[Cite as State v. Gates, 2013-Ohio-4284.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2011-P-0001
        - vs -                                  :

TROY L. GATES,                                  :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division.
Case No. 2009 TRD 12709R.

Judgment: Modified and affirmed as modified.


Victor V. Vigluicci, Portage County Prosecutor, Timothy J. Piero and Theresa M. Scahill,
Assistant Prosecutors, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-
Appellee).

Neil P. Agarwal, 3766 Fishcreek Road, Suite 289, Stow, OH            44224-4379 (For
Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     This matter comes before us on remand from the Ohio Supreme Court.

State v. Gates, 131 Ohio St.3d 372, 2012-Ohio-1221. The judgment entry of remand

requires us to apply State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, to the facts in

this case. Gates at ¶1. A detailed recitation of the facts and procedural posture of the

case can be found in our previous opinion. State v. Gates, 11th Dist. Portage No. 2011-

P-0001, 2011-Ohio-5711.
        {¶2}     At issue is the trial court’s failure to notify appellant that failure to pay court

costs could result in an order to perform community service, as required by former R.C.

2947.23(A)(1)(a). We previously held the issue is not ripe for adjudication until a failure

to pay court costs results in an order to perform community service. Gates at ¶49.

However, in Smith, the Ohio Supreme Court held:

                 A sentencing court’s failure to inform an offender, as required by
                 [former] R.C. 2947.23(A)(1), that community service could be
                 imposed if the offender fails to pay the costs of prosecution or court
                 costs presents an issue ripe for review even though the record
                 does not show that the offender has failed to pay such costs or that
                 the trial court has [ordered community service in lieu of payment].

Smith at 297. Thus, in accord with the remand, the issue is ripe and will be resolved as

set forth herein.

        {¶3}     The relevant facts are not disputed. Appellant was not orally informed that

community service could be imposed if he failed to pay court costs as ordered. The trial

court’s judgment entry, however, reflects the possibility that community service could be

ordered under such circumstances. Former R.C. 2947.23(A)(1)(a), which was in force

at the time of appellant’s sentencing, required such notification in each case. There

was no subsection (b) to allow a cure for the failure to notify. Thus, the narrow issue

before us is the appropriate remedy for a trial court’s failure to properly advise appellant,

as required by former R.C. 2947.23(A)(1)(a), that he might be subject to court-ordered

community service should he fail to pay costs.1



1. Pursuant to 2012 Sub.H.B. No. 247, effective March 22, 2013, R.C. 2947.23(A)(1)(a) requires that a
defendant be notified that community service might be required for failure to pay court costs only when
“the judge or magistrate imposes a community control sanction or other nonresidential sanction.” R.C.
2947.23(A)(1)(b) now provides: “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.”


                                                       2
       {¶4}    The Second District has held that the proper remedy is to modify the

judgment of the trial court to eliminate the possibility that community service may be

imposed in lieu of payment of court costs; the judgment is then affirmed as modified.

See State v. Fomby, 11th Dist. Lake No. 2012-L-073, 2013-Ohio-2821, ¶70-72

(Cannon, P.J., concurring in judgment only), citing State v. Veal, 2d Dist. Montgomery

No. 25253, 2013-Ohio-1577, ¶20; and State v. Haney, 2d Dist. Montgomery No. 25344,

2013-Ohio-1924, ¶21.

       {¶5}    We concur with Haney. As a result of the trial court’s failure to properly

inform appellant of the possibility that community service could be ordered in lieu of

unpaid court costs, such an order cannot be entered against him. Thus, the judgment

of the trial court is hereby modified to remove the possibility that community service may

be ordered should appellant fail to pay court costs. As modified, the judgment of the

trial court is affirmed.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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