Ohio trial courts can waive, suspend, or modify unpaid court costs at any time for any case in which they imposed the costs, the Ohio Supreme Court ruled today.

In a 4-3 decision, the Supreme Court ruled that a 2013 state law indicating trial courts can waive the costs served to clarify that judges and magistrates always had that right. The decision reverses a December 2018 decision in which the Court ruled that R.C. 2947.23(C) only applies to court sentences issued after the law took effect.

The Court agreed to reconsider its original ruling, which rejected the claims of death-row inmate David Braden, who asked a trial court in 2016 to waive the court costs imposed as part of his 1999 conviction. The Supreme Court had upheld the trial court’s denial of the request, finding that trial courts were empowered waive costs at any time, but only for sentences rendered after the law took effect in 2013. Writing for today’s Court majority, Justice Judith L. French stated the law “plainly allows” trial courts to waive the costs for cases decided before 2013.

Chief Justice Maureen O’Connor and Justices Michael P. Donnelly and Melody J. Stewart joined Justice French’s opinion.

Justice Sharon L. Kennedy, who wrote the 2018 majority opinion in State v. Braden (See State Law Limits Request for Court Cost Modifications), dissented with an opinion joined by Justice R. Patrick DeWine.

In a separate dissenting opinion, Justice Patrick F. Fischer wrote to emphasize his concern with the practice of reconsidering cases at the beginning of a new term when the Court’s membership changes following an election. He encouraged the Court to end the practice.

Initial Ruling Rejected Waiver Request
As part of Braden’s 1999 conviction, he was ordered to pay the cost of his prosecution. In 2016, Braden asserted he was indigent and filed a motion asking the trial court that sentenced him to waive the court costs aspect of his sentence. In the alternative, he asked the court to order the Ohio Department of Rehabilitation and Correction to keep at least $400 in his prison account or allow him to enter into a plan to pay $3 a month toward his court costs. The state opposed the request, and the trial court denied it.

Braden appealed the decision to the Tenth District Court of Appeals, which ruled that R.C. 2947.23(C) gave trial courts the right to waive court costs when enacted in 2013 and only applied to sentences imposed after it became law. Because Braden did not request that his court costs be waived when he originally was convicted in 1999, the legal principle of res judicata prevented him from raising the issue in 2016, the Tenth District ruled.

The Supreme Court accepted Braden’s appeal, noting the Tenth District opinion was in conflict with judgments from the Second and Eighth District courts of appeals, which decided trial courts can waive the court costs at any time. The Supreme Court affirmed the Tenth District’s decision.

Initial Decision Challenged
In his request for reconsideration, Braden argued the Supreme Court’s decision was inconsistent with its 2016 ruling in State v. Thompson, and that the Court misinterpreted the language of R.C. 2947.23(C).

In today’s majority opinion, Justice French explained that in Thompson, the Court was analyzing a statute that is now R.C. 2929.19(B)(2). It dealt with the authority of trial courts to correct errors in jail-time credit. The Court noted the language in that law was similar to the disputed language in the court cost law, R.C. 2947.23(C).

The Court highlighted the section of the jail-credit statute that read: “The sentencing court retains continuing jurisdiction to correct any error not previously raised at sentencing in making a determination under division (B)(2)(g)(i) of this section. The offender may, at any time after sentencing, file a motion in the sentencing court to correct any error made in making a determination under division (B)(2)(g)(i) of this section, and the court may in its discretion grant or deny that motion.”

The language is similar to the court cost law, which states that a sentencing 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,” the majority opinion stated.

In Thompson, Lowell W. Thompson challenged his jail-time calculation in a 2014 lawsuit. The suit was initiated two years after lawmakers revised the jail-time credit rules in 2012. The stateargued the 2012 law was not retroactive, and since Thompson was sentenced in 2011, he could not benefit from the new statute.

While the state made the argument, the issue of retroactivity was not at the center of Thompson’s case, and the Court did not specifically address retaining jurisdiction in the decision. Justice French wrote the Supreme Court’s ruling in Thompson rejected the state’s argument and effectively agreed that the trial court had the right to adjust his jail-time credit.

“Although there are subtle differences between the statutory language considered here and that in Thompson, the relevant language concerning the trial court’s jurisdiction is substantially the same,” the opinion stated.

Prior Decision Not Considered in First Challenge
Justice French, who wrote a dissenting opinion in Braden’s initial Supreme Court challenge, stated she raised the argument that the language of the jail-time credit law and the court cost law were substantially the same. She wrote the Court majority in 2018 never fully considered or rejected the argument, and that lack of acknowledgement was grounds for the Court to reconsider Braden’s case.

Braden also argued, and the Court majority agreed, that the law is not being applied retroactively.

The opinion explained the state law requires judges to assess court costs against all convicted criminal defendants, but the Supreme Court has repeatedly ruled that judges have the right to waive the costs when the defendant is indigent. The Court had previously ruled that if a defendant does not request to waive the costs at the time of sentencing, the request cannot be made later.

The Court majority stated all those decisions were made prior to the 2013 law change, and all of them imply a trial court has the right to waive the payment.

“Because the trial court had the authority to waive the costs at the time of Braden’s sentencing, R.C. 2947.23(C) merely clarified that the trial court retained the authority to waive the costs at any time after sentencing,” the Court stated.

The 2013 law change creates an exception to the rule that a defendant can ask for a waiver of court costs only at the time of sentencing, the Court concluded.

No Valid Basis for Reconsideration, Dissent Maintains
In her dissenting opinion, Justice Kennedy wrote that although it is not unprecedented for the Court to reconsider its decisions after a change in the Court’s membership, “a perception that changes in the law result solely from changes in court composition would threaten our legitimacy as a court of law, as opposed to a court of individuals.”

The dissenting opinion explained that this is why the Court has adopted strict standards for reconsidering decisions that forbid attempts to reargue the merits of a case in a motion for reconsideration. But here, the dissent maintained, Braden’s motion presented arguments that he had already raised on original submission of the case or that were previously addressed in the court’s initial decision.

Justice Kennedy wrote that the Court in 2018 had not failed to consider the Thompson decision, because it rejected the dissenting opinion’s argument that the majority’s holding was inconsistent with Thompson. She also noted that the decision in Thompson did not control the outcome of the case, because the Court in Thompson had not needed to decide whether the statute applied retroactively to an offender sentenced prior to its effective date.

The dissenting opinion also pointed out that R.C. 2947.23(C) was drafted to apply only to sentences issued after the law took effect and warned that the new majority’s holding raised “serious constitutional questions” regarding the separation of powers if the legislature could pass laws that reopen the final orders of courts.

“There is a significant difference between a trial court’s having once had jurisdiction to waive the payment of costs at sentencing and its having continuing jurisdiction to waive, suspend, or modify the payment of costs any time after sentencing. The plain language of R.C. 2947.23(C) demonstrates that the General Assembly did not intend to compel courts to reopen final orders imposing court costs and the statute applies to costs imposed only on or after its effective date,” the dissenting opinion concluded.

2017-1579 and 2017-1609. State v. Braden, Slip Opinion No. 2019-Ohio-4204.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.