Ms. Nagy was sentenced to a term of community control and ordered to pay a $300 fine

and $488 in costs within 36 months. If she was unable to pay her court costs or fine or

follow her payment schedule, the court ordered her “to perform 79 hours of community

service in an amount of $10.00 per hour, not more than forty hours per week until the

judgment is paid or until the court is satisfied that [she] is in compliance with the approved

payment schedule.”

       {¶6}   The adult probation department filed a motion to modify or revoke Ms.

Nagy’s community control sanctions for violating the terms of her community control. The




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court sentenced Ms. Nagy to a one-year term of imprisonment concurrent to a prison

sentence Ms. Nagy was already serving in an unrelated case.

      {¶7}   On March 20, 2018, Ms. Nagy filed a “motion to credit prison community

service towards court costs and fines.” Ms. Nagy then filed two more motions to credit

her prior prison community service toward her court costs and fine on May 15, 2018, and

March 19, 2019, respectively. In her motions, Ms. Nagy requested that a portion (250

hours) of the 1310 hours of her prior prison community service be applied toward her

outstanding costs and fine. In denying her motion without a hearing, the court stated that

“Defendant is granted until March 17, 2020 to pay in full.       The Defendant may do

Community Work Service of up to forty (40) hours per week at $10.00 per hour to pay

towards Defendant’s cost until paid in full through the Adult Probation Department.”

      {¶8}   Ms. Nagy now appeals, raising two assignments of error for our review:

      {¶9}   “[1.] The trial court abused its discretion when it denied the defendant’s

motion requesting to use community work service hours performed in prison to pay off

her court costs and fines.

      {¶10} “[2.] The denial of crediting defendant’s community service against costs

and fines is a violation of defendant’s rights under the Equal Protection Clause of the

Fourteenth Amendment to the United states Constitution and Section 16, Article I of the

Ohio Constitution, and Due Process Clause of the Fifth Amendment, and Ohio Revised

Code section 2947.23.”

                                      Standard of Review

      {¶11} “R.C. 2947.23 requires a trial court to assess costs against all criminal

defendants, even if the defendant is indigent.” State v. Clinton, 153 Ohio St.3d 422, 2017-




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Ohio-9423, ¶239. If a defendant moves to waive, suspend, or modify costs, the trial court,

in its discretion, may waive, suspend, or modify payment of those costs. State v. Lundy,

3d Dist. Allen No. 1-18-11, 2018-Ohio-2243, ¶6, citing State v. Hanford, 8th Dist.

Cuyahoga No. 106220, 2018-Ohio-1309, ¶17, citing State v. Brown, 8th Dist. Cuyahoga

No. 103427, 2016-Ohio-1546, ¶13, and State v. Walker, 8th Dist. Cuyahoga No. 101213,

2014-Ohio-4841, ¶9. A “trial court ‘retains jurisdiction to waive, suspend, or modify the

payment of the costs of prosecution * * *, at the time of sentencing or any time thereafter.’”

Id., quoting R.C. 2947.23(C).

       {¶12} We review a trial court's decision denying an indigent criminal defendant's

postjudgment motion to waive, suspend, or modify payment of court costs under an abuse

of discretion standard. State v. Fomby, 11th Dist. Lake No. 2012-L-073, 2013-Ohio-2821,

¶58, citing State v. Anderson, 11th Dist. Geauga No. 2011-G-3044, 2012-Ohio-4203, ¶42.

See also State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph four of the

syllabus (“A court’s denial of an indigent criminal defendant’s motion for waiver of

payment of costs is reviewed under an abuse-of-discretion standard”).

       {¶13} An abuse of discretion is a term of art, “connoting judgment exercised by a

court, which does not comport with reason or the record.” State v. Underwood, 11th Dist.

Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667,

676-78 (1925). Stated differently, an abuse of discretion is the trial court’s “‘failure to

exercise sound, reasonable, and legal decision-making.’” Id., quoting State v. Beechler,

2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11

(8th Ed.Rev.2004).




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       {¶14} In Ms. Nagy’s first assignment of error, she contends the trial court abused

its discretion in denying her motion to credit prison community service towards her court

costs and fine. In her second assignment of error, she contends the trial court’s denial of

her motion violated her rights under the Equal Protection Clause and Due Process Clause

of the Fourteenth and Fifth Amendment to the United States Constitution and Section 16,

Article I of the Ohio Constitution. As these assignments are interrelated, we will address

them together.

       {¶15} Ms. Nagy fails to establish how the trial court abused its discretion in

denying her motion to credit her past community service hours performed in prison toward

her court costs and fine. We are unaware of any authority, nor does Ms. Nagy cite to any

authority, that would allow a court to apply community service already performed as a

credit toward imposed court costs and fines. Ms. Nagy, however, is free to file a motion

to allow her community service hours performed while in prison to be applied toward her

costs or fine, for an extension of time to pay, and/or to waive her court costs due to her

indigent status. 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.” (Emphasis added.) R.C.

2947.23(C). She simply needs to file the appropriate motion requesting the appropriate

relief, which the trial court may grant in its discretion.

       {¶16} Ms. Nagy argues that the trial court improperly interchanged “community

control” with “community service” and ordered her to pay her court costs and fine through

community service when it sentenced her to a term of community control. A review of the

trial court’s original sentencing entry, however, reveals no such confusion. The trial court




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never ordered Ms. Nagy to perform community service in lieu of payment of her court

costs and fine. Rather, as part of Ms. Nagy’s initial sentence to community control, the

court imposed courts costs and a fine and properly notified Ms. Nagy in accordance with

R.C. 2947.23 of the consequences should she fail to pay her court costs .

       {¶17} Thus, in relevant part, R.C. 2947.23(A)(1)(a) states “* * * If the judge * * *

imposes a community control sanction * * * , the judge * * *, when imposing the sanction,

shall notify the defendant of both of the following:

       {¶18} “(i) If the defendant fails to pay that judgment or fails to timely make

payments towards that judgment under a payment schedule approved by the court, the

court may order the defendant to perform community service until the judgment is paid or

until the court is satisfied that the defendant is in compliance with the approved payment

schedule.

       {¶19} “(ii) If the court orders the defendant to perform the community service, the

defendant will receive credit upon the judgment at the specified hourly credit rate per hour

of community service performed, and each hour of community service performed will

reduce the judgment by that amount.”

       {¶20} In Ms. Nagy’s case, the trial court ordered “that the Defendant is assessed

a $300.00 fine, the indigent assessment and recoupment fee and the approximate

$488.00 costs (as of today’s date) of these proceedings, to be paid within thirty-six

months. If you are unable to pay the judgment for fines or court costs or are unable to

follow your payment schedule the court orders you to perform 79 hours of community

service in an amount of $10.00 per hour, not more than forty hours per week until the




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judgment is paid or until the court is satisfied that you are in compliance with the approved

payment schedule.”

       {¶21} The notifications at her initial sentencing were conditional consequences

should Ms. Nagy fail to pay her court costs and fine, a happenstance that is pure

conjecture at this point in time. In its most recent judgment, the subject of this appeal,

the trial court modified its order to allow Ms. Nagy the option of payment or community

service.

       {¶22} Quite simply, the “discretion to [modify or] waive court costs includes the

discretion not to [modify or] waive them.” State v. Gilbert, 8th Dist. Cuyahoga No. 104355,

2016-Ohio-8308, ¶6, citing State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-

1546, ¶13. This is especially so, where, as here, the appropriate relief was not requested.

       {¶23} The judgment of the Portage County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




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