Opinion
22 CO 0003
12-30-2022
CITY OF EAST LIVERPOOL, Plaintiff-Appellee, v. CHRISTOPHER W. GREEN, Defendant-Appellant.
Atty. John E. Gamble, East Liverpool Law Director's Office, for Plaintiff-Appellee and Atty. Tracey A. Laslo, for Defendant-Appellant.
Criminal Appeal from the East Liverpool Municipal Court Columbiana County, Ohio Case No. 2021 CR B 1859
Atty. John E. Gamble, East Liverpool Law Director's Office, for Plaintiff-Appellee and
Atty. Tracey A. Laslo, for Defendant-Appellant.
BEFORE: David A. D'Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
OPINION AND JUDGMENT ENTRY
D'APOLITO, J.
{¶1} Appellant, Christopher W. Green, appeals the judgment entry of the East Liverpool Municipal Court sustaining a motion to dismiss a criminal complaint against him filed by Appellee, City of East Liverpool ("City"). The criminal complaint alleged six violations of the Codified Ordinances of East Liverpool, misdemeanors of the third degree, and was predicated upon Appellant's failure to timely pay his City taxes.
In an affidavit attached to the criminal complaint and signed and sworn by the City's Tax Administrator, Linda S. Harpold, Harpold avers that Appellant owed in excess of $600.00 for tax years 2014-2017, and failed to file a return for tax years 2019 and 2020. (Harpold Aff., ¶ 3-4.) Based on the affidavit, the court found probable cause and issued a summons.
{¶2} One week after filing the complaint, on December 27, 2021, the City filed the motion to dismiss. The motion reads, in pertinent part, "[f]or cause, the City submits that the [Appellant] has now fully satisfied his income tax obligations under Chapter 187.091." That same day, the criminal complaint was dismissed with prejudice, with court costs in the amount of $97.00 taxed to Appellant.
{¶3} Appellant does not challenge the dismissal of the criminal complaint, but instead, the assessment by the municipal court of costs taxed to him, without allowing him a prior opportunity to be heard. Appellant asserts that the criminal complaint against him was filed in retaliation for a federal civil action that he filed a few weeks earlier, challenging the termination of his employment with the City. Given the opportunity to explain to the municipal court the alleged retaliatory motivation of the City, Appellant believes that the municipal court would not have assessed court costs against him.
{¶4} In his sole assignment of error, Appellant argues that the imposition of court costs against him, without an opportunity to be heard, constitutes violations of his federal and state rights to due process of law. Insofar as the criminal complaint was dismissed because Appellant satisfied his tax debt, we find that the municipal court acted within its statutory authority to impose court costs. Therefore, the judgment entry of the municipal court is affirmed.
ASSIGNMENT OF ERROR
APPELLANT CHRISTOPHER GREEN WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDEMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN A CRIMINAL COMPLAINT WAS FILED AGAINST HIM SOLELY FOR THE PURPOSE OF RETALIATION AND, ONE WEEK LATER, DISMISSED AT APPELLANT'S COST WITHOUT A HEARING AND WITHOUT PROVIDING THE APPELLANT HIS CONSTITUTIONALLY GUARANTEED RIGHT TO BE HEARD.
{¶5} Appellant contends that his federal and state constitutional rights to due process were violated because the municipal court taxed court costs against him without affording him the opportunity to be heard. Appellant asks us to remand the matter of court costs for a hearing, or in the alternative, to modify the judgment entry to exclude court costs.
{¶6} R.C. 2947.23, captioned "Judgment for cost and jury fees; community service upon failure to pay," provides the following, in pertinent part:
"In all criminal cases * * * the judge * * * shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs * * * "
{¶7} Ohio courts have consistently interpreted R.C. 2947.23 to require a trial court to assess the costs related to a prosecution only if the State is successful and a defendant has been found guilty and sentenced. See State v. Simmons, 8th Dist. Cuyahoga No. 91628, 2008-Ohio-6291, ¶ 8-10; State v. Posey, 135 Ohio App.3d 751, 755, 735 N.E.2d 903 (9th Dist. 1999); State v. Powers, 117 Ohio App.3d 124, 128, 690 N.E.2d 32 (6th Dist. 1996)(intent of statute is to impose costs on a defendant after his or her conviction); City of Broadview Heights v. Krueger, 8th Dist. Cuyahoga No. 88998, 2007-Ohio-5337 (defendant's payment of the fine ordered to be returned after her conviction was overturned); State v. Oglesby, 3d. Dist. Seneca No. 13-01-30, 2003-Ohio-867; City of Cleveland v. Tighe, 8th Dist. Cuyahoga Nos. 81767 and 81795, 2003-Ohio-1845 (only in successful prosecutions can the costs of proceedings be assessed to the defendant); City of Willoughby v. Sapina, 11th Dist. Lake Nos. 2000-L-138 and 2000-L-139, 2001-Ohio-8707.
{¶8} Appellant in this case was neither convicted nor sentenced in the traditional sense. We find nonetheless that the City's prosecution was successful based on the nature of the charged crimes and the conduct of Appellant that precipitated the dismissal of the criminal complaint.
{¶9} Appellant's mounting tax debt went unsatisfied for years until the City filed the criminal complaint. Appellant's decision to flout the tax ordinance left the City with no alternative but to file the above-captioned action in order to collect Appellant's outstanding debt.
{¶10} Within days of the issuance of the summons, Appellant satisfied his debt to the City. Appellant does not argue, nor is there any evidence in the record, that the amount he paid was not due and owing to the City. Appellant's voluntary payment constitutes an admission of his guilt.
{¶11} Finally, the City had the legal authority to continue its prosecution of Appellant, despite the fact that he ultimately but nonetheless untimely satisfied his tax debt. Appellant faced a maximum of sixty days in jail for each of the six offenses. The City's decision to spare Appellant the possibility of a criminal sanction by dismissing the criminal complaint does not strip the municipal court of its statutory authority to impose court costs.
{¶12} Based on the unique facts in this case, we find that the imposition of court costs taxed against Appellant was within the municipal court's authority granted in R.C. 2947.23, and he suffered no due process violation. Accordingly, the judgment entry of the municipal court is affirmed.
Donofrio, P.J., dissents with dissenting opinion.
Waite, J., concurs.
Donofrio, P. J., dissenting opinion
{¶13} For the following reasons, I respectfully dissent from the majority opinion. R.C. 2947.23(A)(1)(a), the controlling statute in this case, provides in relevant part:
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.(Emphasis added). The statute is clear that the costs shall be included "in the sentence." In this case, there was no sentence. Appellant brought his income tax balance current before the matter went to trial or before it came before the court for appellant to enter a guilty or no contest plea. Consequently, the trial court dismissed the charges.
{¶14} I agree with the Majority Opinion's citations to numerous cases that stand for the proposition that under R.C. 2947.23, a trial court may assess the costs related to a prosecution only if the state is successful and the defendant has been found guilty and sentenced. Opinion at ¶ 7, citing State v. Simmons, 8th Dist. Cuyahoga No. 91628, 2008-Ohio-6291, ¶ 10; State v. Posey, 135 Ohio App.3d 751, 755, 735 N.E.2d 903 (9th Dist.1999); State v. Powers, 117 Ohio App.3d 124, 128, 690 N.E.2d 32 (6th Dist.1996); City of Broadview Heights v. Krueger, 8th Dist. Cuyahoga No. 88998, 2007-Ohio-5337; State v. Oglesby, 3d Dist. Seneca No. 13-01-30, 2003-Ohio-867; City of Cleveland v. Tighe, 8th Dist. Cuyahoga Nos. 81767 and 81795, 2003-Ohio-1845; City of Willoughby v. Sapina, 11th Dist. Lake Nos. 2000-L-138 and 2000-L-139, 2001-Ohio-8707. Pursuant to these cases, the trial court may assess costs only if the state is successful and the defendant has been found guilty and the defendant has been sentenced.
{¶15} The Majority agrees that, in this case, appellant "was neither convicted nor sentenced in the traditional sense." Opinion at ¶ 8. The record supports this determination, as appellant was not convicted nor was he sentenced.
{¶16} Yet the Majority then concludes appellant's "voluntary payment constitutes an admission of his guilt." Opinion at ¶ 10. It is with this conclusion that I disagree. The record does not support this conclusion.
{¶17} According to the record, the City filed the complaint against appellant on December 20, 2021. One week later, the City filed a motion to dismiss the complaint stating that appellant "has now fully satisfied his income tax obligations." That same day, the trial court granted the City's motion to dismiss stating: "On Motion by the City, and for good cause shown, the above-captioned matter is, hereby, dismissed with prejudice. Costs tax [sic] Defendant. Cost $97.00[.]" (December 27, 2021 Judgment Entry). Nothing appears in the record between the date the City filed the complaint and the date the City filed, and the court granted, the motion to dismiss. There is no indication that the parties engaged in negotiations or reached a plea agreement. Importantly, there is no evidence that appellant agreed to pay the costs of this action in exchange for a dismissal of the charges.
{¶18} A conviction in a criminal case is made up of two parts, the fact of the conviction and the sentence. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24; State v. Horton, 10th Dist. No. 17AP-266, 2017-Ohio-8549, 99 N.E.3d 1090, ¶¶ 20-21. Pursuant to R.C. 2947.23(A)(1)(a), courts are to include costs in the sentence portion of the conviction. In this case, there was no fact of the conviction. Appellant did not enter a guilty plea, did not enter a no contest plea, and he was not convicted at a trial.
{¶19} Appellant was charged with six petty offenses. Crim.R. 2(D). "In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty." Crim.R. 11(E). In the case of a guilty plea to a misdemeanor for a petty offense, the effect of the plea is that a plea of guilty is a complete admission of guilt. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 25; Crim.R. 11(B)(1).
{¶20} There is no indication on the record that the process for accepting a plea was followed in this case. The process was not followed because the case did not involve a plea of any kind. Instead, the court simply dismissed the charges after a motion by the prosecution. There was no discussion on the record regarding the payment of costs by appellant if the charges were dismissed nor was there an agreement between the parties. I thus conclude the prerequisites were not satisfied so as to permit the trial court to assess costs to appellant.
{¶21} I understand the Majority's presumption that this prosecution was successful based on the limited record before us. Contrary to the Majority's finding, there is no evidence in the record of a successful prosecution. If evidence existed in the record that the parties had reached an agreement whereby appellant would pay the outstanding taxes and costs of prosecution in exchange for a dismissal of the charges, then I would agree this would have been a successful prosecution. Because there was no agreement in the record or sentence pursuant to R.C. 2947.23(A)(1)(a), I would reverse the trial court's judgment assessing costs.
For the reasons stated in the Opinion rendered herein, the assignment of error is overruled and it is the final judgment and order of this Court that the judgment of the East Liverpool Municipal Court of Columbiana County, Ohio, is affirmed. Costs to be taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.