[Cite as State v. Bishop,
2023-Ohio-102.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-22-016
WD-22-017
Appellee
Trial Court No. 2021CR0293
v. 2020CR0192
Ethan James Bishop DECISION AND JUDGMENT
Appellant Decided: January 13, 2023
…
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, for appellant.
…
DUHART, J.
{¶ 1} In this consolidated appeal, appellant, Ethan Bishop, appeals from two
judgments entered by the Wood County Court of Common Pleas, each ordering him to
pay the costs of prosecution and, further, advising him that a failure to pay those costs
could result in an order to perform community service. For the reasons that follow, we
affirm the judgment of the trial court.
Statement of the Case and Relevant Facts
{¶ 2} Appellant was first indicted on May 28, 2020, in a two-count indictment.
Count one charged him with assault, which was a felony of the fourth degree because of
the victim’s alleged status. Count two charged him with assault, which was a felony of
the fifth degree because the offense was committed at a local correctional facility. These
charges became the basis for case No. 2020-CR-192.
{¶ 3} A jury trial was scheduled in the case, but appellant failed to appear for trial.
This resulted in appellant being indicted, on June 3, 2021, for failure to appear as
required by recognizance, which was a felony of the fourth degree. That charge became
the basis for case No. 2021-Ohio-293.
{¶ 4} Ultimately, appellant went to trial on count two of the first indictment. He
was found guilty and was sentenced to serve ten months in prison.
{¶ 5} Shortly thereafter, appellant pleaded guilty to an attempted failure to appear
related to the later indictment, which was a felony of the fifth degree. For this charge,
appellant received a six-month prison term that was ordered to be served concurrently to
the sentence he was serving in case No. 2020-CR-192.
{¶ 6} The judgment of conviction and sentencing in each of the two cases
provided in part:
2.
Defendant is ordered to pay the costs of this prosecution. Judgment
is awarded for costs and execution awarded. The defendant is notified that
if the defendant fails to pay this judgment or fails to make timely payments
towards that judgment under a payment schedule approved by the Court,
the Court may order the defendant to perform additional community service
in an amount of not more than forty hours per month until the judgment is
paid or until the court is satisfied that the defendant is in compliance with
the approved payment schedule.
Appellant timely appealed from both judgments.
Assignment of Error
{¶ 7} Appellant asserts the following assignment of error on appeal:
1. The trial court’s orders for appellant to pay court costs or be
subject to community service or other court order nonpayment are contrary
to law.
Analysis
{¶ 8} In his sole assignment of error, appellant challenges the idea that he could be
ordered to perform community service for failure to pay costs, arguing that although such
sanction is permitted under R.C. 2947.23, it is in violation of the laws against peonage
and, therefore, is contrary to law.
3.
42 U.S.C. 1994, which codifies the abolition of peonage, states:
The holding of any person to service or labor under the system known as
peonage is abolished and forever prohibited in any Territory or State of the
United States; and all acts, laws, resolutions, orders, regulations, or usages
of any Territory or State, which have heretofore established, maintained, or
enforced, or by virtue of which any attempt shall hereafter be made to
establish, maintain, or enforce, directly or indirectly, the voluntary or
involuntary service or labor of any persons as peons, in liquidation of any
debt or obligation, or otherwise, are declared null and void.
{¶ 9} R.C. 2947.23, which provides for community service in lieu of monetary
payment, states in relevant part:
(A)(1)(a) 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. If the
judge or magistrate imposes a community control sanction or other
nonresidential sanction, the judge or magistrate, when imposing the
sanction, shall notify the defendant of both of the following:
(i) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule approved by the
4.
court, the court may order the defendant to perform community service
until the judgment is paid or until the court is satisfied that the defendant is
in compliance with the approved payment schedule.
(ii) If the court orders the defendant to perform the community
service, the defendant will receive credit upon the judgment at the specified
hourly credit rate per hour of community service performed, and each hour
of community service performed will reduce the judgment by that amount.
Thus, the statute provides that a court shall include in the sentence the costs of
prosecution, and, further, may order a criminal defendant to perform community service
should he or she fail to pay court costs.
{¶ 10} As recognized by the Fourth District Court of Appeals in State v. Lamb,
2005-Ohio-4741,
837 N.E.2d 833, ¶ 10-11 (4th Dist.), the legality of ordering a defendant
to perform community service to satisfy a judgment for court costs has yet to be
determined:
[I]n State v. Glasscock (1993), 91 Ohio App.3d 520,
632 N.E.2d
1328, the Fourth District Court of Appeals held that courts may not order
offenders to perform community service to satisfy court costs. In so ruling,
the Glasscock court first observed that court costs are civil debts. It then
found ‘no authority permitting a court to order a civil debtor to perform
community service to pay off a debt.’ Id. at 525,
632 N.E.2d 1328.
5.
We note, however, that certain statutes now expressly permit a trial
court to order a defendant to perform community service to satisfy a
judgment for court costs. See R.C. 2947.23(A)(1)(a); R.C. 2929.28(B). In
State v. White, 193 Ohio St.3d 580,
2004-Ohio-5989,
817 N.E.2d 393, the
Ohio Supreme Court recognized that R.C. 2947.23 now authorizes a court
“to impose community service upon the defendant as a method to pay off or
forgive costs.” Id. at ¶ 15. The White court declined, however, to address
the legality of this method of collecting court costs. Id. Thus, the issue
remains an open question.
{¶ 11} Although the propriety of converting court costs to community service
remains in question, Ohio law is clear that “imposition of court costs is civil in nature,
and under Article 1, Section 15 of the Ohio Constitution, a person cannot be imprisoned
for his failure to pay a civil debt.” State v. Taylor, 161 Ohio St.3d 319,
2020-Ohio-3514,
163 N.E.3d 486, ¶ 21;
Lamb at ¶ 12.
{¶ 12} Without addressing the merits of appellant’s claim, the state argues that
appellant’s argument is not ripe for appellate review. Addressing the doctrine of
ripeness, the Supreme Court of Ohio, in State v. Maddox, --- Ohio St.3d ---, 2022-Ohio-
764, --- N.E.3d ---, recently explained:
“In order to be justiciable, a controversy must be ripe for review.”
Keller v. Columbus, 100 Ohio St.3d 192,
2003-Ohio-5599,
797 N.E.2d 964,
6.
¶ 26; see also Pack v. Cleveland, 1 Ohio St.3d 129,
438 N.E.2d 434 (1982),
paragraph one of the syllabus. … “ ‘The basic principle of ripeness may
be derived from the conclusion that “judicial machinery should be
conserved for problems which are real or present and imminent, not
squandered on problems which are abstract or hypothetical or remote.” ’ ”
State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 89,
694 N.E.2d 459 (1998), quoting Comment, Mootness and Ripeness: The
Postman Always Rings Twice, 65 Colum.L.Rev. 867, 876 (1965), quoting
Davis, Ripeness of Governmental Action for Judicial Review, 68
Har.L.Rev. 1122, 1122 (1955).
Ripeness is distinct from standing, but both doctrines require that
“an injury in fact be certainly impending.” Natl. Treasury Emps. Union v.
United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). ‘[I]f a threatened
injury is sufficiently ‘imminent’ to establish standing, the constitutional
requirements of the ripeness doctrine will necessarily be satisfied.” Id. at
1428. Then, “only the prudential justiciability concerns of ripeness can act
to bar consideration of the claim.” Id. The prudential-justiciability
concerns include (1) whether the claim is fit for judicial decision and (2)
whether withholding court consideration will cause hardship to the parties.
Hill v. Snyder, 878 F.3d 193, 213 (6th Cir. 2017), citing Abbott
7.
Laboratories v. Gardner, 387 U.S. 136, 149, 153,
87 S.Ct. 1507,
18
L.Ed.2d 681 (1967), abrogated in part on other grounds, Califano v.
Sanders, 430 U.S. 99,
97 S.Ct. 980,
51 L.Ed.2d 192 (1977). The first prong
of the prudential-justiciability question is met when “[t]he issue presented
in th[e] case is purely legal, and will not be clarified by further factual
development.” Thomas v. Union Carbide Agricultural Prods. Co., 473
U.S. 568, 581,
105 S.Ct. 3325,
87 L.Ed.2d 409 (1985).
Id. at ¶ 7-8.
{¶ 13} Assuming, without deciding, that the threatened injury is sufficiently
“imminent” to establish standing in this case, we first consider whether appellant’s claim
is fit for judicial decision. Here, appellant was ordered in both of his sentencing
judgment entries to pay the costs of prosecution. In addition, he was notified of the
possible consequences for any future failure to pay those costs, including the possibility
of being ordered to perform community service.1 Since no additional factual
development is needed to address appellant’s purely legal question regarding the legality
of imposing community service upon a defendant as a method to pay off or forgive court
1
In this case, the statute required only that the costs of prosecution be included in the
sentence. See R.C. 2947(A)(1)(a). Notification concerning the possibility of a
community service order in lieu of payment, although provided in the relevant judgment
entries, was not required, because the court imposed a prison term, rather than
community control or any other nonresidential sanction. Id.
8.
costs, we find that the first prong of the prudential-justiciability question is, in fact,
satisfied. See Maddox at ¶ 8.
{¶ 14} Next, we consider whether withholding consideration will cause hardship
to the parties. Although the imposition of court costs on all convicted defendants is
mandatory pursuant to R.C. 2947.23(A)(1)(a), R.C. 2947.23(C) gives a trial court
continuing jurisdiction to “waive, suspend, or modify the payment of the costs of
prosecution … at the time of sentencing or at any time thereafter.” See State v. Taylor,
161 Ohio St.3d 319,
2020-Ohio-3514, ¶ 21.
{¶ 15} Also pursuant to the statute:
If a judge or magistrate has reason to believe that a defendant has
failed to pay the judgment … or has failed to timely make payments
towards that judgment under a payment schedule approved by the judge or
magistrate, the judge or magistrate shall hold a hearing to determine
whether to order the offender to perform community service for that failure.
… If, after the hearing, the judge or magistrate determines that the
defendant has failed to pay the judgment or to timely make payments under
the payment schedule and that imposition of community service for the
failure is appropriate, the judge or magistrate may order the offender to
perform community service until the judgment is paid or until the judge or
9.
magistrate is satisfied that the offender is in compliance with the approved
payment schedule.
Id. Thus, “a judge has a duty to hold a hearing to determine whether to impose
community service, but only if the judge has reason to believe that the defendant has
failed to pay the judgment or has failed to timely make payments in accordance with the
approved schedule.” State v. Freeman, 4th Dist. Adams No. 21CA1141,
2022-Ohio-674,
¶ 6 (emphasis in original).
{¶ 16} Here, there is nothing in the record that gives reason to believe that
appellant has failed to make payments toward the judgment. Under these circumstances,
appellant cannot be ordered to perform community service and, as a result, cannot be
found to have suffered any injury. In the event that appellant is found, following a
hearing, to have failed to make appropriate payments toward his judgment, he would
have a right to appeal that order. See Freeman, at ¶ 1 (involving an appeal from a
decision denying a defendant’s motion seeking to credit his unpaid balance of court costs
with community service hours); Lamb, 2005-Ohio-4741,
837 N.E.2d 835, at ¶ 1
(involving an appeal from judgment entries finding defendant in criminal contempt of
court and ordering him jailed for failing to perform community service to satisfy
previously imposed fines and costs). Because we find that withholding court
consideration will not cause hardship to the parties, we find that this matter is not ripe for
review. Accordingly, appellant’s assignment of error is found not well-taken.
10.
{¶ 17} For all of the foregoing reasons, the judgments of the Wood County Court
of Common Pleas are affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
11.
