A state law allowing trial courts to waive or modify court costs applies only to those sentenced after the statute's March 23, 2013 effective date, the Ohio Supreme Court ruled today.

The 5-2 majority opinion resolved a split among Ohio appeals courts on how to apply R.C. 2947.23(C). The Court majority rejected a claim by death-row inmate David L. Braden, who argued that the payment of court costs as part of his 1999 sentence could be waived or modified.

Writing for the Court, Justice Sharon L. Kennedy noted that the 2013 law provides that a trial court “retains” jurisdiction of criminal cases for the purpose of considering court costs, and that prior to the change in law, trial courts lacked this jurisdiction and therefore could not “retain” it.

The opinion was joined by Justices Patrick F. Fischer, R. Patrick DeWine, and Mary DeGenaro. Twelfth District Court of Appeals Judge Michael Powell, sitting for Justice Terrence O’Donnell, also joined Justice Kennedy’s opinion.

In a dissenting opinion, Justice Judith L. French wrote the prior Ohio Supreme Court decisions have indicated that trial courts had jurisdiction to consider court costs for decades, and that power existed when Braden’s trial judge ordered court costs in 1999.

Chief Justice Maureen O’Connor joined Justice French’s opinion.

Inmate Contests Court Costs
Braden received the death penalty along with three years in prison, $50,000 in fines, and court costs for the 1998 murder of his girlfriend and her father.

Braden appealed but did not challenge the imposition of court costs, and in 2003 the Ohio Supreme Court affirmed his convictions and sentence of death. The U.S. Supreme Court declined to review Braden’s appeal. A subsequent action for a writ of habeas corpus is pending in federal court.

In November 2016, citing recently enacted R.C. 2947.23(C), Braden moved the trial court to waive all fines and costs or to order the prison to establish a payment plan that would allow him to keep more money in his prison account.

The trial court denied his motion, and Braden appealed to the Tenth District Court of Appeals. The Tenth District ruled that R.C. 2947.23(C) does not apply to cases that were final prior to its March 23, 2013 effective date and that Braden’s conviction and sentence became final long before that time. The appellate court also concluded that Braden’s challenge to the Ohio Department of Rehabilitation and Correction’s procedure for collecting court costs must be made in a separate civil case against the state.

Braden appealed, and the Supreme Court determined that the Tenth District’s decision conflicted with rulings by the Second and Eighth District Courts of Appeals regarding how to apply the law. The Court agreed to resolve the conflict.

Court Examines Costs Issues
Justice Kennedy explained that since Ohio enacted “An Act for the Punishment of Crime” in 1824, state law has required trial courts to include the costs of prosecution in the offender’s sentence, regardless of the offender’s ability to pay. However, the collection of costs has been a separate matter, the opinion noted, and the General Assembly has never explicitly required or prohibited collection of court costs from indigent defendants.

The Supreme Court had consistently ruled that a defendant must seek to have court costs waived at the time of sentencing, and if not, the defendant cannot raise the issue again when appealing the conviction absent a showing of plain error. And the Court noted that with the exception of correcting a clerical error or a void sentence, a trial court lacks authority to reconsider its own final orders. Without statutory authority, a trial court could not suspend or waive the payment of court costs that were previously imposed at sentencing, the opinion stated.

The legislature revisited court cost payments in 2012 with House Bill 247. The law enacted R.C. 2047.23(C), which states: “The court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution, including any costs under section 2947.231 of the Revised Code, at the time of sentencing or at any time thereafter.”

In reviewing whether the new statute applied to Braden’s case, the Court explained that the operative word is “retains,” and the statute provides that the trial court now continues to have jurisdiction to waive, suspend, or modify the payment of court costs at any time. But prior to the passage of the law, the trial court’s jurisdiction over the matter ended when it rendered its final judgment, and it could not “retain” something it did not have.

The majority opinion also noted that R.C. 1.48 states that laws are presumed to be prospective “unless expressly made retrospective,” and using the word “retains” in the present tense does not indicate that the law covers past events. The provision did not have express language making it retroactive, leading the majority to conclude that it must “presume that the General Assembly did not intend to retroactively vest trial courts with jurisdiction that they previously lacked.”

The Court affirmed the Tenth District’s ruling.

Dissent Rejects ‘Retains’ Argument
In her dissent, Justice French concludes the legislature’s use of the word “retains” does not resolve the matter. She noted that the Court’s precedent supports the conclusion that Braden’s trial court retained jurisdiction to waive or modify the court costs.

The dissent cited several decisions, including the Supreme Court’s 2010 State v. Joseph opinion, in which the Court held that a trial court is permitted, but not required, to waive costs for an indigent defendant. In subsequent decisions, the Court also noted that prior to 2013, the Court has ruled a defendant must seek the waiver of court costs at the time of sentencing if the defendant intends to appeal the decision later.

“These opinions show that the trial court had jurisdiction to waive Braden’s court costs at his 1999 sentencing hearing. All of the cases were announced before R.C. 2947.23(C)’s enactment, and all of them acknowledge that a trial court could waive the payment of court costs at sentencing,” the dissenting opinion stated.

The dissent asserted that the new law simply states that a trial court retains its authority to waive costs, and the law expands the right to seek the waiver not only during the original sentencing, but also at any time after. The dissent also maintained that because the law did not change the authority of trial courts, there was no reason for the General Assembly to explicitly indicate it was retroactive.

2017-1579 and 2017-1609. State v. Braden, Slip Opinion No. 2018-Ohio-5079.

View oral argument video of this case.

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