[Cite as State v. Hodge, 2015-Ohio-3724.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                       C.A. No.       14CA010648

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
EDWARD M. HODGE                                     COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   12CR084444

                                 DECISION AND JOURNAL ENTRY

Dated: September 14, 2015



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Edward Hodge, appeals the judgment of the Lorain County

Court of Common Pleas convicting him of nonsupport of dependents and ordering him to pay

restitution, the fees of his court-appointed attorney, and court costs. On appeal, Hodge only

challenges the trial court’s restitution award and order that he pay costs and the court-appointed

counsel fees. For the reasons that follow, we affirm.

                                                I

        {¶2}     Hodge was indicted on one count of nonsupport of dependents in violation of

R.C. 2929.21(B), a felony of the fifth degree. The indictment arose from Hodge’s failure to

comply with the child support order for the care of his child, E.T., during the period from

December 1, 2009 until December 1, 2011. Hodge pled guilty to the charge.

        {¶3}     The trial court subsequently sentenced him to a jail term of eight months

suspended on the condition that he comply with his community control sanctions.             These
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sanctions included an order that Hodge pay “[r]estitution and past court ordered child support

arrearage in the amount of $18,616.46.” The trial court also ordered that Hodge repay the court

costs of the case and the fees of his court-appointed counsel, which totaled $1,407.

       {¶4}    Hodge filed this timely appeal, raising four assignments of error for our review.

                                                 II

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       ORDERED RESTITUTION IN EXCESS OF THE ARREARS THAT
       ACCRUED DURING THE PERIOD IN THE INDICTMENT.

       {¶5}    In his first assignment of error, Hodge asserts that the trial court erred by

imposing community control sanctions ordering him to pay restitution and repay his entire child

support arrearage, which included arrearages that accrued outside the period specified in the

indictment. We disagree.

       {¶6}    R.C. 2929.15(A)(1) authorizes trial courts to impose community control sanctions

on felony offenders as opposed to a prison term.         “Trial courts enjoy broad discretion in

fashioning community control sanctions, but that discretion is not boundless.” State v. Taylor,

9th Dist. Lorain Nos. 13CA010366-13CA010369, 2014-Ohio-2001, ¶ 4. Therefore, we review a

trial court’s imposition of community control sanctions for an abuse of discretion. Id. An abuse

of discretion occurs when the trial court’s decision is “unreasonable, arbitrary, or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the

abuse of discretion standard, a reviewing court is precluded from simply substituting its own

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶7}    Restitution is a permissible community control sanction pursuant to R.C. 2929.18.

It specifically allows restitution by the offender to the victim “in an amount based on the victim’s
                                                3


economic loss.” R.C. 2929.18(A)(1). “If a trial court requires a defendant to pay restitution as

part of a felony sentence, the court’s specific award of restitution is limited to the amount of

arrearage that accrued during the time period covered by the indictment.” State v. Morrow, 9th

Dist. Lorain Nos. 14CA010552, 14CA010553, 2015-Ohio-2627, ¶ 7, citing State v. Henderson,

2d Dist. Montgomery No. 24849, 2012-Ohio-3499, ¶ 13. Nevertheless, “in addition to ordering

restitution either as an unconditional part of a sentence or a condition of community control, a

trial court may also order the payment of all child support arrearages so long as such payment is

ordered as a reasonable condition of community control.” Id. at ¶ 8 (collecting cases). When

assessing the reasonableness of a community control sanction, we consider if the sanction: “(1) is

reasonably related to rehabilitating the offender; (2) has some relationship to the crime of which

the offender was convicted; and (3) relates to conduct which is criminal or reasonably related to

future criminality and serves the statutory ends of probation.” State v. Jones, 49 Ohio St.3d 51,

53 (1990).

       {¶8}    We addressed the same argument raised by Hodge in Morrow. Under the facts of

that case, we determined that the Jones factors supported the trial court’s community control

sanction of repaying his entire child support arrearage, including the amount that accrued outside

of the indictment period. Morrow at ¶ 11-12. Since this matter implicates identical facts to those

addressed in Morrow, we reach the same conclusion here. The trial court’s order that Hodge

repay his overdue court-ordered child support is reasonably related to rehabilitating him from the

charged offense of nonpayment of child support, has a close relationship to the offense, and

relates to the criminal conduct underlying the offense. Additionally, the trial court did not

impermissibly require restitution beyond the victim’s economic loss since it ordered payment of

“[r]estitution and past court ordered child support arrearage[.]” (Emphasis added.) See id. at ¶ 12
                                                 4


(finding no abuse of discretion where trial court “ordered payment of “[r]estitution and past

court-ordered child support arrearage”) (Emphasis sic.).

       {¶9}    Accordingly, we overrule Hodge’s first assignment of error.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       ORDERED RESTITUTION AND THE REPAYMENT OF COURT
       APPOINTED ATTORNEY FEES.

       {¶10} In his second assignment of error, Hodge argues that the trial court erred in

ordering that he pay restitution and the fees of his court-appointed counsel since the record does

not reflect that he has the ability to pay those sanctions. We disagree.

       {¶11} As part of its community control sanctions, a trial court may impose a restitution

award. R.C. 2929.15(A)(1). R.C. 2929.18 governs the imposition of restitution awards in felony

cases, State v. McKinney, 9th Dist. Summit No. 21123, 2003-Ohio-362, ¶ 25, and if a trial court

decides to impose a restitution award, it “shall consider the offender’s present and future ability

to pay the amount of the sanction[,]”       R.C. 2929.19(B)(5).      Additionally, a trial court is

empowered to “order a criminal defendant to repay the costs of his appointed counsel” as a

condition of community control. State v. Barnes, 9th Dist. Lorain No. 06CA009034, 2007-Ohio-

2460, ¶ 8, citing State v. Trembly, 137 Ohio App.3d 134, 144 (8th Dist.2000). An order to repay

court-appointed attorney fees is also subject to the requirement that the trial court consider the

defendant’s ability to pay. State v. El-Jones, 9th Dist. Summit No. 26136, 2012-Ohio-4134, ¶

37. While “ ‘there are no express factors that must be taken into consideration or findings

regarding the offender’s ability to pay that must be made on the record[,]’ * * * the record must

reflect that the court actually considered the defendant’s ability to pay.” State v. Williams, 9th
                                                  5


Dist. Summit No. 26014, 2012-Ohio-5873, ¶ 17, quoting State v. Martin, 140 Ohio App.3d 326,

327 (4th Dist.2000).

       {¶12} Here, the record reflects that the trial court considered Hodge’s ability to pay

before imposing the restitution award and order that he repay his court-appointed attorney fees.

At the sentencing hearing, Hodge’s trial counsel stated that Hodge had a summer job the

previous year waterproofing houses and that he was “hoping to get a job sometime” in the

summer of 2013. Additionally, there was no indication in the record that Hodge was physically

unable to hold a job. In light of this evidence in the record, we cannot determine that the trial

court abused its discretion in determining that Hodge has the ability to pay restitution and the

fees of his court-appointed counsel. See Morrow, 2015-Ohio-2627, at ¶ 17 (determining that

trial court did not abuse its discretion in determining that the defendant had the ability to pay

restitution and court-appointed counsel fees where the defendant had not had a job for two years,

but was applying for jobs and “was physically fit and capable of holding a job”). Finally, as we

noted in Morrow, by ordering that Hodge repay his outstanding child support arrearages, the trial

court merely ordered Hodge to comply with underlying court orders and it “was not required to

reconsider, in any more depth than the appellate record reflects, another court’s determination of

ability to pay when that court originally ordered child support.” Id. at ¶ 18, citing State v. Fuller,

8th Dist. Cuyahoga No. 101325, 2015-Ohio-523, ¶ 22.

       {¶13} Accordingly, we overrule Hodge’s second assignment of error.

                                  ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT ORDERED THE REPAYMENT OF
       THE COSTS OF PROSECUTION IN VIOLATION OF R.C. 2919.21(G)(2).
                                                6


         {¶14} In his third assignment of error, Hodge contends that the trial court erred in

ordering him to repay the costs of prosecution without first determining his ability to pay the

costs. We disagree.

         {¶15} R.C. 2947.23(A)(1)(a) states that “[i]n 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.” (Emphasis added.) The imposition of costs is also

specifically enumerated in R.C. 2919.21(G)(2), which governs the sentences to be imposed in

criminal nonsupport of dependents cases. See R.C. 2919.21(G)(2) (“If the offender is guilty of

nonsupport of dependents by reason of failing to provide support to the offender’s child as

required by a child support order * * *, the court, in addition to any other sentence imposed,

shall assess all court costs arising out of the charge against the person[.]”) (Emphasis added.).

Unlike financial sanctions issued pursuant to R.C. 2929.19, the imposition of court costs under

R.C. 2947.23 does not require the trial court to first consider the defendant’s ability to pay. See

State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012-Ohio-112, ¶ 45 (“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.”). Indeed, the plain terms of the statute

mandates trial courts to impose costs “against all convicted defendants, even those who are

indigent.” (Emphasis added.) Id. at ¶ 46, citing State v. White, 103 Ohio St.3d 580, 2004-Ohio-

5989, ¶ 8 (“R.C. 2947.23 does not prohibit a court from assessing costs against an indigent

defendant; rather it requires a court to assess costs against all convicted defendants.”) (Emphasis

sic.).

         {¶16} Although trial courts are required to impose court costs on the convicted

defendant in all criminal cases, the defendant is able to request a waiver of the payment of those
                                                  7


costs. White at ¶ 18. But, the defendant must move for such a waiver when he is informed of the

costs judgment. See State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph two of the

syllabus (“A motion by an indigent criminal defendant for waiver of payment of costs must be

made at the time of sentencing.”). The failure to make this necessary motion results in a

forfeiture of the issue on appellate review. Id. at ¶ 23.

       {¶17} Here, the trial court was not required to consider Hodge’s ability to pay the

amount of the court costs judgment. As a result, its failure to do so does not constitute error. See

Morrow, 2015-Ohio-2627, at ¶ 22 (affirming trial court’s court costs judgment against

defendants convicted of felony nonsupport of dependents). Moreover, Hodge never moved for a

waiver of the payment of court costs after the trial court informed him about the costs judgment.

Thus, he has forfeited any appellate review on that point. E.g., Lux at ¶ 48 (“[The defendant] did

not request a waiver of the payment of court costs at sentencing. Accordingly, he cannot

challenge the imposition of court costs on direct appeal.”). Finally, to the extent that Hodge

argues the trial court erred in ordering him to repay the attorney fees and expenses incurred by

the prosecutor’s office in prosecuting this matter, we must also reject his position since no such

order was issued. “The court did not, and could not under R.C. 2919.21(G)(2), order [Hodge] to

pay any attorney[] fees to reimburse the prosecutors for their time and expertise. Nor did the

court in this case order reimbursement to the State for expenses that originated in the

prosecutor’s office apart from expenses charged by the clerk’s office.” Morrow at ¶ 22.

       {¶18} Accordingly, we overrule Hodge’s third assignment of error.

                              ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED WHEN IT INCLUDED ADMINISTRATIVE
       FEES IN THE RESTITUTION AWARD.
                                                 8


       {¶19} In his fourth assignment of error, Hodge argues that the trial court erred by

ordering him to repay the outstanding processing fees owed to the Lorain County Child Support

Enforcement Agency. We disagree.

       {¶20} We previously addressed this argument in Morrow. Based on R.C. 3119.27(A)’s

mandate that courts impose a two percent processing fee on support payments, we concluded that

the trial court did not abuse its discretion in ordering that the defendant repay outstanding

processing fees as part of his community control sanction for a criminal nonsupport conviction.

Morrow at ¶ 24. Since this matter implicates the same facts and argument, we see no reason to

disregard Morrow here and we conclude that the trial court did not abuse its discretion in

ordering that Hodge repay outstanding processing fees in this matter.

       {¶21} Accordingly, we overrule Hodge’s fourth assignment of error.

                                                III

       {¶22} Having overruled all of Hodge’s assignments of error, we affirm the judgment of

the Lorain County Court of Common Pleas.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                9


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

ZACHARY B. SIMONOFF, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and GREG PELTZ, Assistant Prosecuting Attorney,
for Appellee.
