632 N.E.2d 1351 | Ohio Ct. App. | 1993
Appellant, Darold E. Schindler, appeals the judgment entered against him in the Auglaize County Common Pleas Court in this personal property forfeiture action.
In 1982, appellant was convicted of an offense involving the illegal possession, use, sale, administration, distribution or trafficking in a drug of abuse. Appellant thereby incurred a disability under which appellant was prohibited from knowingly acquiring, having, carrying, or using any firearm. See R.C.
On June 22, 1992, appellant, while driving his 1986 Buick automobile, was stopped by an officer of the Wapakoneta Police Department. Following a warrantless search conducted with appellant's consent, the police officer located a firearm in the trunk of the car. Appellant was thereafter charged with possessing a weapon while under disability, in violation of R.C.
On June 23, 1992, a petition to forfeit appellant's automobile, pursuant to R.C.
On March 5, 1993, a hearing was held on the petition to forfeit the automobile. On March 9, 1993, the trial court issued its journal entry in the forfeiture action, finding that appellant, at the time of the seizure of the automobile, was in possession of the automobile and that the automobile was used for the purpose of committing a felony. The trial court further found that the vehicle was used in violation of R.C.
Appellant thereafter filed the instant appeal, raising the following four assignments of error:
"I. The trial court erred in failing to grant appellant's motion to dismiss made at the commencement of trial in that the trial was held beyond the mandatory forty-five (45) day limit required by Ohio Revised Code Section
"II. The trial court erred in denying appellant his due process of law.
"III. The trial court erred in concluding that the subject automobile was contraband as defined by Ohio Revised Code Section
"IV. If the trial court did not err in concluding that the subject automobile was contraband as defined by Ohio Revised Code Section
In his first assignment of error, appellant asserts that the hearing on appellee's forfeiture petition was not held within the statutory time limit.
R.C.
"If the property seized was determined by the seizing law enforcement officer to be contraband because of its relationship to an underlying criminal offense or administrative violation, no forfeiture hearing shall be held under this section *561 unless the person pleads guilty to or is convicted of the commission of, or an attempt or conspiracy to commit, the offense or a different offense arising out of the same facts and circumstances or unless the person admits or is adjudicated to have committed the administrative violation or a different violation arising out of the same facts and circumstances[.]"
The same statutory section then provides:
"[A] forfeiture hearing shall be held in such a case no later than forty-five days after the conviction or the admission or adjudication of the violation, unless the time for the hearing is extended by the court for good cause shown."
In this case, appellant entered his guilty plea to the underlying offense on December 17, 1992 and was found guilty by the trial court on that same date. Appellant was not sentenced until January 21, 1993. Appellant argues that the forty-five-day time limit began running on December 17, 1992, concluding that the March 5, 1993 forfeiture hearing was not held within the permissible time period. Appellee, on the other hand, asserts that the time limit did not begin running until January 21, 1993, when defendant was sentenced. There is nothing in the record to explain the delay in this case, or to serve as a basis for a "good cause" extension as provided for by the statute.
Accordingly, the issue presented for our consideration is whether, under the statute, "conviction" occurs at the time a defendant is found guilty of the offense charged, or whether "conviction" does not occur until a defendant has also been sentenced.
In support of the proposition that a defendant is not convicted until sentencing has occurred, we note that Crim.R. 32(B) provides that "[a] judgment of conviction shall set forth the plea, the verdict or findings, and the sentence."
Furthermore, in State v. Henderson (1979),
On the other hand, various provisions of the Criminal Rules and the Revised Code use the term "conviction" in reference to the legal determination of guilt, as opposed to the complete final judgment including the sentence. Crim.R. 46(E) *562
refers to "a person who has been convicted and is * * * awaiting sentence." R.C.
Furthermore, despite the determination made in Henderson,supra, the Supreme Court, in State v. Cash (1988),
Moreover, in State v. Casalicchio (1991),
Finally, an analysis of the language of the forfeiture statute also supports the proposition that "conviction" occurs at the time guilt is legally ascertained, and not at the point sentence is imposed. First of all, the statute provides that no forfeiture hearing may be held "unless the person pleads guilty to or is convicted of the commission of * * * the offense." R.C.
Upon careful consideration of all of the foregoing factors, we conclude that, for purposes of R.C.
In his second assignment of error, appellant asserts that his due process rights were violated because the trial court denied appellant's request to be present at the forfeiture hearing. On March 2, 1993, appellant, who was incarcerated at Orient, Ohio, filed a motion requesting that he be permitted to attend the forfeiture hearing. On March 5, 1993, at the forfeiture hearing, appellant's motion was overruled by the trial court. Although appellant's counsel was present, the hearing was held in appellant's absence.
In State v. Casalicchio, supra, the Supreme Court held that "where property is ruled contraband pursuant to R.C.
Crim.R. 43(A) provides, in relevant part:
"The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence * * *."
Crim.R. 1 provides, in relevant part:
"(A) These rules prescribe the procedure to be followed in all courts of this state in the exercise of criminal jurisdiction, with the exceptions stated in subdivision (C) of this rule.
"* * *
"(C) These rules, to the extent that specific procedure is provided by other rules of the supreme court or to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * (6) upon forfeiture of property for violation of a statute of this state * * *."
As there are no other rules governing a defendant's right to be present in court at such proceedings and as Crim.R. 43 is not "clearly inapplicable," we conclude that Crim.R. 43 does apply to forfeiture proceedings such as the instant one.
In light of the unequivocal holding of the Supreme Court inCasalicchio, supra, that forfeiture of property pursuant to R.C.
In his third assignment of error, appellant asserts that the trial court erred in finding that the 1986 Buick automobile was contraband, as defined by the Ohio Revised Code.
R.C.
In this case, appellant's car was being used in the commission of the offense of possessing a weapon while under disability, a violation of R.C.
Moreover, R.C.
"(A) No person shall possess, conceal, transport, receive, purchase, sell, lease, rent, or otherwise transfer any contraband.
"(B) For purposes of section
In this case, as appellant was under disability and prohibited from possessing firearms, the firearm found in the trunk of appellant's car was contraband, pursuant to R.C.
In his fourth assignment of error, appellant asserts that R.C.
As discussed above, appellant's car qualifies as contraband due to its use in the commission of the crime of possession of a weapon while under disability. Such utilization of the automobile constitutes a constitutionally sufficient nexus between the underlying crime and the property which was forfeited. See Casalicchio, supra,
In summary, while appellant's third and fourth assignments of error are overruled, appellant's first and second assignments of error are sustained. The failure to allow appellant to be present at the hearing would normally require only a vacation of the judgment and remand of the case for a new forfeiture hearing. However, as the forty-five-day time limit of R.C.
Judgment reversedand cause remanded.
EVANS, P.J., and HADLEY, J., concur.