[Cite as State v. Smith, 2023-Ohio-1235.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

SCIOTO COUNTY

State of Ohio, : Case No. 22CA4006

 

Plaintiff-Appellee, :

DECISION AND

v. : JUDGMENT ENTRY

Thomas O. Smith, :

Defendant-Appellant. : RELEASED 4/12/2023

______________________________________________________________________

APPEARANCES:

Addison M. Spriggs, Assistant State Public Defender, Office of the Ohio Public Defender, 

Columbus, Ohio, for appellant.

Shane A. Tieman, Prosecuting Attorney, and Jay S. Willis, Assistant Prosecuting 

Attorney, Portsmouth, Ohio, for appellee.

______________________________________________________________________

Hess, J.

{¶1} Thomas O. Smith appeals from a judgment of the Scioto County Court of 

Common Pleas denying his motion to waive, modify, or suspend payment of court costs. 

Smith presents two assignments of error asserting the trial court plainly erred when it 

failed to vacate unauthorized court costs in the form of special project fees and abused 

its discretion when it failed to waive, modify, or suspend his $22,564.54 in court costs and 

instead directed his account into a payment plan. For the reasons which follow, we 

overrule the assignments of error and affirm the trial court’s judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶2} In February 2015, Smith was convicted, following a jury trial, of multiple

offenses, including engaging in a pattern of corrupt activity, drug trafficking offenses, and 
Scioto App. No. 22CA4006 2

participating in a criminal gang. The trial court imposed an aggregate sentence of 40 

years in prison, ordered Smith to pay a fine of $20,000 and the costs of prosecution, and 

directed the Department of Rehabilitation and Corrections (“DRC”) “to withhold funds in 

the appropriate amount from the defendant’s account to pay the costs.” We affirmed the

convictions but found that the trial court should have merged the convictions for engaging 

in a pattern of corrupt activity and participating in a criminal gang as allied offenses of 

similar import. State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, ¶ 123 (4th Dist.). 

Therefore, we remanded the matter to the trial court “for the limited purpose of conducting 

a new sentencing hearing consistent with” our opinion. Id. Subsequently, Smith filed a

petition for postconviction relief. The trial court denied the petition and conducted the 

resentencing hearing. The court imposed an aggregate sentence of 32 years in prison, 

again ordered Smith to pay a fine of $20,000 and the costs of prosecution, and directed 

DRC “to withhold funds in the appropriate amount from the defendant’s account to pay 

the fine and costs.” Smith appealed the denial of his petition for postconviction relief, and 

we affirmed the trial court’s judgment. State v. Smith, 4th Dist. Scioto No. 16CA3774, 

2017-Ohio-7659, ¶ 1. 

{¶3} The docket sheet contains two notations for August 29, 2022, which are 

relevant to this appeal. The first notation states:

ITEMIZED BILL

SMITH, THOMAS was sent bill (STMT MAILED TO MANCI) for $22564.54 

printed on 08/29/2022

-ATTY ADDISON SPRIGGS W/PUBLIC DEFENDER OFFICE 

REQUESTED COPY OF THIS ITEMIZED BILL

-REVISED BILL TO REMOVE ALL SP CODES – RE-SENT REVISED BILL 

TO MANCI 
Scioto App. No. 22CA4006 3

{¶4} The second notation is for a motion to waive, modify, or suspend payment 

of court costs filed by Smith. In the motion, Smith asserted he was charged $22,564.54 

in court costs, which included eight charges for special project fees totaling $40.00. 

Pursuant to R.C. 2947.23(C), Smith asked the court to waive the costs, modify the costs 

by reducing them, or suspend their collection until his release from prison in 2046. Smith 

asserted that he was 34 years old, incarcerated in the Mansfield Correctional Institution, 

and had “no financial resources to assist him in paying the court costs associated with his 

case, other than the negligible income he earns while employed in the institution.” Smith 

claimed that he made between $8 and $17 a month, received “no financial support from 

outside sources,” and could not afford basic living expenses. Smith asserted that he was 

indigent at the time of trial, remained indigent, and was unable to pay his debt while 

incarcerated. He asserted it was unlikely that he would be able to make meaningful 

payments towards his debt after his release. Smith also asked the court to waive the 

special project fees on the additional ground that no statute or rule authorized them, and 

in State v. Duckett, 4th Dist. Scioto No. 20CA3924, 2021-Ohio-3110, this court held that 

it was plain error to assess such fees when no statute or local rule authorizes them. 

{¶5} The exhibits attached to Smith’s motion include an itemized bill dated 

August 29, 2022 with an amount due of $22,564.54. This amount includes the $20,000 

fine. No “special project” fees appear on the bill.

{¶6} The state filed a memorandum in response to Smith’s motion. The state 

agreed special project fees should be waived pursuant to Duckett. The state had no 

“objection to an appropriate payment plan being established for the Defendant in this 

matter.” However, the state objected “to a suspension or waive[r] of all court costs in this 
Scioto App. No. 22CA4006 4

case.” The state asserted that Smith “made a decision to take this matter to trial and was 

convicted” and that “he should bear at least part of the burden of paying for the costs 

associated with conducting that trial, not as punishment but as the natural consequence 

of his decision.” The state asserted that “[s]ociety should not bear the entire burden.” 

{¶7} Subsequently, the trial court issued a judgment entry stating:

This matter comes before the Court upon Defendant’s Request for 

Payment Plan for fines and court costs. 

With due consideration, the Court hereby finds a payment plan shall 

be granted in the above stated matter for any fines/court costs. Effective 

the date of this entry, Defendant’s payment of court costs shall be paid, in 

the total amount of $25.00 monthly, by the Defendant or Defendant’s family 

member, directly to the Scioto County Clerk of Courts, and not deducted 

from the commissary. 

It is further Ordered if one payment is missed, the payment of costs 

shall return to being deducted from the commissary. 

This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶8} Smith presents two assignments of error:

ASSIGNMENT OF ERROR I: The trial court plainly erred when it failed to 

vacate unauthorized court costs in the form of special project fees.

ASSIGNMENT OF ERROR II: The trial court abused its discretion when it 

failed to waive, modify, or suspend Mr. Smith’s $22,564.54 in court costs 

and instead directed his account into a payment plan.

III. LAW AND ANALYSIS

{¶9} “By statute, the imposition of court costs on all convicted defendants is 

mandatory.” State v. Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 6. 

R.C. 2947.23(A)(1)(a) states: “In all criminal cases, * * * the judge * * * shall include in 

the sentence the costs of prosecution * * * and render a judgment against the defendant 
Scioto App. No. 22CA4006 5

for such costs.” (Emphasis added.) However, R.C. 2947.23(C) states that “[t]he court 

retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution 

* * * at the time of sentencing or at any time thereafter.” “Thus, although R.C. 2947.23 

mandates trial courts to impose costs in all criminal cases, it also gives trial courts 

discretion to waive, suspend, or modify the payment of costs, either at sentencing or at 

any time thereafter.” State v. Bolin, 4th Dist. Athens No. 21CA14, 2022-Ohio-3375, ¶ 6. 

We review a trial court’s decision regarding a motion to waive, suspend, or modify the 

payment of costs under an abuse of discretion standard. Id. “To find an abuse of 

discretion, an appellate court must determine the trial court’s decision is unreasonable, 

arbitrary, or unconscionable.” Id.

A. Special Project Fees

{¶10} In the first assignment of error, Smith contends that the trial court plainly 

erred when it failed to vacate unauthorized court costs in the form of special project fees. 

Smith asserts that the fees were assessed in 2014 and 2015, and citing State v. Tabor, 

4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, he asserts that plain error review applies 

because his counsel at the time did not object to the fees. He asserts that a court’s power 

to assess costs is limited by statute and local rule and that Duckett found no statute or 

local rule in Scioto County authorizes special project fees, so the trial court should have 

vacated them. He asks this court to “vacate the unauthorized costs that have been 

assessed against” him. 

{¶11} In its appellee’s brief, the state asserted that Smith would be withdrawing 

his first assignment of error, which the parties now agreed was moot because the clerk 

removed the special project fees from Smith’s bill on August 29, 2022. Subsequently, 
Scioto App. No. 22CA4006 6

Smith filed a “notice of modification to cost bill” to “notify this court of a development 

related to his cost bill”—that the clerk removed the special project fees from his bill. The 

notice states that “[t]his may have rendered the corresponding assignment of error moot. 

However, absent an order from this court, it is unclear whether the clerk of courts may 

reinstate those unauthorized fees.” 

{¶12} As a preliminary matter, we note that plain error review does not apply to 

this assignment of error. Crim.R. 52(B) states: “Plain errors or defects affecting 

substantial rights may be noticed although they were not brought to the attention of the 

court.” Smith brought the special project fee issue to the attention of the trial court via his 

motion to waive, modify, or suspend payment of court costs. He asked the court to waive 

special project fees under R.C. 2947.23(C) on the same ground asserted in the argument 

under his first assignment of error—that the fees are not authorized by statute or rule. 

The trial court effectively denied Smith’s motion, and as we explained above, we review 

a decision on a motion to waive, suspend, or modify the payment of costs pursuant to 

R.C. 2947.23(C) for an abuse of discretion. Bolin, 4th Dist. Athens No. 21CA14, 2022-

Ohio-3375, at ¶ 6.

{¶13} Tabor is inapposite. In that case, the defendant filed a direct appeal from a

judgment of conviction and sentence and asserted that the trial court erred by imposing 

unauthorized court costs. Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, at ¶ 1, 

43. We concluded plain error review applied because the defendant did not object to the 

costs during the trial court proceedings. Id. at ¶ 44. Nothing in Tabor indicates the 

defendant filed a motion in the trial court pursuant to R.C. 2947.23(C) like Smith did.
Scioto App. No. 22CA4006 7

{¶14} The trial court did not abuse its discretion when it denied Smith’s request 

for a waiver of special project fees. One could interpret the first notation on the docket 

sheet for August 29, 2022 to mean that the clerk revised Smith’s bill that day to remove 

special project fees from it. No one has challenged the clerk’s authority to do so. The bill 

which Smith attached as an exhibit to his motion to waive, modify, or suspend payment 

of court costs is evidently the revised bill because it does not include any “special project” 

fees. In his appellate brief, Smith made a table outlining the $40 in special project fees 

which he asserts were charged to him. For each of the eight fees, the table lists a date, 

the item description “SPECIAL PROJECTS/MARSHALL,” an amount charged of $5, and 

an amount due of $5. He cites the “August 29, 2022 Cost Bill” as the source for the

information in the table. But none of these fees appear on the bill from that date which 

he attached to his motion. And because no special project fees appear on the bill which 

Smith attached to his motion, the trial court’s denial of his request for a waiver of special 

project fees was not unreasonable, arbitrary, or unconscionable. Accordingly, we 

overrule the first assignment of error. 

B. Other Costs

{¶15} In the second assignment of error, Smith contends the trial court abused its 

discretion when it failed to waive, modify, or suspend his $22,564.54 in court costs and 

instead directed his account into a payment plan. Smith asserts that he “was indigent 

when he was first convicted, remains indigent, and will likely be indigent until at least the 

age of 56 when he is released from prison.” Smith maintains that there is “no feasible 

way” for him to pay his debt while incarcerated. He asserts that he “will be unable to 

obtain a higher salary beyond what is offered through” DRC “for the foreseeable future.” 
Scioto App. No. 22CA4006 8

He asserts DRC paid him $17 in June 2022 and $8.75 in July 2022, and he “is unable to 

pay for his hygiene products, medical co-pays, and necessary daily expenses, much less 

his extensive court debt.” Smith states that even after his release, he “will likely struggle 

to support himself, let alone make meaningful payments toward his $22,564.54 debt” “as 

a 56-year old man who is navigating reentry.” Smith asserts that it was an abuse of

discretion for the trial court to not modify, waive, or suspend his court costs “despite the 

numerous indications of his present and future ability to pay them” and “summarily” state 

that he, “or a family member of his, would be required to make monthly payments towards 

the court costs, without any consideration of the indigency indications presented” by him. 

Smith asks us to “remand to the trial court for a hearing to determine an appropriate 

amount of [his] costs to waive, modify, or suspend.”

{¶16} The state contends that a trial court “is not required to suspend court costs 

upon a showing of indigency” or make explicit findings or explain its decision under R.C. 

2947.23(C). And the state asserts that the trial court implicitly considered Smith’s

assertion that he was indigent “by ordering a payment plan.”1 

{¶17} R.C. 2947.23(C) “provides no explicit criteria that a court should use in 

deciding whether to waive, suspend, or modify costs.” Taylor, 161 Ohio St.3d 319, 2020-

Ohio-3514, 163 N.E.3d 486, at ¶ 8. “[A] trial court is not required to consider the 

defendant’s ability to pay in assessing a motion to waive, suspend, or modify 

court costs under R.C. 2947.23(C), though it is permitted to do so.” Id. at ¶ 16. “ ‘[W]aiver 

of costs is permitted—but not required—if the defendant is indigent.’ ” Id. at ¶ 7, quoting 

1 The state has not argued that the $20,000 fine, which is included in the $22,564.54, is not a cost of 

prosecution which is subject to R.C. 2947.23(C).
Scioto App. No. 22CA4006 9

State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. Taylor

observed that aside from ability to pay,

in the abstract, there are many other criteria that can equally justify a 

decision to waive, suspend, or modify the imposition of costs in a particular 

case. A court might, for instance, look to whether the costs are unfairly 

excessive given the degree of wrongdoing. Or a court might look to whether 

the costs impose a hardship on third parties. Or maybe a court would 

conclude that R.C. 5120.133, which prevents a prison from disbursing an 

inmate’s funds that, by statute, are “exempt from execution, garnishment, 

attachment, or sale,” adequately addresses a defendant’s present inability 

to pay. In such a case, a court might choose to keep the costs order in 

place in the event the defendant can pay later.

Id. at ¶ 12. Taylor also explained the absence of explicit criteria in R.C. 2947.23(C) did 

not make the decision to waive, modify, or suspend costs “a matter of trial-court whim,”

stating:

It is a basic principle of our legal system that a trial court’s decision must 

not be arbitrary and cannot be based on considerations wholly unrelated to 

the decision it is tasked with making. A trial court could not, for instance, 

deny a motion to waive costs based on the flip of a coin or the color of a 

defendant’s hair or because it is Tuesday. Neither could a court adopt a 

standing order to reject all such motions, as that would be opting out of any 

sort of rational assessment altogether. 

Id. at ¶ 16.

{¶18} In addition, this court has recognized that while “an explanation for a trial 

court’s decision regarding a motion to waive payment of court costs may facilitate a more 

meaningful appellate review,” R.C. 2947.23(C) “does not require an explicit explanation.” 

State v. Phillips, 4th Dist. Scioto No. 20CA3905, 2022-Ohio-478, ¶ 13. We have stated 

that “because the statute is silent concerning findings, trial courts should not be required 

to make findings when ruling on a motion to waive the payment of court costs.” Id. 

Therefore, we have found “no error” with a trial court’s failure to include explicit findings 

in a decision on a motion under R.C. 2947.23(C). Id. at ¶ 14.
Scioto App. No. 22CA4006 10

{¶19} Smith does not identify anything unreasonable, arbitrary, or unconscionable 

about the decision denying his motion except for the fact that there are “numerous 

indications” of his present and future inability to pay court costs, and the trial court issued 

a summary decision “without any consideration of the indigency indications presented” by 

him. But again, “a trial court is not required to consider the defendant’s ability to pay in 

assessing a motion to waive, suspend, or modify court costs under R.C. 2947.23(C), 

though it is permitted to do so,” Taylor at ¶ 16, and the court is not required to make 

explicit findings when ruling on such a motion, Phillips at ¶ 13-14. And the fact that the 

court ordered Smith to make modest monthly payments suggests the court did consider

his ability to pay. For these reasons, we cannot conclude the trial court abused its 

discretion when it failed to waive, modify, or suspend Smith’s court costs and instead 

directed his account into a payment plan. Accordingly, we overrule the second 

assignment of error.

IV. CONCLUSION

{¶20} Having overruled the assignments of error, we affirm the trial court’s 

judgment.

JUDGMENT AFFIRMED.
Scioto App. No. 22CA4006 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the 

costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto

County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed 60 days upon the bail previously posted. 

The purpose of a continued stay is to allow appellant to file with the Supreme Court of 

Ohio an application for a stay during the pendency of proceedings in that court. If a stay 

is continued by this entry, it will terminate at the earlier of the expiration of the 60-day 

period, or the failure of the appellant to file a notice of appeal with the Supreme Court of 

Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of 

the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of 60 days, the stay will terminate as of the date of such 

dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________

 Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing with 

the clerk.