[Cite as State v. Jackson, 2016-Ohio-7800.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :  C.A. CASE NO. 27101
                                                    :
 v.                                                 :  T.C. NO. 10CR1126
                                                    :
 DENNIS D. JACKSON                                  :  (Criminal appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :
                                               ...........

                                              OPINION

                Rendered on the __18th__ day of _____November____, 2016.

                                               ...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

DENNIS D. JACKSON, #645-759, North Central Correctional Institution, P. O. Box 1812,
Marion, Ohio 43301
      Defendant-Appellant

                                              .............

DONOVAN, P.J.

        {¶ 1} Defendant-appellant Dennis D. Jackson, pro se, appeals a decision of the

Montgomery County Court of Common Pleas, Criminal Division, overruling his motion to

vacate court costs. Jackson filed a timely notice of appeal with this Court on May 2,

2016.
                                                                                          -2-


       {¶ 2} In December of 2010, a jury found Jackson guilty of three counts of murder,

two counts of aggravated burglary, two counts of aggravated robbery, and two counts of

felonious assault.    Each count was accompanied by a firearm specification.              At

sentencing, the trial court merged the counts of murder and felonious assault into one

count of murder, and sentenced Jackson to fifteen years to life for that offense. The trial

court also merged the two counts of aggravated burglary and the two counts of

aggravated robbery; the court sentenced Jackson to ten years for aggravated burglary

and ten years for aggravated robbery, to be served concurrently to one another, but

consecutively to the sentence for murder. All of the firearm specifications were also

merged, and Jackson was sentenced to three additional years of actual incarceration on

the firearm specification, for an aggregate term of twenty-eight years to life in prison. The

trial court also ordered Jackson to pay court costs.

       {¶ 3} Thereafter, Jackson filed a direct appeal in this Court, and we affirmed his

conviction in State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, issued

on May 25, 2012 (hereinafter “Jackson I”).

       {¶ 4} Pertinent to the instant appeal, on April 19, 2016, Jackson filed a motion to

vacate court costs. In his motion, Jackson argued that his trial counsel was ineffective

for failing to move for a waiver of courts costs at sentencing. Jackson also argued that

the trial court erred by failing to determine his present and future ability to pay before

imposing court costs. Lastly, Jackson challenged the constitutionality of O.A.C. § 5120-

5-03, which sets out the guidelines for withdrawing funds from an inmate’s prison account

for payment of court-ordered financial obligations. In a decision and entry issued the

same day, the trial court overruled Jackson’s motion to vacate court costs.
                                                                                          -3-


       {¶ 5} It is from this judgment that Jackson now appeals.

       {¶ 6} Because they interrelated, Jackson’s first and second assignments of error

will be discussed together as follows:

       {¶ 7} “APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS WHEN

HIS TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL

VIOLATING HIS FIFTH, SIXTH AND FOURTHEENTH U.S. CONSTITUTIONAL

AMENDMENT RIGHTS, AND OHIO CONSTITUTIONAL RIGHTS UNDER ARTICLE I,

SECTION 10.”

       {¶ 8} “TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT

DENIED APPELLANT’S MOTION TO VACATE COURT COST.”

       {¶ 9} In his first assignment, Jackson argues that he received ineffective

assistance when his trial counsel failed to object to the trial court’s imposition of court

costs during his sentencing hearing, failed to file waiver of court costs at sentencing, and

failed to file an affidavit of indigency. In his second assignment, Jackson argues that the

trial court abused its discretion when it overruled his motion to vacate costs filed on April

19, 2016.

       {¶ 10} In order to establish ineffective assistance of counsel, Jackson must show

that his trial counsel's performance was both deficient and prejudicial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

Bradley, 42 Ohio St. 3d 136, 141–142, 538 N.E.2d 373 (1989).                With respect to

deficiency, Jackson must show that his counsel's performance “fell below an objective

standard of reasonableness.” Strickland at 688. With respect to prejudice, Jackson must

show that there is a reasonable probability that but for his counsel's unprofessional errors,
                                                                                           -4-

the outcome of the proceeding would have been different. Id. at 694.

       {¶ 11} In his first assignment, Jackson argues that he received ineffective

assistance when his counsel failed to object to the imposition of court costs, file a waiver

of court costs, and/or file an affidavit of indigency. Initially, we note that Jackson failed

to raise any of these issues in his direct appeal. Accordingly, Jackson’s first assignment

is barred by res judicata. “Any ineffective assistance claim relating to matters contained

within the record should be brought through a direct appeal.” State v. Lane, 2d Dist.

Greene No. 2014–CA–54, 2015–Ohio–2712, ¶ 13, citing State v. Wilson, 2d Dist.

Montgomery No. 23129, 2013–Ohio–180, ¶ 47–48. “ ‘If an alleged constitutional error

[such as ineffective assistance of counsel] could have been raised and fully litigated on

direct appeal, the issue is res judicata and may not be litigated in a post[-]conviction

proceeding.’ ” Id., quoting State v. Franklin, 2d Dist. Montgomery No. 19041, 2002–

Ohio–2370, ¶ 9, citing State v. Perry,10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).

       {¶ 12} In the instant case, it is clear that Jackson could have raised the ineffective

assistance claim at issue on direct appeal, as his counsel's failure to object to the

imposition of court costs, file a waiver of court costs, and/or file an affidavit of indigency

does not rely on evidence outside the record.         Therefore, the arguments made by

Jackson in his first assignment of error are barred by res judicata. State v. Hawley, 2d

Dist. Montgomery No. 25897, 2014-Ohio-731, ¶ 10.

       {¶ 13} Under R.C. 2947.23, a trial court is required to impose “the costs of

prosecution” against all convicted defendants and render a judgment against the

defendant for such costs, even those who are indigent. See State v. White, 103 Ohio

St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393, ¶ 8.             On March 18, 2010, the Ohio
                                                                                        -5-


Supreme Court held that a trial court must orally notify a defendant at sentencing that the

court is imposing court costs. State v. Joseph, 125 Ohio St. 3d 76, 2010–Ohio–954, 926
N.E.2d 278, ¶ 22, citing Crim.R. 43(A). Jackson was notified both orally and in writing in

his judgment entry of conviction that he had to pay the costs of his prosecution.

      {¶ 14} While acknowledging that it had the jurisdictional ability to do so, the trial

court found that under R.C. 2947.23(C), waiving the payment of Jackson’s court costs

while he remains incarcerated “would defeat the legislative mandate regarding court

costs.” As stated above, R.C. 2947.23 requires the trial court to impose court costs,

regardless of indigency. State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012–Ohio–112,

¶ 46, citing White, 103 Ohio St. 3d 580, 2004–Ohio–5989, 817 N.E.2d 393, at ¶ 8. “A trial

court has no duty to waive court costs; it has discretion whether to do so, and R.C.

2949.092 does not provide standards for the exercise of that discretion.” State v.

Fuller, 2d Dist. Montgomery No. 25380, 2013–Ohio–3274, ¶ 18, citing Lux at ¶ 47.

      {¶ 15} In his affidavit attached to his motion to vacate court costs, Jackson makes

the following averments:

      3. That I am currently paying child support at $61.20 per month which is

      automatically deducted from my state pay every month, and owe over

      $19,000.00 in arrears which has accumulated since being incarcerated, and

      which also must be paid off and will continue to be deducted from my inmate

      account even after termination of such order.

      4. I work at the prison, and must pay for medical expenses and co-pay,

      utility charges, pay for pen, paper, and stamps to draft and mail out legal

      work which as clearly established in Bounds v. Smith, 430 U.S. 817, 97
                                                                                           -6-


       S.Ct. 1491, 52 L. Ed. 2d 72, must be, but is not provided by the [S]tate of

       Ohio to indigent prisoners which such is a denial of an access to courts and

       a Constitutional violation.

       {¶ 16} Noticeably absent from Jackson’s affidavit is any evidence regarding how

much money he earns from his prison job and a complete accounting of the funds

available in his prison account. Moreover, Jackson fails to establish that the amount of

money present in his prison bank account is insufficient to cover his monthly

garnishments while still satisfying O.A.C. §5120–5–03(D), which authorizes the

garnishment of an inmate's account to satisfy the inmate's obligations to the court as long

as the account retains $25.00 for inmate expenditures.          Additionally, in its decision

overruling Jackson’s motion to vacate, the trial court found that the garnishment of funds

placed into his prison account may be sufficient to satisfy “some portion” of his court costs.

The trial court also found that provided that the statutory minimum amount remains in

Jackson’s prison account, then he can be required to pay court costs pursuant to R.C.

2947.23. In light of the foregoing, we therefore conclude that the trial court did not abuse

its discretion when it overruled Jackson’s motion to vacate court costs.

       {¶ 17} Jackson’s first and second assignments of error are overruled.

       {¶ 18} Jackson’s third and final assignment of error is as follows:

       {¶ 19} “THE APPLICATION OF [O.A.C. §] 5120-05-03 IS A CONSTITUTIONAL

VIOLATION UNDER THE UNITED STATES AND OHIO CONSTITUTION.”

       {¶ 20} In his third and final assignment, Jackson contends that application of

O.A.C. § 5120–5–03 is unconstitutional because the rule “in effect prevents redress and

violates [an] inmate’s constitutional rights to access of the Courts” by restricting said
                                                                                          -7-


inmate’s ability to make copies and file motions, petitions, and other documents in his or

her case.   Specifically, Jackson argues that O.A.C. § 5120–5–03 violates the Due

Process and Equal Protection Clauses of the Ohio and United States Constitutions.

Jackson also argues that the implementation of O.A.C. § 5120–5–03 to prison inmates

constitutes cruel and unusual punishment.

      {¶ 21} O.A.C. § 5120–5–03(A) states in pertinent part:

      (A) The purpose of this rule is to establish guidelines and procedures for

      withdrawing money that belongs to an inmate and that is in an account kept

      for the inmate by the department of rehabilitation and correction (DRC),

      upon receipt of a certified copy of a judgment of a court of record in an action

      in which an inmate was a party that orders an inmate to pay a stated

      obligation. The DRC may apply such money toward payment of the stated

      obligation to the court or in another matter as directed by the court.

      {¶ 22} As previously stated, O.A.C. § 5120–5–03(D) authorizes the garnishment

of an inmate's account to satisfy the inmate's obligations to the court as long as the

account retains $25.00 for inmate expenditures. Jackson argues that this regulation

violates his constitutional rights because it imposes an unjust burden on prison inmates.

      {¶ 23} “ ‘[C]osts are taxed against certain litigants for the purpose of lightening the

burden on taxpayers financing the court system.’ ” State v. Threatt, 108 Ohio St. 3d 277,

2006–Ohio–905, 843 N.E.2d 164, ¶ 15, quoting Strattman v. Studt, 20 Ohio St. 2d 95,

102, 253 N.E.2d 749 (1969).        “Although costs in criminal cases are assessed at

sentencing and are included in the sentencing entry, costs are not punishment, but are

more akin to a civil judgment for money.” Id. Thus, the purpose of O.A.C. 5120–5–03 is
                                                                                           -8-


the collection of a valid judgment to relieve the burden taxpayers would have to pay as a

result of the convict's criminal actions. Therefore, we find that O.A.C. 5120–5–03 is

rationally related to a legitimate government interest and comports with equal protection.

State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 71.

       {¶ 24} Additionally, we have also held that while a defendant's indigent status may

not operate to deprive him of the substantive constitutional rights guaranteed to every

criminal accused, indigent status “does not shield him from the burdens imposed on him

by the law in the event of conviction. One of these is an obligation to pay for the costs

of the action that resulted in his conviction. If he owns property that can be applied against

the obligation, the court may order it seized, notwithstanding his penury.” State v. Costa,

2d Dist. Greene No. 99CA014, 1999 WL 957647, * 2 (September 3, 1999), citing State v.

Engle, 2d Dist. Greene No. 98CA125, 1999 WL 147920, * 5 (March 19, 1999).

Therefore, the withdrawal of funds from an inmate’s account pursuant to O.A.C. 5120–5–

03 in order to satisfy the inmate’s legal obligations does not violate his or her due process

rights. Costa at *2. “Whether the [twenty-five] dollar minimum which a prisoner may

maintain is sufficient for his needs is an administrative decision wholly committed to the

discretion of the Department and not subject to judicial review.” Id.

       {¶ 25} Lastly, O.A.C. 5120–5–03 does not violate the constitutional prohibition

against cruel and unusual punishments. We have commented that “ ‘Eighth Amendment

violations are rare, and instances of cruel and unusual punishment are limited to those

punishments, which, under the circumstances, would be considered shocking to any

reasonable person.’ Therefore, ‘as a general rule, a sentence that falls within the terms

of a valid statute cannot amount to a cruel and unusual punishment.’ ” (Citations
                                                                                           -9-

omitted.) State v. Artz, 2d Dist. Champaign No. 2014–CA–34, 2015-Ohio-3789, ¶ 24.

       {¶ 26} As previously stated, “although costs in criminal cases are assessed at

sentencing and are included in the sentencing entry, costs are not punishment, but are

more akin to a civil judgment for money.” Threatt, supra, at ¶ 15. An order to pay court

costs is essentially a judgment on a contractual debt where the court is the creditor and

the party ordered to pay court costs is the debtor. State v. Lamb, 163 Ohio App. 3d 290,

2005-Ohio-4741, 837 N.E.2d 833, ¶ 13 (2d Dist.). As such, the creditor, i.e., the court,

can collect the money it is due by the methods provided for the collection of civil

judgments. Id.     Therefore, because the collection of court costs pursuant to O.A.C.

5120–5–03 is not punitive in nature, the constitutional prohibition against cruel and

unusual punishment is not implicated.

       {¶ 27} Jackson’s third and final assignment of error is overruled.

       {¶ 28} All of Jackson’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                        ..........

WELBAUM, J., concurs.

FROELICH, J., dissenting:
       {¶ 29} A trial court is required to impose costs even if the defendant is indigent;

however, a trial court has the discretion to waive payment for court costs pursuant to R.C.

2947.23(C).

       {¶ 30} Here, the court held that although “suspension or vacating the payment of

court costs while [Appellant] remains incarcerated is, under [R.C.] 2947.23(C), within the

court’s jurisdictional ability, . . . it would defeat the legislative mandate regarding costs.
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The legislature has concluded costs must be ordered, indicating a legislative intent that

such costs be collected.” I would find such decision not to be an exercise of judicial

discretion, but rather an interpretation of a statute that the court found requires the

collection of costs.

       {¶ 31} There may be circumstances in this case that warrant the trial court’s

discretionary denial of the waiver of payment, but they were not the basis of the court’s

decision, and I would remand for the court to exercise its discretion.

                                       ..........

Copies mailed to:


Andrew T. French
Dennis D. Jackson
Hon. Michael L. Tucker