In re Forfeiture of Property of Rhodes
2013 Ohio 3046
Ohio Ct. App.2013Background
- State filed a civil forfeiture petition under R.C. 2981.05 seeking a 2000 Jaguar titled to Diana Ankeny as an instrumentality used in a felony; vehicle was seized from Brookes Rhodes.
- The State attempted certified service twice (unsuccessful) and served Ankeny by regular mail on August 24, 2012.
- Ankeny did not file a responsive pleading; trial court entered default judgment and ordered forfeiture on October 11, 2012.
- Ankeny filed a timely appeal asserting ineffective assistance of retained counsel for failing to file an answer or otherwise defend the forfeiture.
- The appellate record did not include the retainer/fee agreement or a notice of appearance by the alleged attorney; the court declined to consider new evidence attached to the appellate brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ankeny was denied effective assistance of counsel in a civil forfeiture | Ankeny: retained counsel failed to file pleadings, constituting ineffective assistance causing default and forfeiture | State: civil forfeiture is a civil proceeding; no constitutional right to counsel or to effective assistance in this context | Court held no constitutional right to counsel in civil forfeiture; ineffective-assistance claim fails and default forfeiture stands |
| Whether the appellate court may consider the retainer agreement attached to appellant's brief | Ankeny: attached fee agreement proves counsel was retained and ineffective | State: document not in trial-court record; cannot be considered on appeal | Court refused to consider documents not part of the trial record and noted no notice of appearance on record |
Key Cases Cited
- State v. Lilliock, 70 Ohio St.2d 23 (1982) (forfeitures are disfavored and statutes must be construed to avoid forfeiture when possible)
- Dayton v. Boddie, 19 Ohio App.3d 210 (2d Dist.) (forfeiture statutes interpreted narrowly)
- Wainwright v. Torna, 455 U.S. 586 (1982) (no constitutional right to counsel in certain civil proceedings, so no right to effective assistance)
- U.S. v. Real Property Known and Numbered as 415 E. Mitchell Ave., Cincinnati, Ohio, 149 F.3d 472 (6th Cir.) (no Sixth Amendment right to counsel in civil forfeiture proceedings)