[Cite as State v. Risner,
2025-Ohio-1218.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
CASE NO. 6-24-08
PLAINTIFF-APPELLEE,
v.
GREGORY LEE RISNER, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 6-24-09
PLAINTIFF-APPELLEE,
v.
GREGORY LEE RISNER, OPINION
DEFENDANT-APPELLANT.
Appeals from Hardin County Common Pleas Court
Trial Court Nos. CRI 20202053 and CRI 20212080
Judgments Affirmed
Date of Decision: April 7, 2025
APPEARANCES:
Kimberly E. Burroughs and Patrick T. Clark for Appellant
Morgan S. Fish for Appellee
Case Nos. 6-24-08, 09
WILLAMOWSKI, J.
{¶1} Defendant-appellant Gregory L. Risner (“Risner”) appeals the
judgments of the Hardin County Court of Common Pleas, arguing that the manner
in which the trial court ordered him to repay the costs of his court-appointed counsel
violated R.C. 2941.51(D) and his constitutional rights. For the reasons set forth
below, the judgments of the trial court are affirmed.
Facts and Procedural History
{¶2} On April 16, 2020, Risner was indicted on four felony charges that
became the basis of Case No. CRI-2020-2053. Pursuant to a plea agreement, he
pled guilty to two of these charges. On October 22, 2020, the trial court issued a
judgment entry of sentencing that placed Risner on community control. This entry
also ordered Risner to “[p]ay court costs, including court appointed counsel fees,”
and taxed these fees to him as court costs. (Doc. 41A).
{¶3} On June 23, 2021, the State filed a motion to revoke Risner’s
community control after he was indicted on seventeen felony charges that became
the basis of Case No. CRI-2021-2080. In response, the trial court declined to
continue Risner on community control and imposed an aggregate prison term of
forty-one months. This order also taxed court-appointed-counsel fees to Risner as
court costs.
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{¶4} The seventeen felony charges in Case No. CRI-2021-2080 went to trial
on October 14-15, 2021. The jury found Risner guilty on all charges. On November
1, 2021, the trial court issued a judgement entry of sentencing that ordered Risner
to serve a prison term of seventy-six months that was to be served consecutively to
the prison term imposed in Case No. CRI-2020-2053. This entry also ordered
Risner to “[p]ay court costs, including court appointed counsel fees” and taxed these
fees to him as court costs. (Doc. 72B).
{¶5} On April 23, 2024, Risner filed motions to modify the judgment entries
of sentencing in Case No. CRI-2020-2053 and Case No. CRI-2021-2080. Risner
argued that
[i]t is unlawful for a court to sentence an offender to repay court-appointed-counsel fees. [State v.] Taylor, 2020-Ohio-6786, ¶ 32-34.
Court costs and criminal financial penalties must be included in a
defendant’s criminal sentence. Taylor at ¶ 34-36; R.C. 2941.23. But
orders to repay the fees of court appointed counsel may not be taxed
as costs, and they may not be included in a defendant’s criminal
sentence. Taylor at ¶ 32-34. Instead, if a court wishes to order a
criminal defendant to repay court-appointed-counsel fees, the court
must impose the order on the defendant as a civil judgment. [Taylor]
at [¶] 32-38.
(Emphasis added.) (Doc. 90A, 98B). To make the requested modification, this
motion invoked the continuing jurisdiction over court costs that is conferred on trial
courts by R.C. 2947.23(C).
{¶6} On April 25, 2024, the trial court issued a judgment entry in Case No.
CRI-2020-2053 and a judgment entry in Case No. CRI-2021-2080 (collectively “the
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April 25 judgment entries”) that found the original sentencing entries in these cases
had incorrectly taxed court-appointed-counsel fees to Risner as court costs. The
April 25 judgment entries modified Risner’s court costs by removing the orders that
taxed his court-appointed-counsel fees as court courts; stated that the court-
appointed-counsel fees were civil assessments; and specified that these civil
assessments were not a part of his sentence.1
{¶7} Risner filed his notices of appeal on May 28, 2024. On appeal, he raises
the following two assignments of error:
First Assignment of Error
The trial court erroneously applied both R.C. 2941.51(D) and its
implementing regulation, Adm. Code 120-1-05, when it ordered
Mr. Risner to immediately repay the full cost of his court
appointed counsel.
Second Assignment of Error
The trial court’s order requiring Mr. Risner to immediately repay
the entire cost of his court appointed counsel violates Mr. Risner’s
constitutional right to counsel.
First Assignment of Error
{¶8} Risner argues that the trial court failed to comply with R.C. 2941.51(D)
and Ohio Adm. Code 120-1-05 in addressing the costs of court-appointed counsel.
1
On appeal, Risner does not challenge the trial court’s ability to issue a civil assessment for court-appointed-counsel fees after it vacated the order that taxed court-appointed-counsel fees as court costs pursuant to R.C.
2947.23(C). Accordingly, we will not conduct an analysis of this issue in this opinion. See also Taylor,
2020-Ohio-6786, ¶ 32-33 38.
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Legal Standard
{¶9} At the outset, R.C. 2941.51 states that “[court-]appointed counsel shall
be paid ‘by the county the compensation and expenses that the trial court
approves.’” State v. Radabaugh, 2024-Ohio-5640, ¶ 78 (3d Dist.), quoting R.C.
2941.51(A). However, R.C. 2941.51(D) goes on to provide the following:
The fees and expenses approved by the court under this section shall
not be taxed as part of the costs and shall be paid by the county.
However, if the person represented has, or reasonably may be
expected to have, the means to meet some part of the cost of the
services rendered to the person, the person shall pay the county an
amount that the person reasonably can be expected to pay. …
(Emphasis added.) Thus, pursuant to this provision, a “trial court in a criminal case
has the authority to impose court-appointed-counsel fees upon a defendant.” State
v. Taylor, 2020-Ohio-6786, ¶ 24. Further,
while such fees may be assessed at the sentencing hearing, they cannot
be included as a part of the offender’s sentence. Though, if the
assessment of the fees is included in the sentencing entry, the court
must note that the assessment of the court-appointed-counsel fees is a
civil assessment and is not part of the defendant’s sentence.
Taylor at ¶ 37. “To avoid confusion, the best practice would be to include the order
in a separate entry, apart from the sentence.”
Id.
{¶10} In deciding whether to assess court-appointed-counsel fees, “R.C.
2941.51 provides that the trial court evaluates whether the defendant can reasonably
be expected to pay the fees.” Taylor at ¶ 29.
What goes into this determination are myriad factors similar to those
a court would use to evaluate a defendant’s ability to pay court costs
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Case Nos. 6-24-08, 09
under R.C. 2947.23. The court’s decision should be informed by the
administrative provisions and agency-promulgated rules that govern
the matters of indigency and recoupment, as that will place courts and
government agencies in a better position when the relevant parties
seek collection.
Id. “R.C. 2941.51 does not require the trial court to make any explicit findings prior
to assessing court-appointed-counsel fees against a defendant, [though] making
such findings explicitly on the record is the best practice.” Id. at ¶ 28.
Standard of Review
{¶11} An appellate court examines a trial court’s “finding that [a defendant]
has, or reasonably may be expected to have, the means to pay court-appointed-
counsel fees” for an abuse of discretion. State v. Radabaugh, 2024-Ohio-5640, ¶
79 (3d Dist.). An abuse of discretion is not merely an error of judgment but is
present where the trial court’s decision was arbitrary, unreasonable, or capricious.
State v. Wilson,
2022-Ohio-504, ¶ 37 (3d Dist.).
Legal Analysis
{¶12} Risner raises three main arguments herein. First, he asserts that R.C.
2941.51(D) and Ohio Adm. Code 120-1-05(G) do not permit trial courts to assess
all of the court-appointed-counsel fees that are incurred during a defendant’s
representation. However, in State v. Taylor, the Ohio Supreme Court interpreted
R.C. 2941.51(D) and held that, “under the plain language of the statute, the person
represented by court-appointed counsel may be required to pay some or all of the
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Case Nos. 6-24-08, 09
expenses of that representation.” (Emphasis added.) Taylor, 2020-Ohio-6786, ¶
17. See also
Radabaugh at ¶ 78.
{¶13} In turn, Ohio Adm. Code 120-1-05(G) reads, in its relevant part, as
follows:
Subject to review and approval by the Ohio public defender, each
county shall establish a reimbursement, recoupment, contribution, or
partial payment program to recover a portion of the expense of
appointing counsel. . . .
Such programs shall not:
...
(G) Attempt to recoup the full cost of providing appointed counsel,
experts, transcripts, or other associated expenses.
Ohio Adm. Code 120-1-05(G). As an initial matter, we acknowledge that trial
courts “should be informed by the administrative provisions and agency-
promulgated rules that govern the matters of indigency and recoupment” in making
determinations about assessing court-appointed-counsel fees. (Emphasis added.)
Taylor, 2020-Ohio-6786, ¶ 29.
{¶14} However, the issue raised by Risner concerns trial courts that are in
the process of deciding whether to issue an assessment for court-appointed-counsel
fees. The language of Ohio Adm. Code 120-1-05(G) clearly addresses county
programs that are seeking to recover court-appointed-counsel fees. Even assuming
that this regulation could restrict trial courts, it does not contain language that would
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Case Nos. 6-24-08, 09
purport to limit a trial court’s discretion under R.C. 2941.51(D) in the manner
advocated by Risner.
{¶15} In contrast to Ohio Adm. Code 120-1-05, the reasoning in State v.
Taylor directly addresses the exact issue raised by Risner. Accordingly, we apply
the interpretation of R.C. 2941.51(D) in State v. Taylor to the question before us
and hold that a trial court is permitted to assess “some or all” of the court-appointed
counsel fees that are incurred during a defendant’s representation. Taylor, 2020-
Ohio-6786, ¶ 17. See Radabaugh, 2024-Ohio-5640, ¶ 78 (following the identified
interpretation of R.C. 2941.51(D) in Taylor). Accordingly, this first argument is
without merit.
{¶16} Second, Risner asserts that R.C. 2941.51(D) did not permit the trial
court to consider his future ability to pay court-appointed-counsel fees in deciding
whether to issue a civil assessment in this case. R.C. 2941.51(D) reads, in its
relevant part, as follows: “if the person represented has, or reasonably may be
expected to have, the means to meet some part of the cost of the services rendered
to the person, the person shall pay the county an amount that the person reasonably
can be expected to pay.” (Emphasis added.) R.C. 2941.51(D).
{¶17} In interpreting the text of R.C. 2941.51(D), this Court has repeatedly
indicated that a trial court can issue an assessment for court-appointed-counsel fees
if a defendant is found to have a “present or future ability to pay” these costs.
(Emphasis added.) State v. Ramsey, 2012-Ohio-134, ¶ 22 (3d Dist.). See State v.
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Case Nos. 6-24-08, 09
Shaffer, 2009-Ohio-4804, ¶ 20 (3d Dist.); State v. Junod,
2019-Ohio-743, ¶ 66 (3d
Dist.); State v. Cartlidge,
2020-Ohio-3615, ¶ 48 (3d Dist.). See also State v. Skirvin,
2019-Ohio-2040, ¶ 9 (2d Dist.); State v. Connin,
2021-Ohio-4445, ¶ 39 (6th Dist.).
{¶18} Against this position, Risner argues that an interpretation of R.C.
2941.51(D) that permits trial courts to issue civil assessments based solely upon a
defendant’s future ability to pay would necessarily permit trial courts to enforce
collection on a civil assessment based solely upon a defendant’s future ability to
pay. Risner argues that, as a result of this interpretation, civil assessments could be
immediately enforced against an indigent and incarcerated defendant simply
because he or she was found to have a future ability to pay.
{¶19} This argument alludes to the fact that, after the trial court issues a civil
judgment that assesses court-appointed-counsel fees, collection on that civil
judgment is enforced “separately . . . via the civil collection process.” See State v.
Riley, 2019-Ohio-3327, ¶ 98 (11th Dist.), citing R.C. 120.04(B)(5); State v.
Nicholas,
2021-Ohio-1669, ¶ 8 (2d Dist.); State v. Fulton,
2019-Ohio-2509, ¶ 54
(11th Dist.). In the case presently before us, the trial court has issued a civil
assessment for court-appointed-counsel fees, but the record contains no indication
that a civil collection proceeding has been initiated to enforce this civil assessment.
{¶20} Risner’s argument asks how the text of R.C. 2941.51(D) would apply
in a situation where a trial court decided to enforce an assessment for court-
appointed-counsel fees in a civil collection proceeding against an indigent and
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Case Nos. 6-24-08, 09
incarcerated defendant solely because he or she was found to have a future ability
to pay.2 This case does not present that situation. We decline to apply R.C.
2941.51(D) to a hypothetical scenario. Instead, we will limit our analysis to what
transpired in this case and determine only whether the trial court erred in issuing a
civil assessment for court-appointed counsel fees based on Risner’s future ability to
pay.
{¶21} Having considered Risner’s arguments on appeal, we affirm our prior
precedent and again conclude that, in addition to a person’s present ability to pay
court-appointed counsel fees, a person’s “future ability to pay also justifies an order
of reimbursement pursuant to the terms of R.C. 2941.51(D). . . .” State v. Ping,
2023-Ohio-4608, ¶ 19 (3d Dist.). Thus, the trial court did not err in issuing an
assessment for court-appointed-counsel fees based upon Risner’s future ability to
pay these costs. Accordingly, this second argument is without merit.
{¶22} Third, Risner asserts that, under the facts of this case, the trial court
abused its discretion by assessing court-appointed-counsel fees to him. In its April
25 judgment entries, the trial court made an express finding that Risner would have
the ability to pay the court-appointed-counsel fees. See Taylor, 2020-Ohio-6786, ¶
28 (“R.C. 2941.51 does not require the trial court to make any explicit findings prior
2
In addition to inquiring into how our interpretation of R.C. 2941.51(D) could apply in a situation where a
trial court formally decides to enforce a civil assessment in a collection proceeding, Risner also argues that
the April 25 judgment entries effectively require him to pay towards the civil assessment of court-appointed-counsel fees while he is indigent and incarcerated. However, we will consider this argument under his second
assignment of error as he raises this same challenge therein.
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Case Nos. 6-24-08, 09
to assessing court-appointed-counsel fees . . . , [though] making such findings . . . is
the best practice” as this would allow for “more meaningful [appellate] review of
the imposition of fees.”).
{¶23} We find the case presently before us to be distinguishable from a
recent decision in which we concluded that a trial court abused its discretion in
assessing court-appointed-counsel fees. In State v. Radabaugh, the court-
appointed-counsel fees accrued across a thirteen-month representation that
culminated in a jury trial that lasted multiple days. Id.,
2024-Ohio-5640, fn. 5. At
sentencing, the trial court imposed a restitution order of $7,482; a fine of
$20,000.00; and court costs. Id. at ¶ 84. In this process, the trial judge said, “I think
what’s done in the way of financial [sanctions] is probably more than he’ll ever be
able to pay realistically. . . .” Id.
{¶24} The trial court also ordered Radabaugh to serve “a total aggregate
sentence of life in prison without the possibility of parole.” Radabaugh at ¶ 83.
Thus, in addition to the fact that the presentence investigation indicated that
Radabaugh did not have any current assets or income, his sentence indicated he was
unlikely to ever be released from prison. Id. at ¶ 83-84. In addressing this reality,
the trial court speculated that Radabaugh could still receive “an inheritance or
come[] into some money somehow.” Id. at ¶ 84. Given these facts, we concluded
that “it was unreasonable for the trial court to find Radabaugh ha[d], or reasonably
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may be expected to have, the means to pay the court-appointed-counsel fees.” Id.
at ¶ 85.
{¶25} In contrast, Risner was sentenced to an aggregate prison term of
roughly nine years and nine months when he was forty-four years old. Further, the
trial court stated that its determination was based upon “the employment
information in the presentence investigation.” (Doc. 99B). See State v. McMillen,
2022-Ohio-1212, ¶ 27 (5th Dist.); State v. Nichols,
2024-Ohio-5530, ¶ 35 (6th
Dist.); State v. Hall,
2011-Ohio-5748, ¶ 9 (12th Dist.). This report also contained
information about Risner’s health, monthly expenses, recent jobs, and hourly
earnings. See State v. Freeman,
2023-Ohio-3102, ¶ 13 (9th Dist.). Thus, the trial
court’s determination was based upon evidence in the record rather than on
speculation about “com[ing] into some money somehow.”
Radabaugh at ¶ 84.
{¶26} For these reasons, we conclude that the trial court did not abuse its
discretion in determining that Risner could be reasonably expected to have the
means to pay for the court-appointed-counsel fees in this case. Since Risner’s
argument does not establish that the trial court acted arbitrarily, unreasonably, or
unconscionably, the third argument is without merit. Accordingly, the first
assignment of error is overruled.
Second Assignment of Error
{¶27} Risner challenges the April 25 judgment entries, arguing that these
orders violate his constitutional right to counsel.
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Case Nos. 6-24-08, 09
Legal Standard
{¶28} The “distinction and separation of counsel fees from court costs is
significant.” Nicholas, 2021-Ohio-1669, ¶ 9. “[T]he General Assembly has
specifically required courts to include financial sanctions, fines, and court costs as
a part of the defendant’s sentence.” Taylor,
2020-Ohio-6786, ¶ 35. Thus, “a
defendant’s cost bill represents part of his sentence, albeit a civil debt.”
Nicholas at
¶ 9. However, “because there is no statutory authority allowing a trial court to
‘sentence’ a defendant to pay court-appointed-counsel fees, such an order cannot be
included as a part of the defendant’s sentence.”
Taylor at ¶ 35. For this reason,
court-appointed-counsel fees are to be recovered through “the civil collection
process.”
Nicholas at ¶ 11-12 (directing court-appointed-counsel fees to be
removed from a cost bill that was being paid by garnishing the funds in the
defendant’s inmate account). See also Riley,
2019-Ohio-3327, ¶ 100 (11th Dist.).
Legal Analysis
{¶29} Risner asserts that the April 25 judgment entries violate his
constitutional right to counsel by effectively requiring him to pay the civil
assessment of his court-appointed-counsel fees while he is incarcerated and
indigent. To substantiate this assertion, he points to a December 2021 Agreement
(“agreement”) in the record under which a third party agreed to make monthly
payments of $50.00 towards his court costs. Under this agreement, funds were to
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be withdrawn from Risner’s “inmate prison account” if the third party failed to make
a monthly payment. (Doc. 80A, 87B).
{¶30} Importantly, this agreement only addresses the “repayment of court
costs.” (Emphasis added.) (Doc. 80A, 87B). The original sentencing entries
included court-appointed-counsel fees in the court costs that were imposed.
However, the April 25 judgment entries were issued to remove the orders that
imposed court-appointed-counsel fees as court costs. Thus, pursuant to the terms of
April 25 judgment entries, Risner’s court-appointed-counsel fees are no longer
imposed as court costs and, as a consequence, would not still be subject to an
agreement that addresses the repayment of court costs.
{¶31} Even if the third party should fail to make a monthly payment under
the agreement, the record contains no indication that the funds withdrawn from
Risner’s prison inmate account could properly be applied by the clerk of courts to
his court-appointed-counsel fees as these fees are no longer imposed as court costs
pursuant to the April 25 judgment entries.3 For this reason, we conclude that Risner
has failed to establish that the April 25 judgment entries effectively require him to
pay the civil assessment of court-appointed-counsel fees while he is indigent and
3
The statement of costs issued by the clerk of courts indicates that Risner owed $9,856.15 in court costs and
restitution. Court-appointed-counsel fees constituted $4,960.35 of this total amount. By the time of his
appeal, the record contains twenty-nine receipts for payments that were received by the clerk of courts.
Beyond these figures, the record before this Court does not contain information that establishes the remaining
balance for Risner’s court costs or how the payments have been applied to the various obligations that
comprise the total amount of court costs.
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incarcerated. Since Risner’s arguments fail to identify an error with the April 25
judgment entries, the second assignment of error is overruled.
Conclusion
{¶32} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgments of Hardin County Court of Common Pleas are
affirmed.
Judgments Affirmed
WALDICK, P.J. and MILLER, J., concur.
/hls
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