[Cite as State v. Jackson, 2016-Ohio-7800.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DENNIS D. JACKSON 

Defendant-Appellant

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C.A. CASE NO. 27101 

T.C. NO. 10CR1126 

(Criminal appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the __18th__ day of _____November____, 2016. 

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ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. 

Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee 

 

DENNIS D. JACKSON, #645-759, North Central Correctional Institution, P. O. Box 1812, 

Marion, Ohio 43301 

Defendant-Appellant 

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DONOVAN, P.J. 

{¶ 1} Defendant-appellant Dennis D. Jackson, pro se, appeals a decision of the 

Montgomery County Court of Common Pleas, Criminal Division, overruling his motion to 

vacate court costs. Jackson filed a timely notice of appeal with this Court on May 2, 

2016. 
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{¶ 2} In December of 2010, a jury found Jackson guilty of three counts of murder, 

two counts of aggravated burglary, two counts of aggravated robbery, and two counts of 

felonious assault. Each count was accompanied by a firearm specification. At 

sentencing, the trial court merged the counts of murder and felonious assault into one 

count of murder, and sentenced Jackson to fifteen years to life for that offense. The trial 

court also merged the two counts of aggravated burglary and the two counts of 

aggravated robbery; the court sentenced Jackson to ten years for aggravated burglary 

and ten years for aggravated robbery, to be served concurrently to one another, but 

consecutively to the sentence for murder. All of the firearm specifications were also 

merged, and Jackson was sentenced to three additional years of actual incarceration on 

the firearm specification, for an aggregate term of twenty-eight years to life in prison. The 

trial court also ordered Jackson to pay court costs. 

{¶ 3} Thereafter, Jackson filed a direct appeal in this Court, and we affirmed his 

conviction in State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, issued 

on May 25, 2012 (hereinafter “Jackson I”). 

{¶ 4} Pertinent to the instant appeal, on April 19, 2016, Jackson filed a motion to 

vacate court costs. In his motion, Jackson argued that his trial counsel was ineffective 

for failing to move for a waiver of courts costs at sentencing. Jackson also argued that 

the trial court erred by failing to determine his present and future ability to pay before 

imposing court costs. Lastly, Jackson challenged the constitutionality of O.A.C. § 5120-

5-03, which sets out the guidelines for withdrawing funds from an inmate’s prison account 

for payment of court-ordered financial obligations. In a decision and entry issued the 

same day, the trial court overruled Jackson’s motion to vacate court costs. 
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{¶ 5} It is from this judgment that Jackson now appeals. 

{¶ 6} Because they interrelated, Jackson’s first and second assignments of error 

will be discussed together as follows: 

{¶ 7} “APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS WHEN 

HIS TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL 

VIOLATING HIS FIFTH, SIXTH AND FOURTHEENTH U.S. CONSTITUTIONAL 

AMENDMENT RIGHTS, AND OHIO CONSTITUTIONAL RIGHTS UNDER ARTICLE I, 

SECTION 10.” 

{¶ 8} “TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT 

DENIED APPELLANT’S MOTION TO VACATE COURT COST.” 

{¶ 9} In his first assignment, Jackson argues that he received ineffective 

assistance when his trial counsel failed to object to the trial court’s imposition of court 

costs during his sentencing hearing, failed to file waiver of court costs at sentencing, and 

failed to file an affidavit of indigency. In his second assignment, Jackson argues that the 

trial court abused its discretion when it overruled his motion to vacate costs filed on April 

19, 2016. 

{¶ 10} In order to establish ineffective assistance of counsel, Jackson must show 

that his trial counsel's performance was both deficient and prejudicial. Strickland v. 

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. 

Bradley, 42 Ohio St.3d 136, 141–142, 538 N.E.2d 373 (1989). With respect to 

deficiency, Jackson must show that his counsel's performance “fell below an objective 

standard of reasonableness.” Strickland at 688. With respect to prejudice, Jackson must 

show that there is a reasonable probability that but for his counsel's unprofessional errors, 
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the outcome of the proceeding would have been different. Id. at 694. 

{¶ 11} In his first assignment, Jackson argues that he received ineffective 

assistance when his counsel failed to object to the imposition of court costs, file a waiver 

of court costs, and/or file an affidavit of indigency. Initially, we note that Jackson failed 

to raise any of these issues in his direct appeal. Accordingly, Jackson’s first assignment 

is barred by res judicata. “Any ineffective assistance claim relating to matters contained 

within the record should be brought through a direct appeal.” State v. Lane, 2d Dist. 

Greene No. 2014–CA–54, 2015–Ohio–2712, ¶ 13, citing State v. Wilson, 2d Dist. 

Montgomery No. 23129, 2013–Ohio–180, ¶ 47–48. “ ‘If an alleged constitutional error 

[such as ineffective assistance of counsel] could have been raised and fully litigated on 

direct appeal, the issue is res judicata and may not be litigated in a post[-]conviction 

proceeding.’ ” Id., quoting State v. Franklin, 2d Dist. Montgomery No. 19041, 2002–

Ohio–2370, ¶ 9, citing State v. Perry,10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). 

{¶ 12} In the instant case, it is clear that Jackson could have raised the ineffective 

assistance claim at issue on direct appeal, as his counsel's failure to object to the 

imposition of court costs, file a waiver of court costs, and/or file an affidavit of indigency 

does not rely on evidence outside the record. Therefore, the arguments made by 

Jackson in his first assignment of error are barred by res judicata. State v. Hawley, 2d 

Dist. Montgomery No. 25897, 2014-Ohio-731, ¶ 10. 

{¶ 13} Under R.C. 2947.23, a trial court is required to impose “the costs of 

prosecution” against all convicted defendants and render a judgment against the 

defendant for such costs, even those who are indigent. See State v. White, 103 Ohio 

St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393, ¶ 8. On March 18, 2010, the Ohio 
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Supreme Court held that a trial court must orally notify a defendant at sentencing that the 

court is imposing court costs. State v. Joseph, 125 Ohio St.3d 76, 2010–Ohio–954, 926 

N.E.2d 278, ¶ 22, citing Crim.R. 43(A). Jackson was notified both orally and in writing in 

his judgment entry of conviction that he had to pay the costs of his prosecution. 

{¶ 14} While acknowledging that it had the jurisdictional ability to do so, the trial 

court found that under R.C. 2947.23(C), waiving the payment of Jackson’s court costs 

while he remains incarcerated “would defeat the legislative mandate regarding court 

costs.” As stated above, R.C. 2947.23 requires the trial court to impose court costs, 

regardless of indigency. State v. Lux, 2d Dist. Miami No. 2010 CA 30, 2012–Ohio–112, 

¶ 46, citing White, 103 Ohio St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393, at ¶ 8. “A trial 

court has no duty to waive court costs; it has discretion whether to do so, and R.C. 

2949.092 does not provide standards for the exercise of that discretion.” State v. 

Fuller, 2d Dist. Montgomery No. 25380, 2013–Ohio–3274, ¶ 18, citing Lux at ¶ 47. 

{¶ 15} In his affidavit attached to his motion to vacate court costs, Jackson makes 

the following averments: 

3. That I am currently paying child support at $61.20 per month which is 

automatically deducted from my state pay every month, and owe over 

$19,000.00 in arrears which has accumulated since being incarcerated, and 

which also must be paid off and will continue to be deducted from my inmate 

account even after termination of such order. 

4. I work at the prison, and must pay for medical expenses and co-pay, 

utility charges, pay for pen, paper, and stamps to draft and mail out legal 

work which as clearly established in Bounds v. Smith, 430 U.S. 817, 97 
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S.Ct. 1491, 52 L.Ed.2d 72, must be, but is not provided by the [S]tate of 

Ohio to indigent prisoners which such is a denial of an access to courts and 

a Constitutional violation. 

{¶ 16} Noticeably absent from Jackson’s affidavit is any evidence regarding how 

much money he earns from his prison job and a complete accounting of the funds 

available in his prison account. Moreover, Jackson fails to establish that the amount of 

money present in his prison bank account is insufficient to cover his monthly 

garnishments while still satisfying O.A.C. §5120–5–03(D), which authorizes the 

garnishment of an inmate's account to satisfy the inmate's obligations to the court as long 

as the account retains $25.00 for inmate expenditures. Additionally, in its decision 

overruling Jackson’s motion to vacate, the trial court found that the garnishment of funds 

placed into his prison account may be sufficient to satisfy “some portion” of his court costs. 

The trial court also found that provided that the statutory minimum amount remains in 

Jackson’s prison account, then he can be required to pay court costs pursuant to R.C. 

2947.23. In light of the foregoing, we therefore conclude that the trial court did not abuse 

its discretion when it overruled Jackson’s motion to vacate court costs. 

{¶ 17} Jackson’s first and second assignments of error are overruled. 

{¶ 18} Jackson’s third and final assignment of error is as follows: 

{¶ 19} “THE APPLICATION OF [O.A.C. §] 5120-05-03 IS A CONSTITUTIONAL 

VIOLATION UNDER THE UNITED STATES AND OHIO CONSTITUTION.” 

{¶ 20} In his third and final assignment, Jackson contends that application of 

O.A.C. § 5120–5–03 is unconstitutional because the rule “in effect prevents redress and 

violates [an] inmate’s constitutional rights to access of the Courts” by restricting said 
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inmate’s ability to make copies and file motions, petitions, and other documents in his or 

her case. Specifically, Jackson argues that O.A.C. § 5120–5–03 violates the Due 

Process and Equal Protection Clauses of the Ohio and United States Constitutions. 

Jackson also argues that the implementation of O.A.C. § 5120–5–03 to prison inmates 

constitutes cruel and unusual punishment. 

{¶ 21} O.A.C. § 5120–5–03(A) states in pertinent part: 

(A) The purpose of this rule is to establish guidelines and procedures for 

withdrawing money that belongs to an inmate and that is in an account kept 

for the inmate by the department of rehabilitation and correction (DRC), 

upon receipt of a certified copy of a judgment of a court of record in an action 

in which an inmate was a party that orders an inmate to pay a stated 

obligation. The DRC may apply such money toward payment of the stated 

obligation to the court or in another matter as directed by the court. 

{¶ 22} As previously stated, O.A.C. § 5120–5–03(D) authorizes the garnishment 

of an inmate's account to satisfy the inmate's obligations to the court as long as the 

account retains $25.00 for inmate expenditures. Jackson argues that this regulation 

violates his constitutional rights because it imposes an unjust burden on prison inmates. 

{¶ 23} “ ‘[C]osts are taxed against certain litigants for the purpose of lightening the 

burden on taxpayers financing the court system.’ ” State v. Threatt, 108 Ohio St.3d 277, 

2006–Ohio–905, 843 N.E.2d 164, ¶ 15, quoting Strattman v. Studt, 20 Ohio St.2d 95, 

102, 253 N.E.2d 749 (1969). “Although costs in criminal cases are assessed at 

sentencing and are included in the sentencing entry, costs are not punishment, but are 

more akin to a civil judgment for money.” Id. Thus, the purpose of O.A.C. 5120–5–03 is 
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the collection of a valid judgment to relieve the burden taxpayers would have to pay as a 

result of the convict's criminal actions. Therefore, we find that O.A.C. 5120–5–03 is 

rationally related to a legitimate government interest and comports with equal protection. 

State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 71. 

{¶ 24} Additionally, we have also held that while a defendant's indigent status may 

not operate to deprive him of the substantive constitutional rights guaranteed to every 

criminal accused, indigent status “does not shield him from the burdens imposed on him 

by the law in the event of conviction. One of these is an obligation to pay for the costs 

of the action that resulted in his conviction. If he owns property that can be applied against 

the obligation, the court may order it seized, notwithstanding his penury.” State v. Costa, 

2d Dist. Greene No. 99CA014, 1999 WL 957647, * 2 (September 3, 1999), citing State v. 

Engle, 2d Dist. Greene No. 98CA125, 1999 WL 147920, * 5 (March 19, 1999). 

Therefore, the withdrawal of funds from an inmate’s account pursuant to O.A.C. 5120–5–

03 in order to satisfy the inmate’s legal obligations does not violate his or her due process 

rights. Costa at *2. “Whether the [twenty-five] dollar minimum which a prisoner may 

maintain is sufficient for his needs is an administrative decision wholly committed to the 

discretion of the Department and not subject to judicial review.” Id. 

{¶ 25} Lastly, O.A.C. 5120–5–03 does not violate the constitutional prohibition 

against cruel and unusual punishments. We have commented that “ ‘Eighth Amendment 

violations are rare, and instances of cruel and unusual punishment are limited to those 

punishments, which, under the circumstances, would be considered shocking to any 

reasonable person.’ Therefore, ‘as a general rule, a sentence that falls within the terms 

of a valid statute cannot amount to a cruel and unusual punishment.’ ” (Citations 
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omitted.) State v. Artz, 2d Dist. Champaign No. 2014–CA–34, 2015-Ohio-3789, ¶ 24. 

{¶ 26} As previously stated, “although costs in criminal cases are assessed at 

sentencing and are included in the sentencing entry, costs are not punishment, but are 

more akin to a civil judgment for money.” Threatt, supra, at ¶ 15. An order to pay court 

costs is essentially a judgment on a contractual debt where the court is the creditor and 

the party ordered to pay court costs is the debtor. State v. Lamb, 163 Ohio App.3d 290, 

2005-Ohio-4741, 837 N.E.2d 833, ¶ 13 (2d Dist.). As such, the creditor, i.e., the court, 

can collect the money it is due by the methods provided for the collection of civil 

judgments. Id. Therefore, because the collection of court costs pursuant to O.A.C. 

5120–5–03 is not punitive in nature, the constitutional prohibition against cruel and 

unusual punishment is not implicated. 

{¶ 27} Jackson’s third and final assignment of error is overruled. 

{¶ 28} All of Jackson’s assignments of error having been overruled, the judgment 

of the trial court is affirmed. 

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WELBAUM, J., concurs. 

FROELICH, J., dissenting: 

{¶ 29} A trial court is required to impose costs even if the defendant is indigent; 

however, a trial court has the discretion to waive payment for court costs pursuant to R.C. 

2947.23(C). 

{¶ 30} Here, the court held that although “suspension or vacating the payment of 

court costs while [Appellant] remains incarcerated is, under [R.C.] 2947.23(C), within the 

court’s jurisdictional ability, . . . it would defeat the legislative mandate regarding costs. 
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The legislature has concluded costs must be ordered, indicating a legislative intent that 

such costs be collected.” I would find such decision not to be an exercise of judicial 

discretion, but rather an interpretation of a statute that the court found requires the 

collection of costs. 

{¶ 31} There may be circumstances in this case that warrant the trial court’s 

discretionary denial of the waiver of payment, but they were not the basis of the court’s 

decision, and I would remand for the court to exercise its discretion. 

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Copies mailed to: 

Andrew T. French 

Dennis D. Jackson 

Hon. Michael L. Tucker