Further update: on August 4, 2020, the court of appeals decision was reversed and the case remanded to the appeals court for application of State v. Taylor, Slip Opinion 2020-Ohio-3514, in which the Court held on July 2, 2020, that R.C. 2947.23(C) does not require a trial court to consider the defendant’s ability to pay in assessing a motion to waive, suspend, or modify court costs.
Update: On November 27, 2019, by a vote of 5-2, the Supreme Court of Ohio granted a motion for reconsideration in this case. Justices DeWine and Kennedy dissented. The court’s decision in State v Braden, No. 2018-Ohio-5079, was vacated, the appeal in Dunson’s case was reinstated and held for the decision in State v. Taylor, 2018-1315 which will be argued December 10, 2019. Read the oral argument preview in the Taylor case here.
Case Disposition
State of Ohio v. James L. Dunson, 2017-0186 was argued April 24, 2018. The issue in the case is whether, in a post-conviction motion to waive, suspend, or modify court costs after they have been imposed, a trial judge must consider an indigent defendant’s present or future ability to pay in assessing such costs.
On April 26, 2018, two days after the argument in Dunson, the Supreme Court sua sponte ordered the case held for decision in State v. Braden, 2017-1609. A merit decision was released in Braden December 19, 2018.
State v. Braden
Braden was accepted on discretionary appeal and certified conflict. Braden, who is on death row, was sentenced in May of 1999. As part of that sentence, court costs were imposed orally and on the disposition sheet signed by the judge and filed by the clerk. Braden’s conviction and death sentence were affirmed in 2003. Citing his indigence, Braden moved for an order to waive all fines or costs in November 2016.
The certified question was
“Does a trial court have jurisdiction, pursuant to the current version of R.C. 2947.23(C), to waive, modify or suspend court costs for those cases in which the defendant’s conviction and sentence became final prior to the enactment of the current version of R.C. 2947.23(C)?” The issue accepted on appeal was the same.
The current version of R.C. 2947.23(C) provides that “[t]he court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution, including any costs under section 2947.231 of the Revised Code, at the time of sentencing or at any time thereafter.” This provision became effective March 22, 2013.
Holding in Braden
On December 19, 2019, the court released a merit decision in State v. Braden, Slip Opinion No. 2018-Ohio-5079. In a 5-2 opinion written by Justice Kennedy, joined by Justices Fischer, DeWine, and DeGenaro and Twelfth District Court of Appeals Judge Michael E. Powell, subbing for Justice O’Donnell, the court answered the certified question in the negative, holding, that R.C. 2947.23(C) does not authorize a trial court to waive, modify, or suspend the payment of court costs that were imposed prior to March 22, 2013, the effective date of R.C. 2947.23(C). Justice French dissented, joined by Chief Justice O’Connor.
Here is the pertinent part of the majority’s holding in Braden:
“R.C. 2947.23(C) provides that for sentences entered on or after March 23, 2013 the trial court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution at any time. For sentences entered prior to that date, however, an offender may seek a waiver of costs only at sentencing, the trial court lacks jurisdiction to reconsider its own final order, and any subsequent collateral attack on that order in either the trial or appellate court is barred by res judicata.”
Application of Braden to Dunson’s Case
So, what should all this mean for James Dunson?
On February 28, 2013, Dunson was convicted by a jury of two counts of murder along with two firearm specifications, and two counts of aggravated robbery, both with firearm specifications. On March 13, 2013, after merging various offenses and merging the two murder counts, the trial court sentenced Dunson to fifteen years to life for murder, plus three years on a firearms specification. Dunson was also ordered to pay $3869.10 in restitution, and “court costs to be paid in full in the amount determined by the Montgomery County Clerk of Courts.” Dunson’s sentence was journalized March 15, 2013, but the bill for those court costs, and the specific amount set at $6,199.10, was mailed to Dunson on March 28, 2013. Dunson directly appealed his conviction and sentence, which were affirmed.
On December 28, 2015, Dunson filed a post-conviction motion to vacate or stay court costs, fines, mandatory fines and/or restitution. Dunson filed an affidavit of indigency along with the motion, which included a proposed payment plan. The motion was denied without a hearing. Dunson appealed.
In a split decision, the Second District Court of Appeals held that the trial court had erred in failing to consider Duncan’s indigency and ability to pay the court costs and in failing to determine whether garnishment of his prison account was prohibited by any exemption statutes. The restitution order was upheld. The dissenting judge concurred as to the restitution order, but dissented over the court costs.
Dunson argued to the Supreme Court of Ohio that the trial judge must consider an indigent defendant’s present or future ability to pay in assessing such costs. Read more about that here and here.
Ok, this brings us back to Braden, in which the high court held that a state law allowing trial courts to waive or modify court costs applies only to those sentenced after the statute’s March 22, 2013 effective date. Importantly, the Braden decision also held that for sentences entered before March 22, 2013, an offender could seek waiver of court costs only at sentencing. Dunson didn’t do that. He sought that relief in his post-conviction petition in December of 2015.
On December 27, 2018, by a vote of 5-2, on the authority of Braden, the Supreme Court of Ohio reversed the decision of the Second District Court of Appeals in Dunson’s case.