State v. DansbyState v. Dansby
DATE OF JUDGMENT ENTRY: June 19, 2009
APPEARANCES:
For Plaintiff-Appellee
SCOTT J. MASTIN
Assistant County Prosecutor
for Tuscarawas County
125 East High Avenue
New Philadelphia, Ohio 44663
For Defendant-Appellant
DWAYNE C. DANSBY
N.C.I #568-656
1708 McConnelsville Road
Caldwell, Ohio 43724
{¶1} Defendant-appellant, Dwayne C. Dansby, appeals from the trial court‘s imposition of court costs. Plaintiff-appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} This appeal arises from two separate cases wherein appellant was indicted by the Tuscarawas County Grand Jury for one count of domestic violence in violation of
{¶3} On June 4, 2008, the matter came before the court for sentencing. As memorialized in a Judgment Entry filed on June 6, 2008, appellant was sentenced to serve fourteen months on each count to run consecutively to each other and consecutively to appellant‘s current sentence from Coshocton County. Appellant was also ordered to pay court costs.
{¶4} Appellant was also notified in writing that in each case a certain amount could be garnished from inmate funds for court costs, those amounts being $496.90 (Case Number 2007 CR 05 0174) and $295.58 (Case Number 2007 CR 08 0290).
{¶5} It is from the June 6, 2008, Judgment Entry that appellant now appeals, setting forth the following assignments of error:
{¶6} “I. THE TRIAL COURT ERRED WHEN A FINE WAS IMPOSED ON APPELLANT IN THAT THE COURT FAILED TO INQUIRE INTO THE APPELLANT‘S
{¶7} “II. THE TRIAL COURT FAILED TO PROVIDE A NOTIFICATION AT SENTENCING REGARDING THE FACT THAT A FAILURE TO PAY COURT COSTS MAY RESULT IN THE COURT ORDERING THE PERFORMANCE OF COMMUNITY SERVICE PURSUANT TO
I
{¶8} Appellant, in his first assignment of error, argues that the trial court erred by imposing fines in the amount of $496.90 and $295.58, for a total of $792.48, “without inquiring about the appellant‘s present or future ability to pay the fine.”
{¶9} Initially we note, that appellant was not ordered to pay a fine in either case. Rather, the trial court imposed court costs pursuant to
{¶10} However, we find that appellant has waived his ability to assert as error the imposition of court costs because appellant failed to raise the issue at the time of sentencing. State v. Threatt, 108 Ohio St.3d 277, 282, 2006-Ohio-905, 843 N.E.2d 164, (An indigent defendant must move to waive payment of court costs “at the time of sentencing. * * * Otherwise, the issue is waived and costs are res judicata.“) See also, State v. Loyer, Stark App. No. 2008CA00058, 2008-Ohio-5570.
{¶12}
{¶13} A trial court is not only authorized to assess court costs against an indigent defendant, but it may also collect those costs from an indigent defendant. State v. Smith, Allen App. No. 1-07-32, 2007-Ohio-6552 at paragraph 9, citing State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393 at paragraph 14. “Ohio law does not forbid a trial court from imposing court costs on an indigent defendant convicted of a felony.” State v. Pasqualone, 140 Ohio App.3d 650, 748 N.E.2d 1153, 1158, at footnote 4, quoting State v. Payne (Dec. 20, 1999), Delaware App. Nos. 99CAA05024, 99CAA05025, 99CAA05026, 99CAA05027, and 99CAA05028, 2000 WL 1405, unreported. See also, State v. Threatt, supra. Further, while
{¶14} For these reasons, we do not find that the trial court erred by ordering the appellant to pay the costs of the action without first considering appellant‘s ability to pay. See also, State v. Weyand, Columbia App. No. 07-CO-40, 2008-Ohio-6360.
{¶15} Accordingly, appellant‘s first assignment of error is overruled.
{¶16} In the second assignment of error, appellant argues that the trial court erred by failing to notify appellant that failure to pay court costs could result in the imposition of community service. We agree.
{¶17}
{¶18} “(A) (1) In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs. At the time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
{¶19} “(a) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved payment schedule.
{¶20} “(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.”
{¶21} Upon a review of the transcript of the sentencing hearing, we find that while the trial court ordered appellant to pay costs, it did not notify the appellant that if
{¶22} Appellant‘s second assignment of error is, therefore, sustained.
{¶23} Accordingly, the judgment of the Tuscarawas County Court of Common Pleas is affirmed in part, and reversed in part, and the matter is remanded to the trial court for re-sentencing consistent with this decision.
By: Edwards, J.
Hoffman, P.J. and
Wise, J. concur
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JUDGES
JAE/k/d0130
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Tuscarawas County Court of Common Pleas is affirmed in part, and reversed and remanded in part. Costs assessed to appellant.
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JUDGES