Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas, Case No. 04 CR 804.
Watkins, Trumbull County Prosecutor; Christopher D. Becker
and Ashleigh Musick, Assistant Prosecutors, Administration
Michael H. Goodman, pro se, (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
Appellant, Michael H. Goodman, appeals the judgment of the
Trumbull County Court of Common Pleas, denying his motion to
waive or defer court costs. Because appellant's argument
is barred by res judicata and, in any event, the court's
judgment was not an abuse of discretion, we affirm.
In August 2009, a jury convicted appellant of multiple counts
of aggravated robbery and related felonies that he committed
in November 2004. The trial court sentenced him to 34 and
one-half years of imprisonment. On appeal, this court
affirmed his conviction in State v. Goodman, 11th
Dist. Trumbull No. 2006-T-0130, 2007-Ohio-6252, ¶71
("Goodman I"). The Supreme Court of Ohio
declined to accept jurisdiction at 117 Ohio St.3d 1477,
In 2009, appellant filed a petition for postconviction relief
in the trial court, alleging defects in his indictment. The
trial court denied the petition. On appeal, this court
affirmed in State v. Goodman, 11th Dist. Trumbull
No. 2009-T-0068, 2010-Ohio-407, ¶29 ("Goodman
In April 2014, appellant filed a motion, asking the trial
court to establish a payment plan for his court costs. The
trial court denied the motion and appellant did not appeal.
One month later, in May 2014, appellant sent a letter to the
trial court, again requesting a payment plan. The trial court
construed this request as a second motion for a payment plan;
filed it with the clerk; and denied it. Appellant appealed,
and we dismissed the appeal in State v. Goodman,
11th Dist. Trumbull No. 2014-T-0047, 2014-Ohio-4884, ¶19
("Goodman III"). In relevant part, this
court held that, despite the recent amendment of R.C.
2947.23, giving trial courts continuing jurisdiction to waive
or modify court costs, a judgment denying a postconviction
motion to modify (such as by instituting a payment plan for
costs) was not a final appealable order. Goodman III
at ¶13-17. Alternatively, this court held the appeal was
barred by res judicata since appellant had not appealed from
the denial of his first motion to establish a payment plan.
Id. at ¶18.
On or about March 13, 2017, appellant moved the trial court
to waive or defer his court costs. The state opposed the
motion. By a judgment entered on June 21, 2017, the trial
court denied appellant's motion. He now appeals this
judgment, asserting the following as his sole assignment of
"The trial court erred and abused its discretion by
denying appellant's motion to waive or defer court costs,
in violation of his protection against cruel and unusual
punishment and right to due process, as provided under the
Eighth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution."
Appellant essentially argues that the clerk of court's
monthly deduction from his inmate account to be applied
toward his court costs prevents him from purchasing various
items he believes are necessary to maintain a decent life in
prison. Initially, we note this court in Goodman III
erred in holding that an order denying modification of court
costs in a criminal case is not a final order. Id.
at ¶15. This court in Goodman III held that the
denial of a postconviction motion to impose a payment plan
for costs does not affect a substantial right and thus is not
a final order. Id.
However, R.C. 2947.23(C), effective March 22, 2013, provides:
"The court retains jurisdiction to waive, suspend, or
modify the payment of the costs of prosecution * * * at the
time of sentencing or at any time thereafter." Since
R.C. 2947.23(C) authorizes the waiver or modification of
costs at the time of sentencing or at any time thereafter,
the denial of same after judgment is a final order. See
State v. Chase, 2d Dist. Montgomery No. 26238,
2015-Ohio-545, ¶9-10 (R.C. 2947.23(C) gives trial courts
jurisdiction to consider waiving court costs even after
sentencing; thus, regardless of when court costs were
imposed, the defendant may ask the trial court to waive
costs.). Accord State v. Campbell, 4th Dist. Adams
No. 16CA1029, 2017-Ohio-4252, ¶11; State v.
Sizemore, 5th Dist. Richland No. 15CA18, 2016-Ohio-1529,
¶3; State v. Price, 8th Dist. Cuyahoga No.
102987, 2015-Ohio-4592, ¶2, 4. We find the reasoning of
these courts to be persuasive and hold the trial court's
judgment denying appellant's motion to waive or defer
court costs is a final order.
However, while the denial of appellant's motion to waive
costs is a final order, this appeal is barred by res
judicata. In the context of criminal cases, a convicted
defendant is precluded under the doctrine of res judicata
"from raising and litigating in any proceeding except an
appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been
raised by the defendant at the trial, which resulted in
that judgment of conviction, or on an appeal from that
judgment." (Emphasis added.) State v. Szefcyk,
77 Ohio St.3d 93, 96 (1996). Further, in order for a claim to
avoid the bar of res judicata, it must be raised at the
earliest possible opportunity. State v. Gresham, 8th
Dist. Cuyahoga No. 90433, 2008-Ohio-4248, ¶13.
As noted above, in April 2014, appellant filed a motion for
an order to establish a payment plan for the payment of
costs. That motion was filed after R.C. 2947.23(C) became
effective. While appellant acknowledged in that motion
that R.C. 2947.23(C) authorized him to file a motion to waive
costs, he failed to do so. The trial court denied his
motion for a payment plan and appellant did not appeal that
ruling. Thereafter, in May 2014, appellant sent a letter to
the court, again requesting a payment plan, but, again, not
asking for a waiver of costs. The trial court construed this
second request for a payment plan as a motion, filed it, and
denied it as being barred by res judicata. Since ...