[Cite as State v. Copeland, 2016-Ohio-7797.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :  Appellate Case No. 26842
                                                     :
 v.                                                  :  Trial Court Case No. 2014-CR-2192
                                                     :
 JOSEPH L. COPELAND                                  :  (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :
                                                ...........

                                               OPINION

              Rendered on the            18th     _   day of   November     , 2016.

                                                ...........

MEAGAN D. WOODALL, Assistant Prosecuting Attorney, Atty. Reg. No. 0093466, 301
West Third Street, 5th floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JOSEPH L. COPELAND, #709-088, Madison Correctional Institution, P.O. Box 740,
London, Ohio 43140
     Defendant-Appellant

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

FROELICH, J.

        {¶ 1} Joseph Copeland appeals pro se from the trial court’s denial of his motion to

waive court costs or stay payment.

        {¶ 2} Copeland pled guilty to one count of aggravated burglary.               The court

sentenced him to a mandatory term of five years in prison and imposed court costs.

Copeland did not appeal. Nine months later, he filed a “Motion to Vacate or Remit Court
                                                                                          -2-


Costs”; in the memorandum to the motion, he requested, in the alternative, that costs be

stayed until his release from prison. Copeland alleged that the trial court had failed to

inform him of court costs at the sentencing hearing, as it must under R.C. 2947.23(A)(1).

Copeland also said that he earns only $17 each month for his work in prison and that

anything he needs other than food, shelter, and clothing, he must pay for with that $17.

He argues he cannot afford to make payments toward the court costs.

       {¶ 3} The trial court overruled the motion. The court stated that it had watched

the video of the sentencing hearing and confirmed that it ordered Copeland to pay court

costs. As to the stay request, the court pointed out that Ohio Adm.Code 5120-5-03

establishes procedures for withdrawing money from an inmate’s account to satisfy court-

ordered financial obligations. Division (D) states that withdrawals are allowed to satisfy

these obligations “as long as the account retains twenty-five dollars for inmate

expenditures.” The last line of the trial court’s decision “overrule[d] the defendant’s

request to ‘grant him a stay on his court costs until his release.’ ” The court implicitly

rejected Copeland’s request that court costs be vacated or waived in their entirety.

       {¶ 4} Copeland appeals from the denial of his motion to waive court costs or stay

payment. His sole assignment of error alleges that “[t]he trial court abused its discretion

when it failed to consider Appellant’s present and future ability to pay court costs pursuant

to R.C. §2929.19(B)(6).”

       {¶ 5} On August 23, 2016, after a preliminary review, we informed the parties that

“members of the panel have concerns that certain issues that may be pertinent to this

appeal have not been addressed in the parties’ briefs.” We invited the parties to file

supplemental briefs on “whether or what standard of indigency or ability-to-pay factors
                                                                                           -3-


must be considered by the trial court,” including whether taking court costs from an

inmate’s prison account is affected by state or federal statutes governing collection of civil

judgments, and if so, which court has jurisdiction over taking of court costs from a prisoner

account. The State filed a supplemental brief on September 30, 2016; Copeland did not

file a supplemental brief.

       {¶ 6} It is well established that court costs are properly assessed against a

defendant, regardless of the defendant’s indigency. State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393. R.C. 2947.23(A)(1)(a) provides: “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.”       (Emphasis added.)

       {¶ 7} R.C. 2949.14 expressly authorizes the collection of court costs by the clerk

of the common pleas courts against nonindigent persons convicted of felonies.

However, the Ohio Supreme Court has recognized that “collection from indigent

defendants is merely permissive.” White at ¶ 14.

       {¶ 8} Other statutes also address the collection of court costs. Effective March

22, 2013, the Ohio legislature amended R.C. 2947.23 to expressly provide that a trial

court “retains jurisdiction to waive, suspend, or modify the payment of the costs of

prosecution, including any costs under section 2947.231 of the Revised Code, at the time

of sentencing or at any time thereafter.” In addition, courts are authorized to cancel all

or part of claims for costs due the court, “[i]f at any time the court finds that an amount

owing to the court is due and uncollectible, in whole or in part.” R.C.1901.263 (municipal

court); R.C.1905.38 (mayor’s court); R.C. 1907.251 (county court); R.C. 1925.151 (small
                                                                                             -4-


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. 2503.18 (supreme

court).

          {¶ 9} On appeal, Copeland claims that the trial court erred in failing to consider his

present and future ability to pay court costs in denying his motion.1 In its decision, the

trial court briefly discussed the administrative process for withdrawing money from an

inmate’s account and denied a waiver or a stay of court costs “[g]iven that the defendant

will only pay court costs only [sic] if there are sufficient funds in the inmate’s account –

and only as long as the account retains twenty-five dollars for inmate expenditures.” In

reaching this determination, the trial court apparently concluded that the Ohio

Administrative Code provisions regarding garnishment from inmate accounts control

when it is appropriate to require a criminal defendant to pay court costs that were

imposed.

          {¶ 10} The Ohio Administrative Code contains numerous provisions specifying the

sources from which monetary judgments can be collected from inmates and limitations

on collection. However, this appeal is not about collection of court costs from an inmate,

but whether the trial court erred in denying a waiver or stay of future payment of those

costs; these are separate questions.

          {¶ 11} Although a trial court need not consider whether a defendant has a present



1
  Copeland’s motion asserted that court costs were not properly imposed at sentencing,
but he does not raise this issue on appeal. Regardless, such potential assignment is
potentially either barred by res judicata or is moot since, now that R.C. 2947.23(C) allows
post-judgment waiver of payment, a defendant may not be able to establish that he or
she was prejudiced. See State v. Weddington, 4th Dist. Scioto No. 15CA3695, 2015-
Ohio-5249, ¶ 3.
                                                                                          -5-


or future ability to pay court costs when court costs are assessed, the trial court should

consider the defendant’s ability to pay when a defendant subsequently moves for a

waiver, modification, or stay of the payment of court costs. The collection provisions of

the   Ohio   Administrative    Code,   while   perhaps   relevant,   are   not   dispositive.

Consequently, the trial court’s reliance on those provisions alone in denying Copeland’s

motion was not an exercise of its discretion in determining whether the payment of court

costs should be waived, modified, or stayed.

       {¶ 12} The trial court’s denial of Copeland’s motion will be reversed, and the case

will be remanded for consideration of whether Copeland had a present or future ability to

pay the court costs imposed.

                                       ..........
DONOVAN, P.J., concurring:
       {¶ 13} I would find that the trial court did abuse its discretion by not determining

whether Copeland had the ability to pay the court costs imposed as part of Copeland’s

felony sentence after the application of Ohio’s exemption statute. R.C. 2949.092 does

allow a court to waive mandatory costs if “the court determines that the offender is

indigent.” In the present case, the trial court made no finding of Copeland’s indigency or

ability to pay, or whether the funds in Copeland’s account were exempt from attachment.

       {¶ 14} The trial court’s reliance on Ohio Admin.Code 5120-5-03 for determining

an inmate’s ability to pay is insufficient, by failing to consider the entire rule and the

statutory authority for the rule, which both provide limitations on the attachment of assets

in an inmate’s prison account. Most importantly, the statute and the rule mandate the

application of Ohio’s exemption statute, R.C. 2329.66, which specifically exempts certain
                                                                                      -6-


assets from attachment.

      {¶ 15} The authority of the Department of Corrections to attach inmate accounts

to pay court judgments and to establish rules for processing such payments is found in

R.C. 5120.133, as follows:

              (A) The department of rehabilitation and correction, upon receipt of

      a certified copy of the judgment of a court of record in an action in which a

      prisoner was a party that orders a prisoner to pay a stated obligation, may

      apply toward payment of the obligation money that belongs to a prisoner

      and that is in the account kept for the prisoner by the department. The

      department may transmit the prisoner’s funds directly to the court for

      disbursement or may make payment in another manner as directed by the

      court. Except as provided in rules adopted under this section, when an

      amount is received for the prisoner’s account, the department shall use it

      for the payment of the obligation and shall continue using amounts received

      for the account until the full amount of the obligation has been paid. No

      proceedings in aid of execution are necessary for the department to take

      the action required by this section.

             (B) The department may adopt rules specifying a portion of an

      inmate’s earnings or other receipts that the inmate is allowed to retain to

      make purchases from the commissary and that may not be used to satisfy

      an obligation pursuant to division (A) of this section. The rules shall not

      permit the application or disbursement of funds belonging to an

      inmate if those funds are exempt from execution, garnishment,
                                                                                         -7-


      attachment, or sale to satisfy a judgment or order pursuant to section

      2329.66 of the Revised Code or to any other provision of law.

(Emphasis added.)

      {¶ 16} The rule promulgated by the Department of Corrections to establish

procedures for attaching an inmate’s assets for the payment of a court judgment, Ohio

Adm.Code 5120-5-03(C), states:

             (C) When a certified copy of a judgment from a court of proper

      jurisdiction is received directing the DRC to withhold funds from an inmate’s

      account, the warden’s designee shall take measures to determine whether

      the judgment and other relevant documents are facially valid. If a facial

      defect is found then a letter of explanation shall be sent to the clerk or other

      appropriate authority and the collection process stops until the defect is

      cured. If no defect is found, the warden’s designee shall promptly deliver to

      the inmate adequate notice of the court-ordered debt and its intent to seize

      money from his/her personal account. The required notice must inform

      the inmate of a right to claim exemptions and types of exemptions

      available under section 2329.66 of the Revised Code and a right to

      raise a defense as well as an opportunity to discuss these objections

      with the warden’s designee. This practice provides safeguards to

      minimize the risk of unlawful deprivation of inmate property.

(Emphasis added.)

      {¶ 17} Ohio’s exemption statute, R.C. 2329.66, exempts specific types of assets

from attachment. The record is not developed enough to establish whether the
                                                                                         -8-


compensation paid to inmates under the work program or under private employment is

considered wages or personal earnings, triggering the exemptions for wages provided by

R.C. 2329.66(A)(13)(a).     The Department of Corrections Rules describe the rate of

compensation for different types of work assignments, which range from three dollars per

month to a maximum of twenty-four dollars per month, to be paid to the inmate’s personal

checking account. Ohio Adm.Code 5120-3-08(A)(1)-(7). Based on the limit of 140 hours

per month, the maximum hourly rate available for the inmate work program is 17 cents

per hour, although the rate of pay for private employment is not specified. Even if the

inmate’s assets are not considered “personal earnings”, it is clear that the exemption

statute, R.C. 2329.66, is applicable to the attachment of inmate assets held in their prison

accounts, as recognized by statute, R.C. 5120.133 and by rule, Ohio Adm.Code 5120-5-

03.

       {¶ 18} The procedure outlined in the Department of Corrections Rules for the

attachment of inmate accounts, Ohio Adm.Code 5120-5-03, appears to be a continuous

process, which begins upon receipt of a court judgment, and remains in effect until the

court judgment is paid in full. The rule specifically provides that,

              If withdrawals are authorized and if there are insufficient funds in the

       inmate’s account to satisfy the amount shown as due, a monthly check shall

       be issued payable to the appropriate clerk’s office or in another matter as

       directed by the court, for the amount of monthly income received into the

       inmate’s account which exceeds twenty-five dollars until the full amount of

       the court obligation has been paid. The hold shall remain on the inmate’s

       account until sufficient funds have been paid to satisfy the amount shown
                                                                                          -9-


       as due on the balance remaining thereon.

Ohio Adm.Code 5120-5-03(E).

       {¶ 19} The Department of Corrections Rule that allows the attachment of all funds

in an inmate’s account, as long as $25.00 remain in the account, appears to conflict with

the exemption statute, R.C. 2329.66(A)(3), which exempts up to $4752 of money “on

deposit with a bank, savings and loan association, credit union, public utility, landlord, or

other person.” Before summarily denying Copeland’s motion to vacate costs, the trial

court should determine whether the exemption statute permits attachment and whether

any other applicable statute dictates a finding of indigency.

       {¶ 20} We have previously concluded that execution of a judgment for court costs

entered in a criminal felony sentencing order must be conducted in the same manner as

other civil judgments are collected. Galluzzo v. Galluzzo, 2d Dist. Champaign No. 2012

CA 43, 2013-Ohio-3647, ¶¶ 6-7; State v. Springs, 2015-Ohio-5016, 53 N.E.3d 804 (2d

Dist.). Civil judgments are collected under the authority of R.C. 2333.21 which provides

as follows:

               The judge may order any property of the judgment debtor that is not

       exempt by law to be applied toward the satisfaction of the judgment, but the

       earnings of the judgment debtor for personal services shall be applied only

       in accordance with sections 2329.66 and 2329.70 and Chapter 2716. of the

       Revised Code.

       {¶ 21} The method of collecting civil judgments outlined in R.C. 2333.21 appears


2
 Exemption amounts are annually updated, pursuant to R.C. 2329.66(A)(18)(B).
Current exemption amounts are found at http://www.ohiojudges.org/Document.ashx?
DocGuid=c6a5f473-62f4-4466-9e4f-aaf7b59c1b66.
                                                                                          -10-


to be in direct conflict with the provision in R.C. 5120.133 which authorizes the

Department of Corrections to assist the courts in collecting court ordered obligations

without compliance with the procedures required for aid in executions including

garnishments and attachments of judgment debtors under Chapter 2716 of the Revised

Code. The record is not developed to determine whether an inmate’s compensation under

the work program or private employment while incarcerated is considered “personal

earnings”, as defined in R.C. 2716.01. If the trial court had conducted a hearing or

ordered responsive pleadings to Copeland’s motion to vacate costs, the record would

have developed a factual basis to facilitate our review.

       {¶ 22} In State v. Chase, 2d Dist. Montgomery No. 26238, 2015-Ohio-545, we

reversed the trial court’s denial of a post-conviction motion to vacate costs because the

trial court did not make sufficient findings to permit meaningful review of its decision under

an abuse of discretion standard. Id. at ¶ 17. The minimal facts presented to the court in

Chase are nearly identical to the facts Copeland presented to the trial court in the case

before us. Chase stated that he earns $18.00 a month and Copeland stated that he earns

$17.00 a month while incarcerated, which is deposited into a personal prison account.

Both stated that out of the prison account, they must pay for their own basic hygiene and

health care products and a $2 co-pay each time they seek medical care. In both cases,

the trial court summarily denied the motion to vacate costs, without a hearing and without

factual findings. In Chase, we stated, “[b]ecause the trial court’s statutory authority to

waive costs is permissive, its decision whether to do so is reviewed under an abuse-of-

discretion standard of review. The trial court did not present any reasons or explanation

for its decision.” Id. at ¶ 14. “The lynchpin of abuse-of-discretion review is the
                                                                                             -11-

determination whether the trial court's decision is reasonable.” Id. at ¶ 17, citing AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990). “Unless the reason or reasons for the trial court’s

decision are apparent from the face of the record, it is not possible to determine if the

decision is reasonable without some explanation of the reason or reasons for that

decision.” Id. Without a full explanation, I am at a loss as to how the trial court could

reasonably conclude that a judgment debtor who only earns $17.00 a month is not

indigent or has the ability to pay a court ordered judgment for costs. As in the Chase

case, we should reverse the order of the trial court and remand this cause to the trial court

for re-consideration of Copeland’s motion, with directions to provide a sufficient

explanation of the reason or reasons for the trial court’s decision which would permit us

to review that decision, should either party choose to appeal, under an abuse-of-

discretion standard of appellate review.

       {¶ 23} I also note that Copeland’s concerns about his inability to file a timely motion

had he not been informed at sentencing that court costs were to be imposed are

unfounded because his motion is in fact timely. R.C. 2947.23(C) provides: “The court

retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution,

including any costs under section 2947.231 of the Revised Code, at the time of sentencing

or at any time thereafter.” Post-conviction, a defendant may also seek a cancellation of

the debt under R.C. 2303.23, which provides, “[i]f 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.” Thus, the trial court has jurisdiction to consider a post-conviction motion
                                                                                          -12-


to waive or cancel an order for costs, and a defendant has the right to appellate review of

the decision on that post-conviction motion. I also would reverse and remand this matter

for re-consideration of Copeland’s ability to pay after application of the applicable

exemption statutes to effectuate a meaningful review.

                                        ..........

HALL, J., dissenting:

       {¶ 24} There is no case law, there is no statute, there is no regulation and there is

no exercise of discretion which requires a trial court to explicitly consider an incarcerated

defendant’s ability to pay court costs when ruling on a post-judgment motion to waive or

stay payment of court costs. I therefore dissent.

       {¶ 25} The imposition of court costs is governed by R.C. 2947.23, and this statute

requires a court to impose them “against all convicted defendants, even those who are

indigent,” State v. Fuller, 2d Dist. Montgomery No. 25380, 2013-Ohio-3274, ¶ 18, citing

id. and State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 46, citing State v.

White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8 (saying that R.C.

2947.23 “requires a court to assess costs against all convicted defendants” (Emphasis

sic.)). What a court may do, though, is “waive the payment of costs.” (Emphasis sic.) State

v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11. No law requires a

trial court to “consider a defendant’s ability to pay, as required by R.C. 2929.19 for the

imposition of financial sanctions, before imposing court costs.” (Citation omitted.) Fuller

at ¶ 19. Accord State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 45 (saying

that “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 court costs”). Therefore,
                                                                                               -13-


the trial court here did not err if it did not consider Copeland’s ability to pay before

imposing court costs. If there is no requirement to consider ability to pay at the time of

court cost imposition, I fail to see how a trial court is required to consider ability to pay

when a post-judgment motion to waive or suspend collection of court costs is filed one

week, one year or five years later. There is simply no precedent or statute to support such

a notion.

       {¶ 26} Because authority for a trial court to consider a request for waiver of court

costs subsequent to sentencing did not exist until the amendment of R.C. 2947.23(C),

effective March 22, 2013, there is little case law on what a post-sentence waiver entails.

However, it is clear that the Supreme Court has previously held that a decision whether

to waive payment of court costs, at least at sentencing, is reviewed on an abuse of

discretion standard. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d

164, ¶ 23. That case also concluded “R.C. 5120.133(A), which permits the Department of

Rehabilitation and Correction to deduct payments toward a certified judgment from a

prisoner's account without any other required proceeding in aid of execution, is merely

one method of collection against defendants who are incarcerated (and therefore are

most likely indigent).” Id. ¶ 13. If a trial court is not required to consider ability to pay court

costs upon imposition, and if deduction of payments from a prisoner account is specifically

authorized by statute (R.C. 5120.133), “as long as the account retains twenty-five dollars

for inmate expenditures” (Ohio Adm.Code 5120-5-03(D)), then a trial court does not

abuse its discretion if it does not consider ability to pay when ruling on a post-sentence

motion to waive court costs. We have previously found no abuse of discretion when a trial

court refused to grant a waiver of court costs for a prisoner serving a 22-year sentence
                                                                                          -14-

who had costs collected from his meager prisoner account. State v. Hawley, 2d Dist.

Montgomery No. 25897, 2014-Ohio-731. If we were unable to find an abuse of discretion

in Hawley, then there is no abuse of discretion with respect to Copeland whose sentence

will end in less than 3 more years.

       {¶ 27} Likewise, on this record, there is no basis upon which to consider potential

exemptions from collection. Appellant does not assert that the Ohio Department of

Rehabilitation and Corrections (ODRC) failed to comply with Ohio Adm.Code 5120-5-03

or that he raised possible exemptions or defenses under those rules. Even if he did, the

trial court in Montgomery County, Ohio does not have jurisdiction over ODRC actions at

Madison Correctional Institution, in Madison County, where Copeland is incarcerated. On

this record we have no assigned error, no record to support a claimed exemption, a

statute that specifically authorizes the payment, and no authority to consider the

possibility of any potential exemption that is superseded by R.C. 5120.133.

       {¶ 28} Finally, although I am firmly convinced that the trial court was not required

to consider ability to pay, the record does not support a conclusion that the trial court

failed to do so. The trial court pointed out that Ohio Adm.Code 5120-5-03 establishes

procedures for withdrawing money from an inmate’s account to satisfy court-ordered

financial obligations. Division (D) states that withdrawals are allowed to satisfy these

obligations “as long as the account retains twenty-five dollars for inmate expenditures.”

In my opinion, the trial court recognized that statutory policy decision that the legislature

has made determining that a prisoner does have an ability to pay provided that a minimum

of $25.00 remains in the prisoner’s account.

       {¶ 29}   For all these reasons, I dissent.
                                        -15-


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



Copies mailed to:


Meagan D. Woodall
Joseph L. Copeland
Hon. Dennis J. Langer
