[Cite as State v. Freeman , 2022-Ohio-674.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : Case No. 21CA1141 Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY KEITH FREEMAN, : Defendant-Appellant. : RELEASED 3/2/2022

_______________________________________________________________ _______ APPEARANCES: Brian T. Goldberg, Cincinnati, Ohio, for appellant. David Kelley, Adams County Prosecutor, and Anthony Hurst, Assis tant Adams County Prosecutor, West Union, Ohio, for appellee.

_______________________________________________________________ _______ Hess, J.

{¶1} Keith Freeman appeals the denial of his motion seeking to credi t his unpaid balance of court costs with community service hours. He contends that the trial court was required to hold a hearing on the question of whether he should be permitted to perform community service instead of continuing to make paym ents towards the judgment. We reject his argument and overrule his assignment of error. The trial court is not required to hold a hearing on Freeman’s motion. A trial cou rt is not required to hold a hearing on the question of community service unless it has reas on to believe the defendant has failed to pay or to timely make payments. There i s nothing in the record to support Freeman’s argument. There is no evidence that Freeman h as failed to make payments in accordance with the sentencing order. We affirm the trial court’s judgment.Adams App. No. 21CA1141 2

I. PROCEDURAL HISTORY {¶2} In 2018, Freeman pleaded guilty to felonious assault and domes tic violence. The trial court sentenced him to a six-year prison te rm and ordered him to pay all costs of the prosecution of the action. The Ohio Department of Rehabilitation and

Corrections was ordered to withhold funds from Freeman’s accoun t to pay the costs. Freeman was advised that his failure to make payments could res ult in the court ordering him to perform community service until the judgment is paid. In July 2021, Freeman filed a motion with the trial court to allow him to perform community service in lieu of paying

court costs. The trial court denied his motion without a hearin g. Freeman appealed.

II. ASSIGNMENT OF ERROR {¶3} Freeman assigns the following error for our review:

1. The trial court erred to the prejudice of Mr. Freeman by not holding a hearing to determine whether to order him to perform communit y service in lieu of paying court costs.

III. STANDARD OF REVIEW {¶4} Because R.C. 2947.23 gives the trial court broad discretion to waive, suspend, or modify payment of court costs and to impose communi ty service, we generally review such motions under an abuse-of-discretion stan dard. State v. Spencer , 4th Dist. Scioto No. 15CA3681, 2015-Ohio-1445, ¶ 8. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams , 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980). However, because Fre eman’s assignment of error requires statutory interpretation, which is a question of law, our review is de

novo. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8.Adams App. No. 21CA1141 3

IV. COURT COSTS AND COMMUNITY SERVICE {¶5} R.C. 2947.23 governs the imposition of court costs and communit y service for the failure to pay them. Under R.C. 2947.23(A), a judge mus t include in the sentence the costs of prosecution and render a judgment against the defe ndant for such costs. The judge must notify the defendant that if the defendant fails to pay the judgment or make timely payments under a payment schedule approved by the c ourt, then the court may order the defendant to perform community service until the judgment is paid or the payment plan is brought into compliance to the court’s satisfac tion. Under R.C. 2947.23(B), which is the crux of this appeal, if the judge has reason to believe the defendant has failed to pay or timely make payments towards tha t judgment, the judge “shall hold a hearing to determine whether to order the offende r to perform community

service for that failure”: (B) If a judge or magistrate has reason to believe that a defen dant has failed to pay the judgment described in division (A) of this se ction or has failed to timely make payments towards that judgment under a pa yment schedule approved by the judge or magistrate, the judge or magi strate shall hold a hearing to determine whether to order the offender to perform community service for that failure. The judge or magistrate sha ll notify both the defendant and the prosecuting attorney of the place, t ime, and date of the hearing and shall give each an opportunity to prese nt evidence. If, after the hearing, the judge or magistrate determ ines that the defendant has failed to pay the judgment or to timely make paym ents under the payment schedule and that imposition of community ser vice for the failure is appropriate, the judge or magistrate may order t he offender to perform community service until the judgment is paid or unti l the judge or magistrate is satisfied that the offender is in compliance w ith the approved payment schedule. * * *. {¶6} The Supreme Court of Ohio has reviewed the statutory language i n R.C. 2947.23(A), the subsection immediately preceding the one at iss ue in this case, and held that the word “shall” imposes a mandatory duty upon the trial c ourt to inform the offenderAdams App. No. 21CA1141 4

at sentencing that a failure to pay court costs could result in the imposition of community

service: When interpreting a statute, a court must first look to its lan guage and apply it as written if the meaning is unambiguous. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. “ ‘[T]he word “s hall” shall be construed as mandatory unless there appears a clear and uneq uivocal legislative intent that [it] receive a construction other than [its] ordinary usage.’ ” Ohio Civ. Rights Comm. v. Countrywide Home Loans, Inc., 99 Ohio St.3d 522, 2003-Ohio-4358, 794 N.E.2d 56, ¶ 4, quoting Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus. In R.C. 2947.23(A)(1), the General Assembly's use of the langua ge “at the time the judge * * * imposes sentence, the judge * * * shall no tify” clearly registers an intent that this notice is mandatory and that a co urt is to provide this notice at sentencing. (Brackets sic.)

State v. Smith , 131 Ohio St.3d 297, 2012-Ohio-781, 964 N.E.2d 423, ¶ 9-10. Si milarly, we find the use of the word “shall” in R.C. 2947.23(B) should b e construed as mandatory. Under this subsection, a judge has a duty to hold a hearing to determine whether to impose community service, but only if the judge has reason to believe that the defendant has failed to pay the judgment or has failed to t imely make payments in accordance with the approved schedule. {¶7} Here there is nothing in the record that gives reason to believ e that Freeman has failed to make payments towards the judgment. Inste ad, Freeman would prefer to substitute community service as a credit towards the remaining balance on the judgment rather than continue to pay through deductions from hi s prison account. In his motion to the trial court, Freeman asked to have his unpaid bal ance credited with community service hours. But, he provided no evidence that he h as failed to make payments in accordance with the judgment and has provided the t rial court with no reason to believe he has failed to do so. To the contrary, in h is motion FreemanAdams App. No. 21CA1141 5

contends that the financial records will show that he “has been diligent in applying his monthly stipend towards financial sanctions in this instant mat ter.” Because there is no evidence that Freeman has failed to make payments in accordance with the trial court’s order, the trial court was not required to hold a hearing under R.C. 2947.23(B). State v. Johnson, 8th Dist. Cuyahoga No. 106138, 2018-Ohio-496, ¶ 9 (a trial cou rt lacks authority to impose community service in the final entry of con viction because R.C. 2947.23 requires the court to have reason to believe that the d efendant failed to pay court costs and hold a hearing before imposing community servic e); see also State v.

Burmeister , 11th Dist. No. 2019-P-0053, 2019-Ohio-4927 (indigent offender could file a motion to allow community service hours to be applied toward he r costs or a motion for an extension of time under R.C. 2947.23(C), however there is no statutory authority that would allow a court to apply community service already performe d as a credit toward imposed court costs and fines); State v. Barnard, 5th Dist. Muskingum No. CT2019- 0088, 2020-Ohio-4858, ¶ 11 (“As noted by the Eleventh District in affirming a denial of a defendant's motion to use community service hours performed in prison in lieu of cost and/or fines, ‘quite simply, the discretion to modify or waive court costs includes the discretion not to modify or waive them.’” quoting State v. Burmeister , 11th Dist. Portage No. 2019-P-0053, 2019-Ohio-4927).

V. CONCLUSION {¶8} Freeman was not entitled to a hearing to determine whether he s hould be ordered to perform community service. The trial court had no re ason to believe that Freeman had failed to make payments in accordance with the cour t order.

JUDGMENT AFFIRMED.Adams App. No. 21CA1141 6

JUDGMENT ENTRY It is ordered that the JUDGMENT BE 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 d irecting the Adams County Common Pleas Court 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 t he 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 Su preme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay w ill terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.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 fin al judgment entry and the time period for further appeal commences from the date of filing with the clerk.