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State v. Tabb

Court of Appeals of Ohio, Tenth District

September 19, 2013

State of Ohio, Plaintiff-Appellee,
v.
David Tabb, Jr., Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 11CR04-2226

Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.

Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.

DECISION

KLATT, P.J.

(¶ 1} Defendant-appellant, David Tabb, Jr., appeals from a judgment entry entered by the Franklin County Court of Common Pleas revoking his community control and imposing a ten-month prison term after he violated the terms and conditions of his community control. For the following reasons, we reverse that judgment and remand the matter for further proceedings.

I. Factual and Procedural Background

(¶ 2} In 2011, appellant was charged with a single count of possession of cocaine in violation of R.C. 2925.11. Appellant eventually entered a guilty plea to a stipulated lesser-included offense of possession of cocaine. Plaintiff-appellee, State of Ohio, and appellant jointly recommended to the trial court that appellant receive a term of community control. On November 10, 2011, the trial court accepted appellant's guilty plea, found him guilty, and placed appellant on community control for one year.

(¶ 3} On October 31, 2012, days before his year of community control was set to expire, appellant's probation officer filed a "Request for Revocation of Probation and Statement of Violations" against appellant. Specifically, the document claimed that appellant violated the terms and conditions of his community control by failing to: (1) twice report to the probation office in January and March 2012, (2) pay $349 in supervision fees and court costs, and (3) verify his employment. At a subsequent hearing, appellant admitted to the violations but requested that the trial court either terminate the community control because he had already served more than one year, or extend it so that he could remedy the violations. Appellant explained that he was having a difficult time finding a job, which made it hard for him to pay his supervision fees and court costs. The trial court expressed concern that appellant had not paid the court costs but had tested positive for marijuana, [1] to which the trial court apparently meant that appellant decided to spend money on drugs and not on his obligations. The trial court continued the matter for two months to allow appellant more time to pay the court costs. The trial court told appellant that his community control would end if he paid the court costs, but if he did not, the trial court told him that he would go to jail for smoking marijuana. (Tr. 8.)

(¶ 4} Appellant came before the trial court two months later. He made a $100 payment towards his court costs the morning of the hearing, but told the trial court about his continued inability to get a job and again asked the trial court to either terminate his community control unsuccessfully or extend it so that he could remedy the violations. This time, however, the trial court revoked appellant's community control, "[b]ased on the statement of violations, the admission of probable cause and admission of violations" and sentenced him to a ten-month prison term. (Tr. 14.)

II. The Appeal

(¶ 5} Appellant appeals and assigns the following errors:

[1.] The trial court erred when it imposed a prison sentence of ten months upon the defendant due to his failure to pay court costs because the court lacked lawful authority to imprison a person for the non-payment of court costs.
[2.] If there are any legal provisions that allow for the imprisonment for the failure to pay court costs, the provisions could not be enforced unless it was first determined that the debtor was not indigent and had the ability to pay the costs. The trial court failed herein to find that the defendant had the ability to pay ...

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