State v. PollardState v. Pollard
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-495195
FOR APPELLANT
Anthony Pollard, Pro Se
No. 543-538
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, Ohio 43724
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Katherine Mullin, Esq.
Assistant County Prosecutor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
ANN DYKE, P.J.:
{¶ 2} On April 18, 2007, defendant and co-defendant Brook Lewis were indicted pursuant to a 17 count indictment in connection with alleged offenses, which occurred on November 22, 2006. Defendant was charged with three counts of drug trafficking, three counts of drug possession, four counts of drug trafficking with schoolyard specifications, three counts of possession of criminal tools, one count of drug possession with a firearm specification, one count of drug trafficking with a firearm and juvenile specification, a misdemeanor charge of endangering children, and one count of having a weapon while under disability.
{¶ 3} Defendant subsequently entered a guilty plea to one count of drug trafficking, one count of drug trafficking which was amended to delete the juvenile specification, one count of possession of criminal tools, the charge of endangering children, and the count of having a weapon while under disability. The trial court‘s journal entry of the plea agreement further indicates that the remaining charges were dismissed, and that defendant is “to forfeit $9,317.26 guns and ammo and cell phones.”
{¶ 4} On March 17, 2008, the trial court journalized an order of forfeiture, which indicated in pertinent part as follows:
{¶ 5} “[P]ursuant to the voluntary forfeiture of said contraband by one Anthony Brian Pollard, the person from whom the contraband was seized. Said
{¶ 6} On February 9, 2009, defendant filed a motion for the return of seized property, asserting that the seizure was unlawful because his indictment did not set forth a forfeiture specification, the plea agreement did not contain any reference to “the unlawfully seized money[,]” and “there is no indication in the record that the currency at issue was connected to defendant‘s possession of oxycontin or any other criminal activity.” Defendant additionally complained that he was not provided with a hearing on the issue of forfeiture.
{¶ 7} The trial court denied the motion, noting that both the docket and transcript of the plea proceedings provided for the seizure of the funds at issue. Defendant now appeals, assigning three errors for our review.
{¶ 8} In his first assignment of error, defendant complains that the trial court erred in ordering forfeiture because the indictment did not set forth a forfeiture specification.
{¶ 9} New provisions regarding forfeiture were enacted on July 1, 2007 and codified in
{¶ 10}
{¶ 11} “(A)(2) If any property is not reasonably foreseen to be subject to forfeiture at the time of filing the indictment, information, or complaint, the trier of fact still may return a verdict of forfeiture concerning that property in the hearing described in division (B) of this section if the prosecutor, upon discovering the property to be subject to forfeiture, gave prompt notice of this fact to the alleged offender or delinquent child under Criminal Rule 7(E) or Juvenile Rule 10(B).”
{¶ 12} See, also, State v. Haymond, Stark App. No. 2009-CA-00078, 2009-Ohio-6445.
{¶ 13} Thus, in accordance with
{¶ 14} For this second assignment of error, defendant complains that there is no signed plea agreement referencing the forfeiture.
{¶ 15}
{¶ 16} “The following property is subject to forfeiture to the state or a political subdivision under either the criminal or delinquency process in section 2981.04 of the Revised Code or the civil process in section 2981.05 of the Revised Code:
{¶ 17} “(1) Contraband involved in an offense;
{¶ 18} “(2) Proceeds derived from or acquired through the commission of an offense;
{¶ 19} “(3) An instrumentality that is used in or intended to be used in the commission or facilitation of any of the following offenses when the use or intended use, consistent with division (B) of this section, is sufficient to warrant forfeiture under this chapter:
{¶ 20} “(a) A felony[.]”
{¶ 21}
{¶ 22} We read no provision in
{¶ 23} For his third assignment of error, defendant asserts that the forfeiture was unlawful because the state failed to prove by a preponderance of the evidence that the seized property was contraband or proceeds from criminal activity.
{¶ 24} “The State must prove by a preponderance of the evidence that the seized property is subject to forfeiture under R.C. 2981.02, R.C. 2981.04(B). There is a rebuttable presumption that the property is subject to forfeiture if the State proves, by a preponderance of the evidence, that 1) the defendant acquired the property during the commission of an offense or within a reasonable time afterwards, and 2) that there is no likely source of that property other than as proceeds from the offense.” State v. Watkins, Belmont App. No. 07 JE 54, 2008-Ohio-6634;
{¶ 25} Again, because we have not been provided with a transcript, we must presume regularity. We are therefore compelled to presume that the state proved that the subject property was subject to forfeiture or the defendant waived this requirement in the plea proceedings.
{¶ 26} The third assignment of error is overruled.
Affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
ANN DYKE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, J., CONCUR