2013 Ohio 4185
Ohio Ct. App.2013Background
- Timothy and Todd West were convicted after police discovered hundreds of marijuana plants at a commercial building on Scranton Road; evidence included plants, packaged marijuana, scales, and witness observations of furtive conduct and strong odor.
- Grand jury indictments included forfeiture specifications for vehicles, cash, a scale, a cell phone, and the Scranton Road property; Timothy was sentenced to a total of 16 years and a $15,000 fine.
- The trial court conducted an R.C. 2981.04 forfeiture hearing after the brothers had transferred the Scranton Road property to a third party; the court found the transferee a bona fide purchaser and ordered sale proceeds forfeited.
- On direct appeal this court merged allied offenses, reversed and remanded for resentencing, reversed forfeiture of $1,313, and found the admission of a co-defendant’s statement harmless in light of other evidence.
- Timothy filed an App.R. 26(B) application claiming appellate counsel was ineffective for omitting multiple issues (jurisdiction over the forfeiture hearing; property identification in the indictment; prosecutorial nondisclosure and thermal-imaging affidavit issues; unreturned property; trial counsel’s failure to file an indigency affidavit; fines for allied offenses; and insufficiency of evidence).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court jurisdiction to hold forfeiture hearing after appeal filed | State: trial court retained statutory jurisdiction to proceed with ancillary forfeiture matter | West: filing of appeal divested trial court of jurisdiction to conduct R.C. 2981.04 hearing | Denied — court rejected West’s jurisdictional claim; res judicata bars re-litigation |
| Forfeiture of Scranton Road property when parcel identification differed | State: specification sufficiently identified the property (deed, merged parcels, single address) | West: indictment referenced wrong parcel number so entire property couldn't be forfeited | Denied — court found specification covered whole property and prior rulings control (res judicata) |
| Thermal-imaging affidavit, nondisclosure, and suppression | State: probable cause supported by furtive conduct and odor; no record showing improper affidavit or deliberate falsehood | West: prosecutor failed to disclose fly-over affidavit; affidavit was improper and required Franks/Roberts hearing; fruits should be suppressed | Denied — no record support, defendant made no substantial showing of falsehood, and independent probable cause existed; waiver and harmlessness apply |
| Ineffective assistance of appellate/trial counsel (failure to raise return-of-property, indigency affidavit, sufficiency) | West: appellate counsel should have raised these issues; trial counsel should have filed poverty affidavit or objected to fine | State: appellate counsel reasonably winnowed issues; many claims lack record support or are ancillary; resentencing provides opportunity to raise some objections | Denied — Strickland standard not met; counsel’s strategy reasonable, no prejudice shown, and some issues are ancillary or preserved for resentencing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard governing deficient performance and prejudice)
- Jones v. Barnes, 463 U.S. 745 (appellate counsel may winnow arguments; not required to raise every colorable issue)
- Franks v. Delaware, 438 U.S. 154 (defendant must make substantial showing of intentional falsehood or reckless disregard to obtain hearing on affidavit)
- State v. Murnahan, 63 Ohio St.3d 60 (App.R. 26(B) framework for reopening appeal)
- State v. Allen, 77 Ohio St.3d 172 (deference to appellate counsel’s strategic choices)
- State v. Wilson, 129 Ohio St.3d 214 (requirement of de novo resentencing after allied-offenses error)