[Cite as State v. Nicholas, 2021-Ohio-1669.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CHAMPAIGN COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DONOVAN ASHER NICHOLAS 

Defendant-Appellant 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 2020-CA-21 

Trial Court Case No. 2017-CR-299 

(Criminal Appeal from 

Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 14th day of May, 2021. 

. . . . . . . . . . . 

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign 

County Prosecutor’s Office, Appellate Division, 200 North Main Street, Urbana, Ohio 

43078 

 Attorney for Plaintiff-Appellee 

 

TIMOTHY B. HACKETT, Atty. Reg. No. 0093480 & PATRICK T. CLARK, Atty. Reg. No. 

0094087, Office of the Ohio Public Defender, 50 East Broad Street, Suite 1400, 

Columbus, Ohio 43215 

 Attorneys for Defendant-Appellant 

. . . . . . . . . . . . . 

 

EPLEY, J. 
-2- 

{¶ 1} Defendant-Appellant Donovan Asher Nicholas appeals from a judgment of 

the Champaign County Court of Common Pleas, which concluded, in relevant part, that 

the clerk of courts had separated appointed counsel fees from court costs and, thus, our 

order for the trial court to direct the clerk of courts to do the same on remand was moot. 

For the following reasons, the trial court’s judgment will be reversed, and the matter will 

be remanded for the trial court to direct the clerk of courts to remove the attorney fees 

from the cost bill. 

I. Facts and Procedural History 

{¶ 2} Nicholas was convicted of aggravated murder in 2018 and raised several 

assignments of error on appeal. State v. Nicholas, 2020-Ohio-3478, 155 N.E.3d 304 (2d 

Dist.), appeal allowed, 161 Ohio St.3d 1439, 2021-Ohio-375, 162 N.E.3d 822. Important

to this matter, Nicholas argued that the trial court erred when it included $9,819 of 

appointed counsel fees in the cost bill issued in the case. We agreed, stating that the trial 

court “will be directed to order the clerk to remove the attorney fee amount from the cost 

bill.” Id. at ¶ 167. In our judgment entry, we remanded the matter to the trial court for the 

purposes of “correcting the cost bill concerning appointed counsel fees” and clarifying 

other charges. Id. at ¶ 198. 

{¶ 3} In the meantime, the Champaign County clerk of courts attempted to rectify 

the issue by adding an additional section to the cost bill delineating the counsel fees from 

court costs. A new section was also added to “CourtView” (the online docket) entitled 

“Financial Case Summary,” which further demonstrated the difference between court 

costs and appointed counsel fees. 
-3- 

{¶ 4} On July 7, 2020, the trial court filed a “JOURNAL ENTRY IN RESPONSE TO 

THE DECISION ISSUED BY THE SECOND DISTRICT COURT OF APPEALS.” 

(Capitalization sic.) In that entry, the court addressed the issue of counsel fees being comingled with other expenses in the cost bill. The court attached several exhibits. Court’s 

Exhibit 1 was the itemized cost bill, still showing as a line item $9,819 in “appointed 

counsel fees and expenses.” On the last page of the cost bill, however, there was a 

succinct breakdown of the balance for the case. The amount of “costs” was recorded as 

$14,073, “counsel fees” was listed as $9,819, “deposit” was noted as $25.41, the amount 

for “foreign law enforcement” was listed as $329.47, and “reparation rotary” was 

enumerated as $60. According to the document, the total balance for the case was 

$24,281.77. 

{¶ 5} Court’s Exhibit 2 was the “Financial Case Summary,” promulgated by 

CourtView Justice Solutions. This document also showed the court “cost” as $14,073.30 

on one line, with “counsel fees” of $9,819 directly below it. The “total fees” were calculated 

to be $23,892.30. 

{¶ 6} The gravamen of the trial court’s argument in its entry in response to our 

remand was that, because Court’s Exhibits 1 and 2 demonstrated that the counsel fees 

and court costs were “clearly separated” in accordance with our order, the order of this 

Court was moot. We disagree. 

II. This Court’s order was not moot 

{¶ 7} R.C. 2941.51(D) states that a person who is represented by court-appointed 

counsel is required to pay counsel fees if the trial court determines that the defendant 

has, or may expect to have, the means to pay all or part of the cost of the legal services 
-4- 

provided to him. State v. Taylor, Ohio Slip Opinion 2020-Ohio-6786, __ N.E.3d __; Galion 

v. Martin, 3d Dist. Crawford No. 3-91-6, 1991 WL 261835, *5 (Dec. 12, 2991). This 

requirement cannot be made part of a sentence, though, because counsel fees are not 

directly enforceable as a criminal sanction. Taylor at ¶ 35; State v. Lambert, 2d Dist. Clark 

No. 2015-CA-5, 2015-Ohio-5168, ¶ 19. 

{¶ 8} Instead, the court must enter a separate civil judgment for the attorney fees. 

Galion at *5; accord State v. Riley, 2019-Ohio-3327, 141 N.E.3d 531, ¶ 98 (11th Dist.) 

(“R.C. 120.04(B)(5) confirms that the collection of any attorney fees under R.C. 

2941.51(D) must be separately pursued by the public defender via the civil collection 

process.”); State v. Springs, 2015-Ohio-5016, 53 N.E.3d 804 (2d Dist.) (a county desiring 

to enforce the reimbursement of counsel fees must pursue civil collection proceedings.) 

{¶ 9} This distinction and separation of counsel fees from court costs is significant. 

The legislature “has specifically required courts to include financial sanctions, fines, and 

court costs as part of the defendant’s sentence.” Taylor at ¶ 35; see R.C. 2929.18 

(financial sanctions are levied as a part of an offender’s sentence); R.C. 2947.14(A) (fines 

are imposed as part of the sentence); R.C. 2947.23 (prosecution costs shall be included 

in the sentence). On the other hand, the sentencing statutes are silent regarding when a 

trial court can order a defendant to pay counsel fees, which is important because “courts 

may impose only sentences that are provided for by statute.” Id. Because there is no 

statutory authority permitting a court to sentence a defendant to pay counsel fees, “such 

an order cannot be included as part of the defendant’s sentence.” Id. It follows, then, that 

a defendant’s cost bill represents part of his sentence, albeit a civil debt. In contrast, the 

Ohio Supreme Court recently stated that the appointed counsel fees are a civil 
-5- 

assessment and not part of a defendant’s sentence. Id. at ¶ 34. 

{¶ 10} It is clear from the trial court’s exhibits that our remand order was not 

followed. The directive was clear: “remove the attorney fee amount from the cost bill.” 

Nicholas, 2020-Ohio-3478, 155 N.E.3d 304, at ¶ 167. While the last page of the cost bill 

and CourtView summed up the difference in court costs from counsel fees, line item 185 

still shows “counsel fees” of $9,819. 

{¶ 11} This is not just a problem because the trial court failed to follow through on 

a remand directive and because including the attorney fees in Nicolas’s sentence is 

contrary to law; this failure has negative implications on Nicholas as well. Because the 

cost bill still indicates to the Ohio Department of Rehabilitation and Correction (ODRC) 

that Nicholas owes $24,307.18 (according to Court’s Exhibit 3), the ODRC will continue 

to garnish that amount from his institutional earnings and other money deposited into his 

account by friends and family. When the highest inmate work compensation level is $24 

per month (see Ohio Adm.Code 5120-3-08(A)(7)), the difference between garnishing 

$24,307.18 and $14,488.18 (the difference between the amount the cost bill shows 

Nicholas owes and what Nicholas should owe at this point) is substantial. 

{¶ 12} To be sure, the State is entitled to recoup the appointed counsel fees, but it 

must go about it the correct way – the civil collection process. Considering the above 

discussion, the trial court erred by not removing the counsel fees from the cost bill. 

{¶ 13} The assignment of error is sustained. 

III. Conclusion 

{¶ 14} We find that our previous order was not moot. Therefore, the trial court’s 

judgment will be reversed, and the matter will be remanded for the trial court to direct the 
-6- 

clerk of courts to remove the attorney fees from the cost bill.

. . . . . . . . . . . . . 

DONOVAN, J. concurs. HALL, J., concurs in judgment only. 

Copies sent to: 

Jane A. Napier 

Timothy B. Hackett 

Patrick T. Clark 

Hon. Nick A. Selvaggio