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State of Ohio v. Marc Hornacky

November 10, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MARC HORNACKY DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-475474, CR-473470, CR-474173 and CR-476417

The opinion of the court was delivered by: James J. Sweeney, J.:

Cite as State v. Hornacky,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: Sweeney, J., Blackmon, P.J., and Stewart, J.

{¶1} Defendant-appellant Marc J. Hornacky ("defendant") appeals the court's denial of his motion to vacate court costs, fines, and fees. After reviewing the facts of the case and pertinent law, we affirm.

{¶2} On April 13, 2006, defendant, who had previously been declared indigent, pled guilty to multiple theft related offenses in four cases, and the court sentenced him to an agreed upon six years in prison. At the sentencing hearing, the court failed to notify defendant about court costs; however, the sentencing journal entry states "defendant is to pay court costs."

{¶3} On May 30, 2008 and July 19, 2010, defendant filed motions to vacate court costs, fines, and fees. The court denied these motions, stating that "Defendant may work off court costs via community work service as approved by the warden's office." Defendant appeals the denial of the July 19, 2010 motion, raising one assignment of error for our review.

{¶4} I. "The trial court erred prejudicially to the appellant when it imposed assigned counsel fee and courts costs to an indigent, and also by imposing said costs without considering the appellant's present and future ability to pay them. Trial counsel provided 'ineffective assistance' for failing to object to the imposed costs, or otherwise take measures to assure that the costs would not be imposed on his indigent client."

{¶5} Defendant challenges the court costs and "assigned counsel fee" imposed against him. However, only court costs were imposed against defendant as part of his sentence. Therefore, we limit our analysis accordingly.

{¶6} Defendant did not appeal from the denial of his first motion to vacate court costs; therefore, the doctrine of res judicata bars him from subsequently raising this same issue. See State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. Nonetheless, we review the substance of defendant's arguments.

{¶7} In State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶8, the Ohio Supreme Court held that R.C. 2947.23 "requires a court to assess costs against all convicted defendants." (Emphasis omitted.) The White court additionally held that it was within the court's discretion to waive the payment of costs imposed upon an indigent offender. Id. Furthermore, under R.C. 2949.14, "a clerk of courts may attempt the collection of assessed court costs from an indigent defendant." Id. at ¶14.

{ΒΆ8} Defendant cites as authority this court's opinion in City of Cleveland v. Tighe, Cuyahoga App. Nos. 81767 and 81795, 2003-Ohio-1845. Tighe, however, is distinguishable from the case at hand because Tighe was not indigent; defendant is. In Tighe, the trial court suspended costs against the defendant, and this court reversed the decision, holding that "the trial court did not ...


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