[Cite as State v. Lundy, 2018-Ohio-2243.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-18-11 

 v. 

MICHAEL L. LUNDY, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR 2012 0236 

Judgment Reversed and Cause Remanded 

Date of Decision: June 11, 2018 

 

APPEARANCES: 

 

Michael Lundy, Appellant 

 Jana E. Emerick for Appellee 
Case No. 1-18-11 

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PRESTON, J. 

{¶1} Although originally placed on our accelerated calendar, we have elected 

pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry. 

Defendant-appellant, Michael L. Lundy (“Lundy”), pro se, appeals the February 6, 

2018 judgment entry of the Allen County Court of Common Pleas denying his 

motion to waive, suspend, or modify payment of court costs. For the reasons that 

follow, we reverse. 

{¶2} In 2013, Lundy was convicted of rape, kidnapping, and aggravated 

burglary, and sentenced to a cumulative term of 40 years in prison. State v. Lundy, 

3d Dist. Allen No. 1-3-52, 2014-Ohio-5003, ¶ 1-2. Lundy was classified as a Tier 

III sex offender. (Doc. Nos. 216, 217). This court affirmed Lundy’s conviction. 

Id. at ¶ 41, 64.1

 

{¶3} On February 5, 2018, Lundy, pro se, filed a motion to waive, suspend, 

or modify payment of court costs. (Doc. No. 245). On February 6, 2018, the trial 

court denied Lundy’s motion after concluding that it was barred by the doctrine of 

res judicata. (Doc. No. 246). 

{¶4} On February 23, 2018, Lundy filed a notice of appeal. (Doc. No. 248). 

He raises one assignment of error for our review. 

 

1

 In Lundy’s direct appeal, this court recited much of the factual and procedural background of this case, and 

we will not duplicate those efforts here. See State v. Lundy, 3d Dist. Allen No. 1-3-52, 2014-Ohio-5003. 
Case No. 1-18-11 

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Assignment of Error 

The Trial Court Erred and Abused its Authority to Overrule 

Plaintiff [sic] Motion for Court Cost and Fines R.C. §2949.41 [sic], 

Allows for the Collection of Costs Only Against “Non” Indigent 

Persons Courts Deem Indigent 

{¶5} In his assignment of error, Lundy argues that the trial court erred by 

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

{¶6} “R.C. 2947.23 requires a trial court to assess costs against all criminal 

defendants, even if the defendant is indigent.” State v. Clinton, ___ Ohio St.3d ___, 

2017-Ohio-9423, ¶ 239. If a defendant moves to waive, suspend, or modify costs, 

the trial court, in its discretion, may waive, suspend, or modify payment of those 

costs. State v. Hanford, 8th Dist. Cuyahoga No. 106220, 2018-Ohio-1309, ¶ 17, 

citing State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 13 and 

State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. A “trial 

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

prosecution * * *, at the time of sentencing or any time thereafter.’” Id., quoting 

R.C. 2947.23(C). 

{¶7} We review a trial court’s decision denying an indigent-criminal 

defendant’s post-judgment motion to waive, suspend, or modify payment of court 

costs under an abuse-of-discretion standard. State v. Taylor, 2d Dist. Montgomery 

No. 27539, 2018-Ohio-1649, ¶ 12, citing State v. Dunson, 2d Dist. Montgomery No. 

26990, 2016-Ohio-8365, ¶ 6, appeal accepted, 150 Ohio St.3d 1442, 2017-Ohio-
Case No. 1-18-11 

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7843 and State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797. 

See also State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph four of the 

syllabus. An abuse of discretion suggests that a decision is unreasonable, arbitrary, 

or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). 

{¶8} In this case, the trial court erroneously concluded that Lundy’s motion 

to waive, suspend, or modify court costs is barred by the doctrine of res judicata. 

R.C. 2947.23 was amended, effective March 22, 2013, granting a trial court 

continuing jurisdiction to consider a defendant’s post-judgment motion to suspend, 

vacate, or modify costs. See State v. Braden, 10th Dist. Franklin No. 17AP-48, 

2017-Ohio-7903, ¶ 8, appeal accepted, 151 Ohio St.3d 1526, 2018-Ohio-557. As 

such, a defendant—whose judgment of conviction and sentence became final after 

March 22, 2013—may file a motion to suspend, vacate, or modify costs at any time. 

See id.; Hanford at ¶ 17, citing State v. Williams, 8th Dist. Cuyahoga No. 105590, 

2018-Ohio-845, ¶ 39, citing State v. Beasley, ___ Ohio St.3d ___, 2018-Ohio-493, 

¶ 265. 

{¶9} The judgment of Lundy’s conviction and sentence became final on 

November 10, 2014. Lundy, 2014-Ohio-5003, at ¶ 1, 64. Accordingly, the trial 

court retained jurisdiction to consider Lundy’s post-judgment motion to waive, 

suspend, or modify the payment court costs—that is, it is not barred by the doctrine 

of res judicata. Therefore, the trial court abused its discretion by denying Lundy’s 
Case No. 1-18-11 

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motion to waive, suspend, or modify the payment of court costs without addressing 

the merits of his motion. See Taylor, 2018-Ohio-1649, at ¶ 19. 

{¶10} Lundy’s assignment of error is sustained. 

{¶11} Having found error prejudicial to the appellant herein in the particulars 

assigned and argued in his assignment of error, we reverse the judgment of the trial 

court and remand the matter for the trial court to consider Lundy’s motion.2

Judgment Reversed and 

 Cause Remanded 

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur. 

/jlr 

 

 

2

 The Supreme Court of Ohio is presently considering what a trial court must consider when exercising its 

discretion in ruling on a post-judgment motion to waive, suspend, or modify the payment of court costs. State 

v. Dunson, 150 Ohio St.3d 1442, 2017-Ohio-7843. See also State v. Braden, 151 Ohio St.3d 1526, 2018-

Ohio-557 (considering whether a trial court has jurisdiction under R.C. 2947.23(C) to waive, suspend, or 

modify the payment of court costs in cases in which a defendant’s conviction and sentence became final prior 

to the enactment of R.C. 2947.23(C)).