[Cite as State v. Thomas, 2017-Ohio-4436.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104567




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 DEWAYNE THOMAS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-15-595595-H

        BEFORE: Stewart, J., Keough, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: June 22, 2017
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 670218
Northfield, OH 44067


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Frank Romeo Zeleznikar
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant DeWayne Thomas and six codefendants were named in

a 25-count indictment on a fraudulent check scheme perpetrated against multiple

defendants. Thomas pleaded guilty to 18 of the counts, including 10 counts of forgery.

The court sentenced him to a total of five years in prison and ordered him to pay

restitution in the amount of $5,941.38.       In his three assignments of error, Thomas

challenges his sentence, his restitution order, and the imposition of court costs. For the

reasons that follow, we affirm the trial court’s decision.

       {¶2} In his first assignment of error, Thomas argues that some of his convictions

should have merged for purposes of sentencing. See R.C. 2941.25(A). He complains

that each forgery count in violation of R.C. 2913.31(A)(2) is allied with each respective

forgery count in violation of R.C. 2913.31(A)(3), and thus should have been merged at

sentencing. Thomas failed to raise the issue of allied offenses before the trial court. He

has, therefore, forfeited the right to raise the issue now on appeal except for plain error.

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-22.

       {¶3} The burden is on the appellant to affirmatively demonstrate plain error on the

record: “a deviation from a legal rule” constituting “an ‘obvious’ defect in the trial court

proceedings” and a reasonable probability that it resulted in prejudice. Id., quoting State

v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 Ohio St.3d 900, ¶ 16. This

court has discretion to correct any “‘plain errors or defects affecting substantial rights’
notwithstanding the accused’s failure to meet his obligation to bring those errors to the

attention of the trial court.” Id. at ¶ 22, quoting Crim.R. 52(B). Even after a plain error

is established, this court is not required to correct it; to the contrary, the Supreme Court

has circumscribed this court’s ability to notice plain errors to “exceptional

circumstances,” and then only to prevent a “manifest miscarriage of justice.” Id. at ¶ 23,

quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

       {¶4} Thomas cites State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, ¶ 31, for the proposition that it is plain error when a trial court does not

account for allied offenses that are clearly present on the record. As Thomas notes, in

Underwood, the state agreed that “[t]he two counts * * * would be considered allied

offenses of similar import and would require the Court to sentence the defendant to only

one of the thefts.” Id. at ¶ 5. The facts here differ from Underwood in that the state has

made no such concession. Contrary to Underwood, there is no discussion of allied

offenses anywhere on the record in this case. As such, Thomas cannot meet his burden

of affirmatively demonstrating plain error.      Finding no merit to his argument, we

overrule his first assignment of error.

       {¶5} In his second assigned error, Thomas complains about the amount of

restitution he was ordered to pay. At sentencing, Thomas did not dispute either the

court’s order that he pay restitution or the amount he was ordered to pay. Now on

appeal, Thomas argues for the first time that the trial court erred by not apportioning the

amount of restitution between codefendants. By not making his argument to the trial
court, Thomas once again forfeits all but plain error on appeal. See State v. Pollard, 8th

Dist. Cuyahoga No. 97166, 2012-Ohio-1196, ¶ 8.

         {¶6} R.C. 2929.18(A)(1) provides that the amount of restitution a court orders

“shall not exceed the amount of economic loss suffered by the victim.” Thomas has not

demonstrated on the record that the trial court violated this provision. To the contrary,

Thomas seems to confirm that the court followed the law: in his brief he states that his

restitution order is for the “full amount of loss.”      Thomas’s claims about what his

codefendants were or were not ordered to pay as restitution are unsubstantiated and

outside of the record. As such, Thomas has not met his burden of establishing any plain

error.    See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22.

Accordingly, we overrule this assigned error.

         {¶7} In his third and final assignment of error, Thomas argues that the court erred

by imposing the cost of prosecution “outside of his presence.” R.C. 2947.23(A)(1)(a)

requires that all criminal defendants pay for the cost of prosecution. The transcript

reflects that the trial court did not impose court costs on Thomas during his sentencing

hearing; however, the journal entry confirms that the court did, nevertheless impose costs.

 Because of this, Thomas complains that he did not have the opportunity to seek waiver

of court costs. Citing to State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d

278, Thomas argues that the court committed reversible error under Crim.R.43(A), which

provides that a defendant be physically present at every stage of the criminal proceeding.
        {¶8} In Joseph, the Supreme Court held that the trial court’s failure to notify the

defendant that it was imposing court costs was reversible error because “he was denied

the opportunity to claim indigency and seek a waiver of the payment of court costs before

the trial court.” Joseph at ¶ 22. The Supreme Court therefore remanded the case “for

the limited purpose” of allowing the defendant to move for a waiver of court costs. Id. at

¶ 23.

        {¶9} Subsequent to Joseph, R.C. 2947.23 was amended to include subdivision

(C), which provides that “[t]he 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.” 2011 Am.Sub.H.B. 247. The amendment to R.C. 2947.23 notwithstanding,

this court has addressed the imposition of court costs outside the defendant’s presence

and found reversible error.      See State v. Rudd, 8th Dist. Cuyahoga No. 102754,

2016-Ohio-106, ¶ 84-88.

        {¶10} In Rudd, the court failed to impose court costs at the sentencing hearing,

however ordered the defendant to pay costs in the journal entry. Id. at ¶ 87. On appeal,

the defendant argued that the court erred by failing to advise him that it imposed court

costs at sentencing. Id. at ¶ 84. The state conceded this error. Id. This court agreed,

reversing and remanding for the “limited purpose to allow [the defendant] to move the

trial court for a waiver of payment of court costs.” Id. at ¶ 87.

        {¶11} Similar to Rudd, a review of the record in this case shows that the court

imposed costs in the journal entry but not at sentencing. Also similar to Rudd, the state
concedes that the trial court erred by failing to address costs during sentencing.

However, here the state maintains that such error is harmless.

       {¶12} “Harmless” error is “[a]ny error, defect, irregularity, or variance which does

not affect substantial rights.” Crim.R. 52. “The presence of a defendant is a condition

of due process to the extent that a fair and just hearing would be thwarted by his absence,

and to that extent only.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d

31, ¶ 90, quoting Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed.

674 (1934), overruled on other grounds, Duncan v. Louisiana, 391 U.S. 145, 154, 88

S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Malloy v. Hogan, 378 U.S. 1, 2, 84 S.Ct. 1489, 12

L.Ed.2d 653 (1964), fn. 1.

       {¶13} Crim.R. 43(A) violations are subject to harmless error analysis. See State v.

Williams, 6 Ohio St.3d 281, 287, 452 N.E.2d 1323 (1983) (defendant not present at voir

dire was harmless violation of CrimR. 43(A)); State v. McCollins, 8th Dist. Cuyahoga No.

95486, 2011-Ohio-2398, ¶ 7 (“[D]efendant’s absence in violation of Crim.R. 43(A),

although improper, can constitute harmless error when he suffers no prejudice.”). Rudd

did not address harmless error likely because of the state’s concession to remand for

resentencing.

       {¶14} Unlike the defendant in Joseph, Thomas has not suffered any prejudice.

Because the trial court “retains jurisdiction to waive * * * the payment of costs * * * at

the time of sentencing or at any time thereafter,” R.C. 2947.23(C) provides Thomas with

the opportunity to seek waiver “at any time.” In fact, the record shows that Thomas has
indeed moved the court for waiver. Subsequent to filing his notice of appeal, and

currently pending in the trial court, is Thomas’s “motion to vacate/waive court costs and

fines or implement a payment plan upon release pursuant to R.C. 2947.23.”

       {¶15} Because the trial court retains jurisdiction over Thomas’s court costs, the

protection established by the Supreme Court’s decision in Joseph is no longer necessary.

The trial court’s error in failing to assess court costs at sentencing did not prejudice

Thomas. The error is therefore harmless. See Crim.R. 52(A).

       {¶16} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

MARY J. BOYLE, J., CONCURS;
KATHLEEN ANN KEOUGH, A.J., CONCURRING IN PART AND DISSENTING IN
PART WITH SEPARATE OPINION

KATHLEEN ANN KEOUGH, A.J., CONCURRING IN PART AND DISSENTING IN
PART:
       {¶17} I respectfully dissent from the majority’s disposition of Thomas’s third

assignment of error regarding the trial court’s imposition of costs in its journal entry of

sentencing, despite its failure to impose those costs in open court at sentencing.

       {¶18} I would follow the plethora of cases that hold pursuant to Joseph, 125 Ohio

St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, that it is reversible error under Crim.R. 43(A)

for the trial court to impose court costs in its sentencing entry when it did not impose

those costs in open court at the sentencing hearing, and that the proper remedy is to

reverse the imposition of costs and remand to the trial court for the limited purpose of

allowing the defendant to move for a waiver of court costs. See, e.g., State v. Martin, 8th

Dist. Cuyahoga No. 104354, 2017-Ohio-99; State v. Elder, 8th Dist. Cuyahoga No.

104392, 2017-Ohio-292; State v. Sizemore, 5th Dist. Richland No. 15CA18,

2016-Ohio-1529 (specifically noting the amendment to R.C. 2947.23 but nevertheless

finding reversible error); Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106; State v.

Walker, 5th Dist. Richland No. 09CA88, 2016-Ohio-8615; State v. Saturday, 9th Dist.

Summit 27521, 2015-Ohio-2136; State v. Grant, 8th Dist. Cuyahoga No. 100497,

2014-Ohio-2656; State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134; State

v. Roberts, 8th Dist. Cuyahoga No. 98973, 2013-Ohio-2202; State v. Thompson, 8th Dist.

Cuyahoga No. 99467, 2013-Ohio-4793.

       {¶19} Notably, all of these cases were decided after R.C. 2947.23 was amended

effective March 22, 2013. Although R.C. 2947.23 no longer places limits on when a

defendant can move for a waiver of court costs, Joseph has not been overruled, and I
cannot agree that a defendant suffers no prejudice when the trial court imposes court costs

in his or her absence. Accordingly, I dissent in part.
