STATE OF OHIO, Plаintiff-Appellee, v. GLORIA JEAN COURT, Defendant-Appellant.
CASE NO. 2013-T-0122
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
June 16, 2014
2014-Ohio-2712
DIANE V. GRENDELL, J.
Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 2012 CR 435. Judgment: Appeal dismissed.
Gloria Jean Court, pro se, PID: W086942, Northeast Pre-Release Center, 2675 East 30th Street, Cleveland, OH 44115 (Defendant-Appellant).
MEMORANDUM OPINION
DIANE V. GRENDELL, J.
{¶1} This matter is before this court on the pro se motion of appellant, Gloria Jean Court, for leave to file a delayed appeal pursuant to
{¶2} We note, initially, that the forfeiture order from which appellant appeals is a final and appealable order, separate from the entry of conviction and sentence. An entry of conviction is final and appealable when it complies with
{¶3} Essential to the Supreme Court‘s analysis in Harris is its determination that “[f]orfeiture is a civil, not criminal, penalty” when the forfeiture is not a statutorily-required punishment. Id. at 324-325. See also State v. Cruise, 185 Ohio App.3d 230, 236 (9th Dist.2009); State v. Watkins, 7th Dist. No. 07 LE 54, 2008-Ohio-6634, ¶31. When not mandatory, an order of forfeiture is neither a conviction nor a sentence and,
{¶4} Prior to Harris, the Supreme Court reached the same conclusion in а matter that involved a statutorily-mandated forfeiture: “[F]orfeitures are not inherently civil penalties; rather, whether a forfeiture is a civil rather than a criminal penalty is a matter of statutory construction.” State v. Casalicchio, 58 Ohio St.3d 178, 181-182 (1991). In Casalicchio, the defendant‘s automobile was forfeitеd to the state, pursuant to former
For purposes of section 2933.43 of the Revised Code, if a * * * motor vehicle * * * is used in a violation of division (A) of this section, the * * * motor vehicle * * * is contraband and, if the underlying offense involved in the violation of division (A) of this section is a felony, is subject to seizure and forfeiture pursuant to section 2933.43 of the Revised Code.
The relevant portion of former
{¶5} The Supreme Court concluded that, due to the statutory requirements of former
{¶6} The different result in Harris, supra, is simply distinguished by the operative statutes. The defendant in Harris pled guilty and was convicted of drug trafficking in violation of
{¶7}
If a person pleads guilty to or is convicted of an offense * * * and the complaint, indictment, or information charging the offense or act contains a specification covering property subject to forfeiture under section 2981.02 of the Revised Code, the trier of fact shall determine whether the person‘s рroperty shall be forfeited. * * *.
“No positive prohibition or specific duty to be enjoined is present in the statute. Moreover, by its very terms, the statute distinguishes between the underlying criminal offense and the forfeiture specification.” Harris, supra, at 323. Thus, forfeiture of the defendant‘s property was not a conviction for purposes of
{¶8} Similarly, in the case sub judice, appellant pled guilty and was convicted under
{¶9} Not only is forfeiture considered a civil penalty in these circumstances, it is also considered a civil proceeding. “Ohio has generally considered forfeiture
{¶10} The trial court issued its order of forfeiture in this matter on June 7, 2013. However, appellant did not file her notice of appeal and motion for leave to file a delayed appeal until December 17, 2013, over six months later.2 Delayed appeals are only available to the classes of cases outlined above by the plain language of
After the expiration of the thirty day period provided by App.R. 4(A) for the filing of a notice of appeal as of right, an appeal may be taken by a defendant with leave of the court to which the appeal is taken in the following classes of cases: [c]riminal proceedings; [d]elinquency proceedings; and [s]erious youthful offender proceedings.
Pursuant to the anаlysis above, the forfeiture proceeding at issue is not included in
{¶11} By way of example, the Ohio Supreme Court has held that postconviction proceedings are quasi-civil in nature, although they stem from criminal proceedings. State v. Nichols, 11 Ohio St.3d 40, 42 (1984). Accordingly, the Sixth Amendment right to appointed counsel does not attach to postconviction proceedings. See State v. Buell, 70 Ohio St.3d 1211, 1212 (1994), quoting Penn. v. Finley, 481 U.S. 551, 555 (1987) (emphasis sic) (“‘[t]he right to appointed counsel extends to the first appeal as of right, and no further‘“). Thus, the Supreme Court has expressly held that delayed appeals are not available for postconviction proceedings. Nichols at 42.
{¶12} Similarly, in Meeks, this court held that the Sixth Amendment right to appointed counsel does not attach to forfeiture proceedings. Meeks, supra, at ¶51. Therefore, we hold that an
{¶13} The time requirement for filing a notiсe of appeal is jurisdictional in nature and may not be enlarged by an appellate court. State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60 (1988);
A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of thе judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day rule period in Rule 58(B) of the Ohio Rules of Civil Procedure.
{¶15} Based upon the foregoing analysis, appellant‘s motion for leave to file a delayed appeal is hereby overruled.
{¶16} Appeal dismissed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
STATE OF OHIO, Plaintiff-Appellee, v. GLORIA JEAN COURT, Defendant-Appellant.
CASE NO. 2013-T-0122
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
June 16, 2014
COLLEEN MARY O‘TOOLE, J.
COLLEEN MARY O‘TOOLE, J., dissents with Dissenting Opinion.
{¶17} Finding the majority‘s reliance on Harris, supra, misplaced, I would find this forfeiture a criminal proceeding for purposes of
{¶18} As long ago as 1982, the Supreme Court of Ohio determined that forfeiture proceedings “are criminal in nature but civil in form.” State v. Lilliock, 70 Ohio St.2d 23, paragraph two of the syllabus (referencing former
{¶19} The nature of forfeiture proceedings under
{¶20} Harris doеs contain the statement that, “Forfeiture is a civil, not criminal, penalty.” Id. at ¶29. I respectfully suggest that, in context of the question entertained in Harris, this is dicta. It is not essential for deciding whether a judgment entry of sentence is compliant with
{¶21} Forfeiture is not favored at law or equity. Lilliock, supra, at 25. Forfeiture statutes “must be construed so as to avoid a forfeiture of property.” Id. at 26. Whether to bring an
{¶22}
{¶23} I respectfully dissent.