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.

Posted by Paul Pfeifer on Jun 25 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.