David Braden is on Ohio’s death row at Chillicothe Correctional Institution. When he was sentenced in 1999, the court assessed over $2,000 in civil debt against him, to recoup the costs of his jury trial. To collect the costs, each month the court withdraws all the money from his commissary account in excess of $25. Mr. Braden earns $16 a month in state inmate pay, but is never permitted to retain more than $25 at a given time. This prevents him from purchasing many basic necessities, like medicine, and shoes.

In 2013, Mr. Braden petitioned the court that sentenced him to reduce the court costs he owes or, in the alternative, to approve a payment plan that would allow him to afford basic necessities while continuing to pay over time, pursuant to Ohio Revised Code 2947.23(C) (the “Statute.”). The trial court denied his motion and he appealed. The Tenth District Court of Appeals upheld the denial, holding that because Mr. Braden was sentenced before the state legislature enacted the current version of the Statute, this remedy was not available to him. Although it’s true that no Ohio law expressly allowed prisoners to apply for modifications of court costs when Mr. Braden was sentenced, the Ohio legislature subsequently enacted the Statute to ensure that people like Mr. Braden have such an option. The Tenth District’s holding denying him that option is directly contrary to the holdings of the Eighth, Ninth, and Second District courts, which have all held that prisoners sentenced before the enactment of the Statute may seek modifications of court cost orders.

This appeal is a companion to the Ohio Supreme Court case State v. Dunson, in which we filed an amicus brief on March 6, 2018. By hearing these two cases, the Supreme Court will determine whether the Statute requires an ability to pay determination (Dunson), and if it does, whether it applies to defendants sentenced before its enactment (Braden). If the Court finds that the Statute does not apply to Mr. Braden and those similarly situated, hundreds of incarcerated Ohioans will continue to be confined without access to basic necessities. The Court heard oral arguments in Dunson on April 24, then announced its intent to holding its decision in Dunson until it issues a decision in this one.

Legal Theory

State trial courts must consider ability to pay when hearing a criminal defendant’s motion to modify court costs, and defendants may move to modify costs regardless of whether they were sentenced before or after the state Statute governing such motions was enacted.

Status Update

On May 7, 2018, Mr. Braden filed his merits brief, and we filed an amicus brief asking the Court to find that the statutory remedy is available to criminal defendants regardless of their sentencing date, and that the Statute requires courts to consider defendants’ ability to pay when deciding a motion to modify costs. The State filed its merits brief on June 6, and Mr. Braden filed his responding brief on June 25, 2018. On June 14, 2018, Justice O’Donnell filed a notice of recusal; Judge Mike Powell of the Twelfth District Court of Appeals was assigned in his place. Oral argument was held on July 31, 2018. On December 19 the Court affirmed the decision below, holding that Ohio’s cost modification statute is not available to anybody sentenced prior to March, 2013. This decision reverses the law in four appellate jurisdictions and the practice in even more. The Court did not reach the issue of whether the Statute requires an ability to pay consideration; that issue was presented in the Dunson case, but as noted in the Dunson entry here, the court rejected Mr. Dunson’s claims based on its decision in this case. Justices French and O’Connor dissented in both cases.

Mr. Braden’s attorney’s filed a motion for reconsideration on December 31, 2018 and the State filed an opposition on January 10, 2019.

On October 16, 2019, the Ohio Supreme Court reversed its earlier decision and remanded the case for further review by the appeals court. J. French, writing for the Court, wrote that the Court’s prior decision was made in error and that Ohio trial courts retain jurisdiction to modify court costs assessed against criminal defendants after sentencing. This means that defendants who owe court costs may, at any time, seek relief from the court that sentenced them on the ground that they cannot pay what they owe.

Date filed

May 7, 2018