clerk of court of the berea municipal court ddthe berea municipal court is a statutory court...

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL.RAYMOND J. WOHL, CLERKOF COURT OF THE BEREAMUNICIPAL COURT,11 Berea CommonsBerea, Ohio 44017

CASE NO.

ORIGINAL ACTION IN PROHIBITION

08-0408

Relator,

V.

THE HONORABLE DICKAMBROSE, JUDGE OF THECUYAHOGA COUNTY COURTOF COMMON PLEAS1200 Ontario StreetCourtroom 18-ACleveland, Ohio 44113

Respondent.

MEMORANDUM IN SUPPORT OF RELATOR'S, RAYMOND J. WOHL,CLERK OF COURT OF THE BEREA MUNICIPAL COURT,

COMPLAINT FOR WRIT OF PROHIBITION

David M. Cuppage (0047104), Lead Counseldrricupp(t^,climacolaw. comScott D. Sinipkins (0066775)sdsimpCaclimacolaw. comClimaco, Lefkowitz, Peca, Wilcox

& Garofoli Co., L.P.A.55 Public Square, S^.ite 1950Cleveland, Ohio 44113Teleplione (216) 621-8484Facsimile (216) 771-1632

lttorneys for Relator, Raymond J. Wohl,Clerk of Court of the Berea Municipal Court

Gregoiy M. Sponseller (0012350)k,ypon.s,[email protected] of LawCity of BereaBerea City Hall11 Berea CommonsBerea, Ohio 44017Telephone: (440) 826-5800Facsimile: (440) 234-5628

D DDFEB 2 Z 2008

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES ............ .............................................................................................. ii

1. TNTRODUCTION ..................... ...............:......................................................................... 1

II. THE PARTIES .................................................................................................................... 1

III. STATEMENT OF THE CASE AND FACTS ....................:.............................................. 2

IV. LAW AND ARGUMENT .................................................................................................. 6

A. Standard of Review ............................................................................................................. 6

B. Respondent Lacks Jurisdiction to Review the Final Appealable Orders of StatutoryCourts .................................................................................................................................. 7

C. The Berea Municipal Court Has Always Imposed Costs Under R.C. §§ 2743.70 And2949.091 On A "Per Case", Rather Than A "Per Charge," Basis ................................... 10

D. The Berea Municipal Court Properly Imposes Basic Court Costs Pursuant to OhioRevised Code § 1901.26 ...........:....................................................................:.................. 14

V. CONCLUSION ................................................................................................................. 18

i

TABLE OF AUTHORITIES

Paee No(s).

Cases

Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewics Sheriff

(2004),101 Ohio St.3d 256, 2004 Ohio 812 ........................................................................................... 6

Citibank S. Dakota v. Woods (Ohio App. 2nd Dist. 2006),169 Ohio App.3d 269, 277 .........................:................................................................................ 7

City of Cleveland v. Tighe (2003),8n' Dist. No. 81767, 2003 WL 1849217) .........................................:......................:................. 15

City of Cuyahoga Falls v. Coup-Peterson (1997),124 Ohio App.3d 716 ......................................................................................................:......... 16

City oWilloughby v. Sapina (2001),11" Dist. No. 2000-L-138, 2001 WL 1602651 ......................................................................... 15

Kohut v. Vance (Ohio App. 9'" Dist. 1970),22 Ohio App.2d 205 ..................................................:................................................................. 7

Schario v. State (1922),105 Ohio St. 535 ......................................................................................................................... 7

State ex rel Baker v. Hair (Ohio App. l" Dist. 1986),31 Ohio App.3d 141, 144 ............................................................................................................ 7

State ex rel Bernges v. Court (Ohio App. 1" Dist. 1970),23 Ohio App.2d 89, 90 .................................................................................:.............................. 7

State ex rel. Goldberg v. Mahoning Cty. Bcl. ofElections (2001),93 Ohio St.3d 160, 162 ............................................................................................................... 6

State ex rel. Mason, Pros. Atty. v. Griffin, Judge (2004),104 Ohio St.3d 279, 2004 Ohio 6384 ......................................................................................... 6

State v. Cleavenger (2007),114 Ohio St.3d 258 ........................................................:...................................................... 9, 10

State v. Korturn (2002),12"' Dist. No. CA2001-04-034, 2002 WL 237370 .. ................................................................. 15

ii

State v. Snaith (1977),49 Ohio St.2d 261 ...........................................................:......................................................... 16

State v. Threatt (2006),108 Ohio St.3d 277 ............................................................................................................... 8, 15

State v. White (2004),103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393 .. ........................................................... 8

Village ofMoiaroeville v. Warct (1971),27 Ohio St.2d 179, 181 ............................................................................................................... 7

Statutes

Ohio Revised Code §1901.01(A) .....................................................................................:.............. 1Ohio Revised Code §1901.13(A) ..........................:....................................................................... 17Ohio Revised Code § 1901.26 ..........:...................................................................................... 10, 14Ohio Revised Code § 1901.26(B)(1) .. ........................................................................................... 16Ohio Revised Code § 1901.30 ................................................................................................:........ 7Ohio Revised Code §1901.31 ............. ........................... ........................................ ......................... 1Ohio Revised Code §2743.70 ....................................................................................................... 14Oliio Revised Code §2743.70(A)(1)(B) ............... ....... ........ ........................ .................... .............. 10ni,i -̂ Re.vised Code §2947.23 ....................................... .................................................................. 8---- -Ohio Revised Code §2949.091 ........... .............................................. ...... ....................... ....... ........ 14Ohio Revised Code §2949.091(A) ............................................... .................... ....................... 10,11Ohio Revised Code §2949.091(A)(1) ........................................................................................... 10

Other Authorities

Section 4, Article IV, Ohio Coristitution. Section 4(B) .................................................................. 7

tu

r, rNTRODUCTION

This is an extraordinary in case in which Relator, Raymond J. Wohl, Clerk of Court of

the Berea Municipal Court, is named as a defendant in a purported class action pending before

Respondent, the Honorable Dick Ambrose, Judge of the Cuyahoga County Court of Common

Pleas. The Class Action is captioned Michael A. Lingo, et al. v. State of Ohio, et al., case number

CV 05 564761 (hereinafter sometirnes referred to as the "Class Action"). The class action is

brought by three named plaintiffs, each of whom was charged with multiple traffic violations

including driving while under the influence. Each named plaintiff pled guilty to multiple charges

and was assessed court costs pursuant to a final, appealable sentencing order.

The Class Action seeks to reverse the sentencing entries of each named plaintiff as well

as each and every individual who has previously been convicted in any statutory court, including

a mayo:''s court, mianicipal court or county court, and has paid basic co::rt costs on a per charge

basis rather than a per case basis.

Because Respondent patently and unambiguously lacks jurisdiction to review the final

sentencing entries of each and every statutory court througliout the State of Ohio, a writ of

prohibition must be issued.

II. THE PARTIES

Relator, Rayniond J. Wolil, is the duly elected Clerk of Court of the Berea Municipal

Court. The Berea Municipal Court is a statutory court pursuant to Article IV, Section 1 of the

Ohio Constitution aid is organized and existing pursuant to the general laws of the State of Ohio,

to wit: Ohio Revised Code §1901.01(A). As the Clerk of Court, Relator is charged with

perfonnance of all duties assigned to the Clerk of Court pursuant to Ohio Revised Code

§1901.31 including, but not necessarily limited to, the receiving, collecting and issuing receipts

for court costs. The Berea Municipal Court has jurisdiction over the communities of Berea,

Brook Park, Middleburg Heights, Olmsted Falls, Olmsted Township, Strongsville, the

MetroParks, and the Ohio State Patrol. See Affidavit in Support of Complaint for Writ of

Prohibition (hereinafter, "Affidavit in Support"), ¶ 1.

Respondent, Dick Ambrose, is a judge of the Cuyahoga County Court of Common Pleas

as is assigned to the case known as Michael A. Lingo, et al. v. State of Ohio, et al., case number

CV 05 564761 (hereinafter sometimes referred to as the "Class Action"). The Class Action was

initially filed on or about June 8, 2005. The Cuyahoga County Court of Common Pleas is a court

organized and existing pursuant to Article IV, Section 4 of the Ohio Constitution and is located

in Cleveland, Ohio. See Affidavit in Support, ¶ 2.

III. STATEMENT OF THE CASE AND FACTS

On or about August 22, 2004, Williani C. Glick was issued a traffic citation containing

two charges arising from the same incident, one for driving under the influence and the other for

weaving\lanes violation. Before the Berea Municipal Court, case captioned The City of

Middleburg Heights v. YVillians C. Glick, case no 04 TRC 03862, Mr. Glick pled not guilty to

both charges. Subsequently and pursuant to a plea agreement negotiated by his counsel witti the

City Prosecutor, Mr. Glick pled guilty to an amended charge of reckless operation with the

original two charges being dismissed at his cost. Mr. Glick paid a fine and court costs upon

joumalization of a sentencing entry. See Affidavit in Support, ¶ 3, Exh. I.

On or about September 13, 2006, Plaintiffs Michael A. Lingo, Gregory B. Williams and

Williani C. Glick (hereinafter, the "Class Action Plaintiffs") filed a First Amended Class Action

Complaint for Declaratory Judgment, Injunction, and Other Equitable Relief against the State of

2

Ohio and new-party defendants, Department of Treasury and Raymond J. Wohl, Clerk of the

Berea Municipal Court. See Affidavit in Support, ¶ 4, Exh. 2

Class Action Plaintiffs allege that "[i]n R.C. §2743.70(A) and §2949.091(A) as well as

other provisions of Ohio laiv, the General Asseinbly has directed the statutory courts to collect

court costs in each `case' involving a defendant who has been convicted of or lias plead guilty to

one or more offenses. Some of the funds are to be deposited directly by the clerks with the State

Treasure." See Affidavit hi Support, Exh. 1; Amended Complaint, ¶ 7. Class Action Plaintiffs

further allege that while most statutory courts and their clerks recognize that "costs" may be

assessed only once for each "case," "several statutory courts and their clerks have been imposing

costs for each offense charged against the defendant." Id., at ¶ 20. Continuing, Class Action

Plaintiffs alleged that "[n]o statutory authority exists for this practice. As a result, numerous

defendants have been assessed multiple costs for a single case." Id.

Class Action Plaintiffs allege that Defendant Wohl lras "authorized, encouraged, and

othenvise facilitated the assessment of improper court costs against potentially thousands of

Ohio traffic offenders." Id., at ¶13. According to the Amended Complaint, those "costs include,

but are not limited to, those remitted to the State under the auspice of R.C. §2743.70(A) and

§2949.091(A)." Id.

In their Amended Complaint, Class Action Plaintiffs seek a declaratory judgment to

establish their right to a full refund of the court costs that they were assessed as a result of their

convictions in various municipal courts including costs. See Ainended Complaint, Count One.

Class Action Plaintiffs also seek injunctive relief to enjoin the Defendants, including Defendant

Wohl, from further violations of the rights afforded to individuals with respect to the assessment

of court costs by statutory courts. See Aniended Complaint, Count Two. Finally, Class Action

3

Plaintiffs seek equitable relief, under traditional principles of equity, including the doctrine of

restitution, requiring defendants to disgorge all court costs that were assessed illegally and

improperly. See Amended Coinplaint, Count Three.

On or about November 8, 2006, Relator filed his Answer to the First Amended Complaint

denying the material allegations of the Complaint. See Affidavit in Support, ¶ 5, Exhibit 3. On

or about December 6, 2006, Relator filed a Motion for Summary Judgment seelcing dismissal of

the Class Action. See Affidavit in Support, 116, Exh. 4.

On or about August 25, 2005, Class Action Plaintiffs filed a Motion for Class

Certification. See Affidavit in Support, ¶ 7, Exh. 5. In this purported class action, Class Action

Plaintiffs, on behalf of tliemselves and all class members, in an attenipt to "ensure that all class

men-ibers are afforded their day in court while duplicative litigation is avoided," seek to have

Respondent certify the following proposed class:

ALL INDIVIDUALS WHO PAID COURT COSTS ON ORAFTER JUNE 8, 1995 THAT WERE IMPROPERLYCALCULATED ON THE BASIS OF THE N"LTIvIBER OFOFFENSES CHARGED IN PROCEEDINGS BEFORE ANYOHIO MUNICIPAL COURT, COUNTY COURT, ORMAYOR'S COURT.

Thereafter, on or about February 20, 2007, Class Action Plaintiffs filed a Supplement to

Plaintiffs' Motion for Class Certification. See Affidavit in Support, ¶ 8, Exh. 6. In the

Supplement, Class Action Plaintiffs proffer the following atnended class definition (the

"Amended Class"):

ALL INDIVIDUALS WHO PAID COURT COSTS ON ORAFTER JUNE 8, 1995 TO AN OHIO MUNICIPAL COURT,COUNTY COURT, OR MAYOR'S COURT IN EXCESS OFTHE AMOUNT SPECIALLY PERMITTED BY A VALIDSTATE STATUTE.

4

Altematively, Class Action Plaintiffs proffer the following Alternate Class (the "Alternate

Class"):

ALL INDIVIDUALS WHO PAID COURT COSTS ON ORAFTER JUNE 8, 1995 TO AN OHIO MUNICIPAL COURT,COUNTY COURT, OR MAYOR'S COURT UNDER ANY OFTHE FOLLOWING CIRCUMSTANCES:

A. FOR COSTS ASSESSED UNDER R.C. §2743.70(A) OR§2949.091(A) WHICH WERE COMPUTED ON A "PEROFFENSE" INSTEAD OR "PER CASE" BASIS IN VIOLATIONOF OHIO ATTORNEY GENERAL OPINION NOS. 91-022 AND91-039.

B. UPON OR IN CONNECTION WITH ANY OFFENSE THATDID NOT RESULT IN A CONVICTION, EXCEPT WHERETHE INDIVIDUAL AFFIRMATIVELY AGREED TO ACCEPTSUCH CHARGES AS PART OF A PLEA AGREEMENTMEMORIALIZED IN A VALID JOURNAL ENTRY.

C. FOR "SPECIAL PROJECT COSTS" PURSUANT TO R.C.§1901.26(B)(1) WHERE THE NECESSITY OF SUCHCHARGES FOR THE EFFICIENT OPERATION OF THECOURT HAS NOT BEEN PREVIOUSLY ESTABLISHED ANDPUBLICIZED THROUGH A VALID COURT RULE.

D. FOR "SPECIAL PROJECT COSTS" UNDER R.C.§1901.26(B)(1) THAT WERE NOT 1MPOSED UPON TI-IEFILING OF EACH CRIMINAL CAUSE.

On or about April 11, 2007, Relator filed his Consolidated Reply Brief in Support of

Motion for Summary Judgment and Brief in Opposition to Plaintiffs' Motion for Summary

Judgment. See Affidavit in Support, 1[ 9, Exh. 7

On or about October 24, 2007, Class Action Plaintiffs filed a Motion to Certify a

Defendant Class. See Affidavit in Support, ¶ 10, Exh. 8. In Class Action Plaintiffs' Motion to

Certify Defendant Class, Plaintiffs proffer the following defendant class definition:

THE CLERKS OF EVERY MUNICIPAL, COUNTY, ANDMAYOR'S COURT ESTABLISHED UNDER SECTION 1,ARICLE IV OF THE OHIO CONSTITUTION WHO

5

COLLECTED COURT COSTS FROM A NAMED PLAINTIFFOR ONE OR MORE OF THE MEMBERS OF THE PLAINTIFFCLASS IN EXCESS OF STATUTORY AUTHORITY ON ORAFTER JUNE 8, 1995.

Relator has opposed each and every motion to certify a plaintiffs or defendants class

action. See Affidavit in Support, ¶ 11.

Finally, on or about October 30, 2007, Relator filed a Motion to Dismiss the Amended

Complaint as Respondent lacks subject matter jurisdiction to review the assesslnent and

collection of court costs. See Affidavit in Support, ¶ 12, Exll. 9. Respondent has fLiled and

refused to dismiss the Amended Coniplaint notwithstanding that Respondent patently and

unanibiguously lacks jurisdiction over the Class Action. See Affidavit in Support, 1[ 13, Exh. 10.

IV. LAW AND ARGIJMENT

Relator is entitled to a writ ofprolllbltlon because Relator can shn"., ( 1) that Recpolldent

is about to exercise judicial power, (2) that the exercise of that power is not authorized by law,

and (3) denial of the writwill cause injury for which no otller adequate remedy in the ordinary

course of law exists. State ex rel. Mason, Pros. Atty. v. Grijfin, Judge (2004), 104 Ohio St.3d

279, 2004 Ohio 6384, citing Calnpaign to Elect Larry Caiver Slzeriff v. Canipaign to Elect

Anthony Stanlciewics Sherdff (2004), 101 Ohio St.3d 256, 2004 Ohio 812. In oases of a patent and

unambiguous lack of jurisdiction, the requirement of a lack of an adequate remedy at law need

not be proven because the availability of altemate remedies like appeal would be ilnniaterial.

State ex rel. Goldberg v. Mahoning Ct)a Bd, ofElections (2001), 93 Ohio St.3d 160, 162.

6

B. Respondent Lacks Jurisdiction to Review the Final Appealable Orders of

Statutorv Courts

The Ohio Constitution vests the courts of common pleas with their jurisdiction. Section 4,

Article IV, Ohio Constitution. Section 4(B), Article IV provides:

The courts of common pleas and divisions thereof shall have suchoriginal jurisdiction ovcr all justiciable matters and sucli powers ofi-eview of proceedings of administrative officers and agencies asmay be provided by law.

The Ohio General Asseinbly does not have the power to enlarge the jurisdiction of the

courts of common pleas beyond the jurisdiction provided in Section 4, Article IV of the Ohio

Constitution. Schario v. State (1922), 105 Ohio St. 535. The language of Section 4(B) does not

confer upon the General Assembly any power to provide Courts of Common Pleas with

jurisdiction to decide appeals from statutory courts. See Villcage ofMonroeville v. Wcerd (1971),

27 Ohio St.2d 179, 181, reversed on other grounds, 409 U.S. 57; Kohut v. Vance (OhioApp. 9`"

Dist. 1970), 22 Ohio App.2d 205 (noting that "the Connnon Pleas Court lacked jurisdiction to

entertain an appeal from a Municipal Court after May 7, 1968 (that being the date when the

Modern Courts Amendment to the Constitution of Ohio became effective)"); State ex rel

Bernges v. Court (Ohio App. ts" Dist. 1970), 23 Ohio App.2d 89, 90; State ex rel Balcer v. Hair

(Ohio App. ls` Dist. 1986), 31 Ohio App.3d 141, 144; and Citibank S. Dakota v. Woocls (Ohi9

App. 2°a Dist. 2006), 169 Ohio App.3d 269, 277.

The General Assembly has prescribed that appeals from Municipal Courts be heard by

the Court of Appeals. R.C. § 1901.30 provides, in pertinent part:

Appeals fi-om the municipal court may be taken as follows:

(A) To the court of appeals in accordance with the Rules ofAppellate Procedure and any relevant sections of the RevisedCode, including, but not limited to, Chapter 2505. of the RevisedCode to the extent it is not in conflict with those rules.

7

In State v. Threatt (2006), 108 Ohio St.3d 277, this Court held, at 113 syllabus:

A sentencing entry is a final appealable order as to costs.

In State v. White (2004), 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, this

Court held, aniong other things, that R.C. 2947.23 requires a court to assess costs against all

convicted defendants. In Threatt, this Court was asked to examine the certified question of

whether collection of costs is pennitted against indigent defendants and, if so, what methods of

collection are available. In answering the certified question, this Court held at 112:

(1) costs nzay be collected from indigent criminal defendants, (2)the state may use any metliod of collectien that is available tocollect a civil money judginent as well as the metbod provided inR.C. 5120.133, arul (3) the appeal tinte for costs 6egins to run on

the date of tlee sentettcing entry. (Emphasis added.)

The third paragraph of the syllabus in Tlzreatt, liolding that the appeal time for the

assessment of court costs begins to run on the date of the sentencing entry, was reached after a

careful examination of court cost collection practices similar to the ones under attack in the Class

Action litigation. This Court elaborated on those practices:

{II 18} In order to determine when the alipeal tt,'me for cost.s

begins to run, we mast determine what constitutes a fittal

appealaGle order for costs assessed unrler R.C. 2947.23. Appellate

jru•isdiction is limited to review of final orders. R.C. 2505.03. Finalorders include those orders that affect a substantial right and ineffect determine an action and prevent a judgrnent. R.C.2505.02(B)(1). A"substantial right" for purposes of R.C. 2505.02is "a right that the United States Constitution, the Ohio

Constitution, a statute, the common law, or a rule of procedureentitles a person to enforce or protect." R.C. 2505.02(A)(1).

(Eniphasis added.)

{il 19} In all criminal cases, costs must be included in thesentencing entry. R.C. 2947.23(A). The clerk of courts isresponsible for generating an itemized bill of the court costs. R.C.2949.14. However, even if the itemized bill is ready at the time of

sentencing, "tl:e specific amonnt clae is generally not pitt into a

jadgnxent entry." State v. Glosser, 157 Ohio App.3d 588, 2004-

8

Ohio-2966, 813 N.E.2d 1, 1 27 (Edwards, J., concurring).

Tlcerefore, a typical sentencing entry, like tlie one tlaat senteiiced

Threatt, assesses only unspecified costs, with the itemized bill to

be generated at a later date. Accordingly, we must determine

whetber a sentencing entry that assesses costs without specifying

the aniount of those costs lacks finality. (Emphasis added.)

*+*

{¶ 21} Pursuant to R.C. 2947.23, it is undisputed that trialcourts have authority to assess costs against convicted criminaldefendants. When a court assesses unspecified costs, the only issueto be resolved is the calculation of those costs and creation of thebill. Calculating a bill for the costs in a criminal case is merely aniinisterial task. Therefore, we hold that ,failing to specify theanzount of costs assessed in a sentencing entry does not defeattJre finality of the sentencing entry as to costs. See State v. Slater,Scioto App. No. 01CA2806, 2002-Ohio-5343, 2002 WI,31194337, ¶ 5, fn. 3. (Emphasis added.)

Because the sentencing entry constitutes a final appealable order, this Court held further:

an indigent defendant must move a trial court to waive payment ofcosts at the ti, rc of santencing. If the defendant makes such amotion, then the issue is preserved for appeal and will be reviewedunder an abuse-of-discretion standard. Otherivise, the issue iswaived and costs are resjudicata. (Emphasis added.)

In State v. Cleavenger (2007), 114 Ohio St.3d 258, this Court re-affiimed the principle

that the failure to appeal the assessment of court costs is res judicata at subsequent hearings.

Thus, the General Assembly has prescribed that an appeal from a sentencing entry is a

final appealable order as to costs and onlv the CoLUt of Appeals has jurisdiction to entertain an

appeal fi-om or review such entry. The Court of Common Pleas does not have such jurisdiction

and caimot act as an appellate court for such review. Respondent patently and unambiguously

lacks jurisdiction over the Class Action. Because Respondent patently and tmambiguously lacks

jurisdiction over the Class Action, there is no requirement that Relator demonstrate that he has

no adequate reniedy at law.

9

C. The Berea Municipal Court Has Always Imposed Costs Under R.C. §&

2743.70 And 2949.091 On A "Per Case", Rather Than A "Per Charge,"

Basis

It is necessary first to distinguish those court costs imposed pursuant to R.C. §§

2743.70(A) and 2949.091(A) from those imposed pursuant to R.C. §1901.26.

R.C. §2743.70(A)(1)(B) requires that a cotu-t impose a Nine Dollar ($9.00) fee against

any person convicted of a misdemeanor offense, other than a traffic offense that is not a moving

violation, for victims of crime ("Victim's Fund"). R.C. §2949.091(A)(1) further requires that a

court iinpose a Fifleen Dollar ($15.00) fee against any person who is convicted of or pleads

guilty to any offense, other than a traffic offense that is not a moving violation, to be deposited

into the state's general revenue fund ("Revenue Fund"). These two fees are not discretionary.

They are mandatory and must be imposed unless the court finds a defendant to be indigent. State

v. Cleavenger (2007), 114 Ohio St.3d 258, 2007-Ohio-4006.

The Class Action is based on allegations that these fees were imposed on a "per charge"

rather than a "per case" basis. As many criminal or traffic cases heard in municipal courts

consist of multiple charges, so the allegation goes, class members were charged the Victim's

Fund and Revenue Fund fees several times per case, once for each charge, rather than having

such fees assessed only once for the entire case. Yet even if charging such fees on a "per

charge" basis was contrary to law, the evidence is uncontested that Berea Municipal Court has

never imposed such fees on anything other than a "per case" basis.

The deposition as well as the affidavit of Colleen Coyne ("Coyne") demonstrate tliis.

Coyne is the Deputy Clerk (Supervisor, Criminal Division) of the Berea Municipal Court. See

Affidavit of Colleen Coyne, a copy of which is attached to the Affidavit in Support, ¶ 6, Exh. 4,

Tab 2. In her affidavit, Coyne states that:

10

In ever criminal case and/or traffic case resolved in the BereaMunicipal Court where a Defendant is found guilty of one or morecharges arising out of the satne incident, transaction or occurrence,such Defendant is assessed onlv one $15.00 charge for the StateRevenue Ftmd and only one $9.00 charge for the State Victims ofCrime Fund regardless of the number of charges issued aeainstsuch Defendant and regardless of the number of charges to whichthe Defendant was found euilty, so long as all such charges aroseout of the sanie incident, transaction or occurrence. Coyne Aff, at¶6. (Emphasis added).

This has been the practice of the Berea Municipal Court for the entire tinie period

relevant to this class action. Plaintiffs' have asserted that the statute of limitations for this matter

is ten (10) years. Atnended Complaint, ¶16. Coyne has held her current position since 1994, the

entire time relevant to this matter. Coyne Aff. at ¶1. This timing is relevant, as Coyne states

that:

During the entire time that I have served in my capacity as DeputyClerk (Supervisor, Criminal/Traffic Division) for the BereaMunicipal Court c;crk of Court, it has never been the practice ofthe Berea Municipal Court Clerk of Court to charge any Defendantmore than once per case with the $15.00 fee mandated underO.R.C. 2949.091(A) or the $9.00 fee mandated Lmder O.R.C.2743.70(A). Coyne Aff, at ¶7. (Emphasis added).

That the Berea Municipal Court has never assessed costs under R.C. §§ 2743.70(A) and

2949.091(A) on anything other than a "per case" basis is affinned in Coyne's deposition. Coyne

first testified that the Fifteen Dollar ($15.00) fee imposed is for the state general revenue fimd

and the Nine Dollar ($9.00) fee in7posed is for a victim's of crin-ie fund as follows:

Q• And you are familiar with the allocation of costs associatedwith the state revenue fund that would be sent to the Stateof Ohio?

A. Yes.

Q. And that is a $15 charge; is that cotrect?

A. For the general fund, yes.

11

Q• And there is also a charge for the state victims of crimefund for $9; is that correct?

A. Correct.

Coyne Dep., p. 7, lines 6-14, a copy of which is attached to the Affidavit in Support, ¶ 6,

Exh. 4, Tab 9.

Coyne continues her testimony, affinning the information in her affidavit, that these fees

are only imposed once per defendant on a "per case" basis, even if multiple charges arise from

the same transaction or occurrence:

And I take it from your affidavit that it's your testimonythat the City of Berea will only charge the state revenuefund and the victim of crime fund on one time per eachdefendant even though they may have one or more casesarising out of the same transaction?

A. Correct.

Coyne Dep., p. 7, lines 18-24.

In fact, the iniposition of the Revenue Fund fee and the Victim's Fund fee is programmed

into the Court's software and so is imposed upon the opening of a case automatically on a single

"per case" basis, rather than imposed multiple tunes on a "per charge" basis:

Q• And how would that be iniplemented following thatprocedure that you're only going to charge it once? Is itbuilt into the software?

A. Yes. When you open a file, it knows on the first count,take tliat. Second, third, fourth counts, do not include that.

Q• It does not charge. Olcay. So that's preprogrammed, andthen when somebody walks up to the window, thecomputer then would charge them on the first count but notany subsequent counts?

A. Correct.


12

The evidence is not only clear, but uncontested, that all defendants appearing in Berea

Municipal Court for any time relevant to this class action were assessed the Fifteen Dollar

($15.00) Revenue Fund fee and the Nine Dollar ($9.00) Victiin's Fund fee only once. These

assessments were on a "per case" basis rather than a "per charge" basis and continue to be so.

As the Berea Municipal Court imposes the Fifteen Dollar ($15.00) Revenue Fund fee and

the Nine Dollar ($9.00) Victim's Fund fee only a single time per defendant on a "per case" basis,

the same obviously holds true for William Glick, the class representative wliose appearance

before the Berea Municipal Court gives rise to the Berea Clerk's appearance in this matter. hr

fact, as both the affidavit and deposition of Colleen Coyne demonstrate, Williain Glick was only

assessed the relevant fees once. In her affidavit, Coyne states:

Said Defendant [Glick] had two traffic charges arising from thesame incident (Lanes Violation and OVI). and he pled to anamended charge of Reckless Operation with the original twocharges being dismissed at the Defendant's costs.

Said Defendant [Glick] paid a fine and court costs uponconviction. Defendant was charged court costs that included onone assessment of costs for $15.00 allocated to the State RevenueFund and one assessment of costs for $9.00 allocated to the State'sVictims of Crime Fund per O.R.C. 2949.09(A) and 2743.70(A),respectively.

Defendant William C. Glick was charged by the Berea MunicipalCourt onlv once for the $15.00 State Revenue Fund charge and$9.00 for the State Victims of Crime Fund charge in the caseirrespective of the number of offenses or charges issued againsthim arising out of the sanie incident, transaction or occurrence.

Coyne Aff, at 11113, 4 and 5. (Bmphasis added).

This is, as is true for the class in general, supported and re-affirmed by Coyne's

deposition testimony. Specifically:

13

Now, going specifically back to the case of Williarn Glick,which was I thiiilc Case No. 04TRC3862, when youreviewed the court costs assessed to Mr. Glick, how manytimes was Mr. Glick assessed the $15 fee that is sent to thetreasurer of the State of Ohio for the general revenue fimd?

A. One time.

Q• And in that same case, how many times was Mr. Glickassessed the $9 fee for the victims of crime fund that wassent to the treasurer for the State of Ohio?

A. One time.


The accuracy of Coyne's testimony is demonstrated by the actual receipt for Glick's

case. The records are for Case No. 04TRC03862, the same case that fonns the basis for Glick's

inclusion in the class action. See, Coyne Affidavit, 1112. These records aclcnowledge one entry

of Fifteen Dollars ($15.00) for the State Revenue Fund and one entry of Nine Dollars ($9.00) for

Victim's of Crime Fund.

D. The Berea Municipal Court Properly Imposes Basic Court Costs Pursuant toOhio Revised Code § 1901.26.

Court costs imposed by the Berea Municipal Court are iinposed either pursuant to R.C.

§2743.70 and §2949.091 or, in the alternative, R.C. § 1901.26:

A review of the cea-tified record before the Berea Municipal Court reveals that all entries

and case notations on the docket and case jacket fully conform with applicable rules, statutes and

case law. Copies of the certified record are attached to the Affidavit in Support, ¶ 3, Exh. 1. The

issuing citation and case jacket are in complete compliance with the Traffic Rules. Specifically,

the issuing citation is in compliance with Traffic R. 2, Appendix.

The case jacket and the certified docket reveal that the DUI was amended to a reckless

operation charge to which Plaintiff Glick pled guilty. The notation on the case jacket of the DUI

14

charge reveals that costs were assessed to Plaintiff Glick. The case jacket also reveals the

following notation for the lanes violation charge: "Dism @ A's" cost, with Judge Comstock's

initials next to the entry on the case jacket. Likewise, the docket unequivocally states that the

lanes violation charge was "Dismissed at Def. Costs."

Following the plea agreeinent, the sentencing entry, docket and case jacket reveal that

costs were assessed against Plaintiff Glick on both charges in conformance with the standard

practice approved by this Court in Threatt, supra: See Docket Entries dated 12/09/06 and

04/15/05.

Plaintiff Glick claims that he was improperly charged court costs on the charge of lanes

violations which was dismissed by the Prosecutor. Plaintiff conceded however at his deposition

that such dismissal was part of a voluntary plea agreement. See Glick Depo. at 17, a copy of

which is attached to the Affidavit in Support, ¶ 9, Exh. 7, Tab A. Mr. Glick was represented by

Attorney Martinez, who, outside of Mr. Glick's presence but with his authority, negotiated the

plea agreement with the City Prosecutor. Id. at 17-18. Mr. Glick understood at the time he

entered into the plea agreement that he would be required to pay court costs. Icl. However, Mr.

Gliclc had no idea how much the coui-t costs would be and he made no effort to find out prior to

entering the plea. Id.

Court costs may be assessed against a defendant pursuant to a validly entered plea

agreement, even on a charge that was dismissed. See City of Cleveland v. Tighe (2003), 8`" Dist.

No. 81767, 2003 WL 1849217) (Copies of all unreported cases are attached hei-eto); City of

Willoughby v. Sapiraa (2001), 11"' Dist. No. 2000-L-138, 2001 WL 1602651; State v. Kortuni

(2002), 12°i Dist. No. CA2001-04-034, 2002 WL 237370; and City of Cuyahoga Falls v. Coup-

15

Peterson (1997), 124 Ohio App.3d 716. Plaintiff Glick was charged court costs pursuant to a

valid plea agreement.

Even if Mr. Glick was impi-operly charged court costs (a point not at all conceded by

Defendant Wohl), as the cases cited by Plaintiffs demonstrate, he had the right to take an

immediate appeal prior to paying those costs. See, also, Threatt, supra. Further, Plaintiff could

have moved to withdraw his plea under Crim. R. 32.1, though it would have been Mr. Glick's

burden to demonstrate that he suffers "manifest injustice" and that the plea agreernent was not

entered into voluntarily. State v. Smith (1977), 49 Ohio St.2d 261, paragraph one syllabus. He

neither appealed nor inoved to withdraw his plea. As a result, his claims are barred by the

doctrine of res,judicata. Threatt, supra.

It should be added that the Berea Municipal Court does not now, not has it ever for any

period relevant to this action, assess court costs on charges whicli are dismissed by the

prosecutor without a plea agreement or which are dismissed following a finding of not guilty.

See, Wohl Depo. at 71. It is only under a plea agreement that any individual appearing in Berea

Municipal Court would pay costs for a dismissed charge. This is exactly the situation for Mr.

Glick. The charges against Mr. Glick were dismissed pursuant to a plea agreement. He was not

acguitted of any charges.

Plaintiff Glick argues that the special project costs charged him were improper because

(1) there was no court order finding that any of these special projects were needed for the

efficient operation of the Court, (2) the special project costs were not adopted by "rule", and (3)

the costs were not charged upon the filing of the charges. All of these assertions are incorrect.

R.C. §1901.26(B)(1) provides:

(B)(1) The municipal court may detennine that, for the efficientoperation of the court, additional funds are necessary to acquire

16

and pay for special projects of the court including, but not limitedto, the acquisition of additional facilities or the rehabilitation ofexisting facilities, the acquisition of equipment, the hiring andtraining of staff, community service programs, mediation ordispute resolution services, the employment of magistrates, thetraining and education of judges, acting judges, and magistrates,and other related services. Upon that determination, the court byrule may charge a fee, in addition to all other court costs, on thefiling of each criminal cause, civil action or proceeding, orjudgment by confession. (Einphasis added.)

The costs attributed to the special projects are stated and identified in the Journal Entries

attached to Wohl's Affidavit. A copy of Wohl's Affidavit is attached to the Affidavit in Support,

¶ 6, Exh. 4, Tab 1. The fact that the Berea Municipal Court chose to adopt these special costs by

way of a journal entry rather than a rule is a distinction without a difference. In fact, a court

journal eritryshould be given inore force and effect than a rule as the violation of a court order

can result in a contempt citation. R.C. § 1901.13(A). Violation of a court rule, on the other hand,

cannot result in such a citation.

Finally; it cannot be disputed that all court costs are charged and remain pending upon the

filing of the citations and opening of the files. See Affidavit of Colleen Coyne, a copy of which is

attached to the Affidavit in Support, ¶ 9, Exh. 7, Tab K. The Berea Municipal Court's

computerized docketing systeni uses software known as CourtMaster 2000 which is provided by

Iiuiovare Solutions, LLC. CourtMaster 2000 is a case management software program. Id. at ¶ 2.

Presently, court costs are established by the Berea Municipal Court's Journal Entry dated March

12, 2007. Icl. at ¶ 11. All court costs are programmed into the CourtMaster 2000 software and

automatically charged and pending when a file is opened. Icl. Court costs remain pending until a

final disposition of the case. Id.

In every criminal and/or traffic case opened in Berea Municipal Court, the $15.00 State

Revenue Fund charge and the $9.00 State Victims of Crime Fund charge are charged and remain

17

pending once each per case regardless of the number of charges issued against such defendant

arising out of the same incident, transaction or occurrence. Id. at ¶ 12.

In every criminal and/or traffic case opened in Berea Municipal Court, the rernaining

basic court costs are charged and remain pending once per charge issued against such defendant.

Id. at 113.

Upon conviction and a senteneing entry, the court costs are calculated pursuant to the

above referenced Journal Entry and assessed in accordance with the Municipal Court's orders as

appearing on the Case Jacket and Docket. Id. at ¶ 11.

V. CONCLUSION

For the reasons set forth herein and in the Verified Complaint for Writ of Prohibition, a

writ of prohibition should issue.

Respectfully subniitted,

David M. Cuppage (0047104)'Lea ^ounseldmcu^p(a^cli»zacolaiv. coinScott D. Simpkins (0066775)sdsini.p(a)cl imacolaw. co»i.Climaco, Lefkowitz, Peca, Wilcox

& Garofoli Co., L.P.A.55 Public Square, Suite 1950Cleveland, Ohio 44113Telephone (216) 621-8484Facsimile (216) 771-1632

I .

^regory M. ^ponsell (001235gsponseller(a^bereaohro.comDirector of LawCity of BereaBerea City Hall11 Berea ConunonsBerea, Ohio 44017Telephone: (440) 826-5800

Attonieys for Relator Raymond J. Wohl,Clerk of Court of the Berea Murucipal Court

18

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West?aw.

Not Reported in N.E.2d

Not Reported in N.E.2d, 2003 WL 1849217 (Ohio App(Cite as: Not Reported in N.E.2d)

8 Dist.), 2003 -Ohio- 1845

Page 1

^City of Cleveland v. TigheOhio App. 8 Dist.,2003.CHECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OFLEGAL AUTHORITY.Court of Appeals of Ohio,Eighth District, Cuyahoga

County.CITY OF CLEVELAND, Plaintiff-Appellant,

V.Kenneth TIGHE, Defendant-Appellee.

Nos. 81767 and 81795.

Decided April 10, 2003.

Defendant was convicted in the ClevelandMunicipal Court, No.2002 CRB 008806, ofpersistent disorderly conduct, a fourth-degreemisdemeanor, following entry of his plea of nocontest. City appealed. The Court of Appeals, SeanC. Gallagher, J., held that the trial court did nothave the authority to waive mandatory court costsabsent a fmding of indigency.

Reversed and remanded.West HeadnotesCosts 102 C^319

102 Costs102XIV In Crinrinal Prosecutions

102k319 k. Reniission, Most Cited CasesTrial court did not have the authority to waivemandatory court costs for defendant convicted ofpersistent disorderly conduct, a fourth-degreemisdemeanor, absent a finding of indigency eventhough the trial court wanted to give a break todefendant because he had already spent asubstantial sum on the action. R.C. § 2949.092.

Criminal appeal from Cleveland Municipal Court,Case No.2002 CRB 008806.

Subodh Chandra, Esq., Director of Law, City ofCleveland by Donald Gallick, Esq., Asst.

Prosecuting Attomey, Cleveland, OH, forplaintiff-appellant.Kenneth Tighe, Pro Se, Garfield Heights, OH, fordefendant-appellee.SEAN C. GALLAGHER, J.*1 {¶ 1) Appellant, City of Cleveland ("the city"),appeals from the trial court's decision to suspendcourt costs in the sentencing of appellee, Kenneth

Tighe ("Tighe"). For the reasons discussed below,we reverse and remand.

{¶ 2} The following facts give rise to this appeal.On August 28, 2002, Tighe entered a plea of nocontest to an amended charge of persistentdisorderly conduct, R.C. 2917.11, a fourth-degreenusdemeanor. The trial court informed Tighe thatthe maximum fine was $250 and up to thirty days injail.ml During the sentencing proceeding, defensecounsel told the court that Tighe had spent two daysin jail and had spent over one thousand dollars onthe case. The trial court then suspended all of thefine and the court costs. The trial court informedTighe that he would be on probation for ninemonths, but that the probation period could beterminated after three months if Tighe had threeconsecutive negative drug test results.

FN1. Pursuant to R.C. 2949.08, R.C.2947.14 and the equal protection clause,any pretrial confinement of a defendant oncharges which ultimately are concluded bya conviction for a charge which constitutesa minor nusdemeanor must be creditedagainst any fine imposed. State v. Sparks(1990), 69 Ohio App.3d 400, 590 N.E.2d1294. In the present case, appellant did notplead to a minor misdemeanor. While hedid spend two days in jail prior to hissentencing, his plea was to a fourth-degreemisden eanor punishable by up to thirtydays injail and a$250 fine.

3} The city asked the court why it was

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Not Reported in N.E.2d, 2003 WL 1849217 (Ohio App. 8 Dist.), 2003 -Ohio- 1845(Cite as: Not Reported in N.E.2d)

suspending court costs. The trial court indicated thatTighe had paid his attorney $1,000 and proceededto ask Tighe a few questions. Tighe revealed that hewas a construction worker, he could afford courtcosts, and that he would lilce a few days to pay thecosts. The trial court then indicated it was going togive [Tighe] a break."

{¶ 4} The city filed this discretionary appealraising one assignment of error.

{¶ 5} "I. The trial court acted contrary to law bysuspending the court costs of a non-indigentdefendant."

{¶ 6} The record in this case reflects that the trialcourt suspended all court costs when sentencingTighe with no finding of indigency. The city arguesthat the trial court's decision to suspend court costswas contrary to law. We agree.

{¶ 7} The duty to pay court costs is a civilobligation arising from an implied contract.Obligations arising upon implied contracts andjudgnients tliereon are debts, within the purview ofSection. 15, Article I of the Ohie Constitution,which forbids imprisonment for debt in civilactions. Strongsville :. INaiwoad (1989), 62 OhioApp.3d 521, 577 N.E.2d 63; Strattman v. Studt(1969), 20 Ohio St.2d 95, 253 N.E.2d 749; SecondNational Bank of Sandusky v. Bec%er (1900), 62Ohio St. 289, 56 N.E. 1025. Only in successfulprosecutions can the costs of proceedings beassessed to the defendant. State v. Powers (1996),117 Ohio App.3d 124, 690 N.E.2d 32.

{¶ 8} The Qhio Revised Code contains variousstatutory provisions goveming the costs and feesthat are to be assessed in a municipal court action.R.C.1901.26, t,e general provision authorizingmunicipal courts to tax costs, requires a municipalcourt to establish a schedule of fees and costs to betaxed in an action and sets forth certain types ofcosts that may be taxed. The provision indicates thatsome costs, such as the advance deposit for thefiling of a civil action or the advance deposit for thefees of a jury, may be required "unless, uponaffidavit or other evidence, the court concludes thatsuch party is unable to make the required deposit."

Page 2

Id. In addition to the basic costs authorized byR.C.1901.26, R.C.1901.261 permits a municipalcourt to impose additional fees tc compnterize the

court or pay for computerized legal research.FN2

FN2. In Cleveland Municipal Court thebasic court cost fee is set at $65. Of thetotal, $20 is forwarded to the city's generalrevenue fund. The collection of this cost ismandatory under Title VII Section 149.08of the Codified Ordinances of the City ofCleveland. With respect to the state costs,$9 is paid to the victims of crime fundunder R.C. 2743.70, and $11 is paid to thegeneral revenue fund under R.C. 2949.091.A $3 fee is collected for computerizationunder R.C.1901.261(A)(1), arid anadditional $10 computerization fee iscollected under R.C.1901.261(B)(1).Lastly, a special project fee of $12 iscollected under 1901.26(B)(I). Thesecosts are approved by the judges of theCleveland Municipal Court.

*2 {'1, 9} In crin inal cases, the Ohio Revised Codemandates that certain costs be assessed against adefendant who is convicted of or plcads guilty to anoffense. R.C. 2947.23 states: "In all criminal cases,including violations of ordinances, the judge ormagistrate shall include in the sentence the costs ofprosecution and render a judgment against thedefendant for such costs ***." (Emphasis added).The use of the word "shall" in this statute denotesthat compliance is mandatory. State v. Satta,Marion App. No. 9-01-38, 2002-Ohio-5049.Nevertheless, the legislature has indicated throughother statutory provisions that tltese costs may bewaived for indigent defendants. See R.C. 2949.14(requiring the clerk of the court to certify acomplete itemized bill of the costs made in theprosecution of a "nonindigent" person convicted ofa felony); R.C. 2949.15 (requiriuig the clerk of thecourt to issue a writ of execution if a "nonindigent"person convicted of a felony fails to pay the costs ofprosecution); See also State v. Clark, PickawayApp. No. 02CA12, 2002-Ohio-6684 (holding courtcosts may not be assessed against an indigentdefendant in a felony case).

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{¶ 10} Municipal courts are also required,pursuant to R.C. 2743.70 and R.C. 2949.091, toimpose specific sums as costs against nonindigentindividuals who are convicted of or plead guilty toany offense other than a traffic offense that is not amoving violation. R.C. 2949.091(A)(1) requires acourt to impose "the sum of eleven dollars as costsin the case in addition to any other court costs" forthe state's general revenue fund. R.C. 2743.70requires a court to impose the sum of nine dollars ifthe offense is a misdemeanor for the state'sreparations fund. Both of these statutes provide thatthe additional court cost may not be waived "unlessthe court deterniines that the offender is indigentand waives the payment of all court costs imposedupon the indigent offender." R.C. 2949.091; R.C.2743.70 (emphasis added); See also 1993Atty.Gen.Ops. No. 93-009; 1991 Atty.Gen.Ops. No.91-039; 1991 Atty.Gen.Ops. No. 91-022(recognizing that the "additional costs" may not bewaived absent a determination that an individual isindigent).

{Q 111 lhe legislative intent that court costs bewaived for indigent defendants is reiterated 'u R.C.2949.092, entitled "Condition for waiver ofspecified additional court costs." The statuteinstructs a court to impose costs specificallyrequired by R.C. 2743.70, R.C. 2949.091, or anyother section of the Revised Code that imposes aspecified sum as additional costs, "unless the courtdetemlines that the offender is indigent and thecourt waives the payment of all court costs imposedupon the offender." (Emphasis added.) This sectionclearly implies that "all court costs" may be waivedfor an indigent defendant. Consequently, the trialcourt was permitted to waive the costs mandated bythe above provisions upon finding Tighe indigentand waiving all costs against Tighe.

*3 {¶ 12} In this case, the trial court suspended allcourt costs against Tighe. The trial court indicated itwas waiv'mg costs becanse Tighe had paid hisattomey over one tlrousand dollars and the courtwanted to "give him a break." A review of therecord reflects that Tighe had a job, could afford anattomey, and was able to pay court costs. However,the trial court did not determine whether or notTighe was indigent.

Page 3

(Q 13) Although the trial court wanted to give abreak to a defendant who had already spent asubstantial surn on the action, the trial court did nothave the authority to waive mandatory court costsabsent a fmding of indigency. Costs are taxedagainst certain litigants for the purpose of lighteningthe burden on taxpayers financing the court system.Strattman v. Studt (1969), 20 Ohio St.2d 95, 253N.E.2d 749. To allow courts to waive all costswithout a finding of indigency would be unfair tothe taxpayers and could jeopardize the funding ofthe courts.

{¶ 14) Since the statutory provisions do not directthe nianner in which a court is to determine whetheran individual is indigent for purposes of waivingcosts, a reasonable method should be used. See1993 Atty.Gen.Ops. No. -93-009. FN3 Thedetermination should be made on a case-by-casebasis so that consideration may be given to any andall factors tending to indicate an individual'sfinancial condition. Id. A fmding of indigency is amatter within the sound discretion of the trial court.See State v. Weaver (1988), 38 Ohio St.3d 160,161, 527 N.E.2d 805. However, a determinationmade without regard to an individual's fmancialcondition is unreasonable. See 1993 Atty.Gen.Ops.

No. 93-009.FN4

FN3. The court notes that unlike courtcosts, statutory procedures have beenestablished for waiving mandatory fines. Inorder to avoid certain mandatory fines, theoffender must ( 1) allege in an affidavitfiled with the court prior to sentencing thattlre offender is indigent and unable to paythe mandatory fine, and (2) the court mustdeternune that the offender is, in fact,indigeni. State v. Grissom, Lake App.No.2001-L-107, 2002-Ohio-5154.

FN4. Court costs, lilce mandatory fines,mtist be assessed absent a finding ofindigency. However, courts must bemindful that there is a difference between afinding of indigency for purposes ofreceiving appointed legal counsel and thefinding of indigency to avoid having to pay

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a mandatory fine. State v. Powell (1992),78 Ohio App.3d 784, 605 N.E.2d 1337.Thus, municipal and cou-nty courts shouldclearly understand that simply because aperson is indigent for purposes of legalrepresentation does not mean he is indigentfor purposes of paying fines or court costs.A person who is indigent for purposes ofreceiving. appointed legal counsel may stillbe required to pay fines and court costsdepending on the specific factors the courtfmds in existence at the time they arelevied.

{¶ 15} It is recognized that municipal and countycourts, by their nature, require judges to makedecisions on financial sanctions and court costs withlimited information and witliin limited time. Broaddiscretion is to be given to municipal and countytrial judges when deternrining, under the totality ofcircumstances, the question of an individual's statusas an indigent and the person's ability to pay costs.Requiring the filing of formal affidavits ofindigency, or requiring specific language or "magicwords" on the record, will only serve to overburder,municinal and county trial courts. Such measureswill not reasonably foster the fair assessment of a

to carry this judgment into execution.

Page 4

A certified copv of this entry shall constitute themandate pursuant to Rule 27 of the Rules ofAppellate Procedure.

KF.NNETH A. ROCCO, A.J.,SWEENEY, J., concur.

and JAMES J.

N.B. This entry is an announcement of the court'sdecision. See App.R. 22(B), 22(D) and 26(A);Loc.App.R. 22.-This decision will be joumalizedand will become the judgment and order of thecourt pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R.26(A), is filed within ten ( 10) days of theannouncement of the court's decision. The timeperiod for review by the Supreme Court of Ohioshall begin to run upon the journalization of thiscourt's announcement of decision by the clerk perApp.R. 22(E). See, also S.Ct.Prac.R. II, Section2(A)(1).

Ohio App. 8 Dist.,2003.City of Cleveland v. TigheNot Reported in N.E.2d, 2003 WL 1849217 (OhioApp. 8 Dist.), 2003 -Ohio- 1845

person's abilitv to nay court costs. At a minimum, END OF DOCUMENTthe finding of indigency should be clear from therecord and be based on a reasonable considerationof the circumstances in existence at the time of thefinding, including the individual's financialcondition.

{¶ 16} Because the trial court erred by suspendingall court costs without a finding of indigency, theappellant's assignment of error is sustained.

Judgment reversed and the case is remanded.

This cause is reversed and remanded to the lowercourt for further proceedings consistent with thisopinion.

It is, therefore, considered that said appellantrecover of said appellee its costs herein.

*4 It is ordered that a special mandate issue out ofthis court directing the Cleveland Municipal Court

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City Of Willoughby v. SapinaOhio App. 11Dist.,2001.CHECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OFLEGAL AUTHORITY.

Court of Appeals of Ohio, Eleventh District, LakeCounty.

CITY OF WILLOUGHBY, Plaintiff-Appellee,V.

Dejan SAPINA, Defendant-Appellant.Nos. 2000-L-138, 2000-L-139.

Dec. 14,2001.

Criminal Appeal from the Willoughby MunicipalCourt, Case Nos. 00 TRD 04268 A and OOTRD04268 B, Judgment Affirmed in part; reversed inpart and remanded.

Atty. Richard J. Perez, City of WilloughbyProsecutor, Willoughby Municipal Court,Willoughby, OH, for alaintiff-appellee.Atty. Katica Mariailin, Cleveland, OH, fordefendant-appellant.

WILLIAM M. O'NEILL, P.J., 7UDITH A.CHRISTLEY, and ROBERT A. NADER, JJ.

OPINIONCHRISTLEY, J.*1 This is an accelerated calendar appeal takenfrom a final judgment of the Willoughby MunicipalCourt. Appellant, Dejan Sapina, challenges theassessment of court costs following his convictionfor speeding.

The record shows that on May 7, 2000, appellantwas charged with one count of reckless operation ofa motor velricle on public property and one count offailure to wear a seatbelt. Appellant entered a pleaof not guilty to the charges, and retained an attorneyto represent him.

Page I

The trial court conducted a plea hearing on July 20,2000, at wlrich time appellant attempted to enter aplea of no contest to an amended charge ofspeeding and to the single count of failure to wear aseatbelt. The trial court rejected appellant's nocontest plea and set the case for a jury trial.

On July 27, 2000, a visiting court judge held asecond plea hearing. During the proceedutgs,appellant agreed to plead no contest to the amendedcharge of speeding in retum for the dismissal of thefailure to wear a seatbelt charge. The visiting courtjudge accepted appellant's plea, found him guilty ofspeeding, and dismissed the remaining charge inaccordance with the parties' agreement. Appellantwas then sentenced to pay a $100 fine plus court

costs totaling $304.FNi

FN1. Court costs were assessed as follows:(1) $60-basic court costs for speeding; (2)$40-basic court costs for failure to wear aseatbelt (3) $100-failtire to waive jury trialno later than final pretriai; (4) $20-jurydemand; (5) $10 schedulnrg a juty trial; (6)$15 scheduling pretrials; (7) $40 motionfees; (8) $14 fax fees; and (9) $5 copycosts.

Appellant subsequently filed a motion with the trialcourt to reduce and/or waive court costs. However,before the trial court could mle on appellant'sniotion, he filed a notice of appeal with this court.

As a result, the city filed a motion to remand thecase so that the trial court could rule or appellant'smotion. This court granted the city's motion, and ina judgment entry dated November 17, 2000, thetrial court waived the $100 cost for the failure towaive jury trial no later than the final pretrial. OnJanuary 8, 2000, we once again remanded thematter so that the trial court could issue a finaljudgement specifying the ordinance or statutoryprovisions involved and the sentence imposed. The


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trial court complied with our request, and tlre case

proceeded according to rule.FN2

FN2. Appellant's sentence was stayedpending the outcome of this appeal.

In his first assignment of error, appellant argues thatthe trial court erred in assessing court costs forevents that occurred after he initially attempted toplead no contest on July 20, 2000. Appellantmaintaitts that the trial court acted umeasonably inrefusing to accept his no contest plea, and thatbecause he was ready to resolve the case earlier, heshould not be responsible for any additional chargeswluch, he believes, became necessary only after thetrial court refused to accept his plea.

Under Crim.R. 11, a trial court has the discretion toeither accept or reject a no contest plea. State v.Carter (1997), 124 Ohio App.3d 423, 428. As aresult, while appellant correctly notes that he has astatutory right to plead no contest, R.C. 2937.06,the trial court's decision to accept such a plea isdiscretionary in nature and will not be overmmedabser.t an abuse of that discretion. Carter at 428. Anabuse of discretion connotes more than a niere errorof law or judgment; rather, it implies that the court'sattitude was unreasonable, arbitrary, orunconscionable. State v. Adanes (1980), 62 OhioSt.2d 151, 157.

*2 Having said that, we conclude that appellant hasfailed to show that the trial court abused itsdiscretion in refusing to accept his no contest plea.Appellant seems to believe that the trial court wasnot impartial and acted arbitrarily because of a priordisagreement between his attomey and the trialcourt judge in another case. However, appellant hasnot provided this court with any substantiveevidence to support his allegations. Simply becauseone judge rejected a particular plea and anotherjudge accepted it, does not mean that the first judeeacted unreasonably, arbitrarily, or unconscionably.

As for the court costs generated after the July 20,2000 plea hearing, the trial court has alreadywaived the $100 cost for failure to waive jury trialno later than the fmal pretrial. With respect to the

Page 2

other disputed charges, i.e., $20 for the jurydemand, $10 for sclieduling a jury trial, and $28 inmotion and fax fees, they were all generated in thenormal course of appellant's prosecution and were,therefore, appropriately charged to appellantfollowing his conviction for speeding. Appel]ant's

first assignment of error is not well-taken"FN3

FN3. In his appellate brief, appellant refersto R.C. 2947.23 in support of his firstassignment of error. However, uponcareful reading of this statute, and thecases that have interpreted and applied it,we conclude that R.C. 2947.23'sprohibition on the imposition of jury costsunless and until the jury is swom andbegins to serve, only applies to those costsdirectly associated with service on a jury,such as juror fees and mileage. State v.Galbreath (2000), 138 Ohio App.3d 559.

In his second assigntnent of error, appellant arguesthat the trial court erred in assessing court costs onthe failure to wear a seatbelt charge. Appellantmaintains that absent an agreement, a cotn'L may notimpose costs against a defendant when he has beenacquitted of the charged offense or the prosecutiondismisses it. We agree.

There is absolutely no authority for a court to assesscosts against a criminal defendant who has not beensentenced following a conviction unless, as part of aplea bargain, the parties have agreed otherwise.Cuyahoga Falls v. Coup Patterson (1997), 124Olrio App.3d 716, 717. In fact, R.C. 2947.23authorizes a trial court to assess the costs related toa prosecution only when a defendant has beetr fomrdguilty and sentenced. State v. Posey (1999), 135Ohio App.3d 751, 755 FN4

FN4. R.C. 2947.23 provides:"In all criminal cases, including violationsof ordinances, the judge or magistrate shallinclude in the sentence the costs ofprosecution and "render a judgment againstthe defendant for such costs. If a jury hasbeen sworn at the trial of a case, the fees of

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Not Reported in N.E.2d, 2001 WL 1602651 (Ohio App- 11 Dist.), 2001 -Ohio- 8707(Cite as: Not Reported in N<F,2d)

the jurors shall be included in the costs,which shall be paid to the public treasuryfrom which the jurors were paid."

Here, the city agreed to dismiss the failure to wear aseatbelt charge in return for appellant pleadingguilty to speeding. There is no evidence to suggestthat, as part of this arrangement, appellant would beresponsible for the costs associated . with thedistnissed charge. As a result, because appellantwas never found guilty of failing to wear a seatbelt,he is not responsible for the $40 court costsassessed by the trial court. State v. Powers (1996),117 Ohio App.3d 124, 128. Appellant's second

assignment of error has merit. F7`'5

FN5. Even if appellant had also pleadedguilty to the failure to wear a seatbeltcharge, he still should not have beenassessed with court costs for both offenses.See 1991 Ohio Atty.Gen.Ops. No. 91-039,at syllabus (holding t'nat "[i]f an individualis charged with more than onemisdcmeanor arising from the same act ortransaction or series of acts or transactions,and a municipal court * * * assigns a singlecase number with respect to theprosecution of these misdemeanors, whilesimultaneously distinguishing betweeneach misdemeanor charged within that casenumber by attaching an additionalidentifier, each misdemeanor chargedwithin that case number is not considered a`case' for purposes of assessing * * *court costs * * *.").

Based on the foregoing analysis, the judgment ofthe trial court is affirmed in part and reversed inpart, and the matter is remanded for furtherproceedings consistent with this opinion.

O'NEILL, P.J., and NADER J., concur.Ohio App. 11 Dist.,2001.City Of Willoughby v. SapinaNot Reported in N.E.2d, 2001 WL 1602651 (OhioApp. 11 Dist.), 2001 -Ohio- 8707

END OF DOCUMENT

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Westlaw.



HState v. KortumOhio App. 12 Dist.,2002.CHECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OFLEGAL AUTHORITY.

Court of Appeals of Ohio, Twelfth District, WarrenCounty.

STATE of Ohio, Plaintiff-Appellee,V.

Janet L. KORTUM, Defendant-Appellant.No. CA2001-04-034.

Feb.19,2002.

After her conviction for vehicular homicide wasreversed by the Court of Appeals, defendant wasconvicted in the Mason Municipal Court,. WanenCounty, of vehicular homicide. Defendant appealed.The Court of Appeals, Valen, J., held that: (1)evidence supported defendant's conviction; (2)defendant was not entitled to jury instructions basedon law from otiier jurisdictions; (3) harsher sentenceiniposed after second trial was vindictive; and (4)trial court could not impose court costs from firsttrial as part of sentence.

Affirmed in part, reversed in part, and remanded.West Headnotes[1] Automobiles 48A C^355(13)

48A Automobiles48AVII Offenses

48AVII(B) Prosecution48Ak355 Weight and Sufficiency of

Evidence48Ak355(13) k. Homicide. Most Cited

CasesEvidence was sufficient to support finding thatmotorist's actions constituted criminal negligence,as required to support conviction for vehicularhomicide; state presented evidence that motoristhad cortunitted traffic violation by failing to yieldright-of-way to motorcyclist, and witnesses testifiedthat light was green when motorcyclist entered

Page 1

intersection. R.C. 2903.07(A) (former version).

[21 Autotnobiles 48A C'-342.1


48AVII(A) In General48Ak342 Homicide

48A1c342.1 k. In General. Most CitedCasesA mere violation of a traffic law with nothing moredoes not necessarily demonstrate a substantial lapseof due care as required to convict a defendant ofvehicular homicide. R.C. 2903.07.

[31 Automobiles 48A ^' -342.1


48AVII(A) In General48Ak342 Homicide

48Ak342.1 k. In General. Most CitedCasesIn order to demonstrate criminal negligence in avehicular homicide case, it is not necessary to showthat something was distracting a defendant orotherwise occupying her attention at the time of theaccident; evidence indicating that a defendantshnply did not see an oncoming vehicle when sheshould have may sufficiently demonstrate asubstantial lapse of due care required to supportvehicular homicide conviction. R.C. 2903.07(A).

141 Automobiles 48A C^357(13)


48AVII(B) Prosecution48Ak357 Instructions

48Ak357(13) k. Homicide. Most CitedCases

(Formerly 48Ak357)Defendant was not entitled to jury instructions invehicular homicide case that were based on law

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Not Reported in N.E.2d, 2002 WL 237370 (Ohio App(Cite as: Not Reported in N.E.2d)

froni jurisdictions outside of Ohio and from Ohiocourts whose jurisdiction did not include trial court.

[5] Criminal Law 110 e^769

110 Criminal Law110XX Trial

11OXX(G) Instructions: Necessity,Requisites, and Sufficiency

110k769 k. Duty of Judge in General..Most Cited CasesA trial court must give the jury all instructions thatare relevant and necessary for the jury to weigh theevidence and fulfill its duty as the fact-fmder.

[6] Crintinal Law 110 C^835

110 Criminal Law110XX Trial

I I OXX(H) Instmctions: Requests110k835 k. Refusal of Requests. Most

Cited CasesA trial court niay refuse to give a juiy instructionthat is not applicable to the evidence presented or isan incorrect statenient of law.

[7] Criminal Law 110 CZ^1152(1)

110 Criminal Law110XXIV Review

I10XXIV(N) Discretion of Lower Court110k1152 Conduct of Trial in General

110k1152(1) k. In General. Most CitedCasesAn appellate court reviewing a trial court's refusalto give a requested jury charge based upon theevidence at trial shall not reverse the decision of thetrial court unless an abuse of discretion is shown.

[81 Sentencing and Punishment 350H C^305

350H Sentencing and Punishment350HII Sentencing Proceedings in General

350HII(F) Evidence350Hk305 k. Presumptions. Most Cited

CasesHanccr senter.ce imposed on defendant's Jondvehicular homicide conviction, after initialconviction was reversed on appeal, was

2 Dist.), 2002 -Ohio- 613

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presuniptively vindictively, where sentencing courtdid not affirmatively state on record reasons forimposing harsher sentence.

[9] Constitutional Law 92 C=270(3)

92 Constitutional Law92XII Due Process of Law

92k256 Crinrinal Prosecutions92k270 Judgment and Sentence

92k270(3) k. Discrimination andVindictiveness; Sentence on Retrial. Most CitedCasesDue process of law requires that vindictivenessagainst a defendant for having successfully attackedher first conviction must play no part in thesentence she receives after a new trial. U.S.C.A.Const.Amend. 14.

[10] Criminal Law 110 C^-1086.13


110XXIV(G) Record and Proceedings Not inRecord

Record110XXIV(G)l Matters to Be Shown by

110k1086.13 k. Verdict, Judgment, andSentence. Most Cited Cases

Sentencing and Punisliment 350H C^372

350H Sentencing and Punishment350HII Sentencing Proceedings in General

350HII(G) Hearing350Hk369 Findings and Statement of

Reasons350Hk372 k. Necessity. Most Cited

CasesThe decision of a judge to impose a more severesentence upon a defendant after a second trial mustbe based upon reasons that appear on the record sothat the constitutional legitimacy of the increasedsentence may be thoroughly reviewed on appeal.

[11] Sentencing and Punishment 350H C^365

350H Sentencing and Punishtnent350H11 Sentencing Proceedings in General


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Not Reported inN.E.2d


350HII(F) Evidence350Hk305 k. Presuniptions. Most Cited

Cases

Paee 3

350HII Sentencing Proceedings in General350HII(G) Hearing

350Hk369 Findings and Statement ofThe presumption that a more severe sentence Reasonsimposed upon a defendant who successfullychallenged an initial conviction is a result ofvindictiveness may be overcome only by objectiveinformation justifying the increased sentence.

]12] Sentencing and Punishment 350H C^305

350H Seutencing and Punishment350HII Sentencing Proceedings in General

350HII(F) Evidence350H1005 k. Presumptions. Most Cited

CasesThe Pearce presumption of vindictiveness does notapply when a sentence imposed after trial is greaterthan that previously imposed after a guilty plea orwhere a defendant was sentenced by two differentsentencers.

(13] Criminal Law 110 ^1086.13


110XXIV(G) Record and Proceedings Not in

Record

Record110XXIV(G)1 Matters to Be Shown by

110k1086.13 k. Verdict, Judgment, andSentence. Most Cited Cases

Criminal Law 110 C^1181.5(8)

110 Criminal Law

0

I10XXIV Review110XXIV(U) Determination

Causeand Disposition

I lOk1181.5 Remand in General; Vacation110k1181.5(3) Remand for

Determination or Reconsideration of ParticularMatters

IlOk1181.5(8) k. Sentence. MostCited Cases

Sentencing and Punishment 350H C--372

350H Sentencing and Punishment

3501Ik372 k. Necessity. Most CitedCasesWhere no explanation for an increased sentencefollowing a second trial of a defendant appears inthe record, the increased sentence is constitutionallydefective and the matter must be remanded forresentencing.

]14] Costs 102 C^304

102 Costs102XIV In Criminal Prosecutions

102k304 k. Costs TaxableDefendant. Most Cited Cases

Agahist

Sentencing court could not impose court costs offirst jury trial on defendant convicted followingsecond trial, where reversal of first conviction wasbased on state's failure to provide reliablediscovery. R.C. 2947.23.

Robert W. Peeler, Mason, OH, for plaintiff-appellee.Sirkin, Pinales, Mezibov & Schwartz LLP, MartinS. Pinales and John P. Feldmeier. Cincinnati, OH,for defendant-appellant.

OPINIONVALEN, J.*1 Defendant-appellant, Janet L. Kortum, appealsher conviction in the Mason Municipal Court forvehicular homicide. The trial court's decision isaffirmed in part, reversed in part, and remanded forfurther proceedings.

Mason-Montgomery Road in Deerfield Township,Warren County, Ohio, is a four-lane road that ntnsnorth and south, with two lanes in each direction. Atits intersection with Irwin-Simpson Road,Mason-Montgomery Road widens for a center, lefttum lane. T1iis intersection is controlled bystoplights in all four directions. As of August 5,1999, the stoplights did not include green arrowsfor left turns off of Niason-ivlontgomery Road.

At about 2:30 p.m. on August 5, 1999, appellant

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Not Reported in N,E.2d, 2002 WL 237370 (Ohio App. 12 Dist.), 2002 -Ohio- 613(Cite as: Not Reported in N.E.2d)

was driving her minivan northbound onMason-Montgomery Road with her daughter,Heather, riding in the front passenger-seat. The lightfor the northbound traffic was red. Appellantstopped in the center turn lane and activated her leftturn signal. Damiy Simpson stopped behindappellant, and Velma Raines stopped behindSimpson.

When the light tumed green, appellant moved intothe intersection waiting for traffic to pass, preparingto iurri left onto Irwin-Simpson Road. Jeff Hununerwas driving southbound on Mason-MontgomeryRoad in the curbside lane, preparing to make a riglitturn onto Irwin-Simpson Road. He was followeddirectly by Paula Innis. Both Hummer and hmiscame to complete stops and did not enter thehrtersection.

Bobby Marshall, riding his motorcycle behindhuiis, clranged lanes, and proceeded southboundthrough the intersection in the innetmostsouthbound lane of Mason-Montgomery Road. Hewas followed by Pelly Jackson, who was alsotraveling in the innermost southbound lane. At thesame time, appellant began to tum ontoIrwin-Simpson Road, across Mason-MontgomeryRoad's southbound lanes. Marshall drove into thefront wheel of the minivan, and was thrown off ofhis motorcycle and over the minivan. He landed onthe road next to Simpson and Raines' vehicles.Marshall was not wearing a helmet when theaccident occurred.

Emergency personnel were called to the scenewhere they treated Marshall. He died from the headtrauma suffered as a result of being tlu-own onto theroadway.

Appellant was subsequently charged with one countof vehicular homicide. Appellant pled not guilty anda jury trial was held. At the conclusion of the jurytrial, appellant was convicted of vehicularhomicide. Appellant appealed, arguing that the trialcourt had erred by failing to grant her motion for amistrial after learning that discovery provided to thedefense by tlie prosecution and relied upou tl,edefense in its presentation of the case wasinaccurate. This court reversed appellant's

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conviction and remanded the matter for a new trial.State v. ICortum (Oct. 2, 2000), Warren App. No.CA2000-02-016, unreported.

T1ie evidence at appellant's second trial revealed thefollowing:

Raines testified that she traveling north onMason-Montgomery Road and at the time of theaccident was in the left-turn lane, two vehiclesbehind appellant's nvnivan. Raines testified that shesaw "several cars cotning, a motorcycle, and maybesix or seven cars." Raines testified that she saw thenunivan turn left and saw the driver of themotorcycle attempt to slow down. Raines stated, "Icould see that [the motorcyclist] was trying to getout of the way when all of a sudden he hit the van,flew over the van." Raines testified that when shesaw the minivan tum, she thought to herself, °[O]h,my God, what are they thinlcing." Raines thouglitthat the driver of the minivan should have waitedfor the traffic to go by before attempting to tum.Raines testified that the traffic light was green whenthe minivan began to turn.

*2 Jackson testified that she was directly behind themotorcycle traveling south. She testified that themotorcyclist had changed lanes in front of her in asafe manner. Jackson estimated that thislane-change occurred eighty feet from thehrtersection. Jackson testified that tlre traffic lightwas green when the motorcycle entered theintersection but it "quickly truned yellow." Jacksontestified that after the collision the traffic lightturned red. Jackson testified, "[I]n my estimation,he had the right of way, and I thinlc she just didn'tsee him." Jackson had time to stop safely after shesaw the traffic light turn yellow.

Next, Simpson testified. He was directlv behindappellant's minivan at the time of the accident.Simpson testified that the traffic light was green atthe time the motorcycle entered the intersection.Simpson testified that appellant proceeded to tumleft, even thoueh the motorcycle was approachingthe intersection at normal speed. At the time,Simpson asked Iritnself why appellant was turning.He testified, "I don't think anybody in that situationwould have-T mean, attempt to niake a left utrn."


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Not Reported in N.E.2d, 2002 WL 237370 (Ohio App. 12 Dist.), 2002 -Ohio- 613(Cite as: Not Reported in N.E.2d) ,

Trooper Paul Lezotte of the Ohio State HighwayPatrol testified about his investigation of theaccident, which included interviews. with appellantand eyewitnesses. He arrived at the scene about tenminutes after the accident. Trooper Lezotte testifiedthat appellant told him that she had been at theintersection waitine to make a left-hand turn ontoIrwin-Simpson Road. Appellant told the trooper thatwhen the traffic light turned yellow, the on-comingtraffic appeared to be stopping for the red light.Appellant stated that she turned left, and themotorcycle hit the right front-end of her m.irrivan.Appellant told Trooper Lezotte that she saw themotorcycle when it was four to five car-lengthsaway, but she thought that it was stopping. TrooperLezotte testified that the speed limit at theintersection is fifty-five m.p.h. The trooper'sinvestigation resulted in no evidence that appellantwas speeding, under the influence of drugs oralcohol, using a cell phone, or eatutg at the time ofthe accident.

Timothy Tuttle testified as an expert in the area ofcrash reconstruction and anal-ysis. Tuttle calculatedMarshall's speed to be approximately forty-sevenm.p.h. and appellant's speed to be ten m.p.h. at thetime of impact. Tuttle admitted that it was possiblethat Marshall had been accelerating at the time ofthe collision. During cross-examination, Tuttletestified that based upon th'e information he hadthere was no way to detemiine whether there hadbeen a red-light traffic violation.

At the close of the state's case, appellant made amotion for acquittal, which was denied. She thenpresented her defense, which included testimonyfrom other eyewitnesses and experts.

Roger Davis testified that at the time oftlre accidenthe was traveling eastbound on Irwin-Simpson Roadand was between six hundred and eight hundred feetaway from the nttersection. The traffic light facinghim was red as he approached the intersection.Davis testified that he saw two vehicles travelingsouth on Mason-Montgomery Road, in the curblane. These two vehicles were slowing down to astop, and a motorc•ycle was behind them. Davistestified that he saw the motorcycle "jut out behindthe last vehicle and accelerate." Davis, a

motorcyclist himself, testified that the model ofmotorcycle Marshall was riding is a very fastaccelerating cycle. Davis estimated that themotorcycle was traveling at a speed of twenty-fiveto thirty m.p.h. and then accelerated to a speed offorty-five m.p.h.

*3 Davis testified that the motorcyclist did notappear to slow down or attempt to avoid the impact.Davis testified that at the time he thought, "Therewas an accident that was unavoidable." Davis sawthe impact, looked up, and noticed that the trafficlight facing him had tumed to green. Davis testified,"I thought the [niotorcyclist] ran the red light tryingto beat the light." Davis testified that the motorcyclewas seventy-five to one hundred feet from theintersection when the niinivan began to turn left.

Hummer testified that at the time of the accident hewas driving south on Mason-Montgomery Road. Ashe approached the intersection, the traffic lightturned yellow, so he slowed down to stop before thelight tmned red. Humnier testified that it took himabout four sebonds to come to a cor.,plete stop andthat he intended to Uant right ontoIrwin-SimpsonRoad as soon as the intersection cleared. Hummertestified that when he was watching for the traffic toclear, he saw the motorcycle collide with theminivan. On cross-examination, Hummer concededthat he did not know whether the traffic light wasyellow or red when the motorcycle entered theintersection.

Paula Innis testified that she was also travelingsouthbound on Mason-Montgomery Road in thecurb lane at tlie time in question. Innis testified thatthe traffic light turned yellow when she was onehundred fifty to two hundred feet away from theintersection. Innis testified that it took her five tosix seconds to stop, and that there was one car thatwas stopped ahead of her. After she was completelystopped, she saw the motorcycle in her side-viewmirror changing lanes from the curb lane to themiddle lane. Irmis testified that the motorcycle didnot accelerate but maintained a constant speed. Theniotorcycle traveled past Innis and continuedtluough thc intersection without slowing down.Before the accident occurred, Innis said to herself,I can't believe he's going to run the red." On

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Not Reported in N.E, 2d

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cross-examination, however, Innis testified that shedid not see the color of the traffic light at the timeof impact.

Appellant also testified about what had occulred atthe time of the accident. She was drivingnorthbound on Mason-Montgomery Road and hadcome to a complete stop behind the stop bar,preparing to turn left onto Irwin-Simpson Road.Appellant testified that the traffic light turned toyellow, and she saw two cars that had stopped in thecurb lane. Appellant also saw a motorcycle behindthese two cars, changing lanes from the curb lane tothe center lane. Appellant testified, "[T)hemotorcycle appeared, even though he was changinglanes, to be slowing. The light changed. The carshad stopped. I thought it was safe to make the tmn.* * * * The next thing I Imow, the air bags haddeployed and my daughter is screaming in the car."On cross-examination appellant testified, "Fromwhere [the motorcycle] was, from what I couldperceive, the gentleman was stopping for the light,and he would have been safely stopped before Icrossed that stop bar. I would not have tumed,especially with niy daughter in the car, if I bad notthought it was * * * safe to turn." Appellant furthertestified that she believed the traffic light was redwhen the motorcycle traveled through theintersection.

*4 Appellant also presented the testiniony of expertwimesses. Donald Kime, an instructor ofmotorcycle safety, testified that he teaches hisstudents that other drivers may niisperceivemotorcyclists' speeds and intentions, especiallywhen a motorcycle and another vehicle are travelingtowards each other. Ronald Huston, an accidentreconstructionist, testified that he had consideredthe accident report, witness statements, pictures ofthe intersection, the timing of the traffic liglit signal,and conversations he had with appellant. Hustontestified that in his opinion, the traffic liglrt had justtumed red as the motorcycle entered the intersection.

After hearing rebuttal testimony from Tuttle, theevidence was concluded, and the trial coutt judgeinstnucted the jury on ihc law involved in the c .The trial court judge did not instruct the jury on allof the instructions requested by the defense, and the

Page 6

defense objected to this decision. After deliberation,the jury retumed a verdict of guilty. Appellantappeals, raising four assignments of eiror for ourreview:

Assignment of Error No. 1:

THE TRIAL COURT ERRED AS A MATTER OFLAW WHEN IT DENIED MRS. KORTUM'S

RULE 29 MOTION FOR JUDGMENT OFACQUITTAL.

In her first assignment of elTor, appellant arguesthat her conviction for vehicular homicide was notsupported by sufficient evidence and was againstthe n anifest weight of the evidence. Appellantcontends that it was error for the trial court tooverrule her motion for acquittal.

[1] The function of an appellate court whenreviewing the sufficiency of the evidenceunderlying a criniinal conviction is "to examine theevidence admitted at trial to determine whether suchevidence, if believed, would convince the averagemind of the defendant's guilt beyond a reasonabledoubt." State v. Jenlcs (1991), 61: Ohio St.3d 259,574 N.E.2d 492, paragraph two of the syllabus. "The relevant inquiry is whether, after viewing theevidence in a light most favorable to theprosecution, any rational trier of fact could havefound the essential elements of the crime provenbeyond a reasonable doubt." Id.

Appellant was convicted of vehicular homicide, aviolation of former R.C. 2903.07(A), a first-degreemisdemeanor. At the time of the accident R.C.2903.07 stated, "No person, whiie operating orpatticipating in the operation of a motor vehicle *** shall negligently cause the death of another ***."FN i Criminal negligence is defmed in2901.22(D) as:

R. C.

FNl. Former R.C. 2903.07 was repealedby S.B. 107, effective March 23, 2000, andvehicular homicide is now prohinited byR.C. 2903.06(A)(3) and (13)(2).

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A person acts negligently when, because of asubstantial lapse from due care, [she] fails toperceive or avoid a risk that [lrer] conduct maycause a certain result or may be of a certain nature.A person is negligent with respect to circumstanceswhen, because of a substantial lapse from due care,[shel fails to perceive or avoid a risk that suchcircumstances may exist.Reviewing the testimony presented, there iscertainly sufficient evidence to demonstrate beyonda reasonable doubt that appellant's operation of hermotor vehicle caused Marshall's death. The moredifficult question is whether appellant's actionsconstituted criminal negligence. Appellant assertsthat the state failed to prove beyond a reasonabledoubt that she had acted with criminal negligence inthat the state did not show that her actionsconstituted a substantial lapse from due care.Appellant argues that failing to perceive that themotorcycle was going to continue driving throughthe intersection did not amount to a substantial lackof due care.

*5 As this ccurt has previonsly stated, °[t]hedetermination of whetller a lapse of due care issubstantial is a question for the trier of fact." Statev. Self ( 1996), 112 Ohio App.3d 688, 693, 679N.E.2d 1173. "Substantial" is another word for "material," which means"ben:g of real importanceor great consequence." Id.

R.C. 4511.42 states the following:The operator of a vehicle * * * intending to tum tothe left within an intersection * shall yield theright of wav to any vehicle *** approaching fromthe opposite direction, whenever the approachingvehicle * * * is witlun the intersection or so close totlxe intersection *** as to constitute an immediatehazard.

The state presented evidence to show that appellanthad conunitted a traffic violation by failing to yieldthe right-of-way to Marshall and argued thatappellant's actions constituted vehicular homicide.

[2][3] A mere violation of a traffic law with nothingmore does not necessarily demonstrate a substantiallapse of due care as required to convict a defendantof vehicular homicide. See State v. Jones (Aug. 10,

Page 7

2001), Miami App. No.2000-CA-57, unreported;State v. Boggs (Aug. 11, 1981), Belmont App. No.80-B-46, umeported. However, in order todenronstrate criminal negligence in a vehicularhomicide case, it is not necessary to show thatsomething was distracting a defendant or otherwiseoccupying her attention at the time of the accident.See State v. McKeand (Sept. 29, 1986), Butler App.No. CA86-02-018, unreported: Evidence indicatingthat a defendant simply did not see an oncomingvehicle when she should have may sufficientlydemonstrate a substantial lapse of due care for tlrepurposes of R.C. 2903.07(A). Id. at 7-8; see, also,State v. Varney (June 22, 1987), Butler App. No.CA86-07-100, unreported. Raines, who was in theleft-tum lane on Mason-Montgomery Road, twovehicles behnrd appellant's minivan, testified thatthe traffic light was green when appellant began totm•n left, and that she believed that the driver of theminivan should have waited for the traffic to go bybefore makingtlre turn. Raines was surprised thatappellant attempted to malce the turn when she did.Jackson, anotlrer eyewitness, testined that the n'afficlight was green when the motorcycle entered theintersection. Jackson believed that the motorcyclisthad the right-of-way and that appellant failed to seehim. In addition, Simpson testified that the trafficlight was green when the motorcycle entered theintersection and that he did not think anyone else inappellant's situation would have tried to make a leftturn at that nioment.

The state presented three different eyewitnesses, inaddition to an accident reconstructionist, todemonstrate that appellant had committed asubstantial lapse of due care by failing to perceive arisk. Therefore, we find that sufficient evidence waspresented to prove beyond a reasonable doubt thatappellant's failure to yield to oncoming traffic whenattempting to make a left turn was a criminallynegligent act and that by so doing, appellantcommitted vehicular homicide.

*6 Appellant also argues that her conviction is notsuppoRed by the weight of the evidence. Thestandard of review based upon the manifest weightof the evidence has bcer, s,:.mmarizcd as follows:The court, reviewing the entire record, weighs theevidence and all reasonable inferences, considers

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Not Reported in N.E.2d, 2002 WL 237370 (Ohio App. 12 Dist.), 2002 - Ohio- 613(Cite as: Not Reported in N.E.2d)

the credibility of witnesses and determines whetherin resolving conflicts in the evidence, the juryclearly lost its way and created such a manifestmiscarriage of justice that the conviction must bereversed and a new trial ordered. The discretionarypower to grant a new trial should be exercised onlyin the exceptional case in which the evidenceweighs heavily against the conviction.

State v. Thoniplcins• (1997), 78 Ohio St.3d 380, 387,678 N.E.2d 541, quoting State v. Martin (1983), 20Ohio App.3d 172, 175, 485 N.E.2d 717. Anappellate court will not reverse a judgment asagainst the manifest weight of the evidence in a jurytrial unless it unanimously disagees witlr the jury'sresolution of any conflicting testimony. Thornpkinsat 389, 678 N.E.2d 541. When reviewing theevidence, an appellate court must be mindful thatthe original trier of fact was in the best position tojudge the credibility of witnesses and the weight tobe given the evidence. State v. DeHass (1967), 10Ohio St.2d 230, 227 N.E.2d 212, paragraph one ofthe syllabus.

JURY INSTRUCTIONS.

In her second assignment of error, appellant assertsthat the trial court erred by refusing to give juryinstructions she submitted that explained the term "substantial lapse of due care" and distinguishedcriminal negligence from civil negligence.

[4][5][6][7] A trial court must give the jury allinstructions that are relevant and necessary for thejury to weigh the evidence and fulfill its duty as thefact-fmder. State v. Comen (1990), 50 Ohio St.3d206, 210, 553 N.E.2d 640. A trial court may refuseto give an instruction that is not applicable to theevidence presented or is an incorrect statement oflaw. State v. Cross (1979), 58 Ohio St.2d 482, 488,391 N.E.2d 319. An appellate court reviewing atrial court's refusal to give a requested jury chargebased upon the evidence at trial shall not reverse thedecision of the trial court unless an abuse ofdiscretion is shown. State v. Bishop (Oct. 5, 1998),Madison App. No. CA97-07-032, utueported, at 6,citing State v. Endicott (1994), 99 Ohio App.3d688, 693, 651 N.E.2d 1024.

Appellate courts are cautioned to sustain manifestweight areuments only in the most extraordinarycases. State v. Langenkamp (2000), 137 OhioApp.3d 614, 617, 739 N.E.2d 404. At trial appellantpresented witness wlio testified that the motorcyclistacted in an unsafe mamier as he approached andtraveled through the intersection. Some of thetestimony presented even suggested that Marshallltad entered the intersection when the traffic lightwas red. On the other hand, several witnessestestified that appellant had acted in an unsafemanner by not allowing the traffic to clear theintersection before attempting to turn. Some ofthese witnesses were shocked by appellant'sdecision to tum. Upon reviewing the testimonypresented at trial, we conclude that the jury was freeto fmd that the manifest weight of the evidencesupported a conviction of vehicular homicide. Thefirst assignment of error is overruled.


THE TRIAL COURT ERRED BY OVERRULINGMRS. KORTUM'S REQUEST FOR SPECIAL

*7 11ie jury was provided with the instructions forvehicular homicide as found in Ohio JuryInstructions. The jury was properly instructed onthe definition of criminal negligence. Theinstructions proffered by the defense but not givento the jury by the trial court included instructionsbased upon law from jurisdictions outside of Ol7io.The remaining instructions proffered by the defensebut not approved by the trial court were based uponOhio courts whose jurisdiction does not include theMason Municipal Court. We conclude that the trialcourt did not abuse its discretion by refusing to giveall of the jury instructions requested by the defense.The second assigtnnent of error is overruled.


THE TRIAL COURT ERRED BY IMPOSING AHARSHER SENTENCE UPON MRS. KORTUM

AFTER SHE PURSUED A SUCCESSFULAPPEAI

In her third assienment of error, appellant contends

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Yage 10 ot 11


Not Reported in N.E.2d, 2002 WL 237370 (Ohio App, 12 Dist.), 2002 -Ohio- 613(Cite as: Not Reported in N.E.2d)

that it was inappropriate for the trial court tosentence her more severely after she was foundguilty at the conclusion of her second trial. Thestate responds that the trial court's action did notconstitute an abuse of discretion.

trial court decides to impose a harsher sentence thanthat imposed at appellant's first trial, then the trialcoutt shall affirmatively state upon the record thereasons for imposing a harsher sentence. The thirdassignment of error is sustained.

[8][9][10][11] "Due process of law * * * requiresthat vindictiveness against a defendant for havhrgsuccessfully attacked [her] first conviction mustplay no part in the sentence [she] receives after anew trial." North Carolina v. Pearce (1969), 395U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656. The decision of a judge to impose a more severesentence upon a defendant after a second trial mustbe based upon reasons that appear on the record sothat the constitutional legitimacy of the increasedsentence may be thoroughly reviewed on appeal. Id.at 726, 395 U.S. 711, 89 S.Ct. 2072, 2081, 23L.Ed.2d 656. The presumption of vindictivenessmay be overcome only by objective infonnationjustifying the increased sentence. Wasman v. UnitedStates (1984), 468 U.S. 559, 564, 104 S.Ct. 3217,3221, 82 L.Ed.2d 424, citing United States v.Goodwin (1982), 457 U.S. 368, 374, 102 S.Ct.2485, 2489, 73 L.Ed.2d 74.

[12] The Pearce presumption of vindictiveness doesnot apply when a sentence imposed after uial isgreater than that previously imposed after a guiltyplea. Alabama v. Smith (1989), 490 U.S. 794, 795,109 S.Ct. 2201, 2206, 104 L.Ed.2d 865. Also, thePearce presumption of vindictiveness does notapply where a defendant was sentenced by twodifferent sentencers. Lodi v. McMasters (1986), 31Ohio App.3d 275, 277, 511 N.E.2d 123, citingTexas v. McCullough (1986), 475 U.S. 134, 106S.Ct. 976, 89 L.Ed.2d 104. Neither of theseexceptions is preseut in tlte case before us.

[13] Where no explanation for an increasedsentence following a second trial of a defendantappears in the record, the increased sentence isconstitutionally defective and the matter must beremanded for resentencing. See State v. Jackson(1985), 21 Ohio App.3d 157, 158-59, 487 N.E.2d585; State v. Clentents (Sept. 27, 1995),Montgomery App. No. 15155, unreported.Therefore, appellant's sentence is reversed andremanded to the trial court for resentencing. If the

*8 Assigtmrent of Error No. 4:

THE TRIAL COURT ERRED AS A MATTER OFLAW BY ORDERING MRS. ICORTUM TO PAY

THE COSTS OF HER FIRST TRIAL.

In her fottrth assignment of error, appellant insiststhat the trial court ened by ordering appellant topay the costs from her first trial because her originalconviction was reversed upon appeal. The stateargues that because appellant was ultimatelyconvicted, charging her with the costs of both trialswas appropriate.

[14] R.C. 2947.23 states:In all criminal cases, including violations ofordinances, the judge or magistrate shall include inthe senteuce the costs of prosecution and render ajudgment against the defendant for such costs. If ajury has been sworn at the trial of a case, the fees ofthe jttrors shall be included in the costs, wlrich shallbe paid to the public treasury, from which the jurorswere paid.

As a general rule, when the meaning of a statute isnot clear, the courts will attempt to determine theintent of the legislature. State v. Watkins (1994), 96Ohio App.3d 195, 198, 644 N.E.2d 1049, cituigHenry v. Cent. NatI. Bank (1968), 16 Ohio St.2d16, 242 N.E.2d 342, paragraph one of the syllabus;R.C. 1.49. In R.C. 2901.04(A), the legislature hasprovided that provisions of the revised codedefniing offenses or penalties "shall be strictlyconstrued against the state, and liberally construedin favor of the accused." Watkins at 198, 644N.E.2d 1049.

It has been held that "the costs of prosecution,including jury fees, can be assessed against adefendant only if iiie state is successful." State v.Powers (1996), 117 Ohio App.3d 124, 128, 690N.E.2d 32. In Powers, the Sixth District Court of

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rttsc 11 Vl 11

Not Repoi'ted in N.E.2d


Appeals examined R.C. 2947.23 and determinedthat the word "sentence" n-ieant "[t]he judgmentformally pronounced by the court or judge upon thedefendant after his conviction in a criminalprosecution." Id. That court concluded that the trialcourt could assess against the defendant only thosecosts associated with a bench trial of a misdemeanorcharge and not those incurred as result of a jury trialon charges of assault and menacing, of which thedefendant was acquitted. Id.

In State v. Sales (Aug. 6, 1985), Casroll App. No.504, 1985 WL 7023, nnreported, the SeventhDistrict Court of Appeals affirmed a trial court'sdecision to include as court costs the expense of ajury trial that resulted in a mistrial because of ahung jury. However, the court, noted that[i]n arriving at this decision, we note that thisproposition cannot be applied in every case thatresults in a mistrial. A deternunation of what causesa nustrial must be made. In many instances it maybe the fault of the prosecution's misconduct; inanotlter instance it may be that of the defense. V3edetemtine this issuc in the instant case mrder thefacts that the former jury could not agree andtherefore resulted in a mistrial.

Id. at *2. Although this statement from the SeventhDistrict Court of Appeals is dicta, we find itsreasoning to be persuasive and choose to apply it tothe circumstances of the case now before us.

*9 Appellant's direct appeal of her originalconviction - resulted in the reversal of thatconviction. See State v. Kortum (Oct. 2, 2000),Warren App. No. CA2000-02-016, tmreported. Thiscourt found that the trial court erred by notdeclaring a mistrial after the state's "surpriserevelation." F`z We found that it was the state'sfailure to provide reliable discovery thatundermined the faimess of appellant's first trial andnecessitated the reversal of appellant's originalconviction. Id. at 7-8. Therefore, we hold that thecosts of the first jury trial shotild not be assessedagainst appellant. The fourtli assignment of error iswell-taken.

FN2. This revelation was that, c.ontraazy to

Page 10

the discovery provided by the state and thetestimony of the state trooper who wrotethe accident report, the speed limit wherethe accident occurred was not forty-fivem.p.h. but fifty-five m.p.h. Kortuna at 6.This fact underniined the defense's theoryof the case that the deceased had beenspeeding at the tnne he entered theintersection. Id. at 7.

Appellant's sentence is to be nzodified by the trialcourt so that it no longer includes as part of itssentence the costs of the first jury trial.

Judgment affirmed in part, reversed in part, andremanded to the trial court for further proceedingsaccording to law and consistent with this opinion.

WALSH and POWELL, JJ., concur.Ohio App. 12 Dist.,2002.State v. KortumNot Reported in N.E.2d, 2002App. 12 Dist.), 2002 -Ohio- 613

WL 237370 (Ohio

END OF DOCUMENT

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