[Cite as State v. Webb, 2019-Ohio-1145.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-9
                                                 :
 v.                                              :   Trial Court Case No. 2016-CR-160
                                                 :
 SEAN COREY WEBB                                 :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 29th day of March, 2019.

                                            ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

AMY E. FERGUSON, Atty. Reg. No. 0088397, Ferguson Law Office, LLC, 130 West
Second Street, Suite 1818, Dayton, Ohio 45402
     Attorney for Defendant-Appellant


                                           .............
                                                                                         -2-


WELBAUM, P.J.

       {¶ 1} Defendant-appellant, Sean Corey Webb, appeals from a judgment of the

Champaign County Court of Common Pleas, which imposed a prison sentence following

the revocation of his community control sanctions. Specifically, Webb contends that the

trial court erred by imposing a payment schedule for the collection of court costs and

court-appointed counsel fees. The State concedes error in that regard.

       {¶ 2} Upon review, and considering the State’s concession, we find that the

judgment entry from which Webb appeals referred to an improper payment schedule for

the collection of court costs.   Because it is improper for the trial court to impose a

payment schedule for court costs, the judgment entry will be modified to excise the

language referring to an improper payment schedule. The judgment will be affirmed as

modified.



                           Facts and Course of Proceedings

       {¶ 3} On July 22, 2016, Webb pled guilty to attempted tampering with evidence

and possession of heroin. The offenses occurred when an Adult Parole Authority officer

caught Webb, who was on post-release control for an unrelated offense, attempting to

alter a drug screen using synthetic urine in a bladder bag that was strapped to his person.

When Webb’s actual urine was collected, it tested positive for heroin.

       {¶ 4} On August 30, 2016, the trial court sentenced Webb for the above-named

offenses and placed him on community control sanctions for a period of four years. As

part of his community control, the trial court ordered Webb to pay a $250 fine, court costs,

and court-appointed counsel fees. The trial court also imposed a payment schedule
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whereby the trial court ordered Webb to pay all his financial obligations by August 1, 2020,

at a minimum of $50 per month.

       {¶ 5} On October 3, 2016, approximately a month after being placed on community

control, Webb’s probation officer filed a notice of supervision violation.        The notice

alleged that Webb had violated multiple conditions of his community control. Shortly

after receiving the notice, on October 12, 2016, the trial court held a hearing on the matter.

During this hearing, Webb admitted to all the alleged community control violations.

       {¶ 6} In sentencing Webb for the admitted violations, the trial court reimposed

community control for an extended period of five years and ordered Webb to pay all the

financial obligations that were previously imposed during the original sentencing hearing.

The trial court also ordered Webb to pay the court costs and court-appointed counsel fees

associated with the community control violation proceedings. For purposes of collection,

the trial court ordered the originally imposed payment schedule to remain in effect.

       {¶ 7} Five months later, on March 29, 2017, Webb’s probation officer filed a second

notice of supervision violation alleging that Webb had violated another condition of his

community control. On April 12, 2017, the trial court held a hearing on the matter during

which Webb again admitted to the alleged violation. The trial court thereafter revoked

Webb’s community control sanctions and sentenced him to 17 months in prison.

       {¶ 8} In addition to sentencing Webb to prison, the trial court ordered Webb to pay

all the financial obligations previously imposed. The trial court also ordered Webb to pay

the court costs and court-appointed counsel fees associated with the second community

control violation. In doing so, the trial court did not specifically indicate whether the

originally imposed payment schedule would remain in effect.
                                                                                         -4-


      {¶ 9} With regard to court-appointed counsel fees, the corresponding sentencing

entry provided that those fees would be separately collected by the clerk of court through

civil collection proceedings. However, with respect to court costs, the sentencing entry

referenced the previously imposed payment schedule and provided as follows:

             If the Defendant fails to pay that judgment [for court 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 until the judgment is paid or until the court is satisfied

      that the Defendant is in compliance with the approved payment schedule.

      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.

      R.C. 2947.23(A).

(Emphasis added.) Journal Entry of Disposition (April 13, 2017), Champaign County

C.P. No. 2016-CR-160, Docket No. 89, p. 6.

      {¶ 10} Webb now appeals from the sentence imposed by the trial court following

the revocation of his community control sanctions, raising one assignment of error for

review.



                                  Assignment of Error

      {¶ 11} Webb’s sole assignment of error is as follows:

      THE PAYMENT SCHEDULE IMPOSED BY THE TRIAL COURT MUST BE
                                                                                       -5-


      VACATED AND PURSUED THROUGH CIVIL PROCEEDINGS.

      {¶ 12} Under his assignment of error, Webb contends that the trial court erred at

sentencing by imposing a payment schedule for the collection of court costs and court-

appointed counsel fees. Specifically, Webb argues that the trial court had no authority

to enforce the payment of those costs and fees absent civil enforcement mechanisms.

The State concedes error based on State v. Kloeker, 2016-Ohio-7801, 73 N.E.3d 1167

(2d Dist.), State v. Johnson, 2016-Ohio-5160, 69 N.E.3d 176 (2d Dist.), and State v.

Eubanks, 2d Dist. Champaign No. 2015-CA-39, 2017-Ohio-2681.

      {¶ 13} In Kloeker, we vacated a similar court-ordered payment schedule for court

costs and court-appointed counsel fees on grounds that a trial court has no authority to

enforce those monetary obligations in a judgment entry absent civil enforcement

mechanisms.     Kloeker at ¶ 12-15.     Specifically, we held that “the execution of a

judgment against a criminal defendant for statutorily permitted costs and fees must be

pursued * * * through civil proceedings.” Id. at ¶ 12, citing State v. Springs, 2015-Ohio-

5016, 53 N.E.3d 804, ¶ 10 (2d Dist.). We further explained that:

              “[A]lthough trial courts have the authority to enforce their orders

      through contempt proceedings, R.C. 2705.02, an order to pay court costs is

      essentially a judgment on a contractual debt where the court is the creditor

      and the party ordered to pay court costs is the debtor.        As such, the

      creditor, i.e., the court, can collect only the money it is due by the methods

      provided for the collection of civil judgments.” Galluzzo v. Galluzzo, 2d

      Dist. Champaign No. 2012 CA 43, 2013-Ohio-3647, ¶¶ 6-7; State v.

      Johnson, supra, citing State v. Lamb, 163 Ohio App.3d 290, 2005-Ohio-
                                                                                           -6-


      4741, 837 N.E.2d 833, ¶ 13 (2d Dist.).           R.C. 2929.18(D) specifically

      provides that once a financial sanction is imposed as a judgment or order

      as part of a felony sentence, the collection of the sanction, including costs

      and appointed counsel fees, can proceed “in the same manner and form as

      a certificate of judgment issued in a civil action.”

             In State v. Springs, supra, we raised the concern that the trial court’s

      entry contained “the obligation to reimburse appointed-counsel fees

      blended into the court’s post-confinement repayment schedule, which we

      construe to be an element of enforcement.”             We concluded that “[i]f

      Champaign County, or the clerk thereof, desires to enforce the

      reimbursement to which the trial court’s findings entitle it, it must pursue civil

      execution collection proceedings.” Springs at ¶ 12. The same error we

      identified in Springs occurred in the case before us regarding the imposition

      of a payment plan for court appointed counsel fees in the sentencing entry.

      Subsequent to State v. Springs, we held that the imposition of a mandatory

      post-confinement payment plan for court costs is also improper. State v.

      Johnson, supra, at ¶ 39. “Since costs from a criminal action can only be

      collected through civil enforcement mechanisms, the trial court erred when

      it ordered Johnson to remit the costs from his criminal action through the

      fee schedule it created and included in his judgment entry of conviction.”

      Id.

Kloeker at ¶ 13-14. Accord Eubanks at ¶ 11-12. See also Johnson at ¶ 38-39.

      {¶ 14} Pursuant to our decisions in Kloeker, Johnson, and Eubanks, the
                                                                                          -7-


reimbursement of court costs and court-appointed counsel fees must be pursued through

civil collection proceedings.   As noted above, such costs and fees are not properly

collected through a court-ordered payment schedule.

       {¶ 15} In this case, the trial court’s initial two entries sentencing Webb to

community control sanctions improperly ordered Webb to pay court costs and court-

appointed counsel fees via a payment schedule.             However, the sentencing entry

appealed from (the April 13, 2017 entry sentencing Webb to prison) did not expressly

order Webb to pay court costs and court-appointed counsel fees via the payment

schedule.   Instead, the entry properly ordered court-appointed counsel fees to be

collected through civil collection proceedings, but referenced the improper payment

schedule when ordering the payment of court costs. As previously noted, the entry

stated as follows:

              If the Defendant fails to pay that judgment [for court 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 until the judgment is paid or until the court is satisfied

       that the Defendant is in compliance with the approved payment schedule.

       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. R.C. 2947.23(A).

(Emphasis added.) Journal Entry of Disposition (April 13, 2017), Docket No. 89, p. 6.
                                                                                         -8-


      {¶ 16} The foregoing language arguably indicates that the previously imposed

payment schedule is still in effect for the collection of court costs. Since costs from a

criminal action can only be collected through civil enforcement mechanisms, the trial court

erred when it referenced the payment schedule in the sentencing entry at issue. See

State v. Ragland, 2d Dist. Champaign No. 2015-CA-36, 2017-Ohio-2783, ¶ 14.

      {¶ 17} We also note that the aforementioned language in the sentencing entry

tracks the language in R.C. 2947.23(A)(1)(a), which provides as follows:

             In all criminal cases, including violations of ordinances, the judge or

      magistrate shall include in the sentence the costs of prosecution, including

      any costs under section 2947.231 of the Revised Code, and render a

      judgment against the defendant for such costs. If the judge or magistrate

      imposes 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

      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.
                                                                                           -9-


(Emphasis added.) R.C. 2947.23(A)(1)(a)(i)-(ii).

       {¶ 18} Pursuant to R.C. 2947.23(A)(1)(a), when sentencing a defendant to

community control, the trial court is required to notify the defendant that if he or she fails

to pay a judgment for court costs, the court can order the defendant to perform community

service, for which the defendant will receive credit toward the costs owed. Although the

trial court gave such a notification in the sentencing entry at issue, the notification was

not required since Webb was sentenced to prison. See State v. Wade, 2d Dist. Clark

No. 2015-CA-45, 2015-Ohio-5171, ¶ 16-19.

       {¶ 19} To the extent that R.C. 2947.23(A)(1)(a) references a “payment schedule

approved by the court” we stress that, despite that language, the execution of a judgment

against a criminal defendant for court costs must be pursued through civil proceedings,

not through a court-ordered payment schedule. Specifically, “the state may use any

collection method that is available for collection of a civil judgment for money, as well as

the procedures set out in R.C. 5120.133 if the defendant is incarcerated.” State v.

Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 16. Accord Dibert v.

Carpenter, 2018-Ohio-1054, 98 N.E.3d 350, ¶ 53 (2d Dist.).

       {¶ 20} Because the trial court improperly referenced the court-ordered payment

schedule for court costs in the sentencing entry at issue, Webb’s assignment of error is

sustained.




                                        Conclusion

       {¶ 21} Having sustained Webb’s assignment of error, the trial court’s sentencing
                                                                                           -10-


entry of April 13, 2017, is modified to excise the following language on page six of the

entry:

               If the Defendant fails to pay that judgment [for court 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 until the judgment is paid or until the court is satisfied

         that the Defendant is in compliance with the approved payment schedule.

         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.

         R.C. 2947.23(A).

As modified, the judgment of the trial court is affirmed.

                                       .............



FROELICH, J. and HALL, J., concur.



Copies mailed to:

Jane A. Napier
Amy Ferguson
Sean Corey Webb
Hon. Nick A. Selvaggio
