[Cite as State v. Henderson, 2023-Ohio-4576.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

State of Ohio Court of Appeals No. L-23-1098

Appellee Trial Court No. CR0202201999

 

v.

Mark Henderson DECISION AND JUDGMENT

Appellant Decided: December 15, 2023 

* * * * *

Julia R. Bates, Lucas County Prosecuting Attorney, and

Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Laurel A. Kendall, for appellant.

* * * * *

ZMUDA, J.

I. Introduction

{¶ 1} This matter is on appeal from the judgment and sentence entered by the 

Lucas County Court of Common Pleas on April 12, 2023, sentencing appellant, Mark 

Henderson, to a 24 month prison term after he entered a no contest plea to the lesser 

included offense of attempted felonious assault in violation of R.C. 2923.02 and 
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2903.11(A)(1) and (D), a felony of the third degree, and ordered appellant to pay the 

costs of prosecution, as well as the costs of supervision or confinement and the costs of 

court-appointed counsel. We affirm, in part, as to imposition of the mandatory costs of 

prosecution. However, because we find error in the imposition of costs for 

supervision/confinement and court-appointed counsel, we reverse, in part, and vacate the 

discretionary costs imposed.

II. Facts and Procedural Background

{¶ 2} On June 16, 2022, appellant was indicted on one count of felonious assault 

in violation of R.C. 2903.11(A)(1) and (D), a felony of the second degree, following an 

incident on October 1, 2021. On June 29, 2022, appellant appeared for arraignment and 

entered a plea of not guilty to the charge.

{¶ 3} On March 28, 2023, appellant withdrew his prior not guilty plea and entered 

a plea of no contest to the lesser included offense of attempted felonious assault in 

violation of R.C. 2923.02 and 2903.11(A)(1) and (D), a felony of the third degree. At the 

plea hearing, the state recited the facts that would have been proven at trial: that appellant 

struck the victim in the head with a tire iron, the victim required medical treatment 

including stitches and staples to close the wound near his ear, and the victim identified 

appellant through a photo array. 

{¶ 4} After accepting the plea, the trial court found appellant guilty, referred the 

matter for a presentence investigation report, and scheduled a sentencing hearing for 

April 12, 2023.
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{¶ 5} At the sentencing hearing, appellant’s trial counsel argued that community 

control was appropriate in this case and that appellant had employment waiting for him 

should he be released on community control. Prior to his arrest, appellant had full-time 

employment. The trial court did not address appellant’s employment prospects, focusing 

instead on appellant’s youth and prior record, and appellant’s lack of remorse. The trial 

court’s reference to the presentence investigation report was limited to the following:

Mr. Henderson, you caused physical, serious physical harm to the 

victim when you struck him repeatedly with a tire iron. His injuries 

required medical attention which required six staples and four – six stitches 

and four staples to his ear and his scalp.

In the pre-sentence report, you deny that you did anything to the 

victim and you claim that you were the victim. You are just 21 years old 

and although this is your first felony conviction, you have four felony 

arrests that were negotiated to misdemeanor convictions and you violated 

your probation in those cases. You also have one felony conviction as a 

juvenile and a total of fourteen misdemeanors.

{¶ 6} After considering the factors under R.C. 2929.11 and 2929.12, the trial court 

imposed a prison sentence of 24 months and provided notice of post-release control. 

Appellant then interrupted the hearing, arguing his trial counsel deceived him during the 

plea hearing, because appellant believed he would receive probation and not a prison 
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term. Appellant then sought to withdraw his plea. The trial court denied the request and 

ended the hearing without any further findings or imposition of costs on the record.

{¶ 7} Following the hearing, the trial court entered a written judgment entry. The 

court included the prison term as well as an order that appellant pay the costs of 

prosecution, costs of supervision/confinement, and costs of court-ordered counsel, despite 

failing to address the matter of costs on the record at the sentencing hearing. As part of 

this entry, the trial court included a finding that appellant had the ability to pay costs.

III. Assignment of Error

{¶ 8} Appellant filed a timely appeal, asserting a single assignment of error:

The trial court erred to the prejudice of Appellant when it found 

appellant had, or reasonably may be expected to have, the ability to pay all 

or part of the applicable costs of supervision, confinement, assigned 

counsel, and prosecution in the Judgment Entry, but failed to impose such 

costs as sentencing, and without finding that appellant had the ability to 

pay.

IV. Analysis

{¶ 9} The only error raised on appeal concerns the imposition of costs. “Our 

standard of review on this issue is whether the imposition of costs was contrary to law.” 

State v. Velesquez, 6th Dist. Lucas No. L-22-1167, 2023-Ohio-1100, ¶ 6, quoting State v. 

Ivey, 6th Dist. Lucas No. L-19-1243, 2021-Ohio-2138, ¶ 7, citing R.C. 2953.08(A)(4) and 

(G)(2)(b).
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{¶ 10} Despite including costs of prosecution as the costs challenged on appeal, 

appellant concedes that the trial court properly imposed the mandatory costs of 

prosecution, pursuant to R.C. 2947.23(A). The law is clear that, while imposition of 

costs is mandatory, a court retains jurisdiction to waive payment of those mandatory costs 

at any time. R.C. 2947.23(C); see also State v. Braden, 158 Ohio St.3d 462, 2019-Ohio4204, 145 N.E.3d 235, ¶ 30. Thus, the trial court was required to impose costs of 

prosecution and appellant may seek waiver of payment of those costs in the future, an 

issue not before us in this appeal. Appellant’s remaining challenge addresses only the 

imposition of the costs of supervision/confinement and costs of court-appointed counsel.

Accordingly, we limit our review to whether the trial court erred in imposing these 

discretionary costs without first addressing the matter on the record during his sentencing 

hearing. 

{¶ 11} Appellant challenges the imposition of costs of supervision, confinement, 

and the costs of court-appointed counsel. We note that the trial court sentenced appellant 

to a prison term, and not a community control sanction. As a result, costs of supervision 

do not apply in this case. See State v. Eaton, 6th Dist. Lucas No. L-18-1183, 2020-Ohio3208, ¶ 33 (“The costs of supervision are not at issue in this case because a prison term 

was imposed.”). Therefore, as the judgment entry specified only “applicable costs,” we 

find the trial did not order appellant to pay the costs of supervision. 

{¶ 12} The remaining costs at issue on appeal are costs of confinement and costs 

of court-appointed counsel. Both costs of confinement and costs of counsel “must be 
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conditioned upon appellant’s ability to pay.” State v. Wymer, 6th Dist. Lucas No. L-18-

1108, 2019-Ohio-1563, ¶ 14, citing State v. Seals, 6th Dist. Lucas No. L-17-1177, 2018-

Ohio-2028, ¶ 14.

Specifically, R.C. 2941.51(D) provides, “[I]f the person represented 

has, or reasonably may be expected to have, the means to meet some part of 

the cost of the services rendered to the person, the person shall pay the 

county an amount that the person reasonably can be expected to pay.” 

Likewise, R.C. 2929.18(A)(5)(a)(ii) authorizes as a financial sanction, “All 

or part of the costs of confinement * * * provided that the amount of 

reimbursement ordered under this division shall not exceed the total amount 

of reimbursement the offender is able to pay as determined at a hearing and 

shall not exceed the actual cost of the confinement.” Wymer at ¶ 14.

{¶ 13} The parties do not dispute the trial court’s failure to address costs at the 

sentencing hearing. However, appellee, the state of Ohio, argues that the costs of courtappointed counsel could be considered as part of the costs of prosecution, or in the 

alternative, that all costs were properly imposed because the trial court included them 

only in the judgment entry. Additionally, the state argues appellant waived any error 

related to the imposition of discretionary costs. We address each argument in turn.

{¶ 14} As to court-appointed counsel fees, we note the Ohio Supreme Court has 

addressed the character of these costs and rejected the state’s argument that they are part 

of the costs of prosecution. In State v. Taylor, the Court noted, “R.C. 2941.51 explicitly 
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states that court-appointed-counsel fees shall not be taxed as costs, which are required 

under R.C. 2947.23 to be included as a part of the defendant's sentence.” State v. Taylor, 

163 Ohio St.3d 508, 2020-Ohio-6786, 171 N.E.3d 290, ¶ 34. Therefore, we do not consider 

attorney fees as part of the costs of prosecution, and instead address only whether the trial 

court’s inclusion of these and other discretionary costs in the judgment entry, without 

first addressing appellant at hearing, was proper.

{¶ 15} As to waiver, the state argues that the record contained evidence supporting 

an ability to pay within the presentence investigation report, and appellant waived any 

challenge to these costs by not objecting to the information contained in the report. We 

reject the state’s argument, however, because the trial court imposed costs only in the 

sentencing entry, and ended the sentencing hearing prior to addressing these costs on the 

record. Waiver generally requires knowledge of what is being waived. State v. 

Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, ¶ 15. With no mention 

of costs at the sentencing hearing, appellant could not know the trial court intended to 

impose discretionary costs, and therefore, could not knowingly waive his challenge to 

such costs. 

{¶ 16} Where courts fail to address discretionary costs at the sentencing hearing, 

but include imposition of costs within the sentencing entry, we have consistently found 

the imposition of costs to be contrary to law, and vacated the portion of the judgment 

imposing discretionary costs. See, e.g., Wymer at ¶ 14 (trial court erred when it failed to 

make any finding regarding the ability to pay the discretionary costs at sentence but 
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included those costs in the judgment entry); State v. Hill, 6th Dist. Lucas No. L-18-1160, 

2020-Ohio-1237, ¶ 30, citing Wymer at ¶ 14 (where trial court failed to address 

discretionary costs at the sentencing hearing, but included such costs in the written 

judgment entry, imposition of these costs constituted error); State v. Temple, 6th Dist. 

Lucas No. L-18-1070, 2019-Ohio-3503, ¶ 13 (entering finding regarding ability to pay 

and imposing discretionary costs in the sentencing judgment entry, without addressing at 

sentencing hearing, not sufficient under Crim.R. 43(A)); State v. Velesquez, 6th Dist. 

Lucas No. L-22-1167, 2023-Ohio-1100, ¶ 12-13 (imposing costs without first engaging 

in the necessary analysis to determine an ability to pay, constituted error).

{¶ 17} Considering the record, and with no dispute regarding the trial court’s 

failure to address discretionary costs at the sentencing hearing, we find the trial court 

erred in imposing the costs of confinement and costs of court-appointed counsel in the 

judgment entry, consistent with our prior decisions. Accordingly, we find the sole 

assignment of error well-taken, in part, and vacate the portion of the judgment that 

imposes costs of confinement and costs of court-appointed counsel.

V. Conclusion

{¶ 18} For the forgoing reasons, we affirm the judgment of the Lucas County 

Court of Common Pleas, in part, as to imposition of the mandatory costs of prosecution, 

but reverse, in part, regarding imposition of discretionary costs. We vacate the portion of 

the judgment that imposes discretionary costs of confinement and court-appointed 
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counsel. Appellant and appellee are ordered to split the costs of this appeal pursuant to 

App.R. 24.

Judgment affirmed, in part,

reversed, in part, and vacated.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.

Gene A. Zmuda, J. ____________________________

JUDGE

Myron C. Duhart, P.J. 

____________________________

Charles E. Sulek, J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.