[Cite as State v. Henderson, 2012-Ohio-3283.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 24701 

Plaintiff-Appellee : 

: Trial Court Case No. 2009-CR-3496/1 

v. : 

: 

CODY W. HENDERSON : (Criminal Appeal from 

: (Common Pleas Court) 

Defendant-Appellant : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 20th day of July, 2012. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. 

Box 972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

JEFFREY T. GRAMZA, Atty. Reg. #0053392, Talbott Towers, Suite 1210, 131 North 

Ludlow Street, Dayton, Ohio 45402 

Attorney for Defendant-Appellant 

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

 

FAIN, J. 

{¶ 1} Defendant-appellant Cody Henderson appeals from that part of his sentence 
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for Aggravated Murder, Aggravated Robbery, Felonious Assault and Tampering With 

Evidence that imposed court costs. Henderson contends that the trial court erred when it 

violated R.C. 2947.23(A)(1)(a) by imposing court costs without explaining that, should he fail 

to pay the costs, he might be ordered to perform community service. 

{¶ 2} The State concedes that the trial court’s failure to inform Henderson of the 

consequences of failing to pay costs was error. We agree. We also agree with the State that 

a sufficient remedy is to hold that if Henderson should fail to pay court costs, he cannot be 

ordered to perform community service in lieu thereof. Accordingly, the judgment of the trial 

court is Modified to that extent, and is Affirmed as so modified. 

 

I. The Course of Proceedings

{¶ 3} In 2009 Henderson was indicted on multiple counts of Aggravated Murder 

with death-penalty specifications, Felonious Assault, and Tampering With Evidence. The 

charges arose in connection with the death of Henderson’s stepfather. In order to avoid a 

potential death sentence, and in exchange for an agreed life sentence without the possibility of 

parole, Henderson pled guilty to all charges. The trial court sentenced him to life 

imprisonment without the possibility of parole, plus an additional consecutive term of 

incarceration of fifteen years. 

{¶ 4} Prior to sentencing, Henderson requested a waiver of all financial sanctions, 

including court costs. The prosecutor objected. After imposing the agreed-upon prison 

sentence, the court waived payment of restitution, but ordered the payment of court costs. 

Henderson appeals. 
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II. The Trial Court Erred when it Failed to Inform Henderson that he Can 

Be Required to Perform Community Service if he Fails to Pay Court Costs, 

and in this Case, the Appropriate Remedy Is to Eliminate the Possibility 

that he Can Be Required to Perform Community Service 

{¶ 5} Henderson’s sole assignment of error states: “THE TRIAL COURT 

COMMITTED PLAIN AND REVERSIBLE ERROR WHEN IT VIOLATED THE 

MANDATORY STATUTORY PROVISIONS OF R.C. 2947.23(A)(1).” 

{¶ 6} Henderson contends that the trial court did not comply with R.C. 

2947.23(A)(1), because it failed to inform him that he would be required to perform 

community service if he failed to pay his assessed costs. 

{¶ 7} R.C. 2947.23, which governs the imposition of costs, provides as follows: 

(A)(1) In all criminal cases, including violations of ordinances, the judge or 

magistrate shall include in the sentence the costs of prosecution, including any costs 

under section 2947.231 of the Revised Code, and render a judgment against the 

defendant for such costs. At the time the judge or magistrate imposes sentence, the 

judge or magistrate shall notify the defendant of both of the following: 

(a) If the defendant fails to pay that judgment or fails to timely make payments 

towards that judgment under a payment schedule approved by the court, the court may 

order the defendant to perform community service in an amount of not more than forty 

hours per month until the judgment is paid or until the court is satisfied that the 

defendant is in compliance with the approved payment schedule. 
[Cite as State v. Henderson, 2012-Ohio-3283.]

(b) If the court orders the defendant to perform the community service, the 

defendant will receive credit upon the judgment at the specified hourly credit rate per 

hour of community service performed, and each hour of community service performed 

will reduce the judgment by that amount. 

{¶ 8} This court has held that it is error to fail to notify a defendant that he can be 

ordered to perform community service if he fails to pay the assessed costs. State v. Lux, 2d 

Dist. Miami No. 2010 CA 30, 2012-Ohio -112, ¶ 59. The State concedes the error, but, 

argues that the proper remedy is unclear. Henderson urges us to vacate the sentence and 

remand to the trial court for re-sentencing, or in the alternative, “order that court costs in this 

matter be waived.” The State requests that we not remand, but simply “prohibit the 

imposition of a community service requirement following [any] failure to pay court costs.” 

{¶ 9} In Lux, the defendant had already served his one-year sentence when his 

appealed was decided. Id. at ¶ 59. Thus, we noted that we could not “remand the matter to 

the trial court for re-sentencing[, and thus we held that] should Lux fail to pay the ordered 

courts costs, he cannot be ordered to perform community service.” Id.

{¶ 10} In State v. Phillips, 2d Dist. Montgomery No. 23252, 2009-Ohio-5305, the 

defendant was sentenced to two consecutive life sentences without eligibility for parole and 

was ordered to pay court costs despite a timely motion to waive. Id. at ¶16. We stated: 

The hyper-technical resolution would be to remand the issue of waiver of costs 

to the trial court; this could possibly necessitate bringing the defendant back to court, 

and the revisiting of this tragedy on the victims’ families – not to mention the security 

and expense issues. Therefore, we will find that the trial court erred in not waiving 

the court costs and order that the termination entry be modified to reflect that costs are 
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waived and we will affirm in all other respects. Id. at ¶ 17. 

{¶ 11} The error in Phillips was that the trial court erroneously concluded that it had 

no authority to waive court costs. Therefore, the very imposition of court costs, itself, was 

error, and could not be remedied solely by eliminating the possibility of the defendant’s being 

required to perform community service in lieu of paying court costs. 

{¶ 12} In the case before us, as in Lux, the error is in the trial court’s having failed to 

advise the defendant that he could be required to perform community service in lieu of paying 

court costs; the imposition of court costs was not itself erroneous in Lux, or in the case before 

us. Therefore, we agree with the State that Henderson can receive a complete remedy by 

eliminating the possibility that he can ever be required to perform community service in lieu 

of paying court costs; if the performance of community service is not a possibility, then he is 

not prejudiced by the trial court’s having failed to inform him of that possibility. 

{¶ 13} The State has indicated that it would be satisfied with this solution, even 

though it eliminates the possibility that Henderson can ever be required to perform community 

service if he fails to pay court costs. Accordingly, and for the reasons alluded to in Phillips, 

we accept this as the proper remedy in this case. 

{¶ 14} Henderson’s sole assignment of error is sustained. 

III. Conclusion

{¶ 15} Henderson’s sole assignment of error being sustained, the judgment of the trial 

court is Modified by eliminating the requirement that Henderson must perform community 

service if he does not pay court costs. As Modified, the judgment of the trial court is 
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Affirmed. This cause is Remanded for the trial court to make whatever record of the 

modification of its judgment entry may be appropriate. 

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

DONOVAN, J., concurs. 

HALL, J., concurring: 

I agree with the entirety of the opinion for the court, including the resolution of 

modifying the sentence to eliminate the possibility of community service in lieu of court costs. 

I am writing separately only to express that this appeal seems to be an academic 

exercise because the defendant, sentenced to life in prison without the possibility of parole, 

plus fifteen years, will never be ordered to perform community service in any event. 

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

Copies mailed to: 

Mathias H. Heck 

Andrew T. French 

Jeffrey T. Gramza 

Hon. Mary L. Wiseman