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State of Ohio v. Silver J. Powell

September 28, 2011

STATE OF OHIO APPELLEE
v.
SILVER J. POWELL APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 99 11 2495 (A)

The opinion of the court was delivered by: Whitmore, Judge.

Cite as State v. Powell,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant, Silver Powell, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms in part and vacates in part.

I

{¶2} In 2001, this Court affirmed Powell's convictions for gross sexual imposition, felonious assault, and child endangering on direct appeal. State v. Powell (Oct. 3, 2001), 9th Dist. No. 20067. Powell's original sentencing entry ordered him to "pay all prosecution costs, including any fees permitted pursuant to O.R.C. 2929.18(A)(4)." In 2009, Powell filed a motion for sentencing, arguing that his prior sentence was void due to an error in his post-release control notification. The trial court conducted a de novo resentencing in December 2009 and journalized a new sentencing entry on December 18, 2009. The 2009 sentencing entry orders Powell to pay court costs.

{¶3} Powell now appeals from the trial court's sentencing entry and raises two assignments of error for our review. We consolidate the assignments of error.

II

Assignment of Error Number One

"THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST DEFENDANT WITHOUT COMPLYING WITH R.C. 2947.23(A)."

Assignment of Error Number Two

"DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT'S IMPOSITION OF COURT COSTS UNDER R.C. 2947.23(A) WAS DEFECTIVE."

{ΒΆ4} In his assignments of error, Powell argues that his sentence must be vacated because the trial court failed to comply with R.C. 2947.23(A)(1) at his sentencing hearing. Specifically, he argues that the court could not impose court costs against him without first informing him that his failure to pay those costs could result in an order to perform community service. He further argues that his trial counsel was ineffective for failing to challenge the court's imposition of costs. We need not ...


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