Criminal Appeal from the Portage County Municipal Court, Ravenna Division. Case No. 2009 TRD 12709R.
Victor V. Vigluicci, Portage County Prosecutor, Timothy J. Piero and Theresa M. Scahill, Assistant Prosecutors, (For Plaintiff-Appellee).
Neil P. Agarwal, (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
(¶1} This matter comes before us on remand from the Ohio Supreme Court. State v. Gates, 131 Ohio St.3d 372, 2012-Ohio-1221. The judgment entry of remand requires us to apply State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, to the facts in this case. Gates at ¶1. A detailed recitation of the facts and procedural posture of the case can be found in our previous opinion. State v. Gates, 11 th Dist. Portage No. 2011-P-0001, 2011-Ohio-5711.
(¶2} At issue is the trial court's failure to notify appellant that failure to pay court costs could result in an order to perform community service, as required by former R.C. 2947.23(A)(1)(a). We previously held the issue is not ripe for adjudication until a failure to pay court costs results in an order to perform community service. Gates at ¶49. However, in Smith, the Ohio Supreme Court held:
A sentencing court's failure to inform an offender, as required by [former] R.C. 2947.23(A)(1), that community service could be imposed if the offender fails to pay the costs of prosecution or court costs presents an issue ripe for review even though the record does not show that the offender has failed to pay such costs or that the trial court has [ordered community service in lieu of payment].
Smith at 297. Thus, in accord with the remand, the issue is ripe and will be resolved as set forth herein.
(¶3} The relevant facts are not disputed. Appellant was not orally informed that community service could be imposed if he failed to pay court costs as ordered. The trial court's judgment entry, however, reflects the possibility that community service could be ordered under such circumstances. Former R.C. 2947.23(A)(1)(a), which was in force at the time of appellant's sentencing, required such notification in each case. There was no subsection (b) to allow a cure for the failure to notify. Thus, the narrow issue before us is the appropriate remedy for a trial court's failure to properly advise appellant, as required by former R.C. 2947.23(A)(1)(a), that he might be subject to court-ordered community service should he fail to pay costs.
(¶4} The Second District has held that the proper remedy is to modify the judgment of the trial court to eliminate the possibility that community service may be imposed in lieu of payment of court costs; the judgment is then affirmed as modified. See State v. Fomby, 11th Dist Lake No 2012-L-073, 2013-Ohio-2821, ¶70-72 (Cannon, PJ, concurring in judgment only), citing State v. Veal, 2d Dist. Montgomery No. 25253, 2013-Ohio-1577, ¶20; and State v. Haney, 2d Dist. Montgomery No. 25344, 2013-Ohio-1924, ¶21.
(¶5} We concur with Haney. As a result of the trial court's failure to properly inform appellant of the possibility that community service could be ordered in lieu of unpaid court costs, such an order cannot be entered against him. Thus, the judgment of the trial court is hereby modified to remove the possibility that community service may be ordered should ...