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{¶ 1} Appellant, Donald E. Webb, Jr., appeals from the September 19, 2018

judgment of the Erie County Court of Common Pleas denying appellant’s motion to

vacate/waive and/or stay court costs. For the reasons which follow, we affirm.

2.

{¶ 2} Appellant was convicted and sentenced in 2009 following the acceptance of

his guilty plea. In the sentencing judgment, the trial court sentenced appellant to an

agreed recommended imprisonment term on each count and ordered appellant to pay

court costs, fines, and the costs of prosecution. No appeal was taken from the judgment

of conviction and sentencing. On October 26, 2016, the clerk certified that appellant

owed a total of $2,261.50.

{¶ 3} On October 31, 2016, the Erie County prosecutor attached appellant’s

prisoner account to satisfy the full obligation of $2,261.50 pursuant to R.C. 2329.66, R.C.

5120.133, and Ohio Adm.Code 5120-5-03(D). Thereafter, the Department of

Rehabilitation and Correction began to garnish all but $25 of appellant’s funds each

month.

{¶ 4} On January 25, 2017, appellant filed a motion for modification of court costs

to limit the withdrawals to $30 per month or to suspend collection until his release from

prison because he had limited funds of $50 each month and needed those funds for

personal expenses. He asserted that R.C. 2947.23, amended March 22, 2013, permitted

the court to waive, suspend, or modify court costs. He attached an affidavit of indigency.

The state opposed the motion.

{¶ 5} On February 7, 2017, the trial court denied appellant’s motion on the ground

that collection was a matter controlled by statute and appellant had failed to demonstrate

that the statutory restrictions had been violated. The court refused to suspend or institute

a payment plan or permit money to be taken from exempt funds. Furthermore, the court

3.

indicated appellant could move to have the court impose community service in lieu of

payment due to his indigency. No appeal was taken from that judgment.

{¶ 6} On September 14, 2018, appellant filed a second motion to vacate/waive

and/or stay collection of court costs pursuant to R.C. 2947.23(C). This motion presented

essentially the same issues as the prior motion. The state again opposed the motion.

{¶ 7} On September 19, 2018, the trial court denied the motion. The trial court

held that indigency does not preclude assessment of court costs and costs of prosecution.

Furthermore, the court again refused to establish a payment plan or permit money to be

taken from exempt funds. The court also reiterated that collection is controlled by statute

and that any sum in a prison account over $25 could be attached. This time, appellant

filed an appeal. On appeal, appellant asserts the following assignments of error:

I. First Assignment of Error: A trial court must consider a

defendant’s present and future ability to pay court costs when

considering a motion filed in [sic] pursuant to R.C. 2947.23(C).

II. Second Assignment of Error: An inmates [sic] account

cannot be garnished unless it retains more than $400 in it within a

ninety day period as defined in R.C. 2329.66(A)(3).1



1

We have taken the assignments of error from page i of appellant’s brief in lieu of the

required “statement of the assignments of error” required by App.R. 16(A)(3). We note

that appellant asserts a different assignment of error in the body of his brief. Although

the assignments of error are stated differently, we have addressed the substance of both

assignments of error.

4.

III. Third Assignment of Error: Court costs portion of

appellant’s sentence is void when trial court failed to notify the

appellant of forty hours community service. [sic]

{¶ 8} With regard to the first assignment of error, we find the trial court should not

have considered appellant’s second motion. The court already addressed the same issues

in an earlier motion; therefore, the issue of waiver of costs was barred by the doctrine of

res judicata unless appellant could demonstrate a change of circumstances. State ex rel.

Richard v. Chambers-Smith, 157 Ohio St.3d 16, 2019-Ohio-1962, 131 N.E.3d 16, ¶ 8;

State ex rel. Robinson v. Huron Cty. Court of Common Pleas, 143 Ohio St.3d 127, 2015-

Ohio-1553, 34 N.E.3d 903, ¶ 5. Since the same factual basis was presented in both

motions, we find there was no change in circumstances. The filing of a repetitive motion

is not a substitute for appeal. Therefore, we find appellant’s first assignment of error not

well-taken.

{¶ 9} In his second assignment of error, appellant asserts his prison account cannot

be garnished pursuant to R.C. 2329.66(A)(3), because it contains less than $400. He

asserts that Ohio Adm.Code 5120-5-03(E) is in direct conflict with R.C. 2329.66(A)(3)

and this court must apply the rule of lenity pursuant to R.C. 2901.04(A) to construe the

statute in his favor.

{¶ 10} This argument was not raised by appellant in his first motion challenging

the garnishment of funds in his prison account. In the state’s memorandum in opposition,

it argued the state can collect court costs by attachment of the money in a prisoner’s

5.

account over $25 pursuant to R.C. 5120.133 and Ohio Adm.Code 5120-5-03. The trial

court held that the attachment was proper in this case. Appellant did not appeal.

{¶ 11} In his second motion, appellant asserts that R.C. 5120.133 and Ohio

Adm.Code 5120-5-03 conflict with R.C. 2329.66 regarding the minimum balance that

must be left in the prisoner’s account. This argument could have been raised in

connection with the first motion because it was based on the same facts, but it was not.

Appellant attempted to raise it as a new argument in his second motion. Because

appellant could have raised the issue in his first motion, he is precluded from doing so in

his second motion under the doctrine of res judicata. Robinson at ¶ 8; Harris v.

Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 8.

{¶ 12} Furthermore, we are unable to address appellant’s argument because he

failed to exhaust his administrative remedies.

{¶ 13} R.C. 2949.14 requires that “[u]pon conviction of a nonindigent person for a

felony, the clerk of the court of common pleas shall make and certify * * * * a complete

itemized bill of the costs made in such prosecution * * * [and] attempt to collect the costs

from the person convicted.” The judgment assessing costs becomes a civil judgment to

be collected pursuant to R.C. 2333.21 or 5120.133, which is applicable to incarcerated

defendants. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15,

superseded by statute on other grounds in State v. Braden, Slip Opinion Nos. 2017-1579

and 2017-1609, 2019-Ohio-4204, ¶ 23-24; Dibert v. Carpenter, 2018-Ohio-1054, 98

N.E.3d 350, ¶ 44 (2d Dist.).

6.

{¶ 14} R.C. 2333.21 provides

The judge may order any property of the judgment debtor that is not

exempt by law to be applied toward the satisfaction of the judgment, but the

earnings of the judgment debtor for personal services shall be applied only

in accordance with sections 2329.66 and 2329.70 and Chapter 2716 of the

Revised Code.

{¶ 15} Furthermore, R.C. 5120.133 authorizes the Department of Rehabilitation

and Correction to distribute funds from an inmate’s account to satisfy a court judgment.

Ohio Adm.Code Sec. 5120-5-03 establishes guidelines and procedures for withdrawal of

money from an inmate’s account. The rule allows the department to apply money in the

inmate’s account toward payment of a stated obligation pursuant to a certified copy of a

judgment entry issued in a matter involving the inmate so long as $25 remains in the

account for the inmate’s expenditures. Ohio Adm.Code 5120-5-03(E). However, R.C.

5120.133(B) also provides that: “The rules shall not permit the application or

disbursement of funds belonging to an inmate if those funds are exempt from execution,

garnishment, attachment, or sale to satisfy a judgment or order pursuant to section

2329.66 of the Revised Code or to any other provision of law.”

{¶ 16} R.C. 2329.66(A)(3) provides that

(A) Every person who is domiciled in this state may hold property

exempt from * * * attachment * * * to satisfy a judgment or order, as

follows:

7.

* * *

(3) The person’s interest, not to exceed four hundred dollars, in cash

on hand, money due and payable, money to become due within ninety days,

tax refunds, and money on deposit with a bank, savings and loan

association, credit union, public utility, landlord, or other person, other than

personal earnings.

* * *

(13) Except as provided in sections 3119.80, 3119.81, 3121.02,

3121.03, and 3123.06 of the Revised Code, personal earnings of the person

owed to the person for services in an amount equal to the greater of the

following amounts:

(a) If paid weekly, thirty times the current federal minimum hourly

wage; if paid biweekly, sixty times the current federal minimum hourly

wage; if paid semimonthly, sixty-five times the current federal minimum

hourly wage; or if paid monthly, one hundred thirty times the current

federal minimum hourly wage that is in effect at the time the earnings are

payable, as prescribed by the “Fair Labor Standards Act of 1938,” 52 Stat.

1060, 29 U.S.C. 206(a)(1), as amended;

(b) Seventy-five per cent of the disposable earnings owed to the

person. (Emphasis added.)

8.

{¶ 17} Because R.C. 5120.133(B) and Ohio Adm.Code 5120-5-03(C) specifically

indicate the garnishment of prisoner’s funds is limited by R.C. 2329.66, the two statutes

are not conflicting. Bell v. Beightler, 10th Dist. Franklin No. 02AP-569, 2003-Ohio-88,

¶ 47; State v. Holliday, 5th Dist. Fairfield No. 10 CA 54, 2011-Ohio-4211, ¶ 10.

Furthermore, Ohio Adm.Code 1520-5-03(C) requires that the

warden’s designee shall promptly deliver to the inmate adequate notice of

the court-ordered debt and its intent to seize money from his/her personal

account. The required notice must inform the inmate of a right to claim

exemptions and types of exemptions available under section 2329.66 of the

Revised Code and a right to raise a defense as well as an opportunity to

discuss these objections with the warden’s designee. This practice provides

safeguards to minimize the risk of unlawful deprivation of inmate property.

{¶ 18} Therefore, appellant was required to timely present an objection to the

garnishment of his prisoner account so the department could determine if the funds were

exempt from garnishment. Appellant asserts on appeal that he objected based on R.C.

2329.66(A)(3), but he does not assert that he complied with this administrative

requirement to file an objection with the Department of Rehabilitation and Correction. In

any event, he must appeal from the administrative decision and cannot raise the issue in a

motion filed in the trial court. Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 111,

564 N.E.2d 477 (1990).

{¶ 19} Therefore, we find appellant’s second assignment of error not well-taken.

9.

{¶ 20} In his third assignment of error, appellant argues his sentence is void

because the trial court failed to notify the appellant he would be required to complete

forty hours of potential community service pursuant to R.C. 2947.23(A)(1)(a) if he failed

to pay the court costs. Appellant did not assert this collateral attack on the sentencing

judgment in the proceedings below and, therefore, the issue is barred from consideration

on appeal. State v. Anderson, 151 Ohio St.3d 212, 2017-Ohio-5656, 87 N.E.3d 1203,

¶ 44.

{¶ 21} Furthermore, appellant’s argument lacks merit. At the time of appellant’s

sentencing in 2009, this notice provision was mandatory. State v. Dean, 146 Ohio St.3d

106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 235. The failure to comply with the notice

requirement was grounds for reversal of the judgment of conviction on appeal. State v.

Smith, 131 Ohio St.3d 297, 2012-Ohio-781, 964 N.E.2d 423, ¶ 10. A failure to comply

with the notice requirement does not render the imposition of court costs order void

because costs are a civil obligation and not punishment. State v. Joseph, 125 Ohio St.3d

76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 20, superseded by statute on other grounds as

stated in Braden, Slip Opinion Nos. 2017-1579 and 2017-1609, 2019-Ohio-4204; State v.

Wright, 9th Dist. Summit No. 27880, 2016-Ohio-3542, ¶ 7; State v. Chapman, 5th Dist.

Richland No. 15CA20, 2015-Ohio-3114, ¶ 10-11.

{¶ 22} However, in this case, appellant never appealed the judgment of conviction

and the issue is now barred by the doctrine of res judicata. State v. Saxon, 109 Ohio St.3d

176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 17, quoting State v. Perry, 10 Ohio St.2d 175,

10.

226 N.E.2d 104 (1967), paragraph nine of the syllabus; State v. Straley, Slip Opinion No.

2018-1176, 2019-Ohio-5206, ¶ 36 (Kennedy, J., concurring in judgment only)

(res judicata bars relitigation of compliance with mandatory sentencing provisions);

Rarden v. Warden, Warren Correctional Inst., S.D.Ohio No. 1:12-cv-660, 1:12-cv-756,

2014 WL 497266, *3-4 (2014).

{¶ 23} Therefore, we find appellant’s third assignment of error not well-taken.

Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.



Judgment affirmed.