[Cite as State v. Breneman, 2014-Ohio-1102.]

 IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 2013 CA 15 

v. : T.C. NO. 10CR22 

JAMES D. BRENEMAN : (Criminal appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 21st day of March , 2014. 

 . . . . . . . . . . 

JENNIFER E. GELLER, Atty. Reg. No. 0088855, Assistant Prosecuting Attorney, 200 N. 

Main Street, Urbana, Ohio 43078 

Attorney for Plaintiff-Appellee 

BARBARA A. LAHMANN, Atty. Reg. No. 0039156, 65 Tahlequah Trail, Springboro, Ohio 

45066 

Attorney for Defendant-Appellant 

 . . . . . . . . . . 

FROELICH, J. 

{¶ 1} In January 2013, James D. Breneman was found guilty by a jury in the 
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Champaign County Court of Common Pleas of one count of possession of cocaine, a felony 

of the third degree. 1

 The trial court sentenced him to 18 months in prison and to a 

three-year term of post-release control. The court also ordered Breneman, who was 

represented by appointed counsel at trial, “to pay back the legal fees” incurred in his defense 

as costs. Breneman appeals, challenging the court’s imposition of costs associated with his 

legal fees. 

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed in 

part and vacated in part. 

{¶ 3} Breneman objects to the portion of his sentence in which the trial court 

ordered that he “pay back the legal fees” as costs of the case. At the sentencing hearing, the 

State requested “the costs of the case to be paid appropriately,” and the court stated that 

Breneman would be ordered to pay “costs.” The requirement that Breneman pay “legal 

fees” was stated only in the judgment entry. 

{¶ 4} We have held that, if a trial court is to impose costs on a defendant as part 

of his sentence, it must pronounce those costs in open court at the sentencing hearing, 

because failure to do so violates a defendant’s due process and Crim.R. 43 rights to be 

present at sentencing. State v. Miller, 2d Dist. Clark No. 08CA0090, 2010-Ohio-4760, ¶ 

56; State v. Simms, 10th Dist. Franklin No. 13AP-299, 2013-Ohio-5142, ¶ 8. By ordering 

the payment of legal fees only in the judgment entry, the trial court erred in failing to impose 

 1

In a previous trial, Breneman had been found guilty of possession of cocaine and not guilty of trafficking in cocaine 

and possession of criminal tools. On appeal, we reversed his conviction for possession, finding that the trial court had abused its 

discretion when it refused to grant Breneman’s motion for substitution of counsel. State v. Breneman, 2d Dist. Champaign No. 

2010 CA 18, 2012-Ohio-2534. When Breneman was retried, he was again convicted of possession of cocaine. 
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its entire sentence in Breneman’s presence. 

{¶ 5} Furthermore, we have held that R.C. 2941.51(D), upon which the State 

relies in its brief, does not permit the recoupment of legal costs in the manner employed by 

the trial court. R.C. 2941.51(D) does allow a county to seek reimbursement of 

court-appointed counsel fees if a defendant has the means to pay for some or all of the costs 

of services provided to him, but we have held that the right of action it confers “must be 

prosecuted in a civil action.” Miller at ¶ 61, citing State v. Crenshaw, 145 Ohio App.3d 86, 

761 N.E.2d 1121 (8th Dist.2001); State v. Hill, 2d Dist. Clark No. 04CA0047, 

2005-Ohio-3877, ¶ 6. The statute specifically states that “fees and expenses approved by 

the court under this section shall not be taxed as part of the costs * * *.” R.C. 2941.51(D). 

{¶ 6} In light of the language of R.C. 2941.51(D) and our cases interpreting that 

provision, the trial court erred in ordering Breneman to pay for his legal representation as 

costs. Because we have held that such compensation must be pursued in a separate civil 

action, this portion of Breneman’s sentence will be vacated. 

{¶ 7} The assignment of error is sustained. 

{¶ 8} The portion of the trial court’s judgment that requires him to pay legal fees 

as costs will be vacated. In all other respects, the judgment of the trial court will be 

affirmed. 

 . . . . . . . . . . 

FAIN, J. and WRIGHT, J., concur. 

(Hon. Thomas R. Wright, Eleventh District Court of Appeals, sitting by assignment of the 

Chief Justice of the Supreme Court of Ohio). 

Copies mailed to: 
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Jennifer E. Geller 

Barbara A. Lahmann 

Hon. David C. Faulkner, Visiting Judge