THE STATE OF OHIO, APPELLEE, v. BRADEN, APPELLANT.
Nos. 2017-1579 and 2017-1609
SUPREME COURT OF OHIO
October 16, 2019
2019-Ohio-4204
FRENCH, J.
Submitted March 5, 2019—ON MOTION FOR RECONSIDERATION.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2019-OHIO-4204
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Braden, Slip Opinion No. 2019-Ohio-4204.]
Criminal law—Sentencing—
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, No. 17AP-48, 2017-Ohio-7903.
{¶ 1} Appellant, David L. Braden, has asked this court to reconsider our decision in State v. Braden, ___ Ohio St.3d ___, 2018-Ohio-5079, ___ N.E.3d ___ (”Braden I“). Appellee, the state of Ohio, opposes that request.
{¶ 2} Effective March 22, 2013, the General Assembly enacted
{¶ 3} Braden contends that we obviously misconstrued
{¶ 4} In 1999, the Franklin County Court of Common Pleas sentenced Braden to death following his convictions for two counts of aggravated murder with death-penalty specifications. State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 2-3, 33. Pertinent here, the trial court also ordered Braden to pay court costs. Id. at ¶ 33.
{¶ 5} In 2003, we affirmed Braden‘s convictions and death sentences. Id. at ¶ 163. The Supreme Court of the United States denied certiorari. Braden v. Ohio, 540 U.S. 865, 124 S.Ct. 182, 157 L.Ed.2d 119 (2003). The trial court denied postconviction relief, and the Tenth District Court of Appeals affirmed. 10th Dist. Franklin No. 02AP-954, 2003-Ohio-2949. We denied Braden‘s request for review. 100 Ohio St.3d 1431, 2003-Ohio-5396, 797 N.E.2d 511.
{¶ 6} In November 2016, Braden asserted his indigence and filed a motion asking the trial court to waive his court costs. Alternatively, he asked the trial court to order the prison to keep at least $400 in his prison account or allow him to enter a payment plan of $3 a month. The state opposed the motion, and the trial court summarily denied it.
{¶ 7} The Tenth District affirmed, holding that when a judgment of conviction became final before the effective date of
{¶ 8} This court accepted Braden‘s discretionary appeal on the following proposition of law: “A trial court has jurisdiction, pursuant to the current version of
BRADEN‘S MOTION FOR RECONSIDERATION IS GRANTED
{¶ 9} A party to a case may ask this court to reconsider a decision on the merits. S.Ct.Prac.R. 18.02(B)(4). We will grant a motion for reconsideration to correct a decision that, upon reflection, we deem to have been made in error. State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1995). But we will not grant reconsideration when a movant merely reargues the case. Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 212, 2014-Ohio-1940, 11 N.E.3d 222, ¶ 9; S.Ct.Prac.R. 18.02(B). This court holds that Braden has not merely reargued his case and that Braden I was decided in error.
{¶ 10} Braden argues, in part, that our decision in Braden I is inconsistent with our recent decision in Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264. In Thompson, we considered former
The sentencing court retains continuing jurisdiction to correct any error not previously raised at sentencing in making a determination
under division (B)(2)(g)(i) of this section. The offender may, at any time after sentencing, file a motion in the sentencing court to correct any error made in making a determination under division (B)(2)(g)(i) of this section, and the court may in its discretion grant or deny that motion.
(Emphasis added.) 2012 Am.Sub.S.B. No. 337; see Thompson at ¶ 5.
{¶ 11} The proposition of law we considered in Thompson asserted that a trial court‘s order denying a postconviction motion for jail-time credit is a final, appealable order. Thompson at ¶ 3. The court of appeals had held that the trial court‘s order was not appealable. Our primary holding was that such an order is appealable because it is a final order that affects a substantial right in a special proceeding. Id. at ¶ 13. But inherent in our decision was the conclusion that Thompson‘s convictions became final in 2011—before the General Assembly enacted
{¶ 12} In Thompson, the state argued that because Thompson was sentenced in 2011, he could not benefit from a new statute that the General Assembly did not intend to apply retroactively. We effectively rejected that argument when we held that Thompson could avail himself of the new law:
Pursuant to
R.C. 2929.19(B)(2)(g)(iii) , an offender can file a motion to correct an error in determining jail-time credit “at any time after sentencing” and the sentencing court has authority to correct any error in determining jail-time credit that was “not previously raised at sentencing.” Given that this statute was enacted in 2012 and that it created a right that was not otherwise available to an offender who lacked the right to appeal, we conclude that the trialcourt‘s determination of a motion filed under R.C. 2929.19(B)(2)(g)(iii) constitutes a special proceeding.
Id. at ¶ 12.
{¶ 13} Although there are subtle differences between the statutory language considered here and that in Thompson, the relevant language concerning the trial court‘s jurisdiction is substantially the same. The statute at issue in Thompson, former
{¶ 14} There are no material differences between
{¶ 15} Braden argues in his motion for reconsideration that our decision in Braden I is inconsistent with our recent decision in Thompson, and we agree. Although the dissenting opinion in Braden I presented that analysis, ___ Ohio St.3d ___, 2018-Ohio-5079, ___ N.E.3d ___ at ¶ 39-43, there is no indication in the majority opinion that the majority fully considered and rejected it.
{¶ 16} Braden also argues that Braden I was wrongly decided because we misconstrued the plain language of
ANALYSIS
Trial courts retain jurisdiction to waive, suspend or modify court costs for offenders whose convictions were final before R.C. 2947.23(C) ‘s effective date
{¶ 17} In construing a statute, this court‘s duty is to give effect to the General Assembly‘s intent as expressed in the language it enacted. State v. J.M., 148 Ohio St.3d 113, 2016-Ohio-2803, 69 N.E.3d 642, ¶ 7. We must read words and phrases in context and give them their common meaning.
{¶ 18} Effective March 22, 2013, the General Assembly enacted
{¶ 20} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, we acknowledged that “[d]espite the fact that former R.C. 2947.23 (like current R.C. 2947.23(A)) requires a judge to assess costs against all convicted criminal defendants, this court has held that ‘waiver of costs is permitted—but not required—if the defendant is indigent,’ ” id. at ¶ 11, quoting State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. “That is, despite the mandatory language of former R.C. 2947.23 requiring the imposition of court costs, a trial court may waive the payment of costs.” (Emphasis sic.) Joseph at ¶ 11, citing State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 4. We further explained that an indigent defendant must request waiver of court costs at the time of sentencing. Joseph at ¶ 12, citing State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of the syllabus.
{¶ 21} In Threatt, this court held that if the defendant moves for waiver, ” ‘then the issue is preserved for appeal and will be reviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and costs are res judicata.’ ” Joseph at ¶ 12, quoting Threatt at ¶ 23. And in Clevenger, this court reiterated that a defendant must request waiver at sentencing to prevent res judicata from applying. Clevenger at ¶ 5.
{¶ 22} At first blush, our decisions in Threatt and Clevenger appear harmful to Braden‘s position because they say that if a defendant does not move for waiver at sentencing, he loses his ability to do so and further consideration of the issue is foreclosed by principles of res judicata. But even those decisions, as does Joseph,
{¶ 23} To summarize, this court‘s pronouncements that defendants must request waiver of court costs at the time of sentencing lest res judicata will apply do not change the result in this case. That Braden did not request waiver of his court costs at sentencing does not change what the trial court was permitted to do.
{¶ 24} The Tenth District below and the state have relied heavily on the General Assembly‘s use of the word “retains.” See 2017-Ohio-7903 at ¶ 8, citing State v. Banks, 10th Dist. Franklin No. 17AP-210, 2017-Ohio-7135, ¶ 10. Other Ohio appellate courts are split on whether
{¶ 25} In Braden I, this court agreed with the Tenth District and the state, explaining that “a trial court cannot ‘retain’ jurisdiction that it has relinquished” because ” ‘retain’ means ‘to hold or continue to hold in possession or use: continue to have, use, recognize, or accept: maintain in one‘s keeping.’ ” Ohio St.3d ___, 2018-Ohio-5079, ___ N.E.3d ___ at ¶ 21, quoting Webster‘s Third New International Dictionary 1938 (2002). We do not dispute the definition of “retains,” but it does not compel the conclusion that
R.C. 2947.23(C) does not require retroactive application for it to apply to offenders whose convictions were final before its enactment
{¶ 26} The state also contends that the legislature did not make
{¶ 27} In any event, a retroactivity analysis is unnecessary here because a statute is not retroactive if it merely ” ‘draws on antecedent facts for a criterion in its operation.’ ” Schoenrade v. Tracy, 74 Ohio St.3d 200, 204, 658 N.E.2d 247 (1996), quoting United Eng. & Foundry Co. v. Bowers, 171 Ohio St. 279, 282, 169 N.E.2d 697 (1960).
{¶ 28} In State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684, 983 N.E.2d 334, this court considered whether
{¶ 29} This court rejected the state‘s argument and held that a retroactivity analysis was unnecessary. We reiterated that a statute is not retroactive merely because it draws on antecedent facts for a criterion in its operation. Id. at ¶ 29, citing Schoenrade at 204. We determined that
{¶ 30} Here, the antecedent facts are that the trial court imposed court costs at sentencing and some remained unpaid.
CONCLUSION
{¶ 31} Braden I was decided in error.
Motion for reconsideration granted, judgment reversed, and cause remanded.
O‘CONNOR, C.J., and DONNELLY and STEWART, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
FISCHER, J., dissents, with an opinion.
KENNEDY, J., dissenting.
{¶ 32} Because appellant, David L. Braden, has presented no valid basis for revisiting our prior decision in State v. Braden, ___ Ohio St.3d ___, 2018-Ohio-5079, ___ N.E.3d ___, I would deny reconsideration and reaffirm our holding that
{¶ 33} It is not unprecedented for us to reconsider a decision after a change in this court‘s membership. See, e.g., State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419; State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883; Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 539 N.E.2d 103 (1989). As the late Justice Antonin Scalia has remarked, “[o]verrulings of [United States Supreme Court] precedent rarely occur without a change in the Court‘s personnel.” South Carolina v. Gathers, 490 U.S. 805, 824, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989) (Scalia, J., dissenting).
{¶ 34} Nonetheless, a perception that changes in the law result solely from changes in court composition would threaten our legitimacy as a court of law, as opposed to a court of individuals, and would invite defiance of our prior decisions by subordinate courts whenever such a change has occurred. We have therefore
{¶ 35} First, S.Ct.Prac.R. 18.02(B) forbids attempts to reargue the merits of a case in a motion for reconsideration. Yet Braden‘s motion for reconsideration presents the same statutory-construction arguments that he asserted in his opening brief on original submission of the case. His reconsideration motion also contends that he seeks only prospective relief, but he made that point in both his opening brief and his reply brief. And although he points to Braden as creating the unintended consequence of prohibiting the waiver or modification of costs even when an inmate “later came into a sum of money” or “the defendant‘s situation suffers a negative change,” a core part of his argument on original submission was that sentencing courts need to be able to waive, suspend, or modify the payment of costs “if, at a later time, the inmate‘s financial situation changed.” All these attempts to reargue the case should be rejected.
{¶ 36} Second, we may grant reconsideration when a motion raises a material issue that we did not fully consider when we should have. See Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, at ¶ 1. Braden asserts that we failed to consider his argument that the legislative history of the statute demonstrates the General Assembly‘s intent to abrogate our prior caselaw and apply
{¶ 37} Third, we may grant reconsideration to ” ‘correct decisions which, upon reflection, are deemed to have been made in error.’ ” Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 212, 2014-Ohio-1940, 11 N.E.3d 222, ¶ 9, quoting State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1995). However, we have declined to reconsider a prior decision when the movant “does not call our attention * * * to an obvious error.” (Emphasis added.) Id. at ¶ 10.
{¶ 38} Braden contends that our decision in Braden is inconsistent with our decision in State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264. According to Braden, in Thompson, we applied a statute providing that the “sentencing court retains continuing jurisdiction to correct any error [relating to a jail-time credit] not previously raised at sentencing,”
{¶ 39} In essence, Braden asks us to treat a decision that did not expressly decide an issue as being controlling in this case. The new majority agrees with Braden, explaining that the retroactive application of jail-time credit to Thompson was “inherent in our decision” because he was sentenced prior to the statute‘s effective date and because we “effectively rejected” the state‘s argument that the statute did not apply retroactively. Majority opinion at ¶ 11, 12.
{¶ 40} However, Thompson concerned only the narrow question whether an order denying a motion to correct a jail-time credit is a final order, Thompson at ¶ 3, and our analysis focused solely on whether the jail-time-credit statute created
{¶ 41} We have long recognized that ” ‘a reported decision, although a case where the question might have been raised, is entitled to no consideration whatever as settling * * * a question not passed upon or raised at the time of the adjudication.’ ” (Ellipsis sic.) State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 11, quoting State ex rel. Gordon v. Rhodes, 158 Ohio St. 129, 107 N.E.2d 206 (1952), paragraph one of the syllabus. Writing for the majority in Payne, then Justice O‘Connor noted that “we are not bound by any perceived implications that may have been inferred from the prior reported decision. Id. at ¶ 12; accord State ex rel. R.W. v. Williams, 146 Ohio St.3d 91, 2016-Ohio-562, 52 N.E.3d 1176, ¶ 30 (French, J., dissenting) (“this court is not bound by perceived implications from its opinions“). This court‘s decision in Thompson does not provide the rule of decision in this case.
{¶ 42} And it is not true, as the new majority concludes, that ”
{¶ 43} But that analysis fails to acknowledge that prior to the enactment of
{¶ 44}
{¶ 45} The General Assembly provided that in a statute, “[w]ords in the present tense include the future,”
{¶ 46} Moreover, if the General Assembly had intended to grant trial courts the jurisdiction to reopen final orders, that would raise serious constitutional questions. Courts “condemn legislative encroachments that violate the separation of powers * * * by commanding that the courts reopen final judgments.” State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 53. As the court explained in Bodyke,
It is well settled that a legislature cannot enact laws that revisit a final judgment. We have held for over a century that “the Legislature cannot annul, reverse, or modify a judgment of a court already rendered.” Bartlett v. State, 73 Ohio St. [54] 58, 75 N.E. 939 [1905]. * * * “A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted * * *.” Gompf v. Wolfinger (1902), 67 Ohio St. 144, 65 N.E. 878, at paragraph three of the syllabus.
(Ellipses sic.) Id. at ¶ 55.
{¶ 47} Prior to the enactment of
{¶ 48} There is a significant difference between a trial court‘s having once had jurisdiction to waive the payment of costs at sentencing and its having continuing jurisdiction to waive, suspend, or modify the payment of costs any time after sentencing. The plain language of
{¶ 49} Here, the trial court ordered Braden to pay court costs at the sentencing hearing in 1999, he failed to move for a waiver, and his motion to waive the payment of all fines and costs is now barred by res judicata. Because
DEWINE, J., concurs in the foregoing opinion.
FISCHER, J., dissenting.
{¶ 50} I too would deny appellant David Braden‘s motion for reconsideration and reaffirm our holding in State v. Braden, ___ Ohio St.3d ___, 2018-Ohio-5079, ___ N.E.3d ___, that
{¶ 51} I write separately to emphasize, once again, my concerns with the practice of reconsidering cases at the beginning of a new term when this court‘s membership has changed following a recent election. See State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 24 (Fischer, J., concurring in part
{¶ 52} Because both the law and the entire state of Ohio benefit from stability and certainty, see Hamilton, The Federalist No. 78 at 471 (Clinton Rossiter Ed.1961) (“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents * * *“), I continue to encourage this court to end this practice and to take a different approach.
{¶ 53} For these reasons, I respectfully dissent.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Kathryn L. Sandford, Assistant Public Defender, for appellant.