State v. Shreve

[Cite as State v. Shreve, 

.]


                                        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. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
JACK SHREVE, SR.                             :       Case No. 2020-CA-00146
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2016-CR-1488




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    February 8, 2021




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      JACK SHREVE, SR. PRO SE
PROSECUTING ATTORNEY                                 Inmate No. 692-196
STARK COUNTY, OHIO                                   Noble Correction Institution
                                                     15708 McConnelsville Road
By:     KATHLEEN O. TATARSKY                         Caldwell, OH 43724
        110 Central Plaza South - Suite 510
        Canton, OH 44702-1413
Stark County, Case No. 2020-CA-00146                                                       2



Wise, Earle, J.

       {¶ 1} Defendant-Appellant Jack Shreve, Sr., appeals the September 16, 2020

judgment of the Stark County Court of Common Pleas denying his motion to vacate or

suspend court cost and fines or restitution. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On December 28, 2016, following a jury trial, Shreve was convicted on

charges of rape and gross sexual imposition. He was subsequently sentenced to an

aggregate term of life imprisonment with parole eligibility after 15 years. We affirmed

Shreve's convictions and sentence on October 30, 2017. State v. Shreve, 5th Dist. Stark

No. 2016CR1488, 

.

       {¶ 3} On January 27, 2020, Shreve filed a motion to vacate or suspend court

costs, fines or restitution. The trial court denied the motion of January 31, 2020, and noted

it had not ordered Shreve to pay fines or restitution. Shreve did not appeal.

       {¶ 4} On September 11, 2020, Shreve filed a similar motion, requesting he be

permitted to perform community service in lieu of court costs. The trial court denied the

motion on September 16, 2020.

       {¶ 5} Shreve filed an appeal raising one assignment of error as follows:

                                              I

       {¶ 6} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT'S MOTION TO VACATE AND/OR SUSPEND COURT COST AND FINES

OR RESTITUTION."

       {¶ 7} In his sole assignment of error, Shreve argues the trial court abused its

discretion in denying his motion to vacate or suspend court costs, and fines or restitution
Stark County, Case No. 2020-CA-00146                                                        3


because he is indigent. Shreve appears to argue the trial court was required to consider

his present and future ability to pay court costs before denying his motion. We disagree.

       {¶ 8} R.C. 2947.23, governs the imposition of costs and states: "In all criminal

cases, including violations of ordinances, the judge or magistrate shall include in the

sentence the costs of prosecution … and render a judgment against the defendant for

such costs." R.C. 2947.23(A)(1)(a). Subsection (C), however, permits the trial court to

retain jurisdiction to "waive, suspend, or modify the payment of the costs of prosecution *

… at the time of sentencing or at any time thereafter." Therefore, while imposition of court

costs is mandatory, a trial court has discretion to waive the payment of court costs

whether a defendant is indigent or not. The trial court's decision regarding whether to

waive, suspend, or modify payment of court costs is, therefore, "reviewed under an abuse

of discretion standard." State v. Eblin, 5th Dist. Muskingum No. CT2019-0036, 2020-Ohio-

1216. In order to find an abuse of discretion, we must determine the trial court's decision

was unreasonable, arbitrary, or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 

, 

 (1983).

       {¶ 9} First, as the state points out and Shreve concedes, Shreve was never

ordered to pay a fine or restitution.

       {¶ 10} Next, as for payment of court costs, Shreve cites State v. Copeland, 2d Dist.

Montgomery No. 26842, 

 in support of his argument that a trial court

abuses its discretion when it denies a request to waive or suspend payment of court costs

when it has failed to consider a defendant's indigence or ability to pay. The reasoning in

Copeland, however, was recently abrogated in State v. Taylor, ___ Ohio St.3d ___, 2020-

Ohio-3514, which found a trial court is not required to consider a defendant's present or
Stark County, Case No. 2020-CA-00146                                                     4


future ability to pay when ruling on motion to vacate, suspend, or modify court costs under

R.C. 2947.23(C). Taylor at ¶ 16.

       {¶ 11} Because the trial court was not required to consider Shreve's present or

future ability to pay court costs, Shreve's sole assignment of error is overruled.

       {¶ 12} The judgment of the Stark County Court of Common Pleas is affirmed.




By Wise, Earle, J.

Hoffman, P.J. and

Wise, John, J. concur.




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