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State v. Goodman

Court of Appeals of Ohio, Eleventh District, Trumbull

July 30, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL H. GOODMAN, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 04 CR 804.

          Dennis Watkins, Trumbull County Prosecutor; Christopher D. Becker and Ashleigh Musick, Assistant Prosecutors, Administration (For Plaintiff-Appellee).

          Michael H. Goodman, pro se, (Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} 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.

         {¶2} 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, 2008-Ohio-1841.

         {¶3} 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 II").

         {¶4} 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.

         {¶5} 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 error:

         {¶6} "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."

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 ...


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