[Cite as State v. Braden, 2017-Ohio-7903.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : No. 17AP-48 

 (C.P.C. No. 98CR-4601)

v. : 

 (REGULAR CALENDAR) 

David L. Braden, : 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on September 28, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. 

Gilbert, for appellee. Argued: Seth L. Gilbert.

On brief: Timothy Young, Ohio Public Defender, and 

Kathryn L. Sandford, for appellant. Argued: Kathryn L. 

Sandford.

 

APPEAL from the Franklin County Court of Common Pleas 

LUPER SCHUSTER, J. 

{¶ 1} Defendant-appellant, David L. Braden, appeals from an entry of the 

Franklin County Court of Common Pleas denying his motion to waive fines and court 

costs. For the following reasons, we affirm.

I. Facts and Procedural History 

{¶ 2} By indictment filed August 13, 1998, plaintiff-appellee, State of Ohio, 

charged Braden with two counts of aggravated murder in violation of R.C. 2903.01, both 

unclassified felonies and both with accompanying capital and firearm specifications. 

Following his indictment, Braden filed an affidavit of indigency on August 17, 1998. The 

trial court found him indigent and appointed counsel to represent him at trial. A jury 

ultimately found Braden guilty of both counts and, following a mitigation and sentencing 
No. 17AP-48 2 

hearing, the trial court imposed a sentence of death, journalizing Braden's convictions and 

sentence in a July 7, 1999 judgment entry. Additionally, the trial court ordered Braden to 

pay a fine of $25,000 as to each count of aggravated murder for a total fine of $50,000. 

At the sentencing hearing, the trial court ordered Braden to pay court costs, but the 

judgment entry of his conviction and sentence contains no mention of court costs. 

{¶ 3} Braden appealed his convictions and sentence to the Supreme Court of 

Ohio. The Supreme Court affirmed his convictions and sentence. State v. Braden, 98 

Ohio St.3d 354, 2003-Ohio-1325. Braden additionally filed a petition for post-conviction 

relief which the trial court denied in an August 2, 2002 decision and entry. Braden 

appealed the trial court's denial of his post-conviction petition to this court and we 

affirmed. State v. Braden, 10th Dist. No. 02AP-954, 2003-Ohio-2949. 

{¶ 4} On November 2, 2016, Braden filed a motion to waive the fines and court 

costs associated with his 1999 conviction. Braden's motion additionally asked the trial 

court to order the prison to maintain at least $400 in his prison account or, alternatively, 

proposed a "payment plan" of $3 per month. Simultaneously, Braden filed an affidavit of 

indigency. The state filed a memorandum contra Braden's motion to vacate fines and 

costs, and Braden filed a reply on December 2, 2016. In a December 21, 2016 entry, the 

trial court denied Braden's motion to waive fines and court costs. Braden timely appeals. 

II. Assignment of Error 

{¶ 5} Braden assigns the following error for our review: 

The trial court erred in failing to find that funds have been 

improperly taken from Braden's prison account for the 

payment of fines and/or court costs. 

III. Analysis 

{¶ 6} In his sole assignment of error, Braden argues the trial court erred in 

denying his motion to waive fines and court costs. More specifically, Braden asserts the 

trial court should have found the Ohio Department of Rehabilitation and Correction 

("DRC") was improperly taking funds from his inmate account.

{¶ 7} The trial court imposed an aggregate $50,000 fine as part of Braden's 

sentence and included the fine in the judgment of his conviction. Braden argues it was 

error for the trial court to impose the fine because he had been declared indigent. 
No. 17AP-48 3 

However, "under the doctrine of res judicata, a final judgment bars a convicted defendant 

from 'raising and litigating in any proceeding except an appeal from that judgment, any 

defense or any claimed lack of due process that was raised or could have been raised by 

the defendant at the trial, which resulted in that judgment of conviction, or on an appeal 

from that judgment.' " State v. Burnett, 10th Dist. No. 08AP-304, 2008-Ohio-5224, ¶ 5, 

quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. Braden 

did not challenge the imposed fine on direct appeal even though he could have. Thus, the 

doctrine of res judicata applies to preclude Braden from raising this issue through a postjudgment motion to waive fines and costs. Id.

{¶ 8} As to the imposition of costs, R.C. 2947.23(C), effective March 22, 2013, 

provides "[t]he court retains jurisdiction to waive, suspend, or modify the payment of the 

costs of prosecution, including any costs under section 2947.231 of the Revised Code, at 

the time of sentencing or at any time thereafter." However, this court has recently held 

that "where sentence was imposed and the judgment became final before the effective 

date of [the most recent version of R.C. 2947.23(C)], the trial court cannot 'retain[] 

jurisdiction' to waive, suspend, or modify costs when it did not have the authority to do so 

at the time of sentencing." (Emphasis sic.) State v. Banks, 10th Dist. No. 17AP-210, 2017-

Ohio-7135, ¶ 10, quoting R.C. 2947.23(C). The judgment of Braden's conviction and 

sentence, including the imposition of costs, became final in 2003 when the Supreme 

Court of Ohio affirmed his conviction, long before the effective date of the current version 

of R.C. 2947.23(C). Thus, res judicata bars Braden's argument regarding the imposition 

of costs. Id. at ¶ 11. 

{¶ 9} Braden also notes that the judgment entry of his conviction and sentence 

does not mention costs. There is no dispute, however, that the trial court orally informed 

Braden at his sentencing hearing of his obligation to pay costs, and the trial court noted 

the imposition of costs on its separately filed criminal disposition sheet. Further, "costs 

are distinct from criminal punishment," and " 'a judgment for costs in a criminal case is a 

civil, not a criminal, obligation.' " State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 

¶ 20, quoting Strattman v. Studt, 20 Ohio St.2d 95, 103 (1969). Thus, the trial court's 

failure to include costs in the sentencing entry does not operate to preclude the 

application of res judicata to allow this court to review the actual imposition of costs at 
No. 17AP-48 4 

this time. Braden did not challenge the trial court's imposition of costs at trial or during 

his direct appeal, and the doctrine of res judicata prevents him from raising that 

argument at this time. 

{¶ 10} Moreover, to the extent Braden's motion challenges the manner or method 

of collection of the costs by DRC or the prison warden, we note that neither DRC nor the 

warden is a party to this action, and, thus, Braden's motion is an improper means to 

challenge the collection process. State v. Good, 10th Dist. No. 03AP-549, 2004-Ohio1736, ¶ 6 (defendant's post-judgment motion to quash attempting to challenge the process 

the prison warden used to take money from his prison account was "insufficient to invoke 

either the trial court's or [the appellate] court's jurisdiction and should have been initiated 

below" by either a civil complaint or petition for extraordinary relief). Braden must file an 

original action pursuant to Civ.R. 3(A) in order to challenge the collection procedure 

being used to take funds from his inmate account. Id. at ¶ 5-6 (noting "any type of motion 

* * * is insufficient to commence an action" and that an inmate "must file an original 

action pursuant to Civ.R. 3(A)" in order to properly invoke the trial court's jurisdiction). 

Thus, the trial court did not err in denying Braden's motion with regard to the collection 

procedures. Accordingly, we overrule Braden's sole assignment of error.

IV. Disposition 

{¶ 11} Based on the foregoing reasons, res judicata bars Braden's argument related 

to the imposition of a fine, the trial court did not abuse its discretion in declining to waive 

costs, and Braden's motion was not the proper method to challenge the collection 

procedures used by the warden or DRC. Having overruled Braden's sole assignment of 

error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed. 

BROWN and BRUNNER, JJ., concur. 

BRUNNER, J., concurring. 

{¶ 1} I concur with the decision of the majority and would add that, although the 

trial court did not abuse its discretion in determining it would not waive Braden's costs in 

the action, there exists recently developed resources to aid trial judges in exercising such 

discretion. It is worthwhile to bring them to light and for reference for future trial court 
No. 17AP-48 5 

decisions involving the imposition of fines in the first instance and on postconviction and 

other post-trial motions and actions. 

{¶ 2} The National Center for State Courts has coordinated a National Task Force 

on Fines, Fees and Bail Practices, a joint effort of the Conference of Chief Justices and the 

Conference of State Court Administrators, sponsored by the State Justice Institute and 

the Bureau of Justice Assistance of the U.S. Department of Justice ("Task Force"). The 

Task Force has produced a "Bench Card for Judges" for the "Lawful Collection of Legal 

Financial Obligations" and defined "legal financial obligations" to "include all 

discretionary and mandatory fines, costs, fees, state assessments, and/or restitution in 

civil and criminal cases."1 While the initial focus of the bench card is providing procedural 

due process and to avoid incarceration for the failure to pay court-ordered legal financial 

obligations, the Task Force has provided guidelines for what is adequate notice of a 

hearing to determine ability to pay, meaningful opportunity to explain at the hearing, 

factors to consider to determine willfulness in not paying, findings by the court and 

alternative sanctions to imprisonment that courts should consider when there is an 

inability to pay. 

{¶ 3} Thus, as a trial court exercises its discretion, the Task Force suggests these 

specific alternative sanctions when there is an inability to pay: (1) reduction of the amount 

due; (2) extension of the time to pay; (3) a reasonable payment plan or modification of an 

existing payment plan; (4) credit for community service, with the caution that hours 

ordered should be proportionate to the violation and take into consideration any 

disabilities, driving restrictions, transportation limitations, and caregiving and 

employment responsibilities of the individual; (5) credit for completion of a relevant, 

court-approved program such as education, job skills, mental health or drug treatment; 

and (6) waiver or suspension of amounts due. The Task Force, according to the article, 

"The Work of the National Task Force on Fines and Bail Practices," co-authored by Ohio's 

Chief Justice, Maureen O'Connor, "was established * * * to develop policies and 

recommendations that promote the fair, efficient enforcement of the law; ensure no 

 

1 See National Task Force on Fines, Fees and Bail Practices, Lawful Collection of Legal Financial 

Obligations, 

http://www.ncsc.org/~/media/Images/Topics/Fines%20Fees/BenchCard_FINAL_Feb2_2017.ashx 

(accessed Sept. 22, 2017). 
No. 17AP-48 6 

citizen is denied access to justice based on race or lack of economic resources; and 

promote fairness and transparency in handling legal financial obligations."2 The 

resources referenced in the footnotes of this concurring decision may assist trial judges in 

imposing legal financial obligations, thereby contributing to the integrity of the judicial 

system and in increasing public confidence in the judiciary. At a minimum, these 

resources may aid a thorough pre-sentence process for considering the ability to pay. 

Such fair and pragmatic imposition of legal financial obligations may reduce the number 

of post-trial and postconviction proceedings and reduce strain on limited trial court time 

and financial resources brought by motions such as Braden's. 

 

 

2 See National Center for State Courts, Fines, Fees, and Bail Practices: Challenges and Opportunities, 

http://www.ncsc.org/~/media/Microsites/Files/Trends%202017/Work-of-Task-Force-Fines-FeesTrends-2017.ashx (accessed Sept. 22, 2017).