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Daily Court Reporter - News State law limits request for court cost modifications


State law limits request for court cost modifications

Dan Trevas, Supreme Court of Ohio

A state law allowing trial courts to waive or modify court costs applies only to those sentenced after the statute's March 23, 2013 effective date, the Ohio Supreme Court ruled recently.

The 5-2 majority opinion resolved a split among Ohio appeals courts on how to apply R.C. 2947.23(C). The Court majority rejected a claim by death-row inmate David L. Braden, who argued that the payment of court costs as part of his 1999 sentence could be waived or modified.

Writing for the Court, Justice Sharon L. Kennedy noted that the 2013 law provides that a trial court “retains” jurisdiction of criminal cases for the purpose of considering court costs, and that prior to the change in law, trial courts lacked this jurisdiction and therefore could not “retain” it.

The opinion was joined by Justices Patrick F. Fischer, R. Patrick DeWine, and Mary DeGenaro. Twelfth District Court of Appeals Judge Michael Powell, sitting for Justice Terrence O’Donnell, also joined Justice Kennedy’s opinion.

In a dissenting opinion, Justice Judith L. French wrote the prior Ohio Supreme Court decisions have indicated that trial courts had jurisdiction to consider court costs for decades, and that power existed when Braden’s trial judge ordered court costs in 1999.

Chief Justice Maureen O’Connor joined Justice French’s opinion.

Inmate Contests Court Costs

Braden received the death penalty along with three years in prison, $50,000 in fines, and court costs for the 1998 murder of his girlfriend and her father.

Braden appealed but did not challenge the imposition of court costs, and in 2003 the Ohio Supreme Court affirmed his convictions and sentence of death. The U.S. Supreme Court declined to review Braden’s appeal. A subsequent action for a writ of habeas corpus is pending in federal court.

In November 2016, citing recently enacted R.C. 2947.23(C), Braden moved the trial court to waive all fines and costs or to order the prison to establish a payment plan that would allow him to keep more money in his prison account.

The trial court denied his motion, and Braden appealed to the Tenth District Court of Appeals. The Tenth District ruled that R.C. 2947.23(C) does not apply to cases that were final prior to its March 23, 2013 effective date and that Braden’s conviction and sentence became final long before that time. The appellate court also concluded that Braden’s challenge to the Ohio Department of Rehabilitation and Correction’s procedure for collecting court costs must be made in a separate civil case against the state.

Braden appealed, and the Supreme Court determined that the Tenth District’s decision conflicted with rulings by the Second and Eighth District Courts of Appeals regarding how to apply the law. The Court agreed to resolve the conflict.

Court Examines Costs Issues

Justice Kennedy explained that since Ohio enacted “An Act for the Punishment of Crime” in 1824, state law has required trial courts to include the costs of prosecution in the offender’s sentence, regardless of the offender’s ability to pay. However, the collection of costs has been a separate matter, the opinion noted, and the General Assembly has never explicitly required or prohibited collection of court costs from indigent defendants.

The Supreme Court had consistently ruled that a defendant must seek to have court costs waived at the time of sentencing, and if not, the defendant cannot raise the issue again when appealing the conviction absent a showing of plain error. And the Court noted that with the exception of correcting a clerical error or a void sentence, a trial court lacks authority to reconsider its own final orders. Without statutory authority, a trial court could not suspend or waive the payment of court costs that were previously imposed at sentencing, the opinion stated.

The legislature revisited court cost payments in 2012 with House Bill 247. The law enacted R.C. 2047.23(C), which states: “The court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution, including any costs under section 2947.231 of the Revised Code, at the time of sentencing or at any time thereafter.”

In reviewing whether the new statute applied to Braden’s case, the Court explained that the operative word is “retains,” and the statute provides that the trial court now continues to have jurisdiction to waive, suspend, or modify the payment of court costs at any time. But prior to the passage of the law, the trial court’s jurisdiction over the matter ended when it rendered its final judgment, and it could not “retain” something it did not have.

The majority opinion also noted that R.C. 1.48 states that laws are presumed to be prospective “unless expressly made retrospective,” and using the word “retains” in the present tense does not indicate that the law covers past events. The provision did not have express language making it retroactive, leading the majority to conclude that it must “presume that the General Assembly did not intend to retroactively vest trial courts with jurisdiction that they previously lacked.”

The Court affirmed the Tenth District’s ruling.

Dissent Rejects ‘Retains’ Argument

In her dissent, Justice French concludes the legislature’s use of the word “retains” does not resolve the matter. She noted that the Court’s precedent supports the conclusion that Braden’s trial court retained jurisdiction to waive or modify the court costs.

The dissent cited several decisions, including the Supreme Court’s 2010 State v. Joseph opinion, in which the Court held that a trial court is permitted, but not required, to waive costs for an indigent defendant. In subsequent decisions, the Court also noted that prior to 2013, the Court has ruled a defendant must seek the waiver of court costs at the time of sentencing if the defendant intends to appeal the decision later.

“These opinions show that the trial court had jurisdiction to waive Braden’s court costs at his 1999 sentencing hearing. All of the cases were announced before R.C. 2947.23(C)’s enactment, and all of them acknowledge that a trial court could waive the payment of court costs at sentencing,” the dissenting opinion stated.

The dissent asserted that the new law simply states that a trial court retains its authority to waive costs, and the law expands the right to seek the waiver not only during the original sentencing, but also at any time after. The dissent also maintained that because the law did not change the authority of trial courts, there was no reason for the General Assembly to explicitly indicate it was retroactive.

2017-1579 and 2017-1609. State v. Braden, Slip Opinion No. 2018-Ohio-5079.

The opinion can be found online at:

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

About the Supreme Court of Ohio

The Supreme Court is established by Article IV, Section 1 of the Ohio Constitution. Article IV, Section 2 of the Constitution sets the size of the Court and outlines its jurisdiction. Article IV, Section 5 of the Constitution grants rule making and other authority to the Court.

The Supreme Court is the court of last resort in Ohio. Most of its cases are appeals from the 12 district courts of appeals. The Court may grant leave to appeal felony cases from the courts of appeals and may direct a court of appeals to certify its record in any civil or misdemeanor case that the Court finds to be "of public or great general interest."

The Supreme Court also has appellate jurisdiction in cases involving questions arising under the Ohio or United States Constitutions, cases originating in the courts of appeals, and cases in which there have been conflicting opinions on the same question from two or more courts of appeals. The Supreme Court hears all cases in which the death penalty has been imposed. These cases currently include both appeals from courts of appeals affirming imposition of the death penalty by a trial court and, for capital crimes committed on or after Jan. 1, 1995, appeals taken directly from the trial courts. Finally, the Supreme Court's appellate jurisdiction extends to review of the actions of certain administrative agencies, including the Public Utilities Commission.

The Supreme Court has original jurisdiction to issue extraordinary writs. These include writs of habeas corpus (inquiring into the cause of an allegedly unlawful imprisonment or deprivation of custody), writs of mandamus (ordering a public official to perform a required act), writs of procedendo (compelling a lower court to proceed to judgment in a case), writs of prohibition (ordering a lower court to stop abusing or usurping judicial functions), and writs of quo warranto (issued against a person or corporation for usurpation, misuse, or abuse of public office or corporate office or franchise).

The Constitution grants the Supreme Court exclusive authority to regulate admission to the practice of law, the discipline of attorneys admitted to practice, and all other matters relating to the practice of law. In connection with this grant of authority, the Supreme Court has promulgated the Supreme Court Rules for the Government of the Bar of Ohio. These rules address, among other things, admission to practice, attorney discipline, attorney registration, continuing legal education, and unauthorized practice of law.

The Constitution also gives the Supreme Court authority to prescribe rules governing practice and procedure in all courts of the state and to exercise general superintendence over all state courts. Procedural rules promulgated by the Supreme Court become effective unless both houses of the General Assembly adopt a concurrent resolution of disapproval. Rules of superintendence over state courts set minimum standards for court administration. Unlike procedural rules, rules of superintendence do not have to be submitted to the General Assembly to become effective.

In connection with all of the rules for which it has responsibility, the Supreme Court generally solicits public comment before adopting new rules or amendments in final form. The Court first publishes its rules and amendments in proposed form. These proposals appear in both the Ohio State Bar Association Reports and the Ohio Official Advance Sheets and indicate the period open for comment and the staff member to whom comments should be directed. The Court reviews all comments submitted before it decides whether to adopt or amend a rule.

Pursuant to the Constitution, the Chief Justice or a Justice designated by the Chief Justice is responsible for ruling on the disqualification of appellate and common pleas court judges. The procedure for obtaining review of a claim of disqualification against an appellate or common pleas judge is commenced by the filing of an affidavit of disqualification with the Clerk of the Supreme Court. The Revised Code contains specific requirements governing the filing of affidavits of disqualification.

Article IV, Section 2 of the Constitution sets the size of the Court at seven -- a Chief Justice and six Justices, who are elected to six-year terms on a nonpartisan ballot. Two Justices are chosen at the general election in even-numbered years. In the year when the Chief Justice runs, voters pick three members of the Court.

A person must be an attorney with at least six years experience in the practice of law to be elected or appointed to the Supreme Court. Appointments are made by the Governor for vacancies that may occur between elections.

Date Published: January 21, 2019


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