STATE OF OHIO, Plaintiff-Appellee, vs. LARRY D. HAUGHT, JR., Defendant-Appellant.
Case No. 10CA34
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
Decision Released: Sept. 2, 2011
2011-Ohio-4767
McFarland, J.
DECISION AND JUDGMENT ENTRY
John A. Bay, Bay Law Office, L.L.C., Columbus, Ohio, for Appellant.
Roland W. Riggs, III, Marietta City Law Director, and Mark C. Sleeper, Marietta City Assistant Law Director, Marietta, Ohio, for Appellee.
McFarland, J.:
{¶1} This is an appeal from a Marietta Municipal Court entry, convicting Appellant of driving under OVI suspension in violation of
{¶2} We conclude that the trial court erred in failing to provide Appellant the notice regarding community service required by
{¶3} Further, in light of our disposition of Appellant‘s first assignment of error, the issues raised under Appellant‘s second and third assignments of error have been rendered moot and we decline to address them pursuant to
FACTS
{¶4} After a jury found him guilty of driving under OVI suspension in violation of
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED BY IMPOSING COURTS COSTS WITHOUT NOTIFYING MR. HAUGHT THAT HIS FAILURE TO PAY SUCH COSTS MAY RESULT IN THE COURT‘S ORDERING HIM TO PERFORM COMMUNITY SERVICE.
II. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, FOR FAILING TO OBJECT TO THE TRIAL COURT‘S IMPOSITION OF COURT COSTS, AS THE TRIAL COURT DID NOT NOTIFY MR. HAUGHT THAT HIS FAILURE TO PAY COURT COSTS MAY RESULT IN THE COURT ORDERING HIM TO PERFORM COMMUNITY SERVICE.
III. THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED MR. HAUGHT DUE PROCESS OF LAW WHEN IT IMPOSED COURT COSTS WITHOUT THE PROPER NOTIFICATION THAT HIS FAILURE TO PAY COURT COSTS MAY RESULT IN THE COURT ORDERING HIM TO PERFORM COMMUNITY SERVICE.”
ASSIGNMENT OF ERROR I
{¶5} In his first assignment of error, Appellant contends that the trial court erred by imposing costs without notifying him that the failure to pay court costs may result in the court‘s ordering him to perform community
{¶6}
“In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, 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:
(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.
(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.” (Emphasis added.)
{¶7} In State v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930 N.E.2d 838, we departed from our previous line of cases holding that questions related to a trial court‘s failure to provide defendants with
{¶7} Based upon the foregoing, Appellant is entitled to be re-sentenced in order for the trial court to provide him with
{¶8} Thus, in accordance with our reasoning in Moss, as well as the reasoning in Dansby and Cardamone, supra, we vacate the portion of the sentencing entry that imposes court costs and remand this case to the trial court for re-sentencing as to the issue of court costs. Moss at ¶ 22.
ASSIGNMENTS OF ERROR II AND III
{¶9} In his second assignment of error, Appellant contends that he received ineffective assistance of counsel related to his counsel‘s failure to
{¶10} In State v. Burns, this Court was presented with an ineffective assistance of counsel argument based upon facts essentially the same as the facts sub judice. State v. Burns, Gallia App. No. 08CA2-3, 2009-Ohio-878. In Burns, after deciding that the trial court had indeed erred in failing to provide the notifications required by
{¶11} Accordingly, having sustained Appellant‘s first assignment of error, the trial court‘s imposition of costs is vacated and the matter is remanded to the trial court for a limited re-sentencing consistent with this opinion, with respect to the issue of costs.
Kline, J. dissenting.
{¶12} I respectfully dissent because I conclude that assignment of error one is not ripe for review. I acknowledge that
{¶13} Accordingly, I would adhere to our recent decisions in State v. Knauff, Adams App. No. 09CA881, 2009-Ohio-5535, at ¶ 4-5, State v. Welch, Washington App. No. 08CA29, 2009-Ohio-2655, at ¶ 14 (McFarland, J.), State v. Bryant, Scioto App. No. 08CA3258, 2009-Ohio-5295, at ¶ 11, and State v. Slonaker, Washington App. No. 08CA21, 2008-Ohio-7009, at ¶ 7 (McFarland, J.). See, also, State v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, at ¶ 34 (Kline, J., dissenting); State v. Kearse, Shelby App. No. 17-08-29, 2009-Ohio-4111, at ¶ 12-15(noting the disagreement within the Fourth District and applying the ripeness doctrine).
It is ordered that the SENTENCE BE VACATED IN PART AND THE CAUSE REMANDED and that the Appellant recover of Appellee 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 Marietta Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents with Dissenting Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.