On April 24, 2018, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. James L. Dunson, 2017-0186. At issue in this case is whether, in a post-conviction motion to waive or modify court costs after they have been imposed, a trial judge must consider an indigent defendant’s present or future ability to pay in assessing such costs.
Case Background
On March 15, 2013, James Dunson was convicted of two counts of murder and a number of lesser offenses. After merging various offenses and merging the two murder counts, Montgomery County Court of Common Pleas Judge Dennis J. Adkins sentenced Dunson to fifteen years to life for murder, plus three years on a firearms specification. After his conviction, Dunson was ordered to pay restitution in the amount of $3869.10 and court costs in the amount of $6,199.10. No fines were imposed. Dunson appealed his conviction, which was upheld.
On December 28, 2015, Dunson filed a post-conviction motion to vacate or stay court costs, fines, mandatory fines and/or restitution. Dunson filed an affidavit of indigency along with the motion, which included a proposed payment plan. The state filed no reply. Judge Adkins denied Dunson’s motion, without a hearing. Dunson appealed.
In a split decision written by Judge Mike Fain and joined by Judge Jeffery E. Froelich, the Second District Court of Appeals held, after ordering additional briefing, that the trial court had erred in failing to consider Duncan’s indigency and ability to pay the court costs and in failing to determine whether garnishment of his prison account was prohibited by any exemption statutes. The restitution order was upheld. Judge Michael T. Hall concurred as to the restitution order, but dissented over the court costs.
The State brings this appeal.
Votes to Accept the Case
Yes: Justices Kennedy, French, Fischer, and DeWine.
No: Chief Justice O’Connor, and Justices O’Donnell and O’Neill
Key Precedent
R.C. 2947.23 (costs of prosecution shall be assessed against the defendant in all criminal cases; court retains jurisdiction to waive, suspend, or modify the payment of these costs, at the time of sentencing or thereafter.)
R.C. 2329.66 (Setting forth list of exemptions from garnishment to satisfy a judgment or order.)
R.C. 2949.14 (provides for collection of court costs from non-indigent felons.)
Ohio Adm. Code 5120-5-03 (Court order for payment of funds from inmate’s account.)
Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…and to have the assistance of counsel for his defense.”)
James v. Strange, 407 U.S. 128 (1972) (“State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect.”)
United States v. Glover, 588 F.2d 876 (2d Cir.1978) (“If the statute directed that costs of prosecution be assessed against all convicted defendants, there would be some basis for concern that it served to ‘chill the assertion of constitutional rights by penalizing those who choose to exercise them.’”)
Bearden v. Georgia, 461 U.S. 660 (1983) (“This Court has long been sensitive to the treatment of indigents in our criminal justice system.”)
State ex rel. Pless v. McMonagle, 139 Ohio App.3d 503 (8th Dist. 2000) (“A declaration of indigency for purposes of a criminal proceeding, cannot be used to avoid the collection of court-imposed costs.”)
State v. White, 2004-Ohio-5989 (A trial court may assess court costs against an indigent defendant convicted of a felony as part of the sentence. (Syllabus Paragraph 1) Waiver of the costs is permitted but not required if the defendant is indigent.)
State v. Threatt, 2006-Ohio-905 (Court costs imposed at sentencing “are not punishment, but are more akin to a civil judgment for money.”)
State v. Clevenger, 2007-Ohio-4006 (“R.C. 2947.23 requires a trial court to assess costs against all criminal defendants, and to do so even if the defendant is indigent.”)
State. v. Fuller, 2013-Ohio-3274 (2nd Dist.)(“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. Copeland, 2016-Ohio-7797 (2nd Dist.) (“Although a trial court need not consider whether a defendant has a present or future ability to pay court costs when court costs are assessed, the trial court should consider the defendant’s ability to pay when a defendant subsequently moves for a waiver, modification, or stay of the payment of court costs. The collection provisions of the Ohio Administrative Code, while perhaps relevant, are not dispositive.”)
State’s Argument
As Judge Hall noted in his dissent in Copeland, “there is no case law, there is no statute, there is no regulation, and there is no exercise of discretion that requires a trial judge to explicitly consider an incarcerated defendant’s ability to pay court costs when ruling on a post-judgment motion to waive or stay payment of court costs.” The state fully agrees with this position.
Under R.C. 2947.23, a trial court may waive the costs assessed to convicted defendants. It creates no requirement to do so, even in cases of indigency. The statute is unambiguous and clear. Furthermore, R.C. 2949.092 does not establish any standards for trial courts in exercising discretion to waive or not waive costs. The Second District Court of Appeals ignored the plain meaning of R.C. 2947.23(C), effectively supplanting the legislature through its holding.
If the Court determines that R.C. 2947.23(C) is ambiguous, statutory interpretation prevents the Second District’s holding. The legislature made no requirement for the trial judge to consider a defendant’s present and future ability to pay fines or sanctions under R.C. 2947.23. In contrast, the legislature has required such considerations under other statutes, such as with the imposition of financial sanctions. R.C. 2947.23 lacks the exact type of consideration that other statutes require. If the legislature had intended for the trial court to consider the defendant’s ability to pay court costs, the legislature would have required its consideration.
Dunson’s claim that monies in his prison account are exempt from garnishment to satisfy the order of costs is a civil matter. The last resort for Duncan if he has exhausted all other civil remedies, is to seek an action in mandamus against the prison. But he has not exhausted his administrative remedies, such as the inmate grievance procedure or objection to the removal of the funds from his account.
The Second District’s holding ignores the administrative process and requires trial courts to determine matters already within the purview of the prison system.
Requiring the trial court to consider an inmate’s ability to pay court costs at any time during the inmate’s incarceration is unworkable. Likewise, such a requirement would allow inmates to simply go around the prison’s administrative rules by going directly to the trial court. And what would happen if an inmate filed objections with both the prison and the trial court at the same time? If the trial court were to consider the inmate’s ability to pay, what evidence would be required? The determination should remain with the prison.
Dunson’s Argument
While it is completely appropriate for the trial court to impose punishment for the criminal conduct that led to Dunson’s conviction, the conduct that caused the accrual of court costs was Dunson exercising his constitutional right to a trial by jury. By refusing to waive court costs on this basis, the trial court impermissibly burdened this fundamental right.
This Court should construe R.C. 2947.23 as requiring trial courts to consider a defendant’s present and future ability to pay court costs when ruling on a motion to waive, suspend, or modify the payment of these costs. The State’s proposition of law offers no guarantee of an indigent defendant’s ability to petition for relief from costs on the grounds of extreme financial hardship. Just as the Court in Fuller determined that the Sixth Amendment protected a defendant from being charged fees for exercising his right to counsel, this Court should determine that the Sixth Amendment protects Dunson from being charged fees for exercising his right to a jury trial.
For indigent defendants who can foreseeably pay costs, imposing costs is not unconstitutional. For those who cannot foreseeably pay costs, imposing costs is unconstitutional under Fuller.
R.C. 2949.14’s requirement that clerks collect costs only from nonindigent defendants demonstrates the legislature’s intention to consider a person’s financial situation before costs are collected. R.C. 2303.23’s grant to trial judges of the ability to waive collection further demonstrates this intention.
There is a distinction between financial sanctions, like those in a civil case, and court costs. While financial sanctions have a punitive intention, court costs do not. Court costs are intended to lighten the burden on taxpayers.
The State’s proposition of law provides no guide to trial courts and creates the risk of insulating such decisions from appellate review, a denial of constitutional Due Process. This Court should hold that trial courts must consider an indigent defendant’s current and future ability to pay when ruling on a motion to vacate, stay, or remit court costs. The trial court in this case did not do so.
State’s Proposed Proposition of Law
A trial court need not consider an inmate’s present or future ability to pay court costs, or determine whether any exemption statutes prohibit collection from an inmate’s account, when ruling on a post-conviction motion to vacate, stay, or remit court costs.
Dunson’s Proposed Counter Proposition of Law
When a defendant files a motion to waive, suspend, or modify the payment of the costs of prosecution in accordance with R.C. 2947.23(C), and establishes his indigence, the trial court must consider present or future ability to pay those costs when ruling on the motion.
Amici in support of Dunson
The following civil rights organizations submitted a joint amicus brief in support of Dunson: The American Civil Liberties Union of Ohio Foundation, The American Civil Liberties Union Foundation, The Southern Poverty Law Center, and The Lawyers’ Committee for Civil Rights Under Law.
A substantial majority of jurisdictions require an ability-to-pay determination at some point before collection of court costs, as should the Supreme Court of Ohio.
The purpose of assigning court costs to a defendant is to mitigate the burden on taxpayers. This purpose falls short when attempting to assess funds from defendants who are, and will almost certainly remain, indigent. Court costs may not be punitive measures, so courts must consider a defendant’s ability to pay any assigned costs. Failing to make such a consideration is unreasonable, arbitrary, and capricious. And the burden of court costs upon an indigent defendant effectively becomes punitive.
The trial court’s denial of Dunson’s motion to waive court costs establishes the trial court’s punitive intent: “Defendant made the choices which led to the accrual of the fees at issue, and he must take responsibility for his conduct, as well as the resulting consequences.”
The ambiguity of R.C. 2947.23(C)’s “continuing jurisdiction” requires the Court to consider the legislative intent of the statute, which calls for consideration of present and future ability to pay.
The administrative grievance process does not waive a court’s requirement to consider ability to pay. Such administrative relief would be temporary in nature. The relief under R.C. 2947.23(C) would be permanent.
Compelling indigent defendants to pay court costs burdens their ability to exercise their constitutional right to trial by jury and is, thus, unconstitutional. States cannot act to chill the exercise of constitutional rights—here specifically the Sixth Amendment. The Supreme Court of the United States is especially concerned with protecting indigent defendants’ access to justice.
The Supreme Court of the United States has determined that recoupment laws must afford indigent defendants the same exemptions as civil debtors and that, even when those exemptions are the same, the Sixth Amendment may be violated when financial pressures compel defendants to waive the right to counsel.
Garnishment from an indigent convict’s account exacerbates the convict’s poverty and creates a barrier to reentry into society. Garnishment has a ripple effect which also imposes a burden on the families of indigent convicts. Families’ attempts to contribute to prisoner accounts furthers the families’ poverty. Thus, the state’s burden of costs adds to an already vicious cycle of poverty.
Draining an indigent convict’s commissary account through garnishment creates inhumane conditions of confinement which implicate the Eighth Amendment. Garnishments deny Dunson, and prisoners like him, the ability to access medical care and purchase basic necessities. Also, continued indebtedness is likely to produce or worsen long-term mental health issues. The totality of these circumstances creates cruel and inhumane conditions of confinement.
Amici’s Proposed Proposition of Law
Trial courts must consider ability to pay on a post-conviction motion to modify costs, as a matter of statutory and constitutional law and public policy.
Student Contributor: Mark Tassone