[Cite as State v. Hornacky, 2011-Ohio-5821.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95631




                                      STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                   MARC HORNACKY
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                Case Nos. CR-475474, CR-473470, CR-474173 and CR-476417

        BEFORE:             Sweeney, J., Blackmon, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                       November 10, 2011
ATTORNEY FOR APPELLANT

Marc Hornacky, Pro Se
No. A-503-829
Marion Correctional Inst.
P.O. Box 57
940 Marion-Williamsport Road
Marion, Ohio 44302

ATTORNEY FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: James Hofelich, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

       {¶ 1} Defendant-appellant Marc J. Hornacky (“defendant”) appeals the court’s

denial of his motion to vacate court costs, fines, and fees.   After reviewing the facts of

the case and pertinent law, we affirm.

       {¶ 2} On April 13, 2006, defendant, who had previously been declared indigent,

pled guilty to multiple theft related offenses in four cases, and the court sentenced him to

an agreed upon six years in prison. At the sentencing hearing, the court failed to notify

defendant about court costs; however, the sentencing journal entry states “defendant is to

pay court costs.”
         {¶ 3} On May 30, 2008 and July 19, 2010, defendant filed motions to vacate court

costs, fines, and fees.   The court denied these motions, stating that “Defendant may work

off court costs via community work service as approved by the warden’s office.”

Defendant appeals the denial of the July 19, 2010 motion, raising one assignment of error

for our review.

         {¶ 4} I.   “The trial court erred prejudicially to the appellant when it imposed

assigned counsel fee and courts costs to an indigent, and also by imposing said costs

without considering the appellant’s present and future ability to pay them. Trial counsel

provided ‘ineffective assistance’ for failing to object to the imposed costs, or otherwise

take measures to assure that the costs would not be imposed on his indigent client.”

         {¶ 5} Defendant challenges the court costs and “assigned counsel fee” imposed

against him. However, only court costs were imposed against defendant as part of his

sentence.    Therefore, we limit our analysis accordingly.

         {¶ 6} Defendant did not appeal from the denial of his first motion to vacate court

costs; therefore, the doctrine of res judicata bars him from subsequently raising this same

issue.    See State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104.    Nonetheless, we

review the substance of defendant’s arguments.

         {¶ 7} In State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶8,

the Ohio Supreme Court held that R.C. 2947.23 “requires a court to assess costs against all

convicted defendants.”     (Emphasis omitted.)    The White court additionally held that it

was within the court’s discretion to waive the payment of costs imposed upon an indigent
offender.   Id.    Furthermore, under R.C. 2949.14, “a clerk of courts may attempt the

collection of assessed court costs from an indigent defendant.” Id. at ¶14.

       {¶ 8} Defendant cites as authority this court’s opinion in City of Cleveland v.

Tighe, Cuyahoga App. Nos. 81767 and 81795, 2003-Ohio-1845.               Tighe, however, is

distinguishable from the case at hand because Tighe was not indigent; defendant is. In

Tighe, the trial court suspended costs against the defendant, and this court reversed the

decision, holding that “the trial court did not have the authority to waive mandatory court

costs absent a finding of indigency.” Id. at ¶13.

       {¶ 9} Defendant next argues that it was error for the court to impose costs without

considering defendant’s present and future ability to pay them. A defendant’s ability to

pay is taken into consideration in determining financial sanctions, such as restitution or

fines, imposed under R.C. 2929.18 or 2929.32. See R.C. 2919.19(B)(6). However, “a

defendant’s financial status is irrelevant to the imposition of court costs.”      State v.

Clevenger, 114 Ohio St.3d 258, 871 N.E.2d 589, 2007-Ohio-4006, ¶3. As the instant

case involves costs, rather than sanctions, this argument is without merit.

       {¶ 10} In State v. Joseph, 125 Ohio St.3d 76, 926 N.E.2d 278, 2010-Ohio-954, ¶22,

the Ohio Supreme Court held that the court erred when it failed to orally notify a defendant

during sentencing that it was imposing mandatory court costs. In holding that this error

was not harmless, the Court stated that “Joseph was harmed here.         He was denied the

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

the trial court.   He should have had that chance.”     Id. Joseph was remanded “to the
trial court for the limited purpose of allowing Joseph to move the court for a waiver of the

payment of court costs.”    Id. at ¶23.

       {¶ 11} In the instant case, defendant twice sought the waiver of court costs, and the

court twice denied his request.     Therefore, pursuant to the reasoning in Joseph, any error

the court may have committed during the sentencing hearing          regarding notification of

court costs was harmless.     Furthermore, we cannot say that counsel was ineffective for

failing to raise an issue that had no foundation in the record and which the court

subsequently rejected.        See    State   v.   Hayden,   Cuyahoga    App.    No.   90474,

2008-Ohio-6279, ¶19 (holding that defense counsel’s failure to move for waiver of court

costs did not amount to ineffective assistance of counsel because there was “no showing of

a ‘reasonable probability’ that the court would have waived the costs had defense counsel

filed a motion”).

       {¶ 12} We find that the court acted within its discretion when it denied defendant’s

motions to waive payment of court costs and stated that “Defendant may work off court

costs via community work service * * *.”      The Ohio Supreme Court has held that “a trial

court may properly order community service as a means of payment [of court costs] in

accordance with R.C. 2947.23(A)(1)(a) and (b).”        Clevenger, at ¶10.   Furthermore, the

Court has held that “when collecting court costs from an indigent criminal defendant, the

state may use any collection method that is available to collect a civil money judgment or

may use R.C. 5120.133 to collect from a prisoner’s account * * *.”      State v. Threatt, 108

Ohio St.3d 277, 843 N.E.2d 164, 2006-Ohio-905, ¶24.
      {¶ 13} Accordingly, defendant’s sole assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover from 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. The defendant's conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

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

Rules of Appellate Procedure.



JAMES J. SWEENEY, JUDGE

PATRICIA ANN BLACKMON, P.J., CONCURS.
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY
