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State v. Slonaker

Court of Appeals of Ohio, Fourth District

December 19, 2008

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL SLONAKER, Defendant-Appellant.

Timothy Young, Ohio State Public Defender, John A. Bay, Senior State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.

James E. Schneider, Washington County Prosecutor, Susan L. Vessels, Assistant Washington County Prosecutor, Marietta, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Matthew W. McFarland, Judge.

{¶1} Appellant appeals from the sentence imposed by the Washington County Common Pleas Court as a result of his guilty plea to trafficking in marijuana, a felony of the fifth degree, in violation of R.C. 2925.03(A)(1) & (C)(3)(a). As a result of his plea of guilt, Appellant was sentenced to serve a term of twelve months in prison, a period of post-release control, and was ordered to pay the costs of prosecution. On appeal, Appellant asserts that the trial court erred by imposing court costs without notifying him that failure to pay court costs may result in the court ordering him to perform community service pursuant to R.C. 2947.23. The State candidly agrees with Appellant and states that the matter must be remanded for resentencing. However, because we conclude that the issue is not ripe for adjudication, we overrule Appellant's sole assignment of error and affirm the decision of the trial court.

FACTS

{¶2} On March 14, 2008, Appellant pled guilty to trafficking in marijuana, a felony of the fifth degree, in violation of R.C. 2925.03(A)(1) & (C)(3)(a). A sentencing hearing was held on April 24, 2008, and on April 28, 2008, the trial court sentenced Appellant to a prison term of twelve months, to be served consecutively with the sentence Appellant was already serving as a result of another conviction, as well as period of post release control. Additionally, Appellant was ordered to pay the costs of prosecution and his license was suspended for a period of five years. It is from this sentence that Appellant now brings his timely appeal, assigning a single error for our review.

ASSIGNMENT OF ERROR

"I. THE TRIAL COURT ERRED BY IMPOSING COURT COSTS WITHOUT NOTIFYING APPELLANT THAT FAILURE TO PAY COURT COSTS MAY RESULT IN THE COURT ORDERING HIM TO PERFORM COMMUNITY SERVICE PURSUANT TO R.C. 2947.23."
LEGAL ANALYSIS

{¶3} In his sole assignment of error, Appellant contends that the trial court erred by imposing court costs without notifying him that failure to pay court costs may result in the court ordering him to perform community service, as required by R.C. 2947.23(A)(1)(a). The State does not dispute Appellant's argument and agrees that the matter must be remanded for resentencing. For the following reasons, we disagree with both Appellant and the State.

{¶4} A review of the record reveals that the trial court did in fact order Appellant to pay costs. R.C. 2947.23, Judgment for costs and jury fees; community service upon failure to pay, provides as follows:

(A) (1) 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. At the time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
(a) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform 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.
(b) 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 ...

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