author: Per Curiam.

text:
    Disciplinary Counsel v. Maciak.
    No. 2017-0492
    Supreme Court of Ohio.
    Submitted September 12, 2017 Decided January 24, 2018
    Scott J. Drexel, Disciplinary Counsel, and Jennifer A. Bondurant, Assistant Disciplinary Counsel, for relator.
    Kegler, Brown, Hill & Ritter, L.P.A., and Jonathan E. Coughlan, Columbus, for respondent.

      Reporter's Note: This cause was decided on January 24, 2018, but was released to the public on February 13, 2018, subsequent to the resignation of Justice William M. O'Neill, who participated in the decision.

   Per Curiam.

{¶ 1} Respondent, Brian Allan Maciak of Jupiter, Florida, Attorney Registration No. 0072793, was admitted to the practice of law in Ohio in 2000.

{¶ 2} On December 3, 2007, we suspended Maciak from the practice of law for his failure to register as an attorney for the 2007 to 2009 biennium. In re Attorney Registration Suspension of Maciak , 116 Ohio St.3d 1420, 2007-Ohio-6463, 877 N.E.2d 305. We reinstated his license on January 24, 2008. In re Reinstatement of Maciak , 117 Ohio St.3d 1443, 2008-Ohio-1397, 883 N.E.2d 463. On December 23, 2009, we imposed a $320 sanction on Maciak for his failure to complete the requisite hours of continuing legal education ("CLE") required by Gov.Bar R. X(3), to timely file his reporting transcript, and to timely bring himself into compliance. In re Continuing Legal Edn. Sanction of Maciak , 124 Ohio St.3d 1402, 2009-Ohio-6833, 918 N.E.2d 1010. And on December 29, 2011, we fined Maciak an additional $680 and suspended his license for his failure to complete the requisite hours of CLE, to timely file his final reporting transcript, and to comply with the prior sanction issued by the CLE commission.

In re Continuing Legal Edn. Suspension of Maciak , 130 Ohio St.3d 1505, 2011-Ohio-6770, 959 N.E.2d 2. That suspension remained in effect until November 25, 2015.

{¶ 3} On September 8, 2016, relator, disciplinary counsel, charged Maciak with multiple acts of misconduct arising from his employment as general counsel of corporations in Texas and Florida. The charges include allegations that Maciak engaged in the unauthorized practice of law ("UPL") in Texas and Florida, violated the terms of his 2011 Ohio CLE suspension, and made false statements to relator.

{¶ 4} The parties submitted some stipulations of fact and misconduct, and a panel of the board conducted a three-day hearing at which it heard testimony from Maciak and 11 other witnesses. In its report, the panel found that Maciak committed just two of the charged ethical violations: he engaged in UPL in Florida before obtaining the proper certification from that state, and he engaged in conduct that adversely reflected on his fitness to practice by continuing to practice law during his CLE suspension. The panel unanimously dismissed the remaining 12 alleged violations and recommended that Maciak be suspended from the practice of law for one year, with six months stayed on conditions.

{¶ 5} The board adopted the panel's findings of fact and conclusions of law but recommended that we suspend Maciak from the practice of law for two years, with the entire suspension stayed on conditions. Relator objects and urges us not only to reject the panel's dismissal of two alleged violations but also to impose an unstayed suspension from the practice of law. For the reasons that follow, we overrule relator's objections, adopt the board's findings of fact and conclusions of law, and suspend Maciak from the practice of law for two years, with the entire suspension stayed on the conditions recommended by the board.

Misconduct

{¶ 6} Maciak accepted a position as general counsel for Florida-based TBC Retail Group in April 2009. He was promoted in June 2012 to the position of senior vice president, general counsel, and secretary of TBC Corporation ("TBC"), the multinational, multibillion-dollar parent company of TBC Retail Group.

Florida Bar Investigation

{¶ 7} In February 2015, Maciak received a letter from Jeffrey Picker, counsel for the Unauthorized Practice of Law Department of the Florida Bar, regarding a complaint filed by a former TBC employee. Picker informed Maciak that in order to serve as general counsel of a business organization in Florida, one must either be a member of the Florida Bar or certified as Authorized House Counsel ("AHC"). Picker noted that Maciak was neither admitted to nor certified as AHC by the Florida Bar and asked Maciak how he proposed to resolve his UPL. He also advised Maciak that he was not permitted to hold himself out as a lawyer in Florida, practice law, or represent TBC in the resolution of a legal matter until he obtained the proper licensure or certification.

{¶ 8} Over the next several months, Picker and Maciak communicated by e-mail, letter, and telephone. Maciak maintained that the primary focus of his job was what he considered to be business matters, but he did not dispute that he periodically provided legal advice and counsel to TBC. At Picker's insistence, Maciak deleted the title of general counsel from his biography on TBC's website and agreed to submit an application for AHC certification-though he did not alter his activities. After the Supreme Court of Florida granted Maciak AHC certification in December 2015, the Florida Bar closed its investigation into his UPL.

Ohio Disciplinary Proceedings

{¶ 9} Relator's investigation began in October 2015, with a grievance filed by the same former TBC employee who had reported Maciak's conduct to the Florida Bar. The former employee alleged that Maciak was practicing law in Florida without the proper licensure or certification. Noting that Maciak had been ineligible to practice law in Ohio since December 29, 2011, relator sought information about his activities. Maciak responded to three separate letters from relator, answered 114 questions in writing, provided several binders of documents, and traveled to Ohio from Florida to give a deposition before relator filed his complaint.

{¶ 10} At the panel hearing, Maciak testified that his responsibilities at TBC included reorganizing executive departments, developing budgets, supervising human resources, and implementing new procedures for dealing with outside counsel. Following his promotion to senior vice president and general counsel, the majority of his time was devoted to what he termed "nonlegal functions." But his resume stated that he also oversaw in-house attorneys who actively managed litigation for the company, that he was "[h]ired to rebuild a legal team, reduce expenses, and garner confidence with the Board of Directors," and that he led "a team of 7 legal professionals, 30 human resources associates, and 5 contract administrators."

{¶ 11} Initially, neither Maciak nor his counsel believed that his activities constituted the practice of law or that holding himself out as general counsel violated the Florida rules governing UPL. After retaining new counsel, however, Maciak acknowledged that his conduct prior to obtaining AHC status in Florida constituted UPL.

{¶ 12} On these facts, the panel and board found that by engaging in UPL in Florida from April 2009 until he obtained AHC certification in December 2015, Maciak violated Prof.Cond.R. 5.5(a) (prohibiting a lawyer from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction). The panel and board also found that by practicing law in Florida from 2011 to 2015 while his Ohio license was under a CLE suspension, he committed a single violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law).

{¶ 13} Despite the fact that the parties had stipulated to two additional violations of Prof.Cond.R. 5.5(a), the panel dismissed those alleged violations, because relator presented no evidence or testimony to support them. The panel also dismissed the remaining ten alleged violations.

{¶ 14} Among the charges dismissed were allegations that Maciak made false statements or failed to disclose information to relator in connection with his disciplinary investigation, in violation of Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and that that conduct was sufficiently egregious to support a separate finding that it adversely reflected upon his fitness to practice law, in violation of Prof.Cond.R. 8.4(h). See Disciplinary Counsel v. Bricker , 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21 (holding that a Prof.Cond.R. 8.4(h) violation requires clear and convincing evidence that conduct giving rise to a specific rule violation is so egregious as to warrant an additional finding that it adversely reflects on the lawyer's fitness to practice law). Specifically, relator alleged that in Maciak's responses to relator and during his deposition testimony, Maciak made false statements about when he first learned of his CLE suspension, because there was some evidence that Maciak was aware of that suspension in February 2012.

{¶ 15} With regard to those alleged violations, the panel recognized that the parties had stipulated that someone used Maciak's login credentials to access his registration status and CLE transcript on the Office of Attorney Services' web portal in August 2009, August 2011, and October 2013-though neither Maciak nor his paralegal could recall having done so. And based on an internal e-mail from the Office of Attorney Services documenting a telephone inquiry from Maciak regarding his suspension, the panel found that Maciak was aware of his CLE suspension "at least as of [February 10, 2012]."

{¶ 16} On the other hand, the panel also found that Maciak testified that he did not remember receiving written notices of his CLE noncompliance or suspension and that he did not recall telephoning the Office of Attorney Services in 2012 or accessing his attorney information on that office's web portal before 2015-not that those actions had never, in fact, occurred. In addition, the panel determined that Maciak's testimony was consistent with his counsel's written responses to relator's correspondence, which generally represented that Maciak was unaware of his CLE deficiencies and resulting suspension until October 2015.

{¶ 17} The panel emphasized that Maciak never contended that his inability to remember those events meant that they did not occur or that he should not be sanctioned by this court. It was impressed with Maciak's sincere distress over the allegation that he lied during the course of relator's investigation, his emotional apology, and the testimony from multiple witnesses who attested to his integrity, good character, and reputation for honesty. Moreover, the panel determined that Maciak's lack of recall could be attributed to a series of events from 2011 to 2013 that were "beyond just the press of business and the passage of time," including his efforts to learn his new job, his involvement in the "all-consuming" project of his employer's tender-offer acquisition of a publicly traded company, his paralegal's maternity leave following her premature delivery of twins, and the relocation of his office on two separate occasions.

{¶ 18} Ultimately, the panel found that while Maciak was "cavalier, inattentive, negligent, and foolish" with regard to his obligations under the Ohio, Texas, and Florida rules of professional conduct, "he did not lie."

Dismissal of Alleged Violations of Prof.Cond.R. 8.4(c) and 8.4(h)

{¶ 19} Relator objects to the panel's unanimous dismissal of the alleged violations of Prof.Cond.R. 8.4(c) and 8.4(h). Not only does he ask us to find that Maciak lied when he said that he had been unaware of his CLE suspension, but relator also contends that Maciak's professed lack of knowledge and his corresponding lack of diligence with respect to his licensing obligations are sufficiently egregious to support a separate finding that his conduct adversely reflected on his fitness to practice law. Relator claims to accept the panel's factual findings and states that he is not asking this court to reweigh the evidence or second-guess the panel's credibility determinations. Instead, relator asks us to review and reject the panel's legal conclusions with regard to the alleged violations of Prof.Cond.R. 8.4(c) and (h).

{¶ 20} This court has held, without limitation or exception, that a unanimous dismissal by the panel precludes further review of the dismissal by either the board or this court. See Disciplinary Counsel v. Hale , 141 Ohio St.3d 518, 2014-Ohio-5053, 26 N.E.3d 785, ¶ 22 ; Cuyahoga Cty. Bar Assn. v. Marosan , 109 Ohio St.3d 439, 2006-Ohio-2816, 848 N.E.2d 837, ¶ 13 ; Columbus Bar Assn. v. Dougherty , 105 Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094, ¶ 9. Therefore, an examination of the nature of relator's challenge-i.e., whether it is to the panel's legal conclusions or to the weight of the evidence-is unnecessary. Review of the dismissed counts, for any reason, is not permitted. We overrule relator's objection and adopt the board's findings of fact and misconduct.

Sanction

{¶ 21} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases. Because each disciplinary case is unique, however, we may take all relevant factors into account. Columbus Bar Assn. v. Watson , 144 Ohio St.3d 317, 2015-Ohio-4613, 42 N.E.3d 752, ¶ 7.

{¶ 22} The panel and board found that Maciak has been disciplined for registration and CLE violations in the past and that he failed to address his CLE suspension for a substantial period of time, but they attributed little weight to those aggravating factors. See Gov.Bar R. V(13)(B)(1). As mitigating factors, they found that Maciak did not act with a dishonest or selfish motive, demonstrated a cooperative attitude toward the disciplinary proceedings, presented favorable character and reputation testimony, had other penalties or sanctions imposed as a result of his noncompliance with CLE requirements, and did not harm any client. See Gov.Bar R. V(13)(C)(2), (4), (5), and (6). In addition, the panel and board credited Maciak's work with an organization that mentors disadvantaged and troubled young people, his sincere distress over allegations that he had lied during relator's investigation, his emotional apology, and his acceptance of responsibility-not only for his failure to promptly deal with his CLE suspension but also for his resulting UPL.

{¶ 23} While recognizing that "[t]he normal penalty for continuing to practice law while under suspension is disbarment," Disciplinary Counsel v. Koury , 77 Ohio St.3d 433, 436, 674 N.E.2d 1371 (1997), the panel also noted several cases in which we imposed indefinite suspensions on attorneys who continued to practice law under registration or CLE suspensions. But the panel then considered three cases in which we imposed, for similar misconduct, varying term suspensions ranging from six months to two years with six months stayed: Ohio State Bar Assn. v. Good , 114 Ohio St.3d 204, 2007-Ohio-3602, 871 N.E.2d 542 ; Disciplinary Counsel v. Simmons , 120 Ohio St.3d 304, 2008-Ohio-6142, 898 N.E.2d 943 ; and Disciplinary Counsel v. Troller , 138 Ohio St.3d 307, 2014-Ohio-60, 6 N.E.3d 1138. Relying on these three cases, the panel recommended that Maciak be suspended from the practice of law for one year, with six months stayed on conditions. The board adopted the panel's findings of fact and conclusions of law but recommended that Maciak be suspended from the practice of law for two years, with the entire suspension stayed on the conditions that he remain in full compliance with his CLE and attorney-registration obligations and engage in no further misconduct.

{¶ 24} Relator objects to the board's recommended sanction and argues that the board's reliance on Simmons , Good , and Troller is misplaced. Believing Maciak's misconduct to be more serious than the conduct at issue in those cases, his aggravating factors more plentiful, and his mitigating factors more scarce, relator argues that Maciak should be suspended from the practice of law for two years with no more than six months stayed. Although we agree that the facts in Simmons , Good , and Troller can be distinguished from those currently before us, we find that certain aspects of those cases are more egregious than Maciak's conduct and that Maciak's conduct presents a lesser risk of future harm to the public.

{¶ 25} In Simmons , we adopted a consent-to-discipline agreement and imposed a one-year suspension, with six months stayed, on an attorney who represented two clients in Michigan courts although he was not licensed in Michigan and his Ohio license had been suspended for a registration violation. But contrary to relator's suggestion that Simmons's misconduct occurred over a two-month period, he engaged in misconduct over the course of a year. Id. at ¶ 3-7. That conduct consisted of filing documents in Michigan courts, falsely informing the court that he was affiliated with a nonexistent law office, falsely representing that his sister (who was licensed to practice law in Michigan) was involved in the representation, and appearing at a hearing before the court and negotiating a settlement on behalf of a client without advising the court that he was not licensed to practice in that state. Id. In addition to finding that Simmons engaged in UPL in Michigan, we also found that he violated additional rules prohibiting dishonesty and conduct that is prejudicial to the administration of justice-violations that have not been found with respect to Maciak. Id. at ¶ 9.

{¶ 26} In contrast to Maciak, whose license was suspended at the time of his misconduct, Good's Ohio law license was in good standing when he engaged in six incidents of UPL in Florida. Good , 114 Ohio St.3d 204, 2007-Ohio-3602, 871 N.E.2d 542, at ¶ 1, 3. But there was no suggestion that Good's UPL was limited to his serving as in-house counsel without the proper certification as Maciak's was-and the Supreme Court of Florida issued an injunction against Good and fined him $6,000. Id. at ¶ 3. In contrast, the Florida Bar dismissed its investigation against Maciak once he obtained AHC certification.

{¶ 27} Troller is the only other Ohio case in which an Ohio attorney continued to serve as in-house counsel for an extended period of time despite an ongoing CLE suspension. Both Troller and Maciak held themselves out as attorneys, worked with other attorneys on pending litigation, negotiated contracts, and performed human-resources functions on behalf of their employers. Troller , 138 Ohio St.3d 307, 2014-Ohio-60, 6 N.E.3d 1138, at ¶ 6-8. And though each of them was initially reluctant to acknowledge that his activities constituted the practice of law, each ultimately stipulated that those activities did constitute the practice of law. Id. at ¶ 6.

{¶ 28} Relator contends that Maciak's conduct is more serious than Troller's because once relator initiated his investigation, Troller ceased engaging in acts constituting the practice of law and did not seek reinstatement until he served the court-ordered sanction for his misconduct. In contrast, relator argues, Maciak not only continued to offer legal advice to his employer but also made false statements while relator's investigation was pending. But as noted above, the panel unanimously dismissed relator's allegations of dishonest conduct and we have declined relator's invitation to revisit them here.

{¶ 29} Despite relator's arguments to the contrary, we find that Troller's misconduct was more egregious than Maciak's. Troller was under both CLE and registration suspensions and nothing in our Troller opinion suggests that he made any attempt to comply with the relevant rules. Troller at ¶ 1, 3. Maciak, on the other hand, complied with our registration requirements (with one brief exception that he promptly remedied). He also continued to both attend and present at numerous CLE programs-though he admitted that he failed to ensure that those programs were accredited and that he received credit for his participation. To safeguard against further lapses of his license, Maciak testified, he now completes and submits his CLE registrations and applications for credit himself and verifies his good standing on the attorney-services web portal on an almost daily basis.

{¶ 30} Further, Troller continued to serve as in-house counsel and practice law in Ohio while his Ohio license was under suspension. Troller , 138 Ohio St.3d 307, 2014-Ohio-60, 6 N.E.3d 1138, at ¶ 1, 12. In contrast, Maciak's conduct occurred while he lived and worked in Florida, and that state, having achieved its objective of "get[ting] the [UPL] to stop," closed its UPL investigation once he obtained AHC certification. There is no allegation that Maciak improperly practiced law in Ohio while his license was under suspension.

{¶ 31} We by no means condone Maciak's nearly seven-year failure to keep abreast of his continuing obligation to participate in at least 24 hours of CLE for every biennial compliance period, to request credit for those activities, and to review his CLE transcript for accuracy. See Gov.Bar R. X(3) ; CLE Reg. 301 and 303. Nor do we condone his failure to familiarize himself with the Rules for the Government of the Bar of Ohio and the Ohio Rules of Professional Conduct and their counterparts in the other states in which he served as in-house corporate counsel. Nonetheless, given the specific and narrow facts of Maciak's proven misconduct, the substantial evidence of his good character and remorse, and the affirmative steps he has taken to prevent similar violations in the future, we overrule relator's objection and agree that a two-year suspension, stayed in its entirety upon the conditions recommended by the board, is the appropriate sanction in this case.

{¶ 32} Accordingly, Brian Allen Maciak is suspended from the practice of law in Ohio for two years, with the suspension stayed in its entirety on the conditions that he remain in full compliance with his CLE and attorney-registration obligations and engage in no further misconduct. If Maciak fails to comply with the conditions of the stay, the stay will be lifted, and he will serve the entire two-year suspension. Costs are taxed to Maciak.

Judgment accordingly.

O'Donnell, Kennedy, French, O'Neill, Fischer, and DeWine, JJ., concur.

O'Connor, C.J., concurs in judgment only, with an opinion.

O'Connor, C.J., concurring in judgment only.

{¶ 33} I am very troubled by the fact that the majority announces a rule change and circumvents the court's rulemaking process when there is no legitimate reason to do so and no urgency with which to justify the deviation.

{¶ 34} The majority opinion states, "This court has held, without limitation or exception , that a unanimous dismissal by the panel precludes further review of the dismissal by either the board or this court." (Emphasis added.) Majority opinion at ¶ 20. The cases cited in support of that statement refer to a dismissal under prior versions of the rule now codified as Gov.Bar R. V(12)(G), which permits a unanimous hearing panel to dismiss a disciplinary complaint or charge "[i]f, at the end of the evidence presented by the relator or of all evidence, a unanimous hearing panel finds that the evidence is insufficient to support a charge or count of misconduct." (Emphasis added.) Such a dismissal precludes further review by the full board or this court. See Cincinnati Bar Assn. v. Fernandez , 147 Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724, ¶ 13-15.

{¶ 35} Both the rule and the cited case law refer to dismissals for insufficient evidence . That is exactly what is at issue here, despite relator's argument that his challenge is based on the panel's legal conclusions. The court could and should stop there, but it does not.

{¶ 36} Members of the public and the legal profession should take note. It is true that this court has held that a unanimous dismissal under Gov.Bar R. V(12)(G) or its predecessor rule precludes further review of the dismissed counts by the board or this court. But the majority opinion states now, for the first time, that this court has held "without limitation or exception " that review is precluded. (Emphasis added.) Majority opinion at ¶ 20. These are dangerous words when used with the intent to limit-and when having the effect of limiting-the authority of this court. The majority drives home its objective in the next sentence by stating that "an examination of the nature of relator's challenge-i.e., whether it is to the panel's legal conclusions or to the weight of the evidence-is unnecessary." Majority opinion at ¶ 20. And, to further reiterate its point, the next sentence of the majority opinion states, "Review of the dismissed counts, for any reason , is not permitted." (Emphasis added.) Id. Again, these are dangerous words and do not square with our legal precedent. {¶ 37} In a single paragraph, the majority has detached the case law from its mooring in the rules and then misapplied it to the case at hand to announce an expanded limitation on this court's review of dismissals in disciplinary cases. Making this overreach worse is the fact that this case does not require it.

{¶ 38} Make no mistake: the majority opinion has announced a rule change. For the Rules for the Government of the Bar, this court follows a rulemaking procedure to promulgate new and amend existing rules:

Although the Ohio Constitution does not require legislative review of rules governing the discipline of attorneys, we follow a rulemaking procedure to promulgate new and amend existing Rules for the Government of the Bar. This process includes public notice, time for public comment and input from stakeholders such as interested committees or task forces, and a process for the justices to consider public comments received and proposed changes before final approval.

Disciplinary Counsel v. Kramer , 149 Ohio St.3d 425, 2016-Ohio-5734, 75 N.E.3d 1174, ¶ 31.

{¶ 39} For a court that prides itself on valuing public comment, input from stakeholders, recommendations of our boards and commissions, and a consistent deliberative process before making changes to any of its rules, the majority's decision to pronounce a rule from the bench, without necessity, is all the more disturbing. I cannot join the opinion, because it breaches our longstanding rule-making process.

{¶ 40} I concur in the sanction for respondent, Brian Allan Maciak, as announced in the majority opinion, but nothing more.

      R. Regulating Fla. Bar 17-1.1 et seq. provides a safe harbor for attorneys licensed to practice in other jurisdictions to serve as in-house counsel for business organizations located in Florida without taking the bar exam, provided that they are certified as AHC by the Supreme Court of Florida. The rules, however, limit the activities of AHC. R. Regulating Fla. Bar 17-1.3(a)(1) through (3).

      The e-mail, dated February 10, 2012, states: "Attorney Brian Maciak (pronounced may see ak) would like you to return his call. He has just receive [sic] a letter informing him that he is not compliant with his cle requirements and was, until now, unaware that he had been cle suspended and wants to know what he can do to clear this up."

      In fact, in the three cases that the majority opinion cites for the general statement that a dismissal precludes further review, this court recognized limitations and exceptions. In Disciplinary Counsel v. Hale , 141 Ohio St.3d 518, 2014-Ohio-5053, 26 N.E.3d 785, ¶ 22, the court noted the general rule but explained that it could review a recommendation of dismissal if not accompanied by the requisite notices to effectuate a dismissal. In Cuyahoga Cty. Bar Assn. v. Marosan , 109 Ohio St.3d 439, 2006-Ohio-2816, 848 N.E.2d 837, ¶ 13, the court stated that it did not review "such dismissals," referring to dismissals for insufficient evidence described in the rule. And in Columbus Bar Assn. v. Dougherty , 105 Ohio St.3d 307, 2005-Ohio-1825, 825 N.E.2d 1094, ¶ 9, the court cited the rule for dismissals based on insufficient evidence and the decision in In re Complaint Against Harper , 77 Ohio St.3d 211, 216, 673 N.E.2d 1253 (1996), in which the court recognized that it was not precluded from reviewing a panel's recommended dismissal.
      More recently, we have explained, "Under past versions of the rule, * * * further review of a unanimous dismissal was precluded only when the panel also gave written notice of that action" to the required parties. Cincinnati Bar Assn. v. Fernandez , 147 Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724, ¶ 14. Under the current version of the rule, Gov.Bar R. V(12)(G), the notice requirements are more forgiving and the panel may report a dismissed count or complaint in the body of its report to effectuate dismissal. Id. at ¶ 15. Nonetheless, the type of dismissal expressly discussed, and the type of dismissal for which this court's review is precluded, is one for insufficient evidence under Gov.Bar R. V(12)(G). See id.


source: Caselaw Access Project

license: Public Domain

text:
    Cuyahoga County Bar Association v. Freedman.
    Nos. 2004-2112 2008-0772
    Supreme Court of Ohio.
    Submitted May 17, 2017 Decided May 25, 2017
    {¶ 1} This cause came on for further consideration upon the filing of an amended application for reinstatement by respondent, Steven Alan Freedman, Attorney Registration No. 0025528, last known address in Mayfield Heights, Ohio.
    {¶ 2} The court coming now to consider its order of November 16, 2005, wherein the court, pursuant to former Gov.Bar R. V(6)(B)(3), suspended respondent from the practice of law for a period of one year, and its order of October 14, 2008, wherein the court, pursuant to former Gov.Bar R. V(6)(B)(3), suspended respondent for a period of six months, finds that respondent has substantially complied with those orders and with the provisions of Gov.Bar R. V(24).
    {¶ 3} Therefore, it is ordered by this court that respondent is reinstated to the practice of law in the state of Ohio.
    {¶ 4} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).
    {¶ 5} For earlier cases, see Cuyahoga Cty. Bar Assn. v. Freedman , 107 Ohio St.3d 25, 2005-Ohio-5831, 836 N.E.2d 559, and 119 Ohio St.3d 571, 2008-Ohio-5220, 895 N.E.2d 837.
    O'Connor, C.J., and O'Donnell, Kennedy, French, O'Neill, Fischer, and DeWine, JJ., concur.


text:
    Disciplinary Counsel v. Brumbaugh.
    No. 2016-1333
    Supreme Court of Ohio.
    Submitted May 17, 2017 Decided May 25, 2017
    {¶ 1} The Board of Professional Conduct filed a certification of default in the office of the clerk of this court on September 9, 2016. On October 12, 2016, this court imposed an interim default judgment suspension upon respondent, Jeffrey Shane Brumbaugh, pursuant to Gov.Bar R. V(14)(B)(1). The parties were ordered to show cause why the interim default judgment suspension should not be converted into an indefinite suspension. No objections were filed, and this cause was considered by the court.
    {¶ 2} On consideration thereof, it is ordered and adjudged by this court that pursuant to Gov.Bar R. V(14)(E)(1), respondent, Jeffrey Shane Brumbaugh, Attorney Registration No. 0074102, last known business address in Troy, Ohio, is indefinitely suspended from the practice of law.
    {¶ 3} It is further ordered that respondent immediately cease and desist from the practice of law in any form and that respondent is hereby forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 4} It is further ordered that respondent is hereby forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 5} It is further ordered that respondent is hereby divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 6} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 7} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 8} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order, the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 9} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, (3) respondent complies with this and all other orders of the court, and (4) this court orders respondent reinstated.
    {¶ 10} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 11} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 12} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 13} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in the possession or control of respondent;
    {¶ 14} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 15} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 16} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where the respondent may receive communications; and

{¶ 17} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 18} It is further ordered that respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 19} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, to respondent's last known address.

{¶ 20} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, O'Neill, Fischer, and DeWine, JJ., concur.


text:
    State ex rel. Demellweek v. Indus. Comm.
    2018-0499
    Supreme Court of Ohio.
    July 16, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    On application for dismissal of appellant Lowe's Home Centers, L.L.C. Application granted. Appeal of appellant Lowe's Home Centers, L.L.C., dismissed. Appeal of appellant Industrial Commission of Ohio remains pending.


text:
    Administrative Actions
    Supreme Court of Ohio.
    July 16, 2018
    1. Proposed amendments to the Rules of Superintendence for the Courts of Ohio ( Sup.R. 16 through 16.36) are being published in the July 16, 2018 Ohio Official Reports advance sheet for a public-comment period ending August 15, 2018.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concurred in publishing the proposed amendments for comment.
    2. Proposed amendments to the Rules of Superintendence for the Courts of Ohio ( Sup.R. 79 ) are being published in the July 16, 2018 Ohio Official Reports advance sheet for a public-comment period ending August 15, 2018.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concurred in publishing the proposed amendments for comment.


text:
    State v. Craig
    2018-0146
    Supreme Court of Ohio.
    July 12, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion to supplement record. Motion denied.


text:
    State v. Dibble
    2018-0552
    Supreme Court of Ohio.
    July 12, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellee's motion for appointment of counsel. Motion granted. Kort Gatterdam is appointed to represent appellee, contingent upon the filing of an affidavit within 20 days.


text:
    State v. Vance
    2018-0607
    Supreme Court of Ohio.
    July 12, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's request for oral argument. Request denied as moot.


text:
    State ex rel. Ali v. Cleveland
    2016-1131
    Supreme Court of Ohio.
    July 12, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    In Mandamus. On relator's application for dismissal. Application granted.
    Cause dismissed.


text:
    Gross v. Havlin
    2018-0589
    Supreme Court of Ohio.
    July 12, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    In Habeas Corpus. On amended petition for habeas corpus. Sua sponte, cause dismissed.


text:
    State v. Creagh
    2018-0599
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Mick
    2018-0600
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: DeWine, J., dissents.

text:
    State v. Garrison
    2018-0603
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeWine, J., dissents.


author: O'Donnell, J., dissents.

text:
    State v. Grajales
    2018-0618
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.


text:
    State v. Jenkins
    2018-0620
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Donnell and DeWine, JJ., dissent.


text:
    State v. Bradley-Lewis
    2018-0622
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Clark
    2018-0623
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Ogg
    2018-0625
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    M.S. v. Toth
    2018-0605
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    French, J., dissents and would accept the cause on proposition of law No. I.


text:
    State v. Johnson
    2018-0608
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE EX REL. HUNLEY v. DEPT. OF REHAB. & CORR.
    2018-0972
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   This cause was filed as a jurisdictional appeal. It is determined by the court that this cause should proceed as an appeal of right pursuant to S.Ct.Prac.R. 5.01. The clerk shall issue an order for the transmission of the record from the Court of Appeals for Franklin County, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07.


text:
    Great Lakes Bar Control, Inc. v. Testa
    2017-0655
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion to reschedule oral argument before a master commissioner. Motion granted. The case is rescheduled for oral argument before a master commissioner on Tuesday, August 14, 2018.


text:
    A.S. v. J.W.
    2018-0602
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Cause accepted on proposition of law No. I. Kennedy, J., would accept the cause on all propositions of law.
    O'Donnell, French, and DeWine, JJ., dissent.


text:
    Trustar Funding, L.L.C. v. Harper
    2018-0443
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: French, J., dissents.

text:
    Tate v. Tate
    2018-0519
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   French, J., dissents.


author: Fischer, J., not participating.

text:
    Stanfield v. Reading Bd. of Edn.
    2018-0581
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Kennedy and DeGenaro, JJ., dissent.
   Fischer, J., not participating.


author: Kennedy, J., dissents.

text:
    Gamble Hartshorn, L.L.C. v. Lee
    2018-0585
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.


text:
    State v. Holder
    2018-0588
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Thorn
    2018-0591
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   French, J., dissents.

DeGenaro, J., not participating.


author: DeGenaro, J., not participating

text:
    Blain's Folding Serv., Inc. v. Cincinnati Ins. Co.
    2018-0598
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating


text:
    State v. Davis
    2018-0664
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Collins
    2018-0680
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Walters
    2018-0681
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Gordon
    2018-0748
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Kilbane
    2018-0753
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Curtis
    2018-0772
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Elem
    2018-0781
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Blanton
    2018-0637
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer, J., dissents and would accept the cause on proposition of law No. I.


author: Fischer, J., dissents.

text:
    Ohio Edison Co. v. Royer
    2018-0641
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    French, J., dissents and would accept the cause on proposition of law Nos. I, II, and IV.
   Fischer, J., dissents.


text:
    State v. Palmer
    2018-0673
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Ford
    2015-1309
    Supreme Court of Ohio.
    July 20, 2018
    CASE ANNOUNCEMENTS
    MOTIONS AND PROCEDURAL RULINGS
    On appellant's motion of Kathleen McGarry to withdraw as counsel and to substitute new counsel. Motion granted.


text:
    State v. Jones
    2018-0678
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., not participating.


text:
    State v. Palmer
    2018-0713
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    In re Adoption of B.I.
    2018-0181
    Supreme Court of Ohio.
    July 20, 2018
    CASE ANNOUNCEMENTS
    MOTIONS AND PROCEDURAL RULINGS
    On appellant's motion for continuance of oral argument. Motion granted.


text:
    In re Adoption of B.I.
    2018-0182
    Supreme Court of Ohio.
    July 20, 2018
    CASE ANNOUNCEMENTS
    MOTIONS AND PROCEDURAL RULINGS
    On appellant's motion for continuance of oral argument. Motion granted.


text:
    In re Adoption of B.I.
    2018-0350
    Supreme Court of Ohio.
    July 20, 2018
    CASE ANNOUNCEMENTS
    MOTIONS AND PROCEDURAL RULINGS
    On appellant's motion for continuance of oral argument. Motion granted.


text:
    In re Adoption of B.I.
    2018-0351
    Supreme Court of Ohio.
    July 20, 2018
    CASE ANNOUNCEMENTS
    MOTIONS AND PROCEDURAL RULINGS
    On appellant's motion for continuance of oral argument. Motion granted.


text:
    Dayton Bar Assn. v. Strahorn
    2017-0799
    Supreme Court of Ohio.
    July 20, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Sua sponte, Derrick Anthony Strahorn, Attorney Registration No. 0034483, last known business address in Washington, District of Columbia, found in contempt for failure to file an affidavit of compliance on or before June 6, 2018.


text:
    Disciplinary Counsel v. Brazil
    2018-0453
    Supreme Court of Ohio.
    July 20, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Sua sponte, Harold Edmund Brazil, Attorney Registration No. 0026638, last known business address in Washington, District of Columbia, found in contempt for failure to file an affidavit of compliance on or before June 6, 2018.


text:
    State v. Phillips
    2018-0631
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., dissents.


text:
    Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators' Assn. for Dev. Disabilities
    2018-0628
    Supreme Court of Ohio.
    July 18, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Donnell and Kennedy, JJ., dissent.
    Fischer, J., dissents and would accept the cause on proposition of law No. III.


text:
    State v. Tibbetts
    1998-1970
    Supreme Court of Ohio.
    July 24, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for stay of execution. Motion denied as moot.


text:
    In re Complaint of Allied Erecting & Dismantling Co., Inc. v. Ohio Edison Co.
    2014-0008
    Supreme Court of Ohio.
    July 24, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On May 11, 2016, this court stayed these proceedings pending resolution of federal bankruptcy proceedings. Sua sponte, the court orders the parties to notify the court within 14 days whether the federal bankruptcy proceedings have concluded and this case can proceed.


text:
    State ex rel. Miller v. Bower
    2018-0827
    Supreme Court of Ohio.
    July 24, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for appointment of counsel and motion for mediation. Motions denied.


text:
    State ex rel. Husband v. Shanahan
    2018-0995
    Supreme Court of Ohio.
    July 24, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   This cause was filed as a jurisdictional appeal. It is determined by the court that this cause should proceed as an appeal of right pursuant to S.Ct.Prac.R. 5.01. The clerk shall issue an order for the transmission of the record from the Court of Appeals for Hamilton County, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07.


text:
    Disciplinary Counsel v. Barbera
    2016-1159
    Supreme Court of Ohio.
    July 24, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On respondent's application for termination of probation. Respondent has substantially complied with Gov.Bar R. V(21)(D) and with this court's order dated March 15, 2017. Probation of respondent, Richard Barbera, Attorney Registration No. 0064044, last known business address in Medina, Ohio, terminated.


text:
    State ex rel. Neguse v. Franklin Cty. Court of Common Pleas
    2018-0714
    Supreme Court of Ohio.
    July 24, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    Appellant has not filed a merit brief, due July 16, 2018, and therefore has failed to prosecute this cause with the requisite diligence. Sua sponte, cause dismissed.


text:
    Disciplinary Counsel v. Bartels
    2015-1638
    Supreme Court of Ohio.
    July 23, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On respondent's application for termination of probation. Respondent has substantially complied with Gov.Bar R. V(21)(D) and with this court's order dated June 22, 2017. Probation of respondent, N. Shannon Bartels, Attorney Registration No. 0064012, last known business address in Elida, Ohio, terminated.


text:
    State ex rel. McCann v. Delaware Cty. Bd. of Elections
    2018-1037
    Supreme Court of Ohio.
    July 25, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Prohibition. On relators' motion to expedite. Motion granted. This case shall proceed as an expedited election case pursuant to S.Ct.Prac.R. 12.08. The clerk shall refuse to file any requests or stipulations for extension of time. All documents filed in this case shall be served as specified by S.Ct.Prac.R. 12.08(C).


text:
    Realty Income Properties 24, L.L.C. v. Delaware Cty. Bd. of Revision
    2016-1427
    Supreme Court of Ohio.
    July 25, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On joint motion to remand the appeal to the Board of Tax Appeals in order to implement a settlement. Cause remanded to the Board of Tax Appeals to take further action as appropriate.


text:
    State ex rel. Bates v. Franklin Cty. Court of Common Pleas
    2018-0997
    Supreme Court of Ohio.
    July 25, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's memorandum in support of jurisdiction. This cause originated in the court of appeals and, therefore, should proceed as an appeal of right pursuant to S.Ct.Prac.R. 5.01. It appears, however, that the decision being appealed is a magistrate's decision. Therefore, it is ordered by the court, sua sponte, that appellant shall show cause within 14 days why the appeal should not be dismissed for lack of jurisdiction pursuant to R.C. 2505.02.


author: ABELE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Stephen D. LYKINS, Defendant-Appellant.
    No. 17CA1040
    Court of Appeals of Ohio, Fourth District, Adams County.
    DATE JOURNALIZED: December 14, 2017
    Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Public Defender, Columbus, Ohio, for appellant.
    David Kelley, Adams County Prosecuting Attorney, and Michele L. Harris, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for appellee.
    DECISION AND JUDGMENT ENTRY
   ABELE, J.

{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. The court found Stephen D. Lykins, defendant below and appellant herein, guilty of pandering obscenity involving a minor in violation of R.C. 2907.321(A)(2). Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN IMPOSING A $1,000.00 FINE UPON MR. LYKINS."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRONEOUSLY ASSESSED COSTS FOR DISMISSED CHARGES."
THIRD ASSIGNMENT OF ERROR:
"MR. LYKINS WAS ASSESSED COSTS THAT WERE NOT AUTHORIZED BY LAW."
FOURTH ASSIGNMENT OF ERROR:
"THE CLERK OF COURTS ISSUED IMPROPERLY, AND WITHOUT AUTHORITY, AN EXECUTION AGAINST MR. LYKINS'S PROPERTY FOR BOTH FINES AND THE COSTS OF PROSECUTION."

{¶ 2} After an Adams County grand jury returned an indictment that charged appellant with three counts of pandering obscenity involving a minor. Subsequently, appellant agreed to plead guilty to one count of pandering obscenity involving a minor and the trial court sentenced appellant to serve six years in prison. The court also (1) classified appellant a tier II sex offender/child victim offender registrant; (2) ordered appellant "to pay a $1,000.00 fine currently in [appellant]'s bank account" and to "pay all costs of the prosecution of this action for which execution is awarded, and any fees permitted pursuant to [R.C] 2929.18(A)(4)." The court "specifically [found] in the imposition of financial sanctions that [appellant] has the past, present and future income ability and/or potential to satisfy all financial sanctions imposed." This appeal followed.

I

{¶ 3} In his first assignment of error, appellant contends that the trial court erred by imposing a $1,000 fine. He asserts that the court considered only whether his bank account held sufficient funds to pay the fine. Appellant further argues that the trial court should not have considered his social security benefits when evaluating his ability to pay. Appellant claims that his social security benefits essentially are sacrosanct and cannot be considered when a sentencing court evaluates a criminal defendant's ability to pay a fine.

A

PLAIN ERROR

{¶ 4} We first observe that appellant did not object at sentencing to the trial court's imposition of a $1,000 fine. He further did not assert that he lacked the ability to pay the fine, that the court could not consider the funds in his bank account, or that the court could not consider his social security benefits when evaluating his ability to pay. His failure to raise these issue before the trial court means that he forfeited the right to raise them on appeal. State v. Anderson , 4th Dist. Scioto No. 15CA3696, 2016-Ohio-7252, 2016 WL 5889176, ¶ 34 ; State v. Newman , 2015-Ohio-4283, 45 N.E.3d 624 (4th Dist.), ¶ 40, citing State v. Mendez , 7th Dist. Mahoning No. 13MA86, 2014-Ohio-2601, 2014 WL 2725935, ¶ 11, quoting State v. Potts , 7th Dist. Harrison No. 07HA4, 2008-Ohio-643, 2008 WL 435005, ¶ 7 ("[A]n offender who does not raise his ability to pay a financial sanction at the time the sanction is imposed waives any argument concerning his ability to pay on direct appeal."). We may, however, review appellant's assignment of error for plain error. Anderson ; Newman , citing State v. Leslie , 4th Dist. Hocking Nos. 10CA17 and 10CA18, 2011-Ohio-2727, 2011 WL 2225152, ¶ 27 (applying plain error rule when defendant failed to object to trial court's restitution order); accord State v. Thomas , 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d. 821, ¶ 32 (stating that Crim.R. 52(B) allows court to recognize plain error "notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court").

{¶ 5} Crim.R. 52(B) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B) thus permits a court to recognize plain error if the party claiming error establishes (1) that " 'an error, i.e., a deviation from a legal rule' " occurred, (2) that the error is a plain or " 'an "obvious" defect in the trial proceedings,' " and (3) that this obvious error affected substantial rights, i.e., the error " 'must have affected the outcome of the trial.' " State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, quoting State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002) ; accord Thomas at ¶¶ 32-33. For an error to be "plain" or "obvious," the error must be plain "under current law" "at the time of appellate consideration." Johnson v. United States , 520 U.S. 461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ; accord Henderson v. United States , 568 U.S. 266, 279, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013) ; Barnes , 94 Ohio St.3d at 27, 759 N.E.2d 1240 ; State v. G.C. , 10th Dist. Franklin No. 15AP-536, 2016-Ohio-717, 2016 WL 764409, ¶ 14. Even when, however, a defendant demonstrates that a plain error or defect affected his substantial rights, the Ohio Supreme Court has " 'admonish[ed] courts to notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." ' " Rogers at ¶ 23, quoting Barnes , 94 Ohio St.3d at 27, 759 N.E.2d 1240, quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 6} In the case sub judice, as we explain below, we do not believe appellant has established that the trial court plainly erred by imposing the $1,000 fine.

B

STANDARD OF REVIEW

{¶ 7} R.C. 2953.08(G)(2) defines appellate review of felony sentences and provides in relevant part:

The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.

{¶ 8} The statute thus indicates that "appellate courts may not apply the abuse-of-discretion standard" when reviewing felony sentences. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10. Instead, "an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1.

Clear and convincing evidence is that measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

Id. at ¶ 22.

{¶ 9} Thus, in the case sub judice, we may not disturb the trial court's decision to impose a $1,000 fine unless the record clearly and convincingly shows that the fine is contrary to law. State v. Noble , 4th Dist. Athens No. 15CA20, 2017-Ohio-1440, 2017 WL 1400008, ¶¶ 45-46 ; accord State v. Farless , 6th Dist. Lucas Nos. L-15-1060 and L151061, 2016-Ohio-1571, 2016 WL 1547098, ¶ 4 ; see Marcum at 23 (stating that "an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence").

C

FINANCIAL SANCTIONS

{¶ 10} R.C. 2929.18(A) allows a sentencing court to "sentence [a felony] offender to [a] financial sanction." R.C. 2929.18(A)(3) permits a trial court to impose a fine upon a second-degree felony offender in an amount no greater than $15,000.

{¶ 11} Before a court may impose a financial sanction, R.C. 2929.19(B)(5) requires a trial court to consider "the offender's present and future ability to pay the amount of the sanction or fine." In general, a trial court's imposition of a fine is contrary to law when the record fails to indicate that the trial court made " 'even a cursory inquiry into the offender's present and future' " ability to pay the amount imposed. Newman at ¶ 44 (applying former abuse-of-discretion standard applicable to felony-sentence review and stating that trial court abuses its discretion under these circumstances), citing State v. Rickett , 4th Dist. Adams No. 07CA846, 2008-Ohio-1637, 2008 WL 901480, ¶ 4, quoting State v. Bemmes , 1st Dist. Hamilton No. C-010522, 2002-Ohio-1905, 2002 WL 507337, ¶ 9 ; State v. Dennis , 4th Dist. Highland No. 13CA6, 2013-Ohio-5633, 2013 WL 6797186, ¶ 14 ; State v. Collier , 184 Ohio App.3d 247, 2009-Ohio-4652, 920 N.E.2d 416, ¶ 11 (10th Dist.) (explaining that imposition of financial sanction contrary to law if the record clearly and convincingly shows that the trial court did not actually consider the offender's ability to pay). "This is a low standard." State v. Smith, 10th Dist., 2017-Ohio-7740, 97 N.E.3d 1068, ¶ 46. Thus, as long as the record contains some indication that the trial court considered the offender's present and future ability to pay the sanction or fine, the court's imposition of a financial sanction is not contrary to law. Id. , citing Collier at ¶ 14.

{¶ 12} We note, moreover, that a trial court need not expressly state on the record that it considered an offender's ability to pay. Newman at ¶ 44, citing Rickett at ¶ 6 (citations omitted). Thus, the absence of an explicit statement does not necessarily require a reversal of a court's imposition of a financial sanction. Id. Instead, when a trial court fails to make an explicit finding regarding an offender's ability to pay, a reviewing court may consider the entire record to ascertain whether this finding may be inferred. Id. , citing Rickett at ¶ 6 ; accord State v. Brewer , 2014-Ohio-1903, 11 N.E.3d 317, 326, ¶ 45 (4th Dist.) ; State v. Bulstrom , 2013-Ohio-3582, 997 N.E.2d 162, ¶ 15 (4th Dist.). We have therefore held that "[i]f the record shows that the court considered a presentence investigation report that provides pertinent information about the offender's financial situation and his ability to pay the financial sanction, it has met its obligation under R.C. 2929.19(B)(5)." State v. Petrie , 4th Dist. Meigs No. 12CA4, 2013-Ohio-887, 2013 WL 967832, ¶ 5 ; e.g., Bulstrom at ¶ 15 ; accord State v. Ayers , 2d Dist. Greene No. 2004CA0034, 2005-Ohio-44, 2005 WL 32801, ¶ 25 ("Information contained in a presentence investigation report relating to defendant's age, health, education and employment history, coupled with a statement by the trial court that it considered the presentence report, has been found sufficient to demonstrate that the trial court considered defendant's ability to pay a financial sanction."). We hasten to add, however, that courts have upheld financial sanctions even in the absence of a presentence investigation report. See Newman at ¶ 51. Additionally, we have been reluctant to recognize error in imposing financial sanctions when an offender fails to argue before the trial court that the offender lacks the present or future ability to pay and fails to present testimony or evidence to that effect. See id. at ¶ 53.

{¶ 13} We further observe that R.C. 2929.19(B)(5) does not specify any particular factors that the court must consider, or findings that the court must make, when considering the offender's present and future ability to pay. Id. at ¶ 44, citing State v. Martin , 140 Ohio App.3d 326, 338, 747 N.E.2d 318 (4th Dist.2000) ; Smith , supra , at ¶ 47. Although the statute does not contain any factors that a trial court must consider in evaluating an offender's ability to pay, reviewing courts generally have identified some of the following factors as relevant when considering an offender's ability to pay: (1) the offender's age; (2) the offender's employment history and potential; (3) the offender's education; (4) the offender's health; (5) the length of the offender's prison term; (6) the offender's source of income; (7) the offender's income potential; (8) whether the offender is indigent; and (9) the amount of the fine. See generally Newman at ¶ 50 (considering offender's age, education, employment history and potential, health, and length of prison term); see also State v. Hicks , 8th Dist. Cuyahoga No. 105083, 2017-Ohio-8312, 2017 WL 4861577, ¶ 11 and ¶ 18 (noting that courts may consider offender's age, health, work history, education, prison-term-length, and earning capacity); Smith at ¶ 49 (considering offender's employment, amount of money found on person, health, and income potential).

{¶ 14} In the case sub judice, we again emphasize out that the trial court explicitly stated that it considered appellant's present and future ability to pay the $1,000 fine. Appellant, however, claims that the record indicates that the trial court looked solely to his bank account balance at the time of sentencing when deciding to impose the fine. We do not agree. The trial court considered the presentence investigation report and noted the following: (1) appellant had been gainfully employed in the past and worked for approximately 30 years as a self-employed construction worker; (2) he has been receiving disability payments for the past three years due to degenerative disk disease, asthma, and high blood pressure; (3) his disability payments are his sole source of income; and (4) appellant "has no financial assets or obligations." The court further pointed out that appellant would be able to earn $17 to $19 per month while incarcerated. Thus, while the trial court did ask how much money appellant's bank account held, we do not agree that the court relied solely on this factor. Instead, the trial court considered the totality of appellant's circumstances. Moreover, appellant has not pointed to any controlling authority to indicate that a trial court cannot consider funds held in an offender's bank account. In fact, the amount of money in an offender's bank account would seem to be a relevant factor to consider when evaluating an offender's present ability to pay.

{¶ 15} Furthermore, we note that the amount of the fine in the case sub judice is not so high as to represent an insurmountable burden to appellant. Appellant will have the ability to earn $17 per month while incarcerated. Consequently, we do not believe that the record clearly and convincingly demonstrates that the trial court failed to consider appellant's ability to pay the $1,000 fine or that the imposition of the $1,000 fine is contrary to law.

{¶ 16} Appellant also argues that the trial court wrongly considered his social security disability benefits when evaluating his ability to pay. Appellant did not raise this specific issue before the trial court, and we therefore decline to address it. See Risner v. Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife , 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 28, quoting Sizemore v. Smith , 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983), fn. 2 (explaining that courts "should be hesitant to decide" forfeited issues " 'for the reason that justice is far better served when it has the benefit of briefing, arguing, and lower court consideration before making a final determination' "). We additionally recognize that appellant did not point to any direct controlling authority that states a trial court cannot consider social security benefits when evaluating an offender's ability to pay under R.C. 2929.19(B)(5). Instead, the authority appellant cites generally states that social security payments are not subject to garnishment, attachment, etc. Consequently, any error that the court may have committed by considering appellant's social security benefits would not be an obvious error. Also, we again observe that the trial court considered appellant's earning potential while imprisoned (i.e., $17-$19 per month), and the amount of money he possessed. Thus, the court did not look solely to appellant's social security disability benefit when it evaluated his ability to pay.

{¶ 17} We also point out that appellant's status as an indigent defendant who qualified for appointed counsel does not demonstrate that he lacks the present or future ability to pay. "Being 'indigent' and being 'unable to pay' are not the same. Indigency concerns a defendant's current financial situation, whereas an inability to pay encompasses his future financial situation as well." State v. Plemons , 2nd Dist. Montgomery Nos. 26434, 26435, 26436 and 26437, 2015-Ohio-2879, 2015 WL 4387378, ¶ 7. As the court explained in Plemons :

Merely alleging indigency and an inability to afford private counsel does not establish an inability to pay a fine. Indeed, "[a] finding of indigence for purposes of appointed counsel does not shield the defendant from paying a fine." State v. Lewis , 2d Dist. Greene No.2011-CA-75, 2012-Ohio-4858 [2012 WL 5076174], ¶ 16. " 'This is because the ability to pay a fine over a period of time is not equivalent to the ability to pay legal counsel a retainer fee at the onset of criminal proceedings.' " Id. , quoting State v. Kelly , 145 Ohio App.3d 277, 284, 762 N.E.2d 479 (12th Dist.2001).

Id. at ¶ 9. Accord State v. Davenport , 85 N.E.3d 443, 2017-Ohio-688 (2nd Dist.), ¶ 35, cause dismissed, 148 Ohio St.3d 1438, 2017-Ohio-1345, 72 N.E.3d 653 ; Smith at ¶ 47 ; State v. Black , 8th Dist. Cuyahoga No. ----, 2017-Ohio-8063, 2017 WL 4423006, ¶ 51 (stating that a finding of indigency for purposes of appointed counsel does not necessarily show inability to pay financial sanction). Moreover, this court previously has determined that simply because a trial court finds a defendant indigent for purposes of appointed counsel does not mean that the defendant lacks the future ability to pay. Noble at ¶ 58, citing State v. Bulstrom , 4th Dist., 997 N.E.2d 162, 2013-Ohio-3582, ¶ 17 ; State v. Waddell , 4th Dist. Lawrence No. 10CA27, 2011-Ohio-4629, 8, 2011 WL 4089547, fn. 2 ("Indigency for purposes of affording counsel, and for purposes of paying fines, are separate and distinct issues").

{¶ 18} Consequently, we do not find clear and convincing evidence in the record to indicate that the trial court's imposition of a $1,000 fine is contrary to law, and we do not find any plain error.

{¶ 19} Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error.

II

COSTS OF PROSECUTION

{¶ 20} Appellant's second and third assignments of error challenge the trial court's assessment of the costs of prosecution. For ease of discussion, we consider them together.

{¶ 21} In his second assignment of error, appellant asserts that the trial court incorrectly assessed the costs of prosecuting the two charges that later were dismissed. Appellant notes that the record indicates that the court assessed $124 for each of the three charges initially filed in Adams County Court. Appellant argues that because two of the charges eventually were dismissed, the court cannot assess the costs of prosecuting those dismissed charges. He thus asserts that we must vacate the costs assessed for the two dismissed charges.

{¶ 22} In his third assignment of error, appellant argues that the trial court erred by assessing costs that are not statutorily authorized. Appellant appears to raise this assignment of error as an alternative to his second assignment of error. He asserts: "If this Court does not vacate the costs relating to [appellant]'s dismissed counts or hold that the $124.00 amount constitutes the sum of county-court costs transferred for each case, then [appellant] asserts that the specific amounts charged in the cost bill are unauthorized."

{¶ 23} R.C. 2947.23 provides that "[i]n all criminal cases, * * * the judge * * * shall include in the sentence the costs of prosecution * * * and render a judgment against the defendant for such costs." R.C. 2947.23(A)(1)(a). We point out that the statute indicates that a judge can include the costs of prosecution "in the sentence." "[T]he meaning of word 'sentence' in the context of a criminal case is '[t]he judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution.' " State v. Powers , 117 Ohio App.3d 124, 128, 690 N.E.2d 32 (6th Dist.1996), quoting Black's Law Dictionary (6 Ed. 1990) 1362. "Accordingly, the intent of the statute is to impose costs on a defendant after his or her conviction." Id. Consequently, a judge can assess the costs of prosecution " 'only if the state is successful.' " State v. Weddington , 4th Dist. Scioto No. 15CA3695, 2015-Ohio-5249, 2015 WL 9072063, ¶ 13, quoting Powers , 117 Ohio App.3d at 128, 690 N.E.2d 32, and citing State v. Karasek , 2d Dist. Montgomery Nos. 17408 and 17563, 2002 WL 1041939, *6 (May 24, 2002) (stating that trial court erred in ordering defendant to pay all the costs associated with her prosecution, rather than just those associated with the charge of which she was found guilty). Thus, "[t]here is absolutely no authority for a court to assess costs against a criminal defendant who has not been sentenced following a conviction unless, as part of a plea bargain, the parties have agreed otherwise." Willoughby v. Sapina , 11th Dist. Lake Nos. 2000-L-138 and 2000-L-139, 2001-Ohio-8707, 2001 WL 1602651, *2 ; Cuyahoga Falls v. Coup-Peterson , 124 Ohio App.3d 716, 717, 707 N.E.2d 545 (9th Dist.1997) (stating that "there is no authority for a court to assess costs against a defendant who has not been sentenced, absent an agreement otherwise between the parties"); accord Nelson v. Colorado , ---U.S. ----, 137 S.Ct. 1249, 1256, 197 L.Ed.2d 611 (2017) (stating that state "may not retain funds taken from [defendants] solely because of their now-invalidated convictions, for [a state] may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions"); Powers , 117 Ohio App.3d at 128, 690 N.E.2d 32 (determining that court could not impose costs incurred as a result of jury trial on charges for which jury did not convict defendant). Instead, R.C. 2947.23 authorizes a trial court to assess the costs related to a prosecution only when a defendant has been found guilty and sentenced. Id. ; see also State ex rel. Dayton Law Library Assn. v. White , 110 Ohio St.3d 335, 2006-Ohio-4573, 853 N.E.2d 651, ¶ 34 (noting that losing party ordinarily pays court costs and that "[i]n unsuccessful state-law prosecutions in municipal court * * * the losing party is technically the state * * *").

{¶ 24} In the case at bar, appellant was convicted of and sentenced for one count of pandering obscenity involving a minor. The court dismissed the remaining two counts. All three charges originated from separate complaints filed in municipal court. The listing of fees contained in the record indicates that appellant has been assessed the costs incurred in all three court cases. However, he entered a guilty plea to only one count, and the trial court sentenced him for only one count. Therefore, in accordance with the foregoing authority, it is improper to impose costs associated with the dismissed counts. We therefore agree with appellant that the court may not assess the costs associated with the two charges that the court dismissed.

{¶ 25} Accordingly, based upon the foregoing reasons, we sustain appellant's second assignment of error reverse this portion of the judgment and remand this matter with instructions to the trial court to determine the amount of costs actually incurred as a result of prosecuting the one count for which appellant was found guilty and sentenced and to modify the costs of prosecution as needed.

{¶ 26} Inasmuch as appellant framed his third assignment of error as an alternative to his second assignment of error, we will not address his third assignment of error. Instead, we find it moot and do not address it. App.R. 12(A)(1)(c).

III

EXECUTION OF COSTS

{¶ 27} In his fourth assignment of error, appellant asserts that the Clerk of Courts improperly issued a writ of execution against his property. He contends that before the clerk could issue the writ, he is entitled to an itemized bill and an adequate opportunity to pay. Appellant further argues that R.C. 2949.15 only permits a writ of execution to issue against nonindigent convicted felons. He asserts that his indigent status precluded the clerk from issuing the writ. Appellant thus contends that the writ of execution is void.

{¶ 28} The state argues that a direct appeal from a judgment of conviction and sentence is not the proper avenue to challenge the writ. The state does not, however, cite any direct authority to support its proposition. Rather, the state includes a general citation to State v. Nobles , 106 Ohio App.3d 246, 665 N.E.2d 1137 (2nd Dist. 1995), following its statement that "there are no facts in the record upon which this court can rely to render the relief appellant seeks." We, however, reviewed Nobles and it does not indicate that an appellant cannot challenge a clerk of court's issuance of a writ of execution through a direct appeal from a judgment of conviction and sentence. Instead, the state appears to rely upon the following quotation that appears in Nobles : "The allegation Nobles raises here is based on facts that are not in the record, and so we can award her no remedy on direct appeal." Id. at 275, 665 N.E.2d 1137.

{¶ 29} Appellant responds that Lingo v. State , 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, "illustrates that direct appeal is the process the Supreme Court of Ohio envisioned to resolve court-cost disputes."

{¶ 30} Assuming, arguendo, that we may consider appellant's challenge to the clerk's writ of execution against his property (see generally Lingo , State v. White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, and State v. Threatt , 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164 ), we do not agree with appellant that the writ is void. First, we point out that the sheriff returned the execution against appellant's property for $.01. Appellant has not cited any authority that authorizes us to set aside the execution and order a return of $.01. See generally 40 Ohio Jur. 3d Enforcement of Judgments, Section 307 (footnotes omitted) ("The writ of execution is of no further effect after the return is made or after the return day of the writ, and the officer's power over the process ends at that time."). Additionally, appellant did not request a stay of execution, and did not request the trial court to set aside, quash, or recall the execution. See generally 40 Ohio Jur. 3d Enforcement of Judgments, Section 306 (footnotes omitted) ("Returns of execution may be set aside if made through a mistake."); 40 Ohio Jur. 3d Enforcement of Judgments, Section 340 (footnotes omitted) ("Since every court has control and supervision over its own process, it has the power to quash, set aside, or recall an execution").

{¶ 31} Furthermore, we disagree with the substance of appellant's argument. Two Ohio Supreme Court cases appear to directly refute his assertion that the clerk cannot issue an execution against an indigent defendant's property and attempt collection from an indigent defendant. In White , the court held: "a clerk of courts may attempt the collection of assessed court costs from an indigent defendant." Id. at ¶ 14. In Threatt , the court considered whether R.C. 2949.14 and R.C. 2947.23 permit "court costs assessed as part of a sentence [to] be collected against a[n indigent] defendant convicted of a felony by levy or garnishment * * * [.]" Id. at ¶ 10. The Threatt court determined that "the state may use any collection method that is available for collection of a civil judgment for money, as well as the procedures set out in R.C. 5120.133 if the defendant is incarcerated." Id. at ¶ 16. Consequently, we disagree with appellant that the clerk cannot execute against his property based upon his indigent status.

{¶ 32} Moreover, Ohio courts have not recognized that a criminal defendant is entitled to notice and an opportunity to be heard before a clerk may issue an execution against property under R.C. 2949.15. In Threatt , the court noted that R.C. 2947.23(B) sets forth a hearing process, but the court did not rule that a court must afford a defendant a hearing before collection efforts begin. The court explained:

R.C. 2947.23(B) defines a hearing process to be used after a defendant has failed to pay a judgment for costs. It permits, but does not require, a court to order the defendant to perform community service for credit against the judgment. The statute goes on to provide: "Except for the credit and reduction provided in this division, ordering an offender to perform community service under this division does not lessen the amount of the judgment and does not preclude the state from taking any other action to execute the judgment."

Id. at ¶ 12.

{¶ 33} We further note that R.C. 2949.15 states:

If a nonindigent person convicted of a felony fails to pay the costs of prosecution pursuant to section 2949.14 of the Revised Code, the clerk of the court of common pleas shall forthwith issue to the sheriff of the county in which the indictment was found, and to the sheriff of any other county in which the person has property, executions against his property for fines and the costs of prosecution, which shall be served and returned within ten days, with the proceedings of such sheriff or the certification that there is no property upon which to levy, indorsed thereon.
When a levy is made upon property under such execution, a writ shall forthwith be issued by the clerk for the sale thereof, and such sheriff shall sell the property and make return thereof, and after paying the costs of conviction, execution, and sale, pay the balance to the person authorized to receive it.

Courts have held that " R.C. 2949.15 does not require a hearing prior to the seizure of a defendant's property for purposes of collecting court-ordered costs of prosecution."

State v. Williams , 12th Dist. Fayette No. CA2005-11-030, 2006-Ohio-5660, 2006 WL 3059793, ¶ 10 ; accord State v. McDowell , 11th Dist. Portage No. 2001-P-0149, 2003-Ohio-5352, 2003 WL 22290889, ¶ 56 (stating that the "language of R.C. 2949.15 does not require the trial court to hold a hearing or special proceeding prior to the forfeiture of property").

{¶ 34} Thus, we do not agree with appellant that the execution against his property is void due to his status as an indigent defendant and due to the expediency with which the clerk issued the writ. Moreover, even if we believed that the miscalculation of court costs (see our discussion of appellant's second assignment of error) requires setting aside or modification of the writ, we point out that the amount of the return was $.01. Any court-cost miscalculation that occurred would not result in a sum less than $.01. Thus, any error in executing the writ did not affect appellant's substantial rights and would be harmless error that we must disregard. Crim.R. 52(A).

{¶ 35} Accordingly, based upon the foregoing reasons, we overrule appellant's fourth assignment of error and affirm the trial court's judgment of conviction and sentence except as it relates to the calculation of court costs. Thus, we reverse the trial court's calculation of costs and remand the matter to the trial court with instructions to evaluate the itemized cost bill in accordance with this opinion and to amend it accordingly.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Hoover, J.: Concurs in Judgment & Opinion

McFarland, J.: Concurs in Judgment Only as to Assignments of Error II, III & IV; Dissents as to Assignment of Error I

      R.C. 2907.321(A)(2) states:
      (A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
      * * * *
      (2) Promote or advertise for sale or dissemination; sell, deliver, disseminate, display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, disseminate, display, exhibit, present, rent, or provide, any obscene material that has a minor as one of its participants or portrayed observers;

      We dismissed appellant's original appeal from the trial court's judgment of conviction and sentence because the court did not dispose of the two remaining counts of the indictment. State v. Lykins , 4th Dist. Adams No. 16CA1021, 2016-Ohio-8409, 2016 WL 7626615. On January 6, 2017, the trial court dismissed the remaining two counts and appellant filed a new notice of appeal.

      The state argues that appellant failed to object at sentencing to the trial court's imposition of costs and, thus, forfeited all but plain error. As appellant notes, however, appellant challenges the calculation of the costs. Appellant did not receive an itemized bill until after sentencing had occurred and after the trial court had entered its judgment of conviction and sentence. Thus, absent filing a motion under R.C. 2947.23(C), see fn. 4 infra, appellant's other avenue of relief would appear to be a direct appeal. See Lingo v. State , 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 39, citing State v. Threatt , 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph four of the syllabus (stating that "[c]osts are part of a defendant's final, appealable judgment entry of sentence").

      We point out that R.C. 2947.23(C) states that "[t]he court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter." Due to the fact-intensive nature that may be involved in reviewing the costs of prosecution, we believe that trial courts are better equipped to address the exact amount of costs in the first instance.

      Our ruling on appellant's second assignment of error means that the trial court will need to re-examine the costs charged to appellant to determine which costs are properly associated with appellant's conviction and sentence for one count of pandering obscenity involving a minor, and which are attributable to the dismissed counts. The trial court may, therefore, deem it appropriate to further modify the cost bill. Our statement should not, however, be construed as an opinion as to the appropriateness of any specific charge associated with the one count of which appellant was convicted and sentenced.

      R.C. 2947.23(B) states:
      If a judge or magistrate has reason to believe that a defendant has failed to pay the judgment described in division (A) of this section or has failed to timely make payments towards that judgment under a payment schedule approved by the judge or magistrate, the judge or magistrate shall hold a hearing to determine whether to order the offender to perform community service for that failure. The judge or magistrate shall notify both the defendant and the prosecuting attorney of the place, time, and date of the hearing and shall give each an opportunity to present evidence. If, after the hearing, the judge or magistrate determines that the defendant has failed to pay the judgment or to timely make payments under the payment schedule and that imposition of community service for the failure is appropriate, the judge or magistrate may order the offender to perform community service until the judgment is paid or until the judge or magistrate is satisfied that the offender is in compliance with the approved payment schedule. If the judge or magistrate orders the defendant to perform community service under this division, the defendant shall receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed shall reduce the judgment by that amount. Except for the credit and reduction provided in this division, ordering an offender to perform community service under this division does not lessen the amount of the judgment and does not preclude the state from taking any other action to execute the judgment.