[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, Assistant Adams County 

Prosecutor, West Union, Ohio, for appellee. 

______________________________________________________________________ 

Hess, J. 

{¶1} Keith Freeman appeals the denial of his motion seeking to credit 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 payments 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 court is not required to hold a 

hearing on the question of community service unless it has reason to believe the 

defendant has failed to pay or to timely make payments. There is nothing in the record to 

support Freeman’s argument. There is no evidence that Freeman has 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 domestic 

violence. The trial court sentenced him to a six-year prison term 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 account to pay the costs. 

Freeman was advised that his failure to make payments could result 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 hearing. 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 community 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 community service, we 

generally review such motions under an abuse-of-discretion standard. 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 Freeman’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 community service 

for the failure to pay them. Under R.C. 2947.23(A), a judge must include in the sentence 

the costs of prosecution and render a judgment against the defendant 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 court, 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 satisfaction. 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 that judgment, the judge 

“shall hold a hearing to determine whether to order the offender to perform community 

service for that failure”: 

(B) If a judge or magistrate has reason to believe that a defendant has 

failed to pay the judgment described in division (A) of this section or has 

failed to timely make payments towards that judgment under a payment 

schedule approved by the judge or magistrate, the judge or magistrate 

shall hold a hearing to determine whether to order the offender to perform 

community service for that failure. The judge or magistrate shall notify 

both the defendant and the prosecuting attorney of the place, time, and 

date of the hearing and shall give each an opportunity to present 

evidence. If, after the hearing, the judge or magistrate determines that the 

defendant has failed to pay the judgment or to timely make payments 

under the payment schedule and that imposition of community service for 

the failure is appropriate, the judge or magistrate may order the offender 

to perform community service until the judgment is paid or until the judge 

or magistrate is satisfied that the offender is in compliance with the 

approved payment schedule. * * *. 

{¶6} The Supreme Court of Ohio has reviewed the statutory language in R.C. 

2947.23(A), the subsection immediately preceding the one at issue in this case, and held 

that the word “shall” imposes a mandatory duty upon the trial court to inform the offender 
Adams 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 language 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 “shall” shall 

be construed as mandatory unless there appears a clear and unequivocal 

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 language “at the 

time the judge * * * imposes sentence, the judge * * * shall notify” clearly 

registers an intent that this notice is mandatory and that a court 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. Similarly, 

we find the use of the word “shall” in R.C. 2947.23(B) should be 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 timely make payments in 

accordance with the approved schedule. 

{¶7} Here there is nothing in the record that gives reason to believe that 

Freeman has failed to make payments towards the judgment. Instead, 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 his prison account. In his 

motion to the trial court, Freeman asked to have his unpaid balance credited with 

community service hours. But, he provided no evidence that he has failed to make 

payments in accordance with the judgment and has provided the trial court with no 

reason to believe he has failed to do so. To the contrary, in his motion Freeman 
Adams 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 matter.” 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 court lacks 

authority to impose community service in the final entry of conviction because R.C. 

2947.23 requires the court to have reason to believe that the defendant failed to pay 

court costs and hold a hearing before imposing community service); 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 her 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 performed 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 should be 

ordered to perform community service. The trial court had no reason to believe that 

Freeman had failed to make payments in accordance with the court 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 directing 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 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. 

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 final judgment 

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

with the clerk.