State v. Lunsford
193 Ohio App. 3d 195
Ohio Ct. App.2011Background
- Lunsford appeals resentencing on one count of possessing more than 1,000 grams of powder cocaine.
- Sole assignment: trial court erred in ordering court costs after evidence of indigency prior to resentencing.
- Originally pleaded guilty in 2000 and received a ten-year sentence; 2000 termination entry ordered restitution and costs.
- In 2010, before the end of his term, Lunsford moved to vacate costs, fine, and restitution; resentencing occurred with the same ten-year sentence and no discussion of costs at hearing.
- May 21, 2010 amended termination entry stated: “Court costs to be paid in full …”; clerk billed $228.10 on May 24, 2010.
- Court later held Fischer governs scope of resentencing appeal; costs from original entry may be res judicata, while costs related to resentencing may be challenged if not properly addressed at hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resentencing costs not mentioned at the hearing are reviewable | Lunsford argues waiver/waiver rule not triggered due to lack of notice. | State contends waivable only if objection at resentencing or valid motion; res judicata applies to prior costs. | Yes; remand to decide waiver of resentencing costs; improper omission at hearing prevents waiver bar. |
| Whether original costs pre-resentencing are subject to review | Lunsford contends res judicata bars challenging original costs. | State relies on waiver/res judicata to bar challenges to old costs. | Original costs are res judicata; only resentencing costs may be reviewed. |
| Whether indigency permits waiver of resentencing costs | Indigence could support waiver of costs at trial court’s discretion. | Waiver is optional if indigent; failure to object may foreclose review. | Trial court may waive resentencing costs if indigent; remand to decide. |
Key Cases Cited
- State v. Fischer, 128 Ohio St.3d 92 (Ohio 2010) (scope of appeal from resentencing limited to issues at resentencing)
- State v. Murillo, 2008-Ohio-201 (Ohio App. 6th Dist. 2008) (costs order final despite unspecified amount; res judicata unless waived)
- State v. Threatt, 108 Ohio St.3d 277 (Ohio 2006) (waiver of costs if indigent may be considered; otherwise waived by trial court discretion)
- State v. Joseph, 125 Ohio St.3d 76 (Ohio 2010) (failure to mention costs at sentencing is not harmless and preserves waiver considerations)