State v. Macksyn

[Cite as State v. Macksyn, 

.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vsCase No. 2015CA00175
DELANOR L. MACKSYN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas 2011CR1494


JUDGMENT:                                     Affirmed

DATE OF JUDGMENT ENTRY:                       April 18, 2016

APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOHN D. FERRERO                               DELANOR L. MACKSYN, PRO SE
PROSECUTING ATTORNEY                          Inmate No. 630-192
STARK COUNTY, OHIO                            MARION CORRECTIONAL INSTITUTION
                                              P.O. BOX 57
By: KATHLEEN O. TATARSKY                      Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015CA00175                                                          2

Hoffman, P.J.


         {¶1}   Defendant-appellant Delanor L. Macksyn appeals the August 25, 2015

Judgment Entry entered by the Stark County Court of Common Pleas denying his motion

to waive costs. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On June 24, 2012, Appellant was convicted in the Stark County Court of

Common Pleas on three counts of unlawful sexual conduct with a minor, a violation of

R.C. 2907.04(A)(B)(3). On June 18, 2012, the trial court sentenced Appellant to sixty

months in prison on each of the three counts with each count to be served consecutively,

for a total of 180 months in prison or a term of fifteen years. The trial court further

designated Appellant a Tier II sexual offender.

         {¶3}   Appellant timely appealed his conviction and sentence arguing ineffective

assistance of counsel and failure to dismiss the indictment regarding two incidents.

Appellant did not challenge the trial court’s order to pay costs found in the June 18, 2012

Sentencing Entry. This Court affirmed Appellant’s conviction and sentence. State v.

Macksyn, Stark App. No. 2012CA00140, 

, 137 Ohio St3d. 1456.

         {¶4}   On October 1, 2012, the Stark County Clerk of Courts itemized the costs

and issued a statement of costs to Appellant at Marion Correctional Institution.

         {¶5}   On August 21, 2015, Appellant filed a motion with the trial court requesting

a hearing to waive payment of court costs and an affidavit of indigency.

         {¶6}   The trial court denied the motion via Judgment Entry of August 25, 2015.




1   A rendition of the underlying facts is unnecessary for the resolution of this appeal.
Stark County, Case No. 2015CA00175                                                         3


       {¶7}   Appellant appeals, assigning as error,

       {¶8}   THE TRIAL COURT ERRED WHEN IT DID NOT NOTIFY APPELLANT OF

THE IMPOSITION [SIC] COSTS OF PROSECUTION AT THE SENTENCING HEARING

VIOLATING OHIO R CRIM R. 43(A) AND THE U.S. 14TH AMENDMENT DUE PROCESS.

       {¶9}   THE TRIAL COURT VIOLATED STARK COUNTY COURT OF COMMON

PLEAS GENERAL DIVISION 10:03 AND CRIM. R. 47 BY ISSUING RULING WITHOUT

GIVING THE STATE AN OPPORTUNITY TO RESPOND, THUS ALSO VIOLATING 6TH

AMENDMENT FAIR TRIAL.

                                                 I.

       {¶10} Appellant maintains the trial court erred in not notify him of the imposition of

costs in open court at sentencing, but including costs in the trial court’s June 18, 2012

Sentencing Entry.

       {¶11} A motion by an indigent criminal defendant for waiver of payment of costs

must be made at the time of sentencing. State v. Threatt, 

, 2006-Ohio-

905. Appellant cites State v. Joseph, 

, holding it is reversible error for

the trial court to impose costs in its sentencing entry when it did not impose those costs

in open court at sentencing. However, Joseph was decided on direct appeal. Appellant

did not raise the issue of court costs at trial or on direct appeal. Therefore, his claim is

barred by res judicata as the issue was capable of being raised on direct appeal.

       {¶12} The first assignment of error is overruled.
Stark County, Case No. 2015CA00175                                                            4


                                                  II.

       {¶13} In the second assignment of error, Appellant asserts the trial court erred by

issuing a ruling without providing the State of Ohio an opportunity to respond to

Appellant’s affidavit of indigency, in violation of the trial court’s local rules. Specifically,

Appellant cites Stark County General Division Rule 10.03 providing a party opposing a

motion shall serve and file a brief written statement of reasons in opposition to the motion

within 14 days after service.

       {¶14} Upon review, the failure of the state to oppose the motion does not rise to

a constitutional violation, and the purpose of the local rule is to benefit the opposing party.

Accordingly, we find Appellant lacks standing to assert the argument as any prejudice

caused by the trial court’s failure would be to the State, not Appellant.

       {¶15} The second assignment of error is overruled.

       {¶16} The August 25, 2015 Judgment Entry of the Stark County Court of Common

Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur