author: KLATT, J. HORTON, J., concurring.

text:
    HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee FOR CITIGROUP MORTGAGE LOAN, TRUST INC., ASSET BACKED PASS THROUGH CERTIFICATES SERIES 2003-HE4, Plaintiff-Appellee, v. Graydon D. WEBB et al., Defendants-Appellants.
    No. 16AP-845
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 28, 2017
    On brief: Thompson Hine LLP, Scott A. King, and Terry W. Posey, Jr., Dayton, for appellee. Argued: Terry W. Posey, Jr.
    On brief: The Dann Law Firm, Emily C. White, Brian D. Flick, and Marc E. Dann, Cleveland, for appellants. Argued: Emily C. White.
    DECISION
   KLATT, J.

{¶ 1} Defendants-appellants, Graydon Webb and Terri Webb, appeal an entry and foreclosure decree issued on November 9, 2016 by the Franklin County Court of Common Pleas in favor of plaintiff-appellee, HSBC Bank USA, National Association, as Trustee for Citigroup Mortgage Loan Trust Inc., Asset Backed Pass Through Certificates Series 2003-HE4 ("HSBC"). Because the paragraphs in the supporting affidavit that address the principal and interest due on the note must be stricken for failure to comply with Civ.R. 56(E), HSBC failed to establish all the requirements for summary judgment in a foreclosure action. Therefore, we sustain the Webbs' assignment of error, reverse the judgment of the trial court, and remand for proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On December 1, 2015, HSBC sued the Webbs and other defendants not relevant to this appeal. (Dec. 1, 2015 Compl.) The complaint sought to obtain judgment on the outstanding balance of a note signed by the Webbs and to foreclose, pursuant to a mortgage, on residential real estate located at 4815 Stonehaven Drive, Columbus, Ohio 43220. Id. On December 21, 2015, the Webbs answered denying every allegation in the complaint for lack of knowledge. (Dec. 21, 2015 Answer); Civ.R. 8(B).

{¶ 3} Approximately four months later, on April 27, 2016, HSBC moved for summary judgment. (Apr. 27, 2016 Mot. for Summ. Jgmt.) In support of its motion, HSBC attached an affidavit from Cynthia Thomas, an employee of Wells Fargo, N.A., which was the servicing agent of HSBC in this case. (Apr. 27, 2016 Thomas Aff.) The affidavit was accompanied by documents purporting to be copies of the note (with allonges), the mortgage, several transfers, several modifications, and a delinquency notice. (Exs. A-H attached to Thomas Aff.) Notably, HSBC failed to attach any documents that substantiated Thomas' assertions regarding the amount of principal and interest due on the note. The Webbs opposed summary judgment by filing a motion to strike Thomas' affidavit in which they argued that the affidavit was not based on Thomas' personal knowledge, did not authenticate or provide a sufficient foundation to authenticate the exhibits to it, and did not attach documentary evidence of the delinquency. (May 9, 2016 Mot. to Strike.) The Webbs also filed a response in opposition to summary judgment arguing the same alleged deficiencies in Thomas' affidavit as were highlighted in their motion to strike. (May 9, 2016 Resp. in Opp. to Summ. Jgmt.)

{¶ 4} On November 9, 2016, the trial court denied the Webbs' motion to strike and granted HSBC's motion for summary judgment. (Nov. 9, 2016 Entry & Decree.)

Essentially, the trial court found that "the affidavit of Ms. Thomas contain[ed] the proper foundation, authenticate[d] the documents attached thereto, establishe[d] that Plaintiff [wa]s in possession of the subject note, and establishe[d] the default and balance due on the note." Id. at 2. The trial court then noted that "[o]ther than their arguments related to the sufficiency of Plaintiff's supporting affidavit," the Webbs had "not presented any Civ.R. 56 evidence to indicate they [we]re not in default of the subject note or that the amount alleged due on the note [wa]s incorrect." Id. The trial court entered judgment against the Webbs jointly and severally for $790,528.49 and ordered foreclosure of the subject property. Id. at 3-4.

{¶ 5} The Webbs now appeal.

II. ASSIGNMENT OF ERROR

{¶ 6} The Webbs set forth a single assignment of error:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE.

III. DISCUSSION

A. Standard of Review

{¶ 7} Civ.R. 56(C) provides that:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The Supreme Court of Ohio has explained:

Summary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C) ; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio Op. 3d 466, 364 N.E.2d 267. The burden of showing that no genuine issue of material fact exists falls upon the party who files for summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264.

Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10 ; see also, e.g. , Esber Beverage Co. v. Labatt United States Operating Co., L.L.C. , 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9. In deciding summary judgment, the trial court must give the nonmoving party "the benefit of all favorable inferences when evidence is reviewed for the existence of genuine issues of material facts." Byrd at ¶ 25. When reviewing a trial court's decision on summary judgment, our review is de novo. Therefore, we apply the same legal standards as the trial court. Westfield Ins. Co. v. Hunter , 128 Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 12 ; Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24.

{¶ 8} On a motion for summary judgment, the moving party carries an initial burden of setting forth specific facts that demonstrate its entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-93, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, summary judgment is appropriate only if the nonmoving party fails to establish the existence of a genuine issue of material fact. Id.

B. Whether the Trial Court Erred in Relying Upon Thomas' Affidavit and Therefore Erred in Granting Summary Judgment to HSBC

{¶ 9} In addition to the prerequisites of execution, delivery, and recording, " '[t]o properly support a motion for summary judgment in a foreclosure action, a plaintiff must present "evidentiary quality materials" establishing: (1) that the plaintiff is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3) that the mortgagor is in default; (4) that all conditions precedent have been met; and (5) the amount of principal and interest due.' " Regions Bank v. Seimer , 10th Dist. No. 13AP-542, 2014-Ohio-95, 2014 WL 117410, ¶ 19, quoting Deutsche Bank Natl. Trust Co. v. Najar , 8th Dist. No. 98502, 2013-Ohio-1657, 2013 WL 1791372, ¶ 17, citing U.S. Bank, N.A. v. Adams , 6th Dist. No. E-11-070, 2012-Ohio-6253, 2012 WL 6738296, ¶ 10, citing Wachovia Bank v. Jackson , 5th Dist. No. 2010 CA 00291, 2011-Ohio-3203, 2011 WL 2557039, ¶ 40-45 ; Home S. & L. Co. v. Eichenberger , 10th Dist. No. 12AP-1, 2012-Ohio-5662, 2012 WL 6033892, ¶ 17 ; see also, e.g. , Logansport Sav. Bank, FSB v. Shope , 10th Dist. No. 15AP-148, 2016-Ohio-278, 2016 WL 373722, ¶ 13 ; Perpetual Fed. Sav. Bank v. TDS2 Property Mgt., LLC , 10th Dist. No. 09AP-285, 2009-Ohio-6774, 2009 WL 4936380, ¶ 19. Here, because HSBC failed to meet its evidentiary burden to establish the principal and interest due on the note, we reverse and remand.

1. Personal Knowledge

{¶ 10} Affidavits offered to support or oppose summary judgment "shall be made on personal knowledge." Civ.R. 56(E). Generally speaking, " '[p]ersonal knowledge' is 'knowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.' " Bonacorsi at ¶ 26, quoting Black's Law Dictionary 875 (7th Ed.1999). However, records custodians can present business records kept in the regular course of business if they have personal knowledge of the company's records because such records are excepted from exclusion as hearsay and may be authenticated by the records custodian. See Fannie Mae v. Bilyk , 10th Dist. No. 15AP-11, 2015-Ohio-5544, 2015 WL 9594027, ¶ 8-17 ; Evid.R. 803(6).

{¶ 11} On the extent of Thomas' personal knowledge, her affidavit reads as follows:

1. I am a duly appointed Vice President Loan Documentation with Wells Fargo Bank, N.A. (hereinafter "Wells Fargo"), the servicing agent for Plaintiff herein, and in that capacity I am authorized to execute this Affidavit. As a Vice President Loan Documentation, I am responsible for assuring and validating the accuracy of the statements in this affidavit. I am over the age of 18 and competent to testify as to the matters contained herein.
2. In the regular performance of my job functions, I am familiar with business records maintained by Wells Fargo for the purpose of servicing mortgage loans. These records (which include data compilations, electronically imaged documents, and others) are made at or near the time by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records, and are kept in the course of business activity conducted regularly by Wells Fargo. It is the regular practice of Wells Fargo's mortgage servicing business to make these records. In connection with making this affidavit, I have acquired personal knowledge of the matters stated herein by examining these business records.

(Thomas Aff. at ¶ 1-2.) In short, Thomas' affidavit establishes that she had knowledge of the status and keeping of records within Wells Fargo for the purpose of servicing mortgage loans, and had personal knowledge of the Webbs' loan, mortgage, and related transactions only to the extent that she had reviewed such records. Thus, she could offer sworn statements summarizing the content of the records and asserting, for example, that HSBC has had (since the time of the filing of the complaint) possession of the note. Id. at ¶ 3-5.

2. Failure to Attach Documents Showing Principal and Interest Due

{¶ 12} Thomas' affidavit establishes that her knowledge came exclusively through review of records; in other words she had no personal knowledge of the Webbs' payment history independent from the records kept by Wells Fargo as a part of its role as servicer for HSBC. (Thomas Aff. at ¶ 1-2.) Consistent with that observation, Thomas' averments with regard to the Webbs' payment history repeatedly stated that they were based on the "business records" of Wells Fargo:

6. According to Wells Fargo business records, payments have not been made as required under the terms of the Promissory Note and Mortgage; the account is due and owing for the February 1, 2015 payment; the last payment was received on March 31, 2015 and was applied to the January 2015.
7. A Notice of Default letter dated 1/23/2015 was sent to the Borrower(s) by first class mail.
8. According to Wells Fargo's business records, no subsequent payments to bring the loan current have been made and the default on the loan has not been cured. Plaintiff or its agent has accelerated the account, pursuant to the terms of the Promissory Note and Mortgage, making the entire balance due. As a result of the default on the loan, and the acceleration of the debt, the total amount due to Plaintiff through 03/30/2016 is $822,839.05 which breaks down as follows:
The amount due the Plaintiff on said Note through 03/30/2016 is $822,839.05 which breaks down as follows:
Principal $687,346.02 Non-Interest Second Principal $103,182.47 Interest From 01/01/2015 to 03/30/2016 @ 2.000% $17,130.35 Pre-acceleration Late Charges $0.00 Hazard Insurance Disbursements $9,977.00 Tax Disbursements $5,203.21 Property Inspections/Preservation $0.00 PMI/MIP Insurance $0.00 Other (specify charges/fees) $0.00 Escrow Balance Credit $0.00 Credits to Borrower $0.00 Total $822,839.05
Per diem interest in the amount of $37.66 will accrue on the principal from 03/30/2016 and thereafter in accordance with the Note.

(Thomas Aff. at ¶ 6-8.)

{¶ 13} Civ.R. 56(E) provides that "[s]worn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit." The Supreme Court has held that this requirement is satisfied by attaching copies of such papers "coupled with a statement therein that such copies are true copies and reproductions." State ex rel. Corrigan v. Seminatore , 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981). As Thomas, by her own admission, had no independent knowledge of the Webbs' payment history; she referred to and relied upon Wells Fargo's "business records" in setting forth the amount due and owing on the note. (Thomas Aff. at ¶ 1-2, 6-8.) Thus, according to Civ.R. 56(E), those records must be attached to the affidavit or served with it and the affidavit must confirm that such records (if they were not the originals) are true and accurate copies or reproductions.

{¶ 14} The only documentation attached to Thomas' affidavit regarding the Webbs' payment status was a letter sent on January 23, 2015 to the Webbs by America's Service Company. (Ex. H attached to Thomas Aff.) That letter stated that the account was in default but could be brought current by February 27, 2015 if the past-due amount of $15,654.99 was paid in addition to late charges of $180.13. Id. Although this letter is sufficient to support Thomas' assertion in paragraph 7 of her affidavit that the Webbs were in default, it does not establish the principal and interest currently due after acceleration. Nor did HSBC attach or submit the account records Thomas relied on to determine the principal and interest due as set forth in paragraphs 6 and 8 of her affidavit.

{¶ 15} When an affiant expressly relies on documents but does not attach the documents, and the sufficiency of the affidavit is timely challenged, the portions of the affidavit that referenced those documents must be stricken. Bank of N.Y. Mellon v. Brock , 12th Dist. No. CA2014-01-003, 2014-Ohio-3085, 2014 WL 3430407, ¶ 16-17 ; Third Fed. S. & L. Assn. of Cleveland v. Farno , 12th Dist. No. CA2012-04-028, 2012-Ohio-5245, 2012 WL 5497977, ¶ 10-11 ; Fed. Natl. Mtge. Assn. v. Ford , 2016-Ohio-919, 61 N.E.3d 524, ¶ 16-20 (8th Dist.). Because HSBC did not attach or submit the account records Thomas relied upon, the paragraphs of her affidavit that address the principal and interest due on the note must be stricken. With these paragraphs stricken from Thomas' affidavit, there is insufficient evidence to support the grant of summary judgment. Seimer at ¶ 19.

{¶ 16} HSBC argues that its failure to comply with Civ.R. 56(E) is not fatal to its motion for summary judgment because the Webbs have not disputed the default or the calculation of principal and interest due. We recognize that the Webbs did not present evidence disputing the default or the amount owed on the note. Nevertheless, they have not admitted the amount due on the note and they did challenge the sufficiency of the evidence supporting HSBC's motion for summary judgment. The Webbs specifically challenged the sufficiency of the Thomas' affidavit in both their motion to strike and their memorandum in opposition to HSBC's motion for summary judgment. Among other arguments, the Webbs asserted that the Thomas affidavit should be stricken for failure to attach or submit the documents relied upon by Thomas as required by Civ.R. 56(E). These facts distinguish this case from those cited by HSBC, which involved situations where the homeowner admitted the averments in the bank's affidavit or did not challenge the sufficiency of the bank's affidavit based upon a failure to attach documents relied upon by the affiant. See, e.g. , Wells Fargo Bank, N.A. v. Thatcher , 11th Dist. No. 2013-L-030, 2013-Ohio-5828, 2013 WL 6876278, ¶ 21 (affirming summary judgment in favor of bank where bank submitted affidavit as proof of default and the homeowner "did not dispute the evidential quality of the affidavit and did not provide evidence that would controvert [the bank's employee's] averments regarding the status or balance of the account"); Countywide Home Loans, Inc. v. Baker , 10th Dist. No. 09AP-968, 2010-Ohio-1329, 2010 WL 1229180, ¶ 8 (bank's affidavit sufficient to carry the bank's initial burden under Civ.R. 56 where homeowner denied default in their answer and memorandum contra summary judgment but did not challenge the sufficiency of the bank's affidavit and did not submit proper Civ.R. 56(C) evidence). None of the cases cited by HSBC involved challenges to an affidavit based upon the failure to attach documents expressly relied upon by the affiant as required by Civ.R. 56(E).

{¶ 17} Here, because the documents relied upon by Thomas in her affidavit were not attached or submitted as required by Civ.R. 56(E), those paragraphs must be stricken. Without these paragraphs, HSBC did not meet its initial burden to establish the principal and interest due on the note, which is one of the requirements for summary judgment in a foreclosure case. Seimer at ¶ 19. For this reason, we sustain the Webb's assignment of error, reverse the judgment of the Franklin County Court of Common Pleas, and remand for further proceedings consistent with this decision.

{¶ 18} Because we have sustained the Webb's assignment of error based upon HSBC's failure to comply with Civ.R. 56(E), the Webb's remaining arguments are moot and we decline to address them.

Judgment reversed; case remanded.

SADLER and HORTON, JJ., concur.

HORTON, J., concurring.

{¶ 19} I concur with the majority but write separately to explain the greater flaws with Ms. Thomas' affidavit. Nowhere in her affidavit did Thomas assert that the copied documents attached to her affidavit were accurate reproductions of the originals. The only letter attached to Thomas' affidavit regarding the Webbs' payment status was not sufficient to provide evidentiary support for Thomas' assertions regarding the payment history of the Webbs or the amounts due. The letter actually demonstrated conflicting information on the topic of late charges. Thomas' affidavit asserted that the Webbs owed no late charges while the letter asserted that they owed $180.13. Compare Thomas Aff. at ¶ 8 with Ex. H to Thomas Aff. Thomas' affidavit also made no attempt to explain the relationship, if any, between Wells Fargo and America's Service Company or why her position as a records custodian for Wells Fargo would have given her knowledge of the business records of America's Service Company.

{¶ 20} In short, Thomas had no independent foundation of personal knowledge from which to testify to the status of the Webbs' payment history or loan status and in attempting to testify to such matters based on her knowledge of Wells Fargo's business records, her affidavit failed to comply with Civ.R. 56(E). She did not attach the records to which she referred in reaching the facts and figures set forth in her affidavit nor did she aver that the records which she did attach were accurate copies of the originals. Her averments as to the default and the amount of principal and interest due were thus not of "evidentiary quality." Regions Bank v. Seimer, 10th Dist. No. 13AP-542, 2014-Ohio-95, 2014 WL 117410 at ¶ 19. As a consequence, HSBC failed to carry its burden to show its entitlement to summary judgment because it failed to present "evidentiary quality"

evidence on more than one necessary element of its foreclosure action. Id. ; Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.

{¶ 21} Construing the evidence in the light most favorable to the Webbs, HSBC failed to show that there was no genuine dispute as to any material fact or that the undisputed facts were such as to entitle HSBC to judgment as a matter of law. The affidavit HSBC offered in support of summary judgment did not comply with Civ.R. 56(E) or properly establish a personal knowledge basis for the affiant's sworn statements as to the payment status of the Webbs' debt. Thus, I agree that summary judgment should not have been granted and we must therefore reverse and remand for proceedings consistent with this decision.

      Deutsche Bank Natl. Trust Co. v. Najar , 8th Dist. No. 98502, 2013-Ohio-1657, 2013 WL 1791372 (no challenge to affidavit based on failure to attach documents referenced and relied upon by affiant); Wells Fargo Bank, N.A. v. Fridley , 9th Dist. No. 13CA0049, 2014-Ohio-5604, 2014 WL 7261133 (no assertion that bank failed to meet its initial burden on summary judgment for failure to comply with Civ.R. 56(E) ); CitiMortgage, Inc. v. Nyamusevya , 2016-Ohio-5588, 69 N.E.3d 1264 (10th Dist.) (Civ.R. 56(E) issue raised by debtor but found moot because debtor's affidavit created an issue of fact regarding the amount due on the note, thereby preventing summary judgment); U.S. Bank Natl. Assn. v. Stallman , 8th Dist. No. 102732, 2016-Ohio-22, 2016 WL 107486 (no challenge to affidavit based on failure to attach documents referenced and relied upon by affiant).

      Thomas' affidavit asserted that the records attached were "copies of the Promissory Note (Exhibit A) with any applicable endorsements and the Mortgage (Exhibit E) with any applicable Assignments (Exhibit F and G) and the Notice of Default Letter (Exhibit H), and the Loan Modification Agreement (Exhibit B, C and D) redacted solely to protect any private, personal, financial information." (Thomas Aff. at ¶ 10.) That is, she did not explicitly state that the records are accurate copies of the originals.


source: Caselaw Access Project

author: LARRY A. JONES, SR., J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Anthony E. WUENSCH, Defendant-Appellant
    No. 105302
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 28, 2017
    Walter H. Edwards, Jr., 614 W. Superior Avenue, Suite 1300, The Rockefeller Building, Cleveland, Ohio 44113, Attorney for Appellant
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Jeffrey Schnatter, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, Attorneys for Appellee
    BEFORE: Jones, J., Keough, A.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant Anthony Wuensch ("Wuensch") appeals his convictions of rape, gross sexual imposition, kidnapping with a sexual motivation specification, and underage alcohol use. The convictions were rendered after a bench trial. For the reasons that follow, we affirm.

I. Factual and Procedural Background

{¶ 2} The minor victim in this case, A.C., is Wuensch's biological niece. A.C.'s biological parents had substance abuse issues and lost custody of her when she was approximately three-and-a-half years old. After her parents lost custody of A.C., she went to live with foster parents, who adopted her when she was about six-and-a-half years old. Some of A.C.'s biological relatives, including Wuensch, maintained a relationship with A.C. and her adoptive family. Wuensch was married with children, and A.C. frequently visited with him and his family.

{¶ 3} The record demonstrates that, during the relevant time period, A.C. had psychological issues. She first began treating with a psychologist, Dr. Michael Esson ("Dr. Esson"), shortly after she was adopted. As A.C. grew older, her issues intensified and included self-harm behaviors and substance abuse. In 2013, she was placed in a treatment facility after a self-cutting incident, and from January 2014 through March 2014 she participated in an intensive outpatient program. The incident giving rise to this case occurred on March 24, 2014; A.C. was 15 years old at the time. In the time frame leading up to the subject incident, A.C.'s adoptive parents were going through a divorce and A.C.'s relationship with her mother was contentious. A.C. had also recently broken up with her boyfriend.

{¶ 4} On the day of the incident, A.C. and her mother had an argument. After the argument, her mother drove her to cheerleading practice. A.C. decided that she did not want to stay for the practice, however, and walked to Wuensch's house. Wuensch was home alone, and called A.C.'s mother to let her know that A.C. was there. The mother gave permission for A.C. to spend the night there and brought her a change of clothes. The mother testified that she was not aware that Wuensch was home alone, however, and that if she had known that, she would not have allowed A.C. to stay.

{¶ 5} A.C. testified at trial as to the following events that occurred after her arrival at Wuensch's house. The two first talked about marital problems that Wuensch and his wife were having. Later, they went in the basement and they both were smoking cigarettes; Wuensch was drinking beer, and he gave a can to A.C., but she only drank a little of it. A.C. testified that Wuensch was consuming a large quantity of beer. She also testified that evening was not the first time she had smoked and drank with Wuensch.

{¶ 6} According to A.C., the conversation eventually turned to one about sex life, with Wuensch asking her personal questions about hers, telling her that he had not had sex in a while, and asking if she could "hook him up" with one of her friends. The two then talked about A.C.'s recent break-up with her boyfriend, and they decided that they would go "egg" his house; they left Wuensch's house sometime between 11:00 p.m. and midnight.

{¶ 7} They first walked to the house of one of A.C.'s good friends. The friend came outside to talk to A.C. and Wuensch. The friend testified at trial, and told the court that Wuensch appeared to be under the influence of alcohol-he was acting "silly and out of control"-and he and A.C. were "goofing off" with each other. The friend testified that A.C. and Wuensch told her of their plan to "egg" A.C.'s former boyfriend's house.

{¶ 8} According to A.C., when she and Wuensch left her friend's house, they went back to Wuensch's house to get changed and get some eggs. They then left on foot to go to the former boyfriend's house. A.C. testified that while they were walking to the former boyfriend's house, Wuensch again started with conversation that was sexual and personal in nature.

{¶ 9} As they neared the former boyfriend's house, Wuensch twisted his ankle, which prompted him to tell A.C. that she "owed" him. A.C. asked him what he meant, and Wuensch told her that she would have to show him her breasts for 30 seconds or give him a full body massage. A.C. testified that she figured Wuensch was being "weird" because he was intoxicated and she just "laughed it off." But Wuensch kept telling her that she "owed" him. The two then vandalized the former boyfriend's house. The boyfriend's father confirmed that his house had been vandalized, but testified that both he and his son were unaware at the time it happened of who was responsible.

{¶ 10} When they arrived back at Wuensch's house, they went into the basement, and Wuensch again told A.C. that she would have to either show him her breasts or give him a full body massage. Uncomfortable, A.C. told Wuensch that she was going to go upstairs to bed. As she was walking up the stairs, Wuensch grabbed her arm and told A.C. that she was not leaving until she gave in to his demand. A.C. testified that she showed Wuensch her breasts because she felt that was the only way she could escape him, and indeed he did let her go after she had done so.

{¶ 11} A.C. went upstairs into a bedroom, closed and locked the door, and proceeded to get ready for bed. While she was lying in bed, she heard Wuensch trying to get into the room; eventually he did. He got into bed with her and sexually assaulted her. A.C. testified that she was crying and begging him to stop. The assault ended after she kicked him in his groin with her knee and she was able to get away. A.C. testified that she went into the living room to sleep, and Wuensch stayed in the bedroom.

{¶ 12} The following day, Wuensch told A.C. not to tell anyone about what had happened and that if she did she would never again be able to see his daughters, with whom she was very close. A.C. testified that although she spent the day at Wuensch's house, she tried to keep her distance from him. Her mother picked her up in the early evening, and although she thought about telling her what had happened, she decided not to out of fear of never seeing Wuensch's daughters again.

{¶ 13} A day or two later, A.C. told the friend whom she and Wuensch had visited what happened. A.C. testified that the friend told her that she (the friend) "felt like something like that was going to happen" because Wuensch had been acting "weird" that night. A.C. told her friend not to tell anyone, and the friend testified that she did not tell anyone because she did not believe it was her place to say anything. The friend testified that, after A.C.'s disclosure, her relationship with her changed because A.C.'s behavior began to change.

{¶ 14} A.C. testified that she was depressed after the incident. She engaged in self-harm behaviors because she wanted to die, and started using "hard" drugs. She admitted, however, that her behavioral, substance abuse and mental health issues predated the sexual assault.

{¶ 15} A.C.'s mother testified that after March 2014, she noticed a drastic change in A.C., and asked Dr. Esson, who was counseling A.C., if he could determine why her behavior had changed so much. The mother testified that she did not believe Dr. Esson was making progress with A.C., however, so she stopped A.C.'s treatment with him and began taking her to see another psychologist, Dr. Kathleen Payne ("Dr. Payne").

{¶ 16} Dr. Payne began treating A.C. in June 2014; she diagnosed her with post-traumatic stress disorder. The doctor testified that, in September 2014, A.C. told her that in March 2014, she and her mother had an argument so she went to stay with Wuensch. A.C. told Dr. Payne that Wuensch was drinking and complaining that he and his wife had not been having sex. A.C. further told the doctor that Wuensch had asked her to show him her breasts, but she did not do it. Dr. Payne consulted with colleagues after that disclosure, and ultimately decided that it was not a reportable incident. She did tell A.C.'s parents, however.

{¶ 17} Dr. Payne testified that in August 2015, A.C. disclosed to her that Wuensch had raped her. A.C. told the doctor that she had not previously disclosed it because she was ashamed. She also told Dr. Payne that Wuensch told her that no one would believe her. Dr. Payne reported the disclosure the following day to the Cuyahoga County Department of Children and Family Services ("CCDCFS").

{¶ 18} Dr. Payne testified that it is not uncommon for such a disclosure, especially by adolescents, to be delayed because it takes time to build trust. She also testified that A.C.'s symptoms and reactions were consistent with those of a sexual abuse victim.

{¶ 19} After A.C. disclosed the rape to Dr. Payne, A.C. told her mother about the rape too. The two then went to the police. According to A.C.'s mother, even prior to officially learning about the rape, she had discovered evidence that led her to believe that something had happened to A.C. Specifically, she found a note on A.C.'s cell phone stating that she had been sexually molested by her uncle. She also found a "goodbye" letter in A.C.'s journal, in which A.C., in part, accused Wuensch of rape. During her direct testimony, the mother read a poem A.C. had written, and subsequently emailed to her parents, that described her life story and intimated about trauma she had experienced in her life. The mother also read the "goodbye" letter written by A.C., in which, as mentioned, A.C. accused Wuensch of rape. There was no defense objection to the mother's testimony regarding these writings.

{¶ 20} Officer James Simeone ("Officer Simeone") of the North Royalton police department was the law enforcement officer who initially met with A.C. and her parents. He testified that A.C. disclosed that she had been raped in March 2014, and she seemed upset, but was cooperative. A.C.'s mother told the officer about "suicide" notes written by A.C.

{¶ 21} Detective Dave Loeding ("Detective Loeding"), also of the North Royalton police department, was the lead detective in the case. He met with A.C. and her mother. At first, A.C. was reluctant to talk to him, but she eventually cooperated. The detective testified that he found a lot of consistency between what Officer Simeone had reported to him and what A.C. was telling him.

{¶ 22} A.C.'s mother provided Detective Loeding with poems written by A.C., portions of her diary, and materials found on her cell phone. The detective sent the cell phone to a forensic scientist for analysis, which concluded that data on the phone was consistent with the information A.C.'s mother stated she found on the phone.

{¶ 23} During opening statement, the assistant prosecuting attorney referenced, without objection from the defense, the poem written by A.C. describing the events in question. During the defense's opening statement, counsel referenced a "sexting" incident A.C. had been involved with and a prior allegation of sexual abuse A.C. had made.

{¶ 24} After opening statements were concluded, the trial court conducted in camera voir dire of A.C. regarding the past sexual abuse allegation. A.C. told the court that the incident had occurred in the summertime a couple of years prior to the incident in this case, when she was at her mother's boyfriend's house. A group of people, including her mother's great nephew, who was 17 years old, were at the house. The teenagers in the group, including A.C., had been drinking beer and/or smoking marijuana. Later in the evening, A.C. and two of the other female teenagers were in a bedroom watching television and then "passed out." A.C. testified that the nephew came into the room and started touching her breasts and tried, unsuccessfully, to pull her pants down.

{¶ 25} A.C. told the court that the following day, she told the two girls who had been in the bedroom with her what happened. According to A.C., one of the girls who was "half asleep, half awake" had heard A.C. telling the nephew to "stop." A.C. stated that she told her mother about the incident a couple of months later, who told her it was up to her (A.C.) as to whether she wanted to contact the police. A.C. told the trial court that she decided not to get the police involved because she did not "want to ruin the family that [she] just had gotten."

{¶ 26} A.C. stated that she never denied that the incident occurred; rather when CCDCFS inquired about it, she "just would blow it off." She explained that by the time the agency got involved in her life, the incident with the nephew had "already passed * * * and * * * there was a much bigger thing that they were focused on." According to A.C., the nephew admitted to their family that the incident had occurred.

{¶ 27} At the conclusion of the voir dire, the trial court ruled that the defense would not be allowed to question A.C. about the prior allegation. The court reasoned that A.C. maintained that the incident had occurred, but stated her reasons for not wanting to formally report it, and thus found that it was not a false allegation of sexual abuse. The trial court also ruled that the defense could not question A.C. on the alleged "sexting" incident.

{¶ 28} Defense counsel moved for a Crim.R. 29 judgment of acquittal at the conclusion of both the state's case and the presentation of all the evidence. Both motions were denied. The trial court found Wuensch guilty as indicted, and sentenced him to an aggregate four-year prison term. Wuensch now appeals, raising the following assignments of error for our review:

I. The state committed prosecutorial misconduct by reading [A.C.'s] writings during opening statements.
II. The state committed prosecutorial misconduct by referencing [A.C.'s] writings during closing arguments.
III. Trial counsel was ineffective for failing to object to the admission of [A.C.'s] writings.
IV. The trial court erred by disallowing evidence of [A.C.'s] previous allegations.
V. Appellant's conviction were against the manifest weight of the evidence.

II. Law and Analysis

{¶ 29} In his first two assignments of error, which we consider together, Wuensch contends that the state engaged in prosecutorial misconduct during opening statement and closing argument, respectively.

{¶ 30} We begin our analysis by noting that defense counsel did not object to the statements and arguments now being challenged. We therefore review only for plain error. State v. Childs , 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. Crim.R. 52(B) provides that "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), the Supreme Court of Ohio instructed:

By its very terms, [ Crim.R. 52(B) ] places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule. * * * Second, the error must be plain. To be "plain" within the meaning of Crim.R. 52(B), an error must be an "obvious" defect in the trial proceedings. * * * Third, the error must have affected "substantial rights." We have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial.

{¶ 31} Under Crim.R. 52(B), the defendant bears the burden of demonstrating that a plain error affected his substantial rights. But even if the defendant satisfies this burden, an appellate court has discretion to disregard the error and should correct it only to "prevent a manifest miscarriage of justice." State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14.

{¶ 32} In regard to opening statement, Wuensch contends that the assistant prosecuting attorney engaged in misconduct by reading the poem written by A.C., in which she detailed what happened to her on the evening in question. Wuensch contends that the poem was a hearsay statement and that it was a "graphic, heavily dramatized version" of the events.

{¶ 33} Opening statements are not evidence. Rather, they are an outline of the case to be presented and are intended to give the factfinder a general idea of what each side expects the evidence to show. State v. Wilson, 1st Dist. Hamilton No. C-000670, 2002 WL 598226, 4-5 (Apr. 19, 2002). Opening statements often serve to state the party's theory of the case. State v. Warmus , 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 24 (8th Dist.).

{¶ 34} Counsel should be afforded latitude by the trial court in making an opening statement. Columbus v. Hamilton , 78 Ohio App.3d 653, 657, 605 N.E.2d 1004 (10th Dist.1992), citing Maggio v. Cleveland , 151 Ohio St. 136, 84 N.E.2d 912 (1949), paragraph two of the syllabus. However, opening statements should not include matters that attempt to influence or sway the jury by making statements that counsel knows will not be supported by competent or admissible evidence. Maggio at 140-141, 84 N.E.2d 912.

{¶ 35} Notwithstanding that Wuensch's challenge to the poem relates to a non-evidentiary portion of the trial, we consider how this court has previously addressed the admission of alleged hearsay statements in instances where the declarant testified at trial. In that instance, this court held that because the " 'main premise behind the hearsay rule is that the adverse party is not afforded the opportunity to cross-examine the declarant,' " State v. Campbell , 8th Dist. Cuyahoga Nos. 100246 and 100247, 2014-Ohio-2181, 2014 WL 2168311, ¶ 14, quoting State v. Primeau , 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, 2012 WL 5463019, ¶ 69, hearsay errors are "harmless where the defense had the opportunity to cross-examine the declarant." Campbell at id. , citing Primeau at id.

{¶ 36} Here, the defense had the opportunity to cross-examine A.C. about her version of the events. Further, as mentioned, this was a bench trial, and "when the trial court is the trier of fact, we presume that the judge disregards improper hearsay evidence unless there is affirmative evidence in the record to the contrary." Campbell at ¶ 16, citing State v. Crawford , 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659, 2013 WL 1791228, ¶ 61. There is nothing in this record that demonstrates that the trial court relied on the statements made by the assistant prosecuting attorney in opening statement. We therefore find no prosecutorial misconduct in regard to the opening statement.

{¶ 37} We next consider the state's closing argument, during which Wuensch contends that the assistant prosecuting attorney bolstered A.C.'s credibility by mentioning her "goodbye" letter.

{¶ 38} As with opening statements, prosecutors generally enjoy a wide degree of latitude during closing arguments. State v. Whitfield , 2d Dist. Montgomery No. 22432, 2009-Ohio-293, 2009 WL 161336, ¶ 12. They may freely address what the evidence has shown and what reasonable inferences may be drawn from that evidence. State v. Lott , 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990) ; State v. Black , 181 Ohio App.3d 821, 2009-Ohio-1629, 911 N.E.2d 309, ¶ 33 (2d Dist.).

{¶ 39} Upon review, in mentioning the "goodbye" letter, the assistant prosecuting attorney specifically stated that he was not trying to boost A.C.'s credibility with any of his arguments: "I'm not saying you should believe her because she * * * had a horrible life after March 24th, but what I'm saying is everything points to something in this girl's life dramatic, traumatic, happened right then in her life."

{¶ 40} We find nothing improper with the argument. Rather, the argument was an attempt to draw a reasonable inference from the evidence presented at trial. Further, as discussed, because this was a bench trial, even if the state's reference to the "goodbye" letter was improper, we presume that the trial court did not rely on improper argument in reaching its verdict, unless it was otherwise shown that it did. Our review of the record does not indicate that the trial court relied on the "goodbye" letter in deciding its verdict.

{¶ 41} In light of the above, we do not find, under a plain error review, that the state engaged in prosecutorial misconduct. The first and second assignments of error are therefore overruled.

{¶ 42} In his third assignment of error, Wuensch contends that his trial counsel was ineffective for his failure to object to: (1) comments made during the state's opening statement and closing argument and (2) portions of the testimony of A.C.'s mother, consisting of when she read a poem A.C. sent her, testimony about statements found on A.C.'s cell phone, and testimony about A.C.'s "goodbye" letter.

{¶ 43} To establish ineffective assistance of counsel, a defendant must show (1) that counsel's representation was deficient in that it "fell below an objective standard of reasonableness" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Sanders , 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), citing Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " State v. Bradley , 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 694, 104 S.Ct. 2052.

{¶ 44} In evaluating a claim of ineffective assistance of counsel, a court must give great deference to counsel's performance. Strickland at 689, 104 S.Ct. 2052. A reviewing court will strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Bradley at 141, 538 N.E.2d 373.

{¶ 45} We first consider Wuensch's claim as it relates to trial counsel's failure to object during the state's opening statement and closing argument. For the reasons discussed in addressing the first and second assignments of error, we find Wuensch's claim to be without merit.

{¶ 46} To summarize, in regard to A.C.'s poem read by the assistant prosecuting attorney during opening statement, the defense had the opportunity to cross-examine A.C. about her version of the events and, therefore, any error was harmless. In regard to the assistant prosecuting attorney's reference to the "goodbye" letter in his closing argument, the assistant prosecuting attorney specifically told the court that he was not attempting to boost A.C.'s credibility by mentioning the letter. Again, this was a bench trial, for which we presume that the court considered only the " 'relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.' " State v. Post , 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987), quoting State v. White , 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). There simply is no showing here that the presumption should not apply.

{¶ 47} We next consider Wuensch's claim that his trial counsel was ineffective for not objecting during the mother's testimony regarding portions of the testimony of A.C.'s mother, specifically, when she read a poem A.C. sent her, testimony about statements found on A.C.'s cell phone, and testimony about A.C.'s "goodbye" letter.

{¶ 48} We have reviewed the poem, and find that it does not even mention the rape or Wuensch (directly or indirectly). Rather, the poem speaks of A.C.'s childhood, her biological parents and their deaths, her adoptive parents and their divorce, and self-harm. Thus, if anything, the poem would have been beneficial to Wuensch to highlight that A.C. had problems before this incident and independent of him, thereby potentially questioning her credibility.

{¶ 49} We also find that counsel was not ineffective for failing to object to the mother's testimony about material she found on A.C.'s cell phone, stating that Wuensch had raped her. The testimony was redundant to the testimony of other witnesses and, we are not persuaded that, but for the testimony, the trial court would have reached a different verdict. See State v. Summerall , 10th Dist. Franklin No. 03AP-1024, 2004-Ohio-6599, 2004 WL 2830786, ¶ 28.

{¶ 50} The same holds true for the "goodbye" letter that the mother read-the outcome of the trial would not have been different but for her reading of the letter. Moreover, it may have been part of the defense's trial strategy to not object because, in a portion of the letter, A.C. states that she has forgiven Wuensch and does not want him to go to jail. The failure to object is not a per se indicator of ineffective assistance of counsel because counsel may refuse to object for tactical reasons. State v. Gumm , 73 Ohio St.3d 413, 428, 653 N.E.2d 253 (1995). There are numerous ways to provide effective assistance of counsel, and debatable trial tactics and strategies do not constitute a denial of that assistance. State v. Clayton , 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). A reviewing court may not second guess decisions of counsel that can be considered matters of trial strategy. State v. Smith , 17 Ohio St.3d 98, 101, 477 N.E.2d 1128 (1985).

{¶ 51} In light of the above, all of Wuensch's claims of ineffective assistance of counsel are without merit. The third assignment of error is therefore overruled.

{¶ 52} For his fourth assigned error, Wuensch contends that the trial court erred by not allowing him to present evidence of A.C.'s claim of a prior sexual assault. As mentioned, the trial court held an in camera voir dire hearing under the authority of State v. Boggs , 63 Ohio St.3d 418, 588 N.E.2d 813 (1992), to address the issue.

{¶ 53} In Boggs , the Ohio Supreme Court addressed the issue of "whether the rape shield provisions of R.C. 2907.02(D) prohibit a defendant from cross-examining an alleged rape victim about prior false rape accusations [he or] she is alleged to have made." Id. at 420, 588 N.E.2d 813. The court held as follows:

Before cross-examination of a rape victim as to prior false rape accusations may proceed, the trial judge shall hold an in camera hearing to ascertain whether such testimony involves sexual activity and thus is inadmissible under R.C. 2907.02(D), or is totally unfounded and admissible for impeachment of the victim. It is within sound discretion of the trial court, pursuant to Evid.R. 608(B), whether to allow such cross-examination.

Id. at 424, 588 N.E.2d 813. The court further held that if a defendant wants to question a victim about a false rape accusation, the defendant has the burden of proving that the allegation was false. Id. at 423, 588 N.E.2d 813. If it is demonstrated that any type of sexual activity occurred and the allegation was not false, then the victim is protected under the "rape shield" provision of R.C. 2907.02, and the defendant may not question the victim about it. Id.

{¶ 54} The trial court held a voir dire hearing of A.C., at which it learned of the incident A.C. claimed had occurred approximately two years prior to the incident in this case. She never wavered from her claim that the incident had occurred, and she explained her reason for not reporting it. After hearing that from A.C., the trial court decided that the allegation was not false and, therefore, that it would be protected under R.C. 2907.02. On this record, we find no abuse of the court's discretion. The fourth assignment is therefore overruled.

{¶ 55} In his final assignment of error, Wuensch contends that his convictions were against the manifest weight of the evidence. We disagree.

{¶ 56} "A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive." State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, 2009 WL 282079, ¶ 12. When evaluating whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 57} Wuensch contends that his convictions are against the manifest weight of the evidence because there were inconsistencies among the testimony of the state's witnesses. For example, he cites that A.C.'s testimony that she did not start using "pills" until after Wuensch raped her, differed from other witnesses who testified that A.C. had used "pills" before that.

{¶ 58} Upon review, we find that there were minor inconsistences in the evidence presented by the state. But "[m]inor inconsistencies in witness testimony will not render a conviction so against the manifest weight of the evidence as to cause a miscarriage of justice." State v. McNamara , 8th Dist. Cuyahoga No. 104168, 2016-Ohio-8050, 2016 WL 7157920, ¶ 38, citing State v. Weems , 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, 2016 WL 763101, ¶ 29-30.

{¶ 59} All the state's witnesses who had knowledge of A.C.'s behavior before the rape testified openly about it and there was no question that they, including A.C., were up-front about her behavioral issues and drug and alcohol abuse. Most importantly, the material statements made by the state's witnesses were consistent-that Wuensch had raped A.C. on March 24, 2014, and that the issues she was dealing with in her life intensified after that.

{¶ 60} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, 4 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, 2009 WL 282079, ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at id. This is not an exceptional circumstance. The fifth assignment of error is therefore overruled.

{¶ 61} Judgment affirmed.

KATHLEEN ANN KEOUGH, A.J., and

EILEEN T. GALLAGHER, J., CONCUR


author: KATHLEEN ANN KEOUGH, A.J.: MELODY J. STEWART, J., DISSENTING:

text:
    STATE of Ohio, Plaintiff-Appellee v. Ronelle TAYLOR, Defendant-Appellant
    No. 104243
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 28, 2017
    Ronelle Taylor, pro se, Inmate No. 670688, Lake Erie Correctional Institution, 501 Thompson Road, Conneaut, Ohio 44030, FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Melissa Riley, Brett Hammond, Assistant County Prosecutors The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: En Banc Court
    JOURNAL ENTRY AND OPINION EN BANC
   KATHLEEN ANN KEOUGH, A.J.:

{¶ 1} This matter came before the court on Ronelle Taylor's application to reopen his direct appeal, based in part, on counsel's failure to appeal the imposition of court costs. In resolving this issue, the en banc court determined that a conflict exists between decisions in this district on the question of whether the trial court's failure to impose court costs at the sentencing hearing, but ordering the defendant to pay court costs in the judgment entry of conviction, constitutes reversible error or harmless error. Compare State v. Martin, 8th Dist. Cuyahoga No. 104354, 2017-Ohio-99, 2017 WL 121774 (reversible error); State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, 2016 WL 193495 (reversible error); State v. Elder, 8th Dist. Cuyahoga No. 104392, 2017-Ohio-292, 2017 WL 389741 (reversible error); State v. Grant, 8th Dist. Cuyahoga No. 100497, 2014-Ohio-2656, 2014 WL 2809050 (reversible error), with State v. Thomas, 8th Dist. Cuyahoga No. 104567, 2017-Ohio-4436, 2017 WL 2687805 (harmless error); State v. Nelson, 8th Dist. Cuyahoga, 2017-Ohio-6883, 83 N.E.3d 1009 (harmless error). We took en banc consideration of this matter sua sponte and convened an en banc conference in accordance with App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672.

Decision of the En Banc Court:

1 {¶ 2} It is the opinion of the en banc court that the trial court's failure to impose court costs at the sentencing hearing, but ordering the defendant to pay court costs in the judgment entry of conviction, constitutes reversible error.

2 {¶ 3} It is axiomatic that a criminal defendant has a fundamental right to be present at all critical stages of his criminal trial, including the imposition of sentence. Section 10, Article I, Ohio Constitution, Crim.R. 43(A) ; State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864. R.C. 2947.23 provides that "in all criminal cases * * * the judge or magistrate shall include in the sentence the costs of prosecution, * * * and render a judgment against the defendant for such costs." Accordingly, it is error for a trial court to order the payment of court costs in the judgment entry of conviction when it did not advise the defendant during the sentencing hearing that costs would be imposed.

3 {¶ 4} However, a violation of Crim.R. 43(A) does not necessarily always result in prejudicial or constitutional error. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31. "[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. Thus, the defendant's absence in violation of Crim.R. 43(A), although improper, can constitute harmless error where he suffers no prejudice. State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), see also State v. Armas, 12th Dist. Clermont No. CA2004-01-007, 2005-Ohio-2793, 2005 WL 1324728 (a violation of Crim.R. 43(A) is not a structural error; therefore, it is subject to the harmless error analysis).

{¶ 5} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, the Ohio Supreme Court considered the issue of whether a trial court can impose court costs pursuant to R.C. 2947.23 in its sentencing entry when it did not impose those costs in open court at the sentencing hearing and whether a defendant suffers prejudice.

{¶ 6} In analyzing the issue, the court explained that it previously held that a motion to waive costs by a defendant must be made at the time of sentencing or the issue was waived and costs would be considered res judicata. Id.at ¶ 12, citing State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23. The court reasoned that if a trial court did not orally notify a defendant about costs at the sentencing hearing, it deprived a defendant of the opportunity to request that the court waive costs. Id.at ¶ 13. The court expressly rejected the state's argument that any error by the defendant was harmless-"Joseph was harmed here. He was denied the opportunity to claim indigency and seek a waiver of the payment of court costs before the trial court. He should have had that chance." Id.at ¶ 22.

{¶ 7} Accordingly, the Ohio Supreme Court held that it was reversible error under Crim.R. 43(A) for the trial court to impose costs in its sentencing entry when it did not impose those costs in open court at the sentencing hearing, and that the proper remedy is to reverse the imposition of costs and remand to the trial court for the limited purpose of allowing the defendant to move for a waiver of court costs. Id.at ¶ 23.

{¶ 8} Subsequent to Joseph, the General Assembly amended R.C. 2947.23 in Am.Sub.H.B. 247, effective March 22, 2013.

The Ohio legislature added a new provision in subsection (C), which states "the court retains jurisdiction to waive, suspend, or modify the payment of costs of prosecution * * * at the time of sentencing, or at any time thereafter." Although R.C. 2947.23 no longer places limits on when a defendant can move for waiver of court costs, a trial court cannot impose an aspect of a defendant's sentence outside of his presence. To do so defeats the requirements of notice and due process. See, e.g., State v. Hess, 7th Dist. Jefferson No. 00-JE-40, 2001 WL 1568872 (modification of defendant's sentence outside her presence was reversible error); Cleveland v. Clemons, 90 Ohio App.3d 212, 628 N.E.2d 141 (8th Dist.1993) (imposition of additional probation condition of sentence outside defendant's presence was reversible error).

{¶ 9} Notably, the General Assembly did not amend the statute to remove the constitutional requirement that a defendant must be present during sentencing, nor does the statute read that the "court retains jurisdiction to imposethe payment of costs of prosecution." Accordingly, the authority now granted under R.C. 2947.23 presupposes that court costs were properly imposed at the sentencing hearing where the defendant was present, thus, the holding in Joseph still applies, and the amendment to R.C. 2947.23 does not render this Crim.R. 43(A) violation harmless. "[T]he fact remains that (1) the trial court imposed costs in its sentencing journal entry that it did not impose in open court at the sentencing hearing and (2) [the defendant] did not have an opportunity to seek a waiver of costs during sentencing when he was represented by counsel." State v. Gardner, 8th Dist. Cuyahoga No. 104677, 2017-Ohio-7241, 2017 WL 3530919, ¶ 54.

{¶ 10} Finding the failure to notify the defendant at sentencing of court costs is harmless error would place an improper burden on the defendant to move to waive an aspect of his sentence that he was not made aware of during the sentencing hearing. "The possibility that this error could be 'fixed' if the defendant were to file a proper postconviction motion, seeking a waiver of payment of the improperly imposed court costs under R.C. 2947.23(C), does not, in and of itself, render the error harmless." Gardnerat ¶ 54.

{¶ 11} The defendant is prejudiced because a postsentence motion to waive costs is a postconviction proceeding where a defendant does not have a constitutional right to legal representation. The notion that it could be a strategic decision by trial counsel to not request a waiver of costs at sentencing ignores the very purpose why R.C. 2947.23 was amended-to request waiver of properly imposed court costs at a later date when a change of circumstances presents themself, including a cooling-off period. See State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, 2016 WL 1461495, ¶ 15, citing State v. Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, 2015 WL 5102678 (not requesting waiver of costs could be strategic).

4 {¶ 12} Moreover, if the court denies the postconviction waiver request, the denial is not a final appealable order that can be challenged. " 'An order denying a motion to suspend court costs, fines, and/or restitution does not affect a substantial right because there is no legally enforceable right to have these monetary assessments suspended.' " State v. Jones, 11th Dist. Lake No. 2015-L-030, 2015-Ohio-2906, 2015 WL 4401355, quoting State v. Evans, 4th Dist. Scioto No. 99CA2650, 1999 WL 731814, *1 (Sept. 14, 1999), citing R.C. 2949.09, et seq. ; see also State v. Pasqualone, 140 Ohio App.3d 650, 748 N.E.2d 1153 (11th Dist.2000) ; State v. Arnett, 3d Dist. Shelby No. 17-95-25, 1996 WL 106999 (Feb. 22, 1996) ; State v. Goodman, 11th Dist. Trumbull No. 2014-T-0047, 2014-Ohio-4884, 2014 WL 5510897 (holding the denial of a postconviction motion to impose a payment plan for court costs is not a final, appealable order). Accordingly, the unrepresented defendant continues to be prejudiced because he cannot appeal a denial of his postconviction motion to waive costs-a motion that should have been raised at sentencing with counsel and reviewed on direct appeal.

{¶ 13} Following the holding in Joseph and the expressed language of R.C. 2947.23(A) and Crim.R. 43(A), we overrule Thomas and Nelson and hold that the trial court's failure to impose court costs at the sentencing hearing, but ordering the defendant to pay court costs in the judgment entry of conviction, constitutes reversible error.

{¶ 14} Our en banc proceeding was prompted only by this one issue. Consequently, we will not address the other issues raised in the application for reopening in this case en banc, but leave those issues to the merit panel's judgment, which will be addressed below.

PATRICIA ANN BLACKMON, MARY J. BOYLE, FRANK D. CELEBREZZE, JR., EILEEN A. GALLAGHER, EILEEN T. GALLAGHER, SEAN C. GALLAGHER, LARRY A. JONES, SR., MARY EILEEN KILBANE, TIM McCORMACK, and ANITA LASTER MAYS, JJ., CONCUR

MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION

MELODY J. STEWART, J., DISSENTING:

{¶ 15} I agree that the court committed a prima facie violation of Taylor's Crim.R. 43(A) right to be present at every stage of the trial by not mentioning court costs at sentencing and imposing them in a sentencing entry outside of Taylor's presence.

State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 13. That violation was harmless, however, because Taylor has the ability to petition the court to waive the payment of court costs under R.C. 2947.23(C). To hold otherwise disregards legislative action no doubt meant to rectify the prejudice addressed in Joseph and creates a de facto per se error.

{¶ 16} The imposition of court costs is mandatory, regardless of the defendant's financial status. SeeR.C. 2947.23(A)(1)(a) ("In all criminal cases, including violations of ordinances, the judge or magistrate shallinclude 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.") (emphasis added); State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 3 (defendant's financial status is "irrelevant to the imposition of court costs."); State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 11.

{¶ 17} Payment of court costs can, however, be waived by the trial court. SeeR.C. 2947.23(C) ("The 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."). "[W]aiver of court costs is permitted-but not required-if the defendant is indigent." State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14.

{¶ 18} Before Joseph, precedent held that a waiver of the payment of court costs was allowed only if the defendant requested a waiver "at the time of sentencing." State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of the syllabus. If the defendant did not request a waiver of payment of costs at the time of sentencing, the issue is "waived and costs are res judicata." Id.at ¶ 23. This put the defendant, who was not informed at sentencing that court costs would be imposed, in an untenable position: if court costs were imposed in a sentencing entry only and not in open court, it would be impossible for the defendant to request that payment of the costs be waived at sentencing, yet the failure to object to that which had not been imposed became res judicata and could not be raised on appeal. Any error would be unreviewable, thus prejudicing the defendant.

{¶ 19} Against this backdrop, Joseph held that a court that imposed court costs in a sentencing entry, but not during sentencing, violates a defendant's Crim.R. 43(A) right to be present at all stages of the proceedings. Joseph,125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, at ¶ 13. The violation occurs because the defendant is "not given an opportunity at the sentencing hearing to seek a waiver of the payment of costs[.]" Id.

{¶ 20} After the Supreme Court released Joseph, the General Assembly amended R.C. 2947.23(C) to state that the trial court retains jurisdiction to waive, suspend, or modify the payment of court costs "at the time of sentencing or any time thereafter. "It is presumed that the General Assembly is fully aware of any prior judicial interpretation of an existing statute when enacting an amendment." Clark v. Scarpelli, 91 Ohio St.3d 271, 278, 744 N.E.2d 719 (2001), citing State ex rel. Huron Cty. Bd. of Edn. v. Howard, 167 Ohio St. 93, 96, 146 N.E.2d 604 (1957). A report by the Ohio Legislative Service Commission on HB Sub. H.B. 247 stated that "[t]he bill updates the Revised Code to reflect two recent Ohio Supreme Court decisions regarding court costs * * *." Undoubtedly, those two decisions were Threatt and Clevenger. If the Crim.R. 43(A) violation in Joseph was based on the lack of "opportunity" to request a waiver of the payment of costs, providing another opportunity would supersede the holdings in both Threatt and Clevenger, and, by necessary implication, vitiate the rationale behind Joseph.

{¶ 21} In fact, we explicitly stated this conclusion in State v. Nelson, 8th Dist. Cuyahoga, 2017-Ohio-6883, 83 N.E.3d 1009, where we found that the addition of division (C) to R.C. 2947.23 meant that "Threatt has been superseded by statute, and the holding in Joseph is no longer applicable." Id.at ¶ 89. See also State v. Black, 8th Dist. Cuyahoga No. 105197, 2017-Ohio-8063, 2017 WL 4423006, ¶ 51 (quoting Nelson for the proposition that Joseph"is no longer applicable" after amendment of R.C. 2947.23(C) ). The availability of a postsentence motion to request that payment of court costs be waived renders any Crim.R. 43(A) error harmless. State v. Johnson, 6th Dist. Lucas No. L-16-1165, 2017-Ohio-8206, 2017 WL 4619087, ¶ 23 (R.C. 2947.23 renders "the court's failure to verbally notify the defendant about costs non-prejudicial."); State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797, 2016 WL 6836700, ¶ 9, fn. 1 (dicta) ("now that R.C. 2947.23(C) allows post-judgment waiver of payment, a defendant may not be able to establish that he or she was prejudiced.")

{¶ 22} The conclusion that a defendant is no longer prejudiced by the trial court's failure to notify the defendant of the imposition of costs at sentencing is also consistent with decisions from this and several other appellate districts holding that R.C. 2947.23(C) removes any prejudice from a trial counsel's failure to request a waiver of the payment of court costs at sentencing. See State v. Mihalis, 8th Dist. Cuyahoga No. 104308, 2016-Ohio-8056, 2016 WL 7157963, ¶ 33 ("it is nearly impossible to establish prejudice as a result of counsel's failure to move for a waiver of costs at sentencing[.]"); State v. Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, 2015 WL 5102678 ("prejudice resulting from a failure to move at the sentencing hearing [for waiver of payment of court costs] is harder, if not impossible, to discern."); State v. West, 2d Dist. Greene No. 2015-CA-72, 2017-Ohio-7521, 2017 WL 3951923, ¶ 31 (R.C. 2947.23(C) makes it "almost impossible to find" that trial counsel was ineffective for failing to raise the issue of court costs at sentencing). If a violation of a defendant's Sixth Amendment right to counsel can be rendered harmless, so too can the violation of a right contained in Crim.R. 43(A).

{¶ 23} It follows that the basis for Joseph -that a Crim.R. 43(A) violation occurred because the failure to mention court costs at sentencing deprived the defendant of the "opportunity" to request a waiver of payment-was superseded by a statute that gave the defendant another opportunity to request that payment of court costs be waived. State v. Thomas, 8th Dist. Cuyahoga No. 104567, 2017-Ohio-4436, 2017 WL 2687805, ¶ 15. Any error that deprives a defendant of the opportunity to request that payment of court costs be waived at sentencing is rendered harmless because the defendant can request a waiver, suspension, or modification of payment postsentence. Id.

{¶ 24} The en banc majority acknowledges that R.C. 2947.23(C) permits a defendant to request that payment of court costs be waived at any time after sentencing, but maintains that the statute "presupposes that court costs were properly imposed at the sentencing hearing where the defendant was present[.]" Anteat ¶9. Not only does the text of Crim.R. 43(A) fail to support this assertion, accepting the en banc majority's position would be tantamount to finding that there are no circumstances where a Crim.R. 43(A) error like the one in this case would ever be harmless. This raises the Crim.R. 43(A) violation in this case to structural error. It is only in the rarest of cases that an error is held to be structural, thus requiring an automatic reversal. Washington v. Recuenco, 548 U.S. 212, 218, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ; State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23 (cautioning against applying a structural-error analysis). None of this is to say that any error under Crim.R. 43(A) is always rendered harmless by R.C. 2947.23(C). But the Supreme Court's clear admonition against finding structural error compels the conclusion that the R.C. 2947.23(C)"fix" actually does, absent extraordinary facts, render any Crim.R. 43(A) error harmless beyond any doubt.

{¶ 25} The en banc majority argues that a defendant making an R.C. 2947.23(C) request to waive the payment of court costs after sentencing is prejudiced because the defendant would not have the benefit of legal representation when making the motion. Anteat ¶11.

{¶ 26} This argument needlessly confuses a Sixth Amendment right to counsel into what is a Crim.R. 43(A) claim. And even if the right to counsel were implicated, the majority fails to acknowledge the possibility that defense counsel might willingly choose to not raise the issue of court costs at sentencing.

{¶ 27} We have held that "[s]trategic timing may now play a role in trial counsel's decision not to seek a waiver at the time of sentencing." State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016-Ohio-1546, 2016 WL 1461495, ¶ 15. Defense counsel "may decide as a matter of strategy not to seek a waiver or modification of court costs until some later time 'when the trial court had time to either reflect upon its sanctions or the vividness of the impact of [the defendant's] conduct had faded.' " Id., quoting Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, 2015 WL 5102678, at ¶ 16. Importantly, the en banc majority does not overrule Brown, so that decision remains binding on this court.

{¶ 28} This case is an excellent example of why defense counsel might not ask for a waiver of the payment of court costs. The sentencing transcript shows that the court questioned Taylor about how he never held a job yet possessed over $10,000 in cash when arrested on the two trafficking cases. When Taylor told the court that he lived with his parents but provided no financial assistance to them, the court stated, "so $10,000 you have on you in a matter of months, and you don't share any of that with your mom and dad for living in their home; is that what you're telling me?" Given this and other statements made by the trial judge, defense counsel may well have thought that a motion to waive court costs on grounds of indigence would have been futile and that Taylor would have a better chance to file the motion at a later point in time. If defense counsel can, as a matter of strategy, decide not to pursue a waiver of the payment of court costs at sentencing, there can be no prejudice from the fact that an R.C. 2947.23(C) postsentence motion to waive the payment of court costs is not one where the petitioner is entitled to the assistance of counsel.

{¶ 29} Finally, the en banc majority opines that a petitioner is prejudiced because there is no right to appeal in the event the court were to deny a postsentence motion to waive the payment of court costs. The majority maintains that there is no legally enforceable right to challenge the trial court's decision on the payment of court costs, postsentencing, whereas the defendant would have the right to raise the issue on a direct appeal from the sentencing. This conclusion may be erroneous.

{¶ 30} Appellate courts have jurisdiction over orders that are both final and appealable. An order is "final" only if it meets the criteria set forth in R.C. 2505.02. As applicable here, it appears that an order denying a postsentence motion to waive, suspend, or modify the payment of court costs would be an order that affects a substantial right made in a summary application in an action after judgment. SeeR.C. 2505.02(B)(2).

{¶ 31} The enactment of R.C. 2947.23(C) gave the trial courts continuing jurisdiction to modify or waive the payment of court costs. The statute explicitly gives a defendant the right to request a waiver of the payment of court costs at any time. This would constitute a substantial right as defined by R.C. 2505.02(A)(1). And a postsentence motion to waive the payment of court costs could be considered a summary application under R.C. 2505.02(B)(2). See State v. Wilkinson, 2d Dist. Montgomery No. 18286, 2000 WL 1644135, *2 (Sept. 25, 2000) (finding the term "summary application" to apply to applications made "after judgment and do not involve lengthy trial court proceedings[.]").

{¶ 32} At least one appellate court has heard an appeal from a trial court's postsentence refusal to waive the payment of court costs, without any consideration of whether the order denying a postsentence motion to waive the payment of court costs was a final appealable order under R.C. 2505.02. See State v. Copeland, 2d Dist. Montgomery No. 26842, 2016-Ohio-7797, 2016 WL 6836700, ¶ 2. With the law unclear at this point, it is premature for the en banc majority to make the blanket statement that there is no right to appeal the denial of a postsentence motion to waive the payment of court costs and then find prejudice on what is, at best, an uncertain legal conclusion. For the above reasons, I dissent.

Decision of the Merit Panel:

KATHLEEN ANN KEOUGH, A.J.:

{¶ 33} On February 14, 2017, the applicant, Ronelle Taylor, pro se, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Taylor, 8th Dist. Cuyahoga No. 104243, 2016-Ohio-7894, 2016 WL 6906392, in which this court affirmed Taylor's convictions and sentences for three counts of drug trafficking, possession of criminal tools, and child endangering, but remanded the case to the trial court for a nunc pro tunc sentencing entry to incorporate the statutory findings for consecutive sentences. Taylor now maintains that his appellate counsel should have argued (1) that trial counsel was ineffective for not filing a motion to suppress and (2) that the trial court improperly imposed court costs. The state of Ohio filed its response on March 16, 2017. For the following reasons, this court denies the application in part and grants it in part, reinstates the appeal, reverses solely as to costs, and remands the case for a correct imposition of costs.

{¶ 34} In State v. Taylor, Cuyahoga C.P. No. CR-13-580285-A ("Case I") the grand jury indicted Taylor on four counts of drug trafficking, three counts of drug possession, and one count of possession of criminal tools. In State v. Taylor, Cuyahoga C.P. No. CR-14-591206-A ("Case II") the grand jury indicted Taylor on single counts of drug trafficking, drug possession, possession of criminal tools, and two counts of endangering children. In Case II on February 3, 2015, Taylor's attorneys filed a motion to suppress. Before the court ruled on that motion, Taylor pleaded guilty to the trafficking offense and to one count of endangering children. In Case I, Taylor pleaded guilty to two counts of drug trafficking and to possession of criminal tools. The trial judge sentenced Taylor in Case I to 12 months on each of the counts to be served concurrently and in Case II to seven years on the drug trafficking count and to time served on the endangering children charge. Further, the judge ordered the sentences in Case I and Case II to be served consecutively. Although the trial judge made the necessary findings for consecutive sentences during the sentencing hearing, those were not contained in the sentencing entries.

{¶ 35} Appellate counsel argued that the facts of the case did not support consecutive sentences and that the trial judge was biased against the defendant because she called him a monster. This court rejected those arguments, but noted that the sentencing entries did not include the required findings for imposing consecutive sentences. Thus, this court remanded the case for nunc pro tunc entries that included the necessary language.

{¶ 36} Now Taylor argues his appellate counsel was ineffective for failing to raise on appeal (1) that his trial counsel was ineffective for failing to file a motion to suppress and (2) the trial court's failure to impose court costs during the sentencing hearing, thus depriving him of the opportunity to contest the imposition of costs based on indigency. In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

{¶ 37} Taylor's first argument is not well-founded because trial counsel did file a motion to suppress. Moreover, Taylor's guilty plea bars the right to argue suppression, including the court's failure to rule on it. Montpelier v. Greeno , 25 Ohio St.3d 170, 495 N.E.2d 581 (1986). In State v. Bogan , 8th Dist. Cuyahoga No. 84468, 2005-Ohio-3412, 2005 WL 1541014, Bogan pleaded guilty before the trial court had ruled on the motion to suppress. This court ruled that by pleading guilty, Bogan waived any error regarding the motion to suppress. Id. at ¶ 14 ; see also State v. Collier, 8th Dist. Cuyahoga No 95572, 2011-Ohio-2791, 2011 WL 2270410 (court denied an App.R. 26(B) application to reopen arguing failure to file a motion to suppress). Accordingly, Taylor's application on this basis is denied.

{¶ 38} Taylor contends in his second argument that his appellate counsel was ineffective for failing to raise on appeal that the imposition of court costs outside his presence was error and prevented him from claiming indigency and seeking a waiver of those costs. The state concedes the argument raised.

{¶ 39} Additionally, having determined in en banc proceedings that the trial court's failure to impose court costs at the sentencing hearing, but ordering the defendant to pay court costs in the judgment entry of conviction, constitutes reversible error, Taylor's argument is well-taken.

{¶ 40} Accordingly, this court denies Taylor's claim based on the motion to suppress but grants the application as to court costs. The court reinstates this appeal to docket, reverses that portion of the trial court's order imposing costs, and remands the case for the sole purpose of allowing Taylor the opportunity to move for a waiver of costs and then for the trial court's resolution of costs.

{¶ 41} The application for reopening is granted in part and denied in part.

EILEEN A. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR

      The Joint Committee to Study Court Costs and Filing Fees was created in 2007 by the Ohio General Assembly in Sub.H.B. 336 of the 126th General Assembly to study court costs and filing fees. As a result of the study, the committee developed recommendations, including a recommendation to the General Assembly to amend R.C. 2947.23 :
      5. The General Assembly should amend current law to give trial courts the statutory authority to suspend the imposition or payment of costs after the court has imposed sentence.
      In State v. Clevenger , 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589 (2007), the Supreme Court held that a trial court does not have authority to either suspend the imposition or payment of court costs after the court has imposed sentence, even when the offender is indigent. The Court found trial courts lack this ability because they are not specifically authorized by statute to waive costs after sentencing.
      This serves little practical purpose. Although section 2947.23 of the Revised Code allows for community service in lieu of payment of costs, many offenders become debilitated or have a change of circumstances after sentencing and cannot perform community service. This means indigent offenders do not pay their court costs and do not perform community service. In order to rectify this problem, the General Assembly should amend the statute to allow the court discretion to suspend costs after sentencing.

      R.C. 2947.23(C) addresses the jurisdictional concerns raised in both State v. Clevenger , 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, and Threatt , 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164.

      The dissent takes issue that this court does not overrule Brown . The circumstances in Brown are factually distinguishable. In Brown , the court imposed court costs in the defendant's presence at sentencing. Only after they were imposed did Brown's trial counsel fail to request waiver, thus, constituting Brown's claim for ineffective assistance of counsel claim on appeal.

      "The Ohio Supreme Court has characterized Ohio Legislative Service Commission's analyses as 'legislative history' that it may refer to 'when we find them helpful and objective.' " Piazza v. Cuyahoga Cty. , 8th Dist. Cuyahoga No. 104724, 2017-Ohio-8163, 2017 WL 4547147, ¶ 37, fn. 2, citing Meeks v. Papadopulos , 62 Ohio St.2d 187, 191, 404 N.E.2d 159 (1980), and R.C. 1.49(C) (Stewart, J., concurring in part and dissenting in part).

      It should also be noted that Taylor has not only been making some very small monthly payments, he asked the court to establish a payment schedule for the payment of court costs.

      R.C. 2505.02(B)(2) does not define what constitutes a "summary application," and "[t]he case law offers no helpful explanation of what constitutes a 'summary application in an action after judgment' under R.C. 2505.02(B)(2)." Painter & Pollis, Ohio Appellate Practice , Section 2:14 (2016).