STATE OF OHIO, PLAINTIFF-APPELLEE, v. DELREECE M. THOMPSON, DEFENDANT-APPELLANT.
CASE NO. 9-13-04
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
July 22, 2013
2013-Ohio-3200
Appeal from Marion County Common Pleas Court Trial Court No. 12-CR-0153 Judgment Affirmed
Delreece M. Thompson, Appellant
{¶1} Although this appeal has been placed on the accelerated calendar, this court elects to issue a full opinion pursuant to
{¶2} Defendant-Appellant, Delreece M. Thompson (“Thompson”), pro se, appeals the judgment of the Marion County Court of Common Pleas denying his motion to waive the court costs that were imposed when he was sentenced to prison for voluntary manslaughter. On appeal, Thompson contends that the trial court’s imposition of such costs is in violation of
{¶3} On April 11, 2012, the Marion County Grand Jury issued a nine-count indictment charging Thompson with aggravated murder, murder, and having weapons while under disability, pertaining to the murder of Travell E. Smith. The indictment also included firearms and forfeiture specifications.
{¶4} Thompson filed an affidavit of indigency and was assigned court-appointed counsel. He entered an initial plea of not guilty.
{¶5} A plea agreement was reached whereby the State agreed to amend the indictment by changing Count 1 from aggravated murder to voluntary manslaughter and to dismiss all of the other charges, except for Count 5, having weapons while under disability, and the firearms and forfeiture specifications.
{¶6} On September 4, 2012, Thompson appeared in court and entered a plea of guilty to the remaining counts in the indictment after being advised of his
{¶7} The trial court sentenced Thompson to eight years in prison on the manslaughter count, three years in prison for having weapons while under disability, and an additional mandatory term of three years for the firearms specification. (Sep. 6, 2012 J.E. of Sentencing) The trial court ordered that the sentences be served consecutively for a total sentence of 14 years. Thompson was advised that he would be subject to post release control, and he was given credit for the 241 days of time served. The trial court further ordered that $4,248 in U.S. Currency should be forfeited to MARMET and the firearms were to be forfeited to the Marion Police Department. (Id.) “Costs and appointed attorney fees assessed.” (Id.)
{¶8} On December 21, 2012, Thompson filed a “Motion to Waive the Imposed Court Costs or Fines,” claiming that the trial court abused its discretion in assessing fines and court costs without any regard to his ability or inability to pay, in violation of
This day this cause came on to be heard on Defendant’s Motion to Waive Court cost or Fines previously filed herein. The Court finds said motion to be not well taken and is hereby overruled. Costs are to be paid by the Defendant.
{¶9} It is from this judgment that Thompson now appeals, pro se, raising the following assignment of error for our review. The State has not filed an Appellee’s brief.
Assignment of Error
The trial court abused its discretion and violated the mandates of Ohio’s law in assessing fines and court costs without any regard to [Thompson’s] ability or inability to pay said fines and court costs, in violation of Ohio Revised code 2929.19(B)(5).
{¶10} Thompson claims that because he was represented by court appointed counsel based upon his indigency status in the case, the trial court was aware that he was indigent and it erred when it ordered him to pay court costs or fines without taking into consideration his inability to pay. In his brief, Thompson represents that “before imposing the fines or court costs, the trial court had refused to make any express determination of whether [Thompson] was able or unable to pay a fine or court costs.” He claims that he asked his appointed counsel to object, but that his counsel refused to do so.
{¶11} To clarify, we note that the record does not indicate that the trial court imposed any fines on Thompson – only court costs. The docket reflects that that there are $2,675.99 in court costs, which includes $2,500.55 in court-appointed attorney fees.
{¶13} The record clearly reflects that the trial court considered the matter when it reviewed Thompson’s motion and filed its judgment entry denying the motion. A court‘s denial of an indigent criminal defendant‘s motion for waiver of payment of costs is reviewed under an abuse-of-discretion standard. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph four of the syllabus.
{¶14} However, the statute cited by Thompson refers to financial sanctions, such as restitution, and fines. The trial court ordered Thompson to pay costs – not
{¶15} Furthermore, the Supreme Court of Ohio stated that “costs are taxed against certain litigants for the purpose of lightening the burden on taxpayers financing the court system.” Strattman v. Studt, 20 Ohio St.2d 95 (1969). “Therefore, although costs in criminal cases are assessed at sentencing and are included in the sentencing entry, costs are not punishment, but are more akin to a civil judgment for money.” Threatt, 108 Ohio St. 277, ¶ 15.
Costs must be assessed against all defendants.
R.C. 2947.23 ; White, 103 Ohio St.3d 580, 817 N.E.2d 393, at ¶ 8. However, we also held in White that a judge has discretion to waive costs assessed against an indigent defendant. Id. at ¶ 14. Costs are assessed at sentencing and must be included in the sentencing entry.R.C. 2947.23 . Therefore, an indigent defendant must move a trial court to waive payment of costs at the time of sentencing. If the defendant makes such a motion, then the issue is preserved for appeal and will bereviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and costs are res judicata. Accordingly, the sentencing entry is a final appealable order as to the assessment of costs. State v. Threatt, 2006-Ohio-905, ¶ 23.
{¶16} Thompson has failed to provide this Court with a copy of the transcript of the Sentencing Hearing for our review. Therefore, we do not know what happened in the proceedings below. In the absence of the transcript of sentencing hearing, this Court is unable to determine what was discussed concerning assessing court costs and Thompson’s ability to pay. There is no evidence in the record that Thompson requested a waiver at the sentencing hearing, and we must presume the regularity of proceeding. See State v. Call, 3d Dist. No. 9-04-29, 2004-Ohio-5645, ¶ 12.
{¶17} Furthermore, Thompson did not raise an appeal from the final sentencing judgment entry. Therefore, Thompson’s motion after sentencing was imposed was untimely and this matter is now barred by res judicata. See Threatt, supra. For all of the above reasons, Thompson’s assignment of error is overruled.
{¶18} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/jlr