“So are you suggesting that we should interpret the statute to indicate that the trial court must always hold a hearing on the ability to pay costs, or only if it’s requested or depends on the facts of the case?”
Justice DeGenaro, to counsel for the defendant
“You want us to write what the statute says? Why would we do that? The legislature has already written it.”
Justice O’Donnell, to the assistant county prosecutor
On April 24, 2018, the Supreme Court of Ohio heard 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, suspend, 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, Dunson was sentenced to fifteen years to life for murder, plus three years on a firearms specification. After his conviction, Dunson was also 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. The trial court found that there was no evidence of Dunson’s present or future inability to pay costs, and denied the 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. Judge Michael T. Hall dissented over the finding as to court costs.
Read the oral argument preview of the case here.
Key Statutes and 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.”)
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.”)
At Oral Argument
Arguing Counsel
Meagan D. Woodall, Assistant County Prosecutor, Montgomery County, for Appellant, State of Ohio
Patrick T. Clark, Assistant State Public Defender, Columbus, for Appellee James Dunson
State’s Argument
The appeals court erred when it held that trial courts must consider present and future ability to pay and whether exemptions from civil judgments apply to a defendant when assessing a post-conviction motion to suspend, vacate or modify court costs. Trial courts may, but are not required, to do so. Indigence is a standard that has to be applied, not present and future ability to pay. Had the legislature intended for present and future ability to pay to be considered, it would have expressly said so, so as it did in several other statutes.
Pursuant to R.C. 2947.23, a trial court has the ability to modify or waive court costs at any time after sentencing, but the statute makes no mention of considering present and future ability to pay costs. The court should apply the plain language of the statute, not insert or delete words from it.
Based on the affidavit of indigency that Mr. Dunson submitted, the trial court found that there was no evidence that Mr. Dunson would be unable to pay now or in the future. So in this particular case, the trial court did make this finding, even though there is no explicit requirement that the court do so. Even if the court finds that the defendant is indigent, the court is still under no obligation to waive court costs. That is simply permissive.
While it is the state’s position that Mr. Dunson never raised a constitutional argument below, thus waiving that issue, this court has already determined, in State v. White, that the right to a jury trial was not infringed because of a mandatory requirement to pay court costs.
There are several ways court costs can be collected from indigent defendants including, as in this case, garnishment from an inmate’s prison account. There is no statutory authority for a trial court to have a hearing on this. There simply was no evidence before the court that any money was being taken out of Mr. Dunson’s account. There are mechanisms in place through the Ohio Department of Rehabilitation and Correction for an inmate to submit and prove the right to any exemptions, and an inmate grievance procedure and writs of mandamus or prohibition to challenge any alleged wrongful takings. The exemption/garnishment statute should be dealt with by ODRC.
What the trial court did in this case was apply the statute as written, and the court of appeals was wrong finding the court abused its discretion in doing so.
Dunson’s Argument
The simple question before the court today is whether the trial court needed to consider Mr. Dunson’s current and future ability to pay when ruling on a motion to waive, modify, or suspend court costs. The trial court did not properly do so in this case. This court should hold that trial courts must conduct that analysis.
One interpretation that can be drawn from the court’s judgment entry in this case is that the court ignored and did not consider Mr. Dunson’s inability to pay, as the appeals court correctly determined. The appellate court’s affirmative answer to the question of whether trial courts must consider current and future ability to pay connects the plain language of R.C. 2947.23 to the intention of the legislature. But even if this court concludes that the trial court did consider the defendant’s present and future ability to pay the court costs, Mr. Dunson could still properly and separately argue to the appeals court that such a finding was an abuse of discretion.
While the defense agrees that the constitutional issue is not directly before the court, as a matter of statutory construction, the state has asked this court to interpret what R.C. 2947.23 means. The constitutional background is important as the court answers that question. When a criminal defendant experiences significant court costs –sometimes thousands of dollars–for requesting a jury, if that decision chills his fundamental Sixth Amendment right to a jury trial, then that is unconstitutional. The purpose of assessing court costs is to reimburse taxpayers. But if this can’t be assessed against a criminal defendant without undue hardship to that defendant, there’s not a narrow enough tailoring of the application of the statute to the purpose of court costs to justify the infringement on Sixth Amendment rights.
Turning to the plain language of R.C. 2947.23, the three verbs in that statute chosen by the legislature– waive, modify, or suspend court costs–implicitly requires a present ability to pay analysis. It is impossible for a trial court to choose among those three options without considering the defendant’s current and future ability to pay.
In this case, Mr. Dunson made alternative requests to the trial court– the first was to waive the court costs, the second was, if not waiving, to modify them to allow a $5 per month payment plan. That decision is left to the discretion of the trial court and Mr. Dunson is not asking the court today which should happen. He is only asking the court to affirm a rule that when trial courts are presented with a motion to suspend, modify, or waive court costs by an indigent defendant, the trial court must consider that person’s present and future ability to pay. He is not asking the court to hold that trial courts must always hold a hearing on these motions. He asks only that if a defendant meets his burden of production of presenting evidence that implicates ability to pay, trial courts must consider current and future ability to pay, which the trial court can consider without a hearing. There may be some circumstances where a hearing would be warranted, but not across the boards in every case.
What Was On Their Minds
What Did The Trial Court Actually Consider?
Is there evidence or some showing in the record that the trial court did not consider the ability to pay, asked Justice French? What in the record suggests that? When the defendant appealed his original 2013 conviction, did he raise, as an issue, the amount of the costs that were imposed?
What findings did the trial court make in this case, asked Justice O’Donnell? Reading from the court’s judgment entry, he got into a heated exchange with Dunson’s counsel about whether the trial judge actually made a finding on ability to pay, but one the defendant didn’t agree with. Wasn’t the court the factfinder, which doesn’t mean the court has to find the facts in favor of the evidence presented by the defendant, does it, he asked?
Was the only evidence before the trial court the defendant’s affidavit, asked Justice DeGenaro? And despite that evidence, the trial court denied the defendant’s request for a hearing on court costs and his ability to pay?
What Should The Trial Court Actually Consider?
Should the trial court consider the ability to pay court costs, asked Justice O’Donnell? Isn’t that what the appellate court held? Is it discretionary with the trial court? How is this handled in other appellate districts? As usual, he asked what the court should write in this case.
Inability to Pay/Hearing
There is nothing to preclude a judge from considering present and future ability to pay, is there, asked Chief Justice O’Connor? Or hold a hearing? Didn’t the defendant request such a hearing on this, which the trial court summarily rejected? Does he have the right to re-petition the court for a modification of the court costs after he is released from prison? (answer:yes)
What weight should be given to the fact that there was an affidavit of indigency and appointed counsel in the case, which by definition means the defendant was indigent, asked Justice O’Donnell? Can a defendant be incarcerated for not paying? (answer:no) Is the state’s proposition of law limited to court costs, or does it extend to fines and restitution? Does the trial court have the discretion to waive mandatory costs? In every case?
Constitutional Issue?
Isn’t there a problem with the right to a jury trial if the court doesn’t look at the ability to pay, asked Justice DeWine? But that issue is not in front of us, either directly or indirectly, right?
What are the constitutional questions here, asked Chief Justice O’Connor, noting they were not presented below. She commented that the defendant was not being incarcerated for inability to pay, but was in a wholly different category.
Dunson’s Prison Account
Was money being taken from Mr. Dunson’s prison account and given to the court, asked Chef Justice O’Connor?
Dunson’s Remedies: Court or Department of Corrections?
How can the state argue that the defendant’s remedies belong in the province of the Department of Corrections when the statute says that a trial court may cancel costs if it finds they are uncollectable or if it determines the offender is indigent, asked Justice O’Donnell, commenting that that would seems to be a judicial province.
Isn’t the ODRC acting because the trial court did not issue an order relieving Dunson of the burden of the 6000 plus dollars, which the court did without hearing, asked Chief Justice O’Connor? Aren’t the role of the court and that of the Department two different standards and processes? The court’s role, is either you’re exempt or you’re not, based on your status of indigency and your income, not divving up how the prison system would take a look at this? Do we know for a fact, that money has been taken out and given to the court for court costs? How much has been take out to reduce Mr. Dunson’s bill? Have they been nickel and diming it down? Would Mr. Dunson like the amount that is currently being taken from his prison account to stop while he is in prison and suspend the collection of the balance? He’s not asking that the court wipe the slate clean for the $5800 remaining court costs? Does he have any other income?
How It Looks From The Bleachers
To Professor Emerita Bettman
This was a strange argument. One of the problems with this case is that from the judgment entry, quoted verbatim during questioning by Justice O’Donnell, it would appear that the trial court did consider Dunson’s present and future ability to pay court costs, although based on what information is unclear. That left both parties in somewhat of an awkward position—the state insisted the trial court did not need to consider present and future ability to pay costs, while the defense argued that it did, but the fact seems to be that the court did so, albeit without hearing. The defense didn’t agree with the trial court’s conclusion, nor did the appeals court. But the state, arguing that the information need not be considered at all, nonetheless agreed with the trial court’s finding. All of this thoroughly exasperated Justice O’Donnell. And Justice French specifically asked what evidence in the record was there to show that the trial court did not consider the ability to pay.
One possible solution here was suggested by the Second District in State v. Copeland—“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.” Whether the high court agrees with this or not, it certainly would seem to be a best practice in this post-conviction situation.
Both Chief Justice O’Connor, who was in prosecutorial questioning-style mode, and especially Justice O’Donnell, were very tough on both counsel, both of whom seemed at different times to irritate each of them. Most everyone else was pretty quiet.
The Chief cares very deeply about this and related issues. She has been co-chair of a national task force examining fine, fee, and bail practices. In January of this year she sent a letter to all the state’s judges reminding them “that courts are centers of justice, not automatic teller machines whose purpose is to generate revenue for governments, including themselves…Practices that penalize the poor simply because of their economic state; that impose unreasonable fines, fees, or bail requirements upon our citizens to raise money or cave to local funding pressure; or that create barriers to access to justice are simply wrong.”
The prosecutor seemed only begrudgingly willing to admit that it was permissible, even if not required, for a trial court to consider present and future ability to pay, and spent a lot of time on all the many internal prison remedies available to Dunson. And defense counsel seemed thrown off guard with Justice O’Donnell’s insistence that the trial court had done exactly what the defense insisted should be done, but the defense simply didn’t agree with the court’s conclusion.
Justice O’Donnell then went on to ask if the state and the defense were on the same side, saying he was confused with the defense position, a good way through Dunson’s argument—never a good sign. Later he seemingly got so frustrated with the prosecutor’s repeated insistence that indigence, rather than present or future ability to pay, was what the statute required, that he asked her why she was asking the court to write what the statute said when the legislature had already done so.
It was also totally unclear what exactly was in the record, before the trial court, in making its decision.
One thing is certain—no constitutional question is going to be reached.
Messy, messy, messy.
To Student Contributor Mark Tassone
I found myself wavering back and forth between the two sides in this case. The State did not seem to deviate from its appellant brief, consistently reminding the Court that the statute does not require a consideration of present or future ability to pay. While there was little flair in this argument, the State’s key strength, in my eyes, was its consistent message.
Dunson, on the other hand, seemed to grapple with what exactly he was asking the Court to rule. At one point, Dunson and Justice O’Donnell got into an energetic dialog wherein O’Donnell made the point that the trial court came to the specific conclusion that Dunson was seeking. O’Donnell posited: “If we agree with your position, what do we write here?” Dunson was caught off balance.
I am doubtful, at this point, of the likelihood that the Court will rule with Dunson. Justice O’Donnell seems, quite unabashedly, to believe that the trial court acted within the meaning of the statute and considered Dunson’s ability to pay. Justice De Wine seems skeptical of Dunson’s case, questioning whether Dunson’s public policy argument—which, I felt was his strongest—was acting as a “back door” for raising constitutional issues.
While I recognize the significance of the issue of indigent defendants and the need for reforms, I think this was the wrong case to carry that mantle. This one goes to the State.