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Date: 07-21-2020

Case Style:

STATE OF OHIO v. MONTREA DONALDSON

Case Number: 108778

Judge: EILEEN T. GALLAGHER

Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney

Defendant's Attorney:

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Donaldson was charged in a 96-count indictment alleging his
involvement in a criminal enterprise aimed at stealing money from local attorney
IOLTA accounts, insurance companies, and local businesses. Following several
months of pretrials and the exchange of discovery, Donaldson pleaded guilty to eight
counts of forgery, seven counts of money laundering, two counts of
telecommunications fraud, one count of theft, and one count of engaging in a pattern
of corrupt activity. The trial court sentenced Donaldson to an aggregate seven-year
prison term and five years of postrelease control. The trial court also ordered
Donaldson to pay restitution in the amount of $69,549.31 and court costs.
With respect to court costs, the trial court indicated that it had
reviewed the record and the presentence investigation report, which contained
evidence regarding Donaldson’s present and future ability to pay any financial
sanctions. Defense counsel requested a waiver of court costs, arguing that any
money Donaldson earns should be used to pay the victims rather than court costs.
(Tr. 117.) The prosecutor agreed he would prefer Donaldson’s money go to the
victims, but deferred the imposition of court costs to the trial court’s discretion.
Based on the record, the presentence investigation and the statements of counsel,
the trial court ordered Donaldson to pay court costs and ordered that “restitution be
paid in advance of costs, fines, or fees.” (Tr. 118.) Having found that Donaldson was
indigent, the court appointed appellate counsel at the state’s expense. This appeal
followed.
II. Law and Analysis
In the sole assignment of error, Donaldson argues the trial court erred
in requiring him to pay court costs when the parties agreed he was indigent.
R.C. 2947.23(A)(1) governs the imposition of court costs and
provides, in relevant part, that “[i]n all criminal cases * * * the judge * * * shall
include in the sentence the costs of prosecution * * * and render a judgment against
the defendant for such costs.” Thus, a sentencing court must include in the sentence
the costs of prosecution and render a judgment against the defendant for costs, even
if the defendant is indigent. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989,
817 N.E.2d 393, ¶ 8.
A trial court nevertheless has discretion to waive court costs if the
defendant is indigent. State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio4841, ¶ 9. And, the discretion to waive court costs includes the discretion not to
waive them. Id.
Despite Donaldson’s statements to the contrary, the record does not
reflect that the state agreed to a finding that Donaldson was indigent. Rather, the
prosecutor stated on the record that he did not believe it was necessary for the state
to recover the cost of investigating and prosecuting its case against Donaldson.
(Tr. 88.) The prosecutor was referring to one of the financial sanctions listed in
R.C. 2923.32(B)(2), which include recover for “costs of investigation and
prosecution” as defined by R.C. 2923.31(B).1 The costs associated with investigating
and prosecuting corrupt activity under R.C. 2923.32(B) are different from the court
costs authorized under R.C. 2947.23(C). Costs imposed under R.C. 2923.32(B)(2)
are financial sanctions; court costs are not. State v. Davis, 8th Dist. Cuyahoga No.
104574, 2018-Ohio-1147, ¶ 58 (court costs imposed under R.C. 2947.23 are not
financial sanctions).
Unlike fines and other financial sanctions, a trial court is not required
to consider a defendant’s present or future ability to pay court costs. Davis at ¶ 58;
State v. Jones, 8th Dist. Cuyahoga No. 105719, 2018-Ohio-847, ¶ 18. Therefore, the
fact that Donaldson was indigent at the time of the sentencing hearing was irrelevant
to the court’s decision requiring Donaldson to pay court costs.
Nevertheless, Donaldson contends that even if the trial court has
discretion to impose court costs on an indigent defendant, the trial court abused its
discretion by imposing court costs on him since, in addition to being indigent,
Donaldson must serve a mandatory seven-year prison term. However, this court
has previously rejected the argument that a trial court abuses its discretion by
1 R.C. 2923.32 prohibits one from engaging in a pattern of corrupt activity.
R.C. 2923.32(B)(2)(c) allows the court to require the defendant to repay reasonably
incurred costs of investigation and prosecution in addition to other financial sanctions.
R.C. 2923.31(B) defines “costs of investigation and prosecution” and “costs of
investigation and litigation” as “all of the costs incurred by the state or a county or
municipal corporation under sections 2923.31 to 2923.36 of the Revised Code in the
prosecution and investigation of any criminal action or in the litigation and investigation
of any civil action, and includes, but is not limited to, the costs of resources and
personnel.”
imposing court costs when an indigent defendant must also serve a prison term. See,
e.g., State v. Smeznik, 8th Dist. Cuyahoga Nos. 103196 and 103197, 2016-Ohio-709,
¶ 11-13. Therefore, we cannot say that the trial court abused its discretion by
requiring Donaldson to pay court costs simply because he must also serve a sevenyear prison term.
The sole assignment of error is overruled.

Outcome: Judgment affirmed.

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