STATE OF OHIO v. ROY B. LEET, II
Appellate Case No. 28870
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 16, 2021
2021-Ohio-1334
DONOVAN, J.
Trial Court Case No. 2019-CRB-1678 (Criminal Appeal from Municipal Court)
CHRISTINE L. BURK, Atty. Reg. No. 0050559, City of Miamisburg Prosecutor‘s Office, 10 North First Street, Miamisburg, Ohio 45342
Attorney for Plaintiff-Appellee
J. DAVID TURNER, Atty. Reg. No. 0017456, 101 Southmoor Circle NW, Dayton, Ohio 45429
Attorney
OPINION
{1} Defendant-appellant Roy B. Leet, II, appeals from an order of the Miamisburg Municipal Court which denied his motion for return of a firearm. Leet filed a timely notice of appeal on August 10, 2020.
{2} On October 13, 2019, Miami Township Police responded to a report of two individuals fighting with one another. Leet and another individual, Brian Whitehead, were both charged with disorderly conduct, in violation of
I am contacting you at the request of Mr. Whitehead, because I am concerned with Mr. Roy Leet‘s behavior. Mr. Leet seems to be suffering from some mental health problems, and his conduct is disturbing. I wanted to make you aware of the situation, and ask that you check on Mr. Leet before this escalates further and results in someone really getting hurt.
Supplemental Motion and Memorandum for Return of Firearm, Exhibit A.
{4} Thereafter, Chief Stiegelmeyer directed Sergeant Paul Nienhaus to conduct a welfare check on Leet and place him in a hospital for a 72-hour mental health admission. Id., Exhibit B. On October 28, 2019, Sergeant Nienhaus and two other officers traveled to Leet‘s residence. Sergeant Nienhaus informed Leet that they had been ordered by the Chief of Police to place Leet into protective custody and to transport him to a hospital for a mental health evaluation. Once at Kettering Hospital, an application for emergency admission was completed by an MTPD officer. Nienhaus, however, remained at Leet‘s residence; he asked Leet‘s mother to turn over Leet‘s firearm to the MTPD, but she refused. Nienhaus then contacted Chief Stiegelmeyer and asked him how to proceed. Stiegelmeyer ordered Nienhaus to seize the firearm because “Leet was considered under disability now since he was being mentally evaluated.” Sergeant Nienhaus then proceeded to seize the firearm, a .45 caliber Springfield XD handgun. Id., MTPD Receipt, Exhibit C.
{5} On November 22, 2019, counsel for Leet sent a letter to Chief Stiegelmeyer in which he requested the immediate return of the firearm. Shortly thereafter, Leet‘s counsel received an undated reply letter from Chief Stiegelmeyer which stated in pertinent part:
* * * We will be unable to comply with this request, however, as the Miamisburg Municipal Court Hnbl Judge Robert Rettich III has attached a forfeiture order to the final docket (termination) entry advising that this handgun is to be forfeited to authorities (for destruction).
Id., Exhibit F.
{6} After receiving Chief Stiegelmeyer‘s letter, Leet‘s counsel reviewed the online docket and discovered that a handwritten notation dated November 21, 2019, had been added to the judgment entry, which stated “Forfeit 45 cal Handgun.” Judgment Entry of Conviction, Oct. 16, 2019. The record does not establish that Leet was served with a notice of forfeiture, and no forfeiture hearing was held prior to the November 21, 2019 order.
{7} On December 2, 2019, Leet filed a motion for the return of his firearm. On June 9, 2020, Leet filed a supplemental memorandum in support of that motion. On July 6, 2020, a hearing was held before the trial court on Leet‘s motion for the return of his firearm. On July 15, 2020, the trial court denied Leet‘s motion. Leet made an oral motion to stay the forfeiture of the firearm, which the trial court granted.
{8} It is from this decision that Leet now appeals.
{9} Leet‘s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION FOR RETURN OF HIS FIREARM.
{10} Leet contends that the trial court erred when it denied his motion for the return of his firearm for the following
{11}
{12}
{13} The State has not pursued forfeiture of the firearm seized from Leet‘s residence on October 13, 2019, through a proper criminal or civil proceeding. The disorderly conduct charge did not contain a forfeiture specification, precluding criminal forfeiture under
{14} Forfeiture may be ordered only after the prosecuting attorney has identified and notified parties with an interest in the property, the trial court has conducted a hearing, and the trier of fact has found that the property is subject to forfeiture. See
{15} A person with an interest in seized property may seek its return by means of a motion filed in the criminal case before the prosecuting attorney has filed a charging instrument containing a forfeiture specification,
{16} In State v. Bolton, 2017-Ohio-7263, 97 N.E.3d 37 (2d Dist.), the trial
{17} Unlike Bolton, Leet‘s firearm was not seized pursuant to a search warrant. Rather, the MTPD acted on behalf of the trial judge, who sent a letter to Chief Stiegelmeyer after Leet had pled guilty and been convicted. The MTPD then placed Leet into protective custody, transported him to a hospital for a mental health evaluation, and completed an application for emergency admission. When asked how to further proceed, Chief Stiegelmeyer told Sergeant Nienhaus to seize the firearm because “Leet was considered under disability now since he was being mentally evaluated.” Nienhaus then seized the firearm.
{18} The State argues that Leet was under a disability because he was “being mentally evaluated” and that he is not entitled to the return of his firearm pursuant to
(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
* * *
(5) The person is under adjudication of mental incompetence, has been adjudicated as a mental defective, has been committed to a mental institution, has been found by a court to be a mentally ill person subject to court order, or is an involuntary patient other than one who is a patient only for purposes of observation. As used in this division, “mentally ill person subject to court order” and “patient” have the same meanings as in section 5122.01 of the Revised Code.
(Emphasis added.)
{19} As previously stated, Leet was admitted as an involuntary patient at Kettering Hospital on October 28, 2019, for a 72-hour hold for purposes of observation. In our view, Leet was specifically excluded from the disability language set forth in
{20} On November 22, 2019, counsel for Leet sent a letter to Chief Stiegelmeyer requesting the immediate return of the firearm. Stiegelmeyer sent a letter to Leet‘s counsel in reply which referenced the handwritten notation, ostensibly included by the trial court and dated November 21, 2019, which stated “Forfeit 45 cal Handgun.” The record does not establish that Leet was served with notice of forfeiture, and no forfeiture hearing was held prior to the November 21, 2019 order. It was only after Leet filed the motion for the return of his firearm on December 2, 2019, that the trial court finally held a hearing on the matter.
{21} The State retained the firearm seized from Leet without complying with
{22} In the absence of a final forfeiture adjudication, the State‘s interest in the property seized from Leet remains “provisional.”
{23} Leet‘s assignment of error is sustained.
{24} The judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion.
WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Christine L. Burk
J. David Turner
Hon. Robert W. Rettich, III