Ripe for Review
By Justice Paul E. Pfeifer
In Ohio’s court system, the state is divided into 12 appellate districts, each of which is served by a court of appeals. Each district takes appeals from the trial courts in their geographic area, but occasionally, the court of appeals in one district will arrive at a judgment that contradicts the judgment in a similar case from another district.
When those conflicts occur, the issue comes before us – the Supreme Court of Ohio. We review the conflicting opinions and settle the differences so that there is agreement throughout the state. Earlier this year we reviewed a case involving a man name Timothy Smith that presented us with one of those conflicts between appellate districts.
The case began when Smith pleaded guilty to forgery, a fifth-degree felony. The trial court accepted his plea and found him guilty. The court sentenced Smith to five years of community control and required him to pay court costs, the fee for his court-appointed attorney, and $4,857 in restitution. However, at the time of his sentencing, the court did not inform Smith that if he failed to pay court costs, he would be required to perform community service.
After he was sentenced, Smith filed an appeal with the Twelfth District Court of Appeals. Among the issues that he raised was his assertion that the trial court erred and abused its discretion when it failed to notify him that if he failed to pay court costs, the trial court could require him to perform community service.
The Twelfth District refused to consider that assertion on its merits. The court held that until Smith failed to pay costs, or until a court imposed community service as a consequence for failing to pay those costs, the issue was not “ripe for review.” To put it another way, the matter that Smith wanted the court of appeals to issue a ruling on hadn’t happened yet, so the court concluded that it wasn’t yet ready for consideration.
The court of appeals did, however, reverse the trial court’s judgment to an extent. The appellate court determined that the clerk of the trial court may have charged Smith certain costs that were not permitted by law. The case was sent back to the trial court to determine whether those costs were properly imposed.
Smith’s next move was to file a motion in the court of appeals to certify that a conflict existed. He alleged that the Twelfth District’s holding – that the trial court’s failure to notify him of possible community service was not ripe for review – conflicted with the decisions in cases from the Fourth and Fifth District Courts of Appeals.
The Twelfth District issued an order certifying that a conflict existed, and then the issue came before us for a final review. The question before us was whether a sentencing court’s failure to inform an offender that community service could be imposed if the offender fails to pay court costs presents an issue ripe for review even though the offender hasn’t yet failed to pay such costs and the trial court hasn’t yet ordered the offender to perform community service as a result of failure to pay.
Smith argued that the trial court’s failure to provide him the community-service notification was ripe for review. The state took the opposite position, arguing that the trial court’s failure to notify was not ripe for review until Smith failed to pay court costs or until the trial court imposed community service.
The law at the center of this dispute – we’ll call it the community-service notification statute – states that in all criminal cases, the judge shall include in the sentence the costs of prosecution, “and render a judgment against the defendant for such costs.” The key sentence in the law states, “At the time the judge…imposes sentence, the judge…shall notify the defendant” that if the defendant fails to pay that judgment, “the court may order the defendant to perform community service…” until the judgment is paid.
The Twelfth District Court of Appeals had declined to address the trial court’s failure to notify Smith of the potential imposition of community service because “the record does not demonstrate that Smith has failed to pay the court costs or the cost for his court-appointed counsel, or that the trial court has ordered him to perform community service.
“If Smith fails to pay those costs in the future” the court of appeals wrote, “the trial court will be required to hold a hearing regarding his failure to pay and may…order him to perform community service. However, because these events have yet to happen and may not ever happen, Smith’s claim regarding community service is not yet ripe for review.”
But in similar cases, the Fourth and Fifth District Courts of Appeals held that the trial court’s failure to provide the community-service notification was “mandatory,” and therefore ripe for review.
Indeed, the language of the community-service notification statute (“at the time the judge…imposes sentence, the judge…shall notify”) clearly indicates that the Ohio legislature intended that this notice is mandatory and that a court is to provide this notice at sentencing.
Therefore, when a court of appeals is asked to consider a trial court’s failure to provide this notice, it is not a requirement that the defendant first fails to pay court costs or that a court imposes community service before the matter is ripe for review.
We thus agreed with the holdings in the cases from the Fourth and Fifth District Courts of Appeals. We concluded – by a seven-to-zero vote – that a sentencing court’s failure to inform an offender that community service could be imposed if the offender fails to pay court costs presents an issue ripe for review even though the offender has not yet failed to pay such costs and the court has not ordered the offender to perform community service.
With that, Smith’s case was sent back to the Twelfth District Court of Appeals for consideration in accordance with our opinion.
EDITOR’S NOTE: The case referred to is: State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781. Case No. 2011–0811. Decided March 1, 2012. Majority opinion written by Justice Evelyn Lundberg Stratton.