671 N.E.2d 1078 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *89 Appellant, Tyrone Harold, appeals the trial court's judgment ordering the forfeiture of his ownership interest in his home. We affirm.
Once again, on March 9, 1994, Atkinson went to Harold's house to purchase crack cocaine. Inside of the house and again with children present, he bought two pieces of crack cocaine worth $40. On March 29, 1994, Atkinson saw Harold at a third party's residence. Again, Atkinson asked if he could buy cocaine. Harold agreed and they went back to Harold's house. While Atkinson waited outside, an intermediary brought out fifty dollars' worth of crack cocaine.
The Lorain County Grand Jury indicted Harold for three counts of aggravated drug trafficking. The case proceeded to a bench trial, and the court found Harold guilty on the first two counts corresponding to the first two transactions. The court found Harold not guilty on the third count. The state then moved for forfeiture of Harold's interest in the house. The trial court conducted a separate hearing after the trial but before sentencing. The trial court found that Harold had used his house to facilitate the drug transactions. The court also found that the order of forfeiture did not constitute an excessive fine. The trial court ordered Harold's interest forfeited and also ordered that the interest of the coowner of the house, Joanne Brown, be protected, that is, not forfeited. The trial court then sentenced Harold to consecutive terms of five to ten years on the two counts with a $5,000 fine imposed for each count. Based on Harold's motion, the trial court stayed the forfeiture pending resolution of this appeal. *90
Pursuant to R.C.
While a drug transaction can occur almost anywhere, Harold's actions clearly fell within the definitions of use and facilitate. By deciding to conduct the transactions in his home, Harold could keep them hidden in a private and a safer surrounding and thus out of sight of the watchful eye of the public, the police and potential thieves. "As a situs for the sales, the property `facilitated' them by permitting them to be conducted in atmosphere of relative privacy." United States v.Certain Real Property and Premises Known as 38 Whalers CoveDrive, Babylon, New York (C.A.2, 1992),
Both the
In light of Austin's intent to have the United States Circuit Courts of Appeal wrestle with determining what is an excessive fine, Austin,
This court declines to adopt the instrumentality test. In theHill decision, although the Supreme Court of Ohio did not adopt an approach, it did analyze federal circuit court cases which utilized the proportionality test. We believe that the Supreme Court of Ohio's discussion has at least given tacit approval to the proportionality test. Inasmuch as the Supreme Court of Ohio has apparently given this tacit approval, we utilize proportionality review. See, generally, *92 United States v. Real Property Located in El Dorado Cty. at 6380Little Canyon Rd., El Dorado, CA. (C.A.9, 1995),
Several federal circuits have adopted the proportionality test to determine the excessiveness of a fine. United States v.Milbrand (C.A.2, 1995),
Although Solem involved the Cruel and Unusual Punishment Clause, the federal circuits have applied the same analytical framework to the Excessive Fines Clause. According to the Sixth Circuit, the core of the proportionality review compares the value of the property to a variety of factors. These factors include the culpability of the defendant, the gravity of the offense, the relationship of the property to the offense and the harm to the community. 11869 Westshore Drive,
The various circuits adopting the proportionality test have also devised various versions of the test containing a variety of factors for the trial court to utilize. *93 What then is the appropriate version for this court to adopt? After reviewing the various circuit formulations, we adopt the test as developed by the Second Circuit in Milbrand and the Ninth Circuit in 6380 Little Canyon Rd.1
In Milbrand, the Second Circuit determined that the forfeiture of the claimant's property withstood constitutional scrutiny under the Excessive Fines Clause. The claimant asserted an innocent owner defense when the government moved to forfeit the property. The claimant's son had grown 1,362 marijuana plants on the eighty-five-acre wooded property. The property had a house and the total purchase price of the house and land was $66,000. After rejecting the innocent owner defense, the circuit adopted the following proportionality test for a court to use when determining the excessiveness of the forfeiture:
"(1) the harshness of the forfeiture * * * in comparison to (a) the gravity of the offense, and (b) the sentence that could be imposed on the perpetrator of such an offense;
"(2) the relationship between the property and the offense, including whether use of the property in the offense was (a) important to the success of the illegal activity, (b) deliberate and planned or merely incidental and fortuitous, and (c) temporally or spatially extensive; and
"(3) the role and degree of culpability of the owner of the property." Id.,
The Ninth Circuit has provided additional factors to evaluate the harshness of the forfeiture and the role and degree of culpability of the owner of the property. In 6380 Little CanyonRd., the circuit court remanded the forfeiture issue to the district court for consideration of the following factors to determine the harshness of the forfeiture:
"(1) the fair market value of the property;
"(2) the intangible, subjective value of the property * * * and
"(3) the hardship to the defendant, including the effect of the forfeiture on defendant's family or financial condition."
Furthermore, concerning the culpability of the owner, the trial court also should consider the following factors:
"(1) whether the owner was negligent or reckless in allowing the illegal use of his property; or *94
"(2) whether the owner was directly involved in the illegal activity, and to what extent; and
"(3) the harm caused by the illegal activity, including (a) * * * the amount of drugs and their value, (b) the duration of the illegal activity, and (c) the effect on the community." Id. at 986.
In sum, in order to determine whether a forfeiture violates the Excessive Fines Clauses of the
While a trial court normally would have to conduct a hearing to apply our standard announced today, we do not have to remand the present case because the trial court conducted a hearing on the forfeiture. The trial court also engaged in a proportionality review. This court determines that the trial court did not err when it determined that the forfeiture did not constitute an excessive fine based on our announced proportionality test.
Concerning the harshness of the forfeiture, Harold will forfeit his interest in the house. The purchase price was $15,000, and the house is co-owned by Joanne Brown. At best, Harold's interest is $7,500 plus any appreciation. The Second Circuit has already permitted forfeiture of a condominium purchased for $145,000 and having an equity value of $68,000, all for two sales of a total of two and one-half grams of cocaine worth $250. 38 Whalers Cove Dr.,
Furthermore, the property possessed a direct relationship to the offense. Harold used the house to conduct multiple transactions. By using the house, he cloaked himself in relative secrecy to hide the transaction from public view.
Finally, the culpability of the defendant is overwhelming. He conducted multiple transactions, each one with children present in the house. The house itself was near a school. He dealt in crack cocaine, a pervasive and dangerous drug. The drug problem is "one of the greatest problems affecting the health and welfare of our population." Natl. Treasury Employees Union v.Von Raab (1989),
Therefore, the trial court properly determined that the forfeiture did not constitute an excessive fine.
Judgment accordingly.
BAIRD, P.J., and SLABY, J., concur.