[Cite as State v. Veal, 2013-Ohio-1577.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :        C.A. CASE NO.        25253

v.                                                   :        T.C. NO.      12CR745

ERIC L. VEAL                                         :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                            ..........

                                            OPINION

                          Rendered on the     19th       day of          April      , 2013.

                                            ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

                 {¶ 1} After Eric L. Veal pled guilty to felonious assault, a second-degree
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felony, the trial court sentenced him to an agreed two-year prison term and ordered him to

pay court costs. Veal appeals from his conviction, claiming that the trial court erred in

failing to consider his ability to pay before ordering the payment of court costs and to notify

him of the consequences should he fail to pay them. For the following reasons, the trial

court’s judgment will be modified in part and affirmed as modified.

       {¶ 2}    In his first assignment of error, Veal claims that “[t]he trial court erred in

assessing costs without evaluating Veal’s ability to pay.”

       {¶ 3}     Under R.C. 2947.23, a trial court is required to impose “the costs of

prosecution” against all convicted defendants and render a judgment against the defendant

for such costs, even those who are indigent. See State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. The Ohio Supreme Court has made clear that the

trial court must orally notify a defendant at sentencing that the court is imposing court costs.

 State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22, citing Crim.R.

43(A). A trial court may waive the payment of costs, but an indigent defendant must move

for such waiver at sentencing. Joseph at ¶ 11-12.

       {¶ 4}     Court costs are governed by R.C. 2947.23; they are not financial sanctions.

State v. Smith, 3d Dist. Allen No. 1-07-32, 2007-Ohio-6552, ¶ 11. Consequently, R.C.

2929.19 is inapplicable to court costs, and the trial court need not consider a defendant’s

ability to pay under R.C. 2929.19 prior to imposing such costs. E.g., id.; State v. Blessing,

2d Dist. Clark No. 2011 CA 56, 2013-Ohio-392, ¶ 53. “[A]lthough costs in criminal cases

are assessed at sentencing and are included in the sentencing entry, costs are not punishment,

but are more akin to a civil judgment for money.” State v. Threatt, 108 Ohio St.3d 277,
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2006-Ohio-905, 843 N.E.2d 164, ¶ 15.

       {¶ 5}       In this case, the trial court told Veal that it was sentencing him to two years

in prison, that “there’s no restitution due, but [I’m going to] order that you pay court costs.”

Veal did not object to the order that he pay court costs or claim that he was indigent and

could not pay the costs. Because the court was required to impose court costs, was not

required to consider Veal’s ability to pay before imposing them, and was not asked to waive

the payment of costs due to Veal’s indigence, the trial court did not err in ordering Veal to

pay court costs without considering his ability to pay.

       {¶ 6}      In his brief, Veal also asserts that his trial counsel provided ineffective

assistance by failing to object to the imposition of court costs or to seek a waiver of payment

of those costs.

       {¶ 7}      To reverse a conviction based on ineffective assistance of counsel, it must be

demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness

and that the errors were serious enough to create a reasonable probability that, but for the

errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S.

668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by the Supreme Court of Ohio in

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Id.

       {¶ 8}      The record provides limited information relevant to whether a request for a

waiver of court costs would have been successful.           The record reflects that Veal had

appointed counsel in the trial court and on appeal due to his indigence. However, “[t]he
                                                                                            4

fact that [Veal] is indigent for purposes of receiving appointed counsel does not necessarily

shield him from paying court costs. In resolving the costs issue, the trial court may consider

any relevant information, including [Veal’s] potential ability to pay his court costs in the

future.” (Citations omitted.) State v. Lunsford, 93 Ohio App.3d 195, 2011-Ohio-964, 951

N.E.2d 464, ¶ 17 (2d Dist.). The record further reflects that Veal was 36 years old and was

sentenced to two years in prison. Given the agreed sentence, Veal waived a pre-sentence

investigation, which might have provided additional information pertinent to Veal’s ability

to pay court costs. Based on the minimal information before us, we cannot say that the trial

court would have waived the payment of court costs had the issue been raised at sentencing.

       {¶ 9}     Veal’s first assignment of error is overruled.

       {¶ 10} In his second assignment of error, Veal claims that “[t]he trial court erred by

failing to notify Veal he could be ordered to perform community service if he fails to pay the

court costs.”

       {¶ 11} At the time of Veal’s sentencing in April 2012, the trial court was required

to notify him of certain consequences of failing to pay court costs. R.C. 2947.23(A)(1).

Specifically, the court was required to notify the defendant:

                (a) If the defendant fails to pay that judgment [for costs] 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 in an amount of not more than forty hours per month until

       the judgment is paid or until the court is satisfied that the defendant is in

       compliance with the approved payment schedule [and]
[Cite as State v. Veal, 2013-Ohio-1577.]
                 (b) 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.

Former R.C. 2947.23(A)(1).

        {¶ 12} Reviewing the version of R.C. 2947.23 that was in effect when Veal was

sentenced, the Supreme Court has emphasized that the notice requirement “is mandatory and

that a court is to provide this notice at sentencing.” State v. Smith, 131 Ohio St.3d 297,

2012-Ohio-781, 964 N.E.2d 423, ¶ 10. The Supreme Court thus held that a reviewing

court’s authority to consider a trial court’s failure to provide this notice does not first require

a defendant to fail to pay court costs or a court to impose community service. Id.

        {¶ 13}     The State acknowledges that the trial court failed to notify Veal that he

could be required to perform community service should he fail to pay court costs. The

transcript of Veal’s plea and sentencing hearing also reflects that notice was not given.

        {¶ 14} The Tenth District recently held that since the defendant did not object to the

judge’s lack of advice at sentencing concerning the possibility of community service, the

plain error standard should be applied.          State v. Jackson, 10th Dist. Franklin Nos.

12AP-768, 12AP-769, 2013-Ohio-1152, ¶ 17.            The court noted that the defendant was

sentenced to 14 years in prison, that the State garnishes inmate accounts to collect court

costs, and that the legislature might change the requirements by the time the defendant is

released. The appellate court found no plain error in the court’s lack of notice that the

defendant might be required to perform community service after his release, and it overruled

the assignment of error.
[Cite as State v. Veal, 2013-Ohio-1577.]
        {¶ 15}     We have not applied a plain error analysis and, instead, have either

remanded the case for instruction by the court to the defendant regarding community service

or modified the judgment to eliminate any requirement that an appellant perform community

service in lieu of court costs. E.g., State v. Parson, 2d Dist. Montgomery No. 25123,

2013-Ohio-1069, ¶ 16, fn.2 (describing this court’s history of dealing with this issue).

        {¶ 16}     We recognize that 2012 Sub.H.B. 247 made several substantive changes to

R.C. 2947.23, effective March 22, 2013. Of note, R.C. 2947.23(A)(1)(a) now requires

notification that a defendant might be required to perform community service for failure to

pay court costs only when “the judge or magistrate imposes a community control sanction or

other nonresidential sanction.” The Ohio legislature also added a new R.C. 2947.23(C),

which states: “The court retains jurisdiction to waive, suspend, or modify the payment of the

costs of prosecution, * * * at the time of sentencing or at any time thereafter.” R.C.

2947.23(A)(1)(b) was modified by 2012 Am.Sub.S.B. 337, effective September 28, 2012,

and it continues to provide that “[t]he failure of a judge or magistrate to notify the defendant

pursuant to division (A)(1)(a) of this section does not negate or limit the authority of the

court to order the defendant to perform community service if the defendant fails to pay the

judgment described in that division or to timely make payments toward that judgment under

an approved payment plan.”

        {¶ 17}     2012 Sub.H.B. 247 also authorized courts to cancel claims for costs due the

court, if the amounts are uncollectible. The provisions state, “If at any time the court finds

that an amount owing to the court is due and uncollectible, in whole or in part, the court may

direct the clerk of the court to cancel all or part of the claim. The clerk shall then effect the

cancellation.” See R.C. 1901.263 (municipal court); R.C. 1905.38 (mayor's court); R.C.
                                                                                           7

1907.25 (county court); R.C. 1925.151 (small claims division); R.C. 2101.165 (probate

court); R.C. 2151.542 (juvenile court); R.C. 2303.23 (common pleas court); R.C. 2501.161

(court of appeals); R.C. 2503.33 (supreme court).

       {¶ 18}   Unlike an order of community service as a condition of probation or

community control, a court cannot imprison a person for failure to work to satisfy a civil

obligation, such as costs. State v. Ellis, 2d Dist. Montgomery No. 22189, 2008-Ohio-2719,

¶ 19. Contrast State v. Daugherty, 2d Dist. Montgomery No. 20779, 2006-Ohio-240 (a

defendant’s failure to perform community service is properly addressed either as a violation

of community control or as indirect contempt). This is true whether it is nominally for

indirect contempt or for a “violation” of R.C. 2947.23. See Ellis at ¶ 20. It appears that

R.C. 2947.23 simply provides a defendant with an opportunity to avoid civil collection

procedures by satisfying the debt by performing community service.

       {¶ 19} Veal’s second assignment of error is sustained.

       {¶ 20} Pursuant to the law in effect at the time of Veal’s sentencing, the trial court

erred by not instructing him as required by R.C. 2947.23. The law no longer requires

defendants who are sentenced to prison to be so advised and, further, allows a trial court to

modify or cancel the payment of costs. Upon consideration of all of the above and the facts

of this case, the court’s judgment will be modified by eliminating any requirement that Veal

can be mandated to perform community service in lieu of court costs. As modified, the trial

court’s judgment will be affirmed.

                                        ..........

HALL, J. and WELBAUM, J., concur.
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Copies mailed to:

Michele D. Phipps
Lucas W. Wilder
Hon. Barbara P. Gorman
