[Cite as State v. Huntsman, 2014-Ohio-440.]

                            STATE OF OHIO, MONROE COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )             CASE NO. 13 MO 6
V.                                              )
                                                )                  OPINION
MATTHEW HUNTSMAN,                               )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Monroe County, Ohio
                                                Case No. CR2012-055

JUDGMENT:                                       Affirmed

APPEARANCES:
For Plaintiff-Appellee                          James Peters
                                                Prosecutor
                                                Monroe County Prosecutors Office
                                                101 North Main Street, Room 15
                                                Woodsfield, Ohio 43793

For Defendant-Appellant                         Attorney Peter Galyardt
                                                Assistant State Public Defender
                                                250 East Broad Street, Suite 1400
                                                Columbus, Ohio 43215




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                Dated: February 5, 2014
[Cite as State v. Huntsman, 2014-Ohio-440.]
DONOFRIO, J.

         {¶1}   Defendant-appellant, Matthew Huntsman, appeals from a Monroe
County Common Pleas Court judgment sentencing him to 18 months in prison and
ordering him to pay court costs following his no contest plea to having a weapon
while under disability, endangering children, and possession of drugs.
         {¶2}   On February 16, 2012, a Monroe County Grand Jury indicted appellant
on a ten-count indictment. He initially entered a not guilty plea.
         {¶3}   Appellant later entered into a plea agreement where he entered a no
contest plea to three counts: having weapons while under disability, a third-degree
felony in violation of R.C. 2923.13(A)(3); possession of drugs, a minor misdemeanor
in violation of R.C. 2925.11; and endangering children, a first-degree misdemeanor in
violation of R.C. 2919.22(A). As part of the plea deal, plaintiff-appellee, the State of
Ohio, agreed to recommend an 18-month prison sentence, to offer no objection to
appellant filing a motion for judicial release after six months, and to dismiss the
remaining charges. The trial court accepted appellant’s plea and entered a finding of
guilt.
         {¶4}   The trial court subsequently sentenced appellant to 18 months in prison
for the weapons charge, 90 days in jail on the endangering children charge to be
served concurrently with the prison term, and a six-month driver’s license suspension
and $25 fine on the drug possession charge. The court also ordered appellant to pay
court costs.
         {¶5}   Appellant filed a timely notice of appeal on May 2, 2013.
         {¶6}   Appellant raises a single assignment of error that states:

                THE TRIAL COURT VIOLATED R.C. 2947.2399(A)(1) AND
         ERRED BY IMPOSING COURT COSTS WITHOUT NOTIFYING
         MATTHEW HUNTSMAN, DURING HIS SENTENCING HEARING,
         THAT FAILURE TO PAY THOSE COSTS MAY RESULT IN THE
         COURT’S ORDERING HIM TO PERFORM COMMUNITY SERVICE.

         {¶7}   At appellant’s May 30, 2013 sentencing hearing, the trial court informed
appellant that he would have to pay court costs and granted judgment in favor of the
                                                                               -2-


clerk of courts. (Tr. 109). This was the court’s only mention of court costs at the
sentencing hearing. The court did not inform appellant that if he failed to pay the
court costs it could order him to perform community service.        In the sentencing
judgment entry, however, the court stated:

             Defendant shall pay costs associated with prosecution.
      Judgment is hereby granted in favor of the Clerk of Courts.
      -Pursuant to R.C. §2947.23, if you fail to pay that judgment or fail to
      timely make payments toward that judgment under a payment schedule
      approved by the Court, the Court may order you to perform community
      service in an amount of not more than forty (40) hours per month until
      the judgment is paid or until the Court is satisfied that you are in
      compliance with the approved payment schedule.
      -If the Court orders you to perform community service, you 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.

(Emphasis sic.)
      {¶8}   Appellant argues that the trial court erred in failing to inform him at his
sentencing hearing that it could require him to perform community service if he did
not pay his court costs. Appellant acknowledges that the court did inform him of the
possibility of community service for failure to pay court costs in the sentencing
judgment entry. But he asserts R.C. 2947.23(A)(1) requires the court to give this
notice at the sentencing hearing as well.
      {¶9}   Appellant relies on this court’s decision in State v. Castle, 7th Dist. No.
08 MA 195, 2010-Ohio-3154, in support of his position. In Castle, the defendant’s
sentencing judgment entry simply stated “Costs to defendant.”          On appeal, the
defendant argued that the trial court erred by imposing court costs without informing
him that the failure to pay those costs could result in the court’s ordering him to
perform community service. At the time, R.C. 2947.23 provided, in part:
                                                                                 -3-


             (A)(1) In all criminal cases* * * the judge or magistrate shall
      include in the sentence the costs of prosecution * * * and render a
      judgment against the defendant for such costs. At the time the judge or
      magistrate imposes sentence, the judge or magistrate shall notify the
      defendant of both of the following:
             (a) 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 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.
             (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.

      {¶10} This court found that if the defendant failed to pay the court costs as
ordered, the trial court should not have the option of imposing community service
because it did not inform the defendant of that possibility at his sentencing hearing.
Id. at ¶¶12-13.    We modified the defendant's sentencing entry to prohibit the
imposition of community service as a means of collecting the court costs. Id. at ¶13.
      {¶11} But the Legislature made two significant changes to R.C. 2947.23 since
we decided Castle. The Legislature amended R.C. 2947.23 on September 28, 2012.
It then enacted the current version on March 22, 2013. The trial court sentenced
appellant on April 30, 2013. Thus, the current version of R.C. 2947.23 applied to
appellant’s sentence. R.C. 2947.23(A)(1) now provides:

             (a) In all criminal cases * * * the judge or magistrate shall include
      in the sentence the costs of prosecution * * * and render a judgment
      against the defendant for such costs. If the judge or magistrate imposes
                                                                                 -4-


      a community control sanction or other nonresidential sanction, the
      judge or magistrate, when imposing the sanction, shall notify the
      defendant of both of the following:
             (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 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.
             (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.
             (b) The 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.

(Emphasis added.)
      {¶12} The     most    recent    amendment      made     the    addition   in    R.C.
2947.23(A)(1)(a). The first sentence of R.C. 2947.23(A)(1)(a) states that the court is
to include court costs in the sentence “in all criminal cases.” The second sentence
then states that if the court “imposes a community control sanction or other
nonresidential sanction,” it shall notify the defendant of the possibility of community
service if the defendant fails to pay the court costs. Thus, under the language of the
current statute, the court is no longer required to inform a defendant that it may order
him or her to perform community service for failure to pay court costs unless the court
“imposes a community control sanction or other nonresidential sanction.”              This
                                                                                  -5-


language was not included in the old version of R.C. 2947.23(A)(1).             This new
language limits the required notice to the defendant regarding community service to
cases only where the court imposes a community control type sanction.
       {¶13} In the present case, the trial court sentenced appellant to prison. Thus,
the trial court was not required to give appellant the notice regarding community
service.
       {¶14} Second, the September 28, 2012 amendment to R.C. 2947.23 added
the language in section (A)(1)(b) that the court’s failure to notify the defendant that it
may order him or her to perform community service for failure to pay court costs
“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.” Thus, the Legislature
specifically intended to allow courts to order community service for failure to pay
court costs regardless of whether the court informed the defendant of such.
       {¶15} Consequently, under the current version of R.C. 2947.23(A)(1)(b), the
trial court’s failure to notify appellant of the possibility of community service would not
prohibit the court from later ordering community service should appellant fail to pay
his court costs.
       {¶16} Therefore, the trial court did not err in failing to notify appellant at the
sentencing hearing that it could order him to perform community service in the event
he failed to pay his court costs.
       {¶17} Accordingly, appellant’s sole assignment of error is without merit.
       {¶18} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.
