State of Ohio v. Delano Thomas, et al. [Taron Banks—Appellant]
Court of Appeals No. L-19-1108
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
January 22, 2021
2021-Ohio-151
Trial Court No. CI0201801393
State of Ohio
Appellee
v.
Delano Thomas, et al.
Defendants
[Taron Banks—Appellant]
*****
DECISION AND JUDGMENT
Decided: January 22, 2021
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Jerome Phillips and Michael H. Stahl, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common Pleas which denied the motion to intervene by non-party appellant, Taron Banks. For the reasons set forth below, this court affirms the judgment of the trial court.
{¶ 2} On February 6, 2018, plaintiff-appellee, state of Ohio filed a complaint for civil forfeiture against defendants Delano Thomas, Tamika Banks, and Santander Consumer USA, Inc. Appellee alleged that Mr. Thomas and Ms. Banks used or derived certain personal property, identified as $152,553 in U.S. currency and a 2009 Pontiac G6 automobile with vehicle identification No. 1G2ZG57B19412299, in the commission of felony drug offenses in violation of
{¶ 3} On May 2, 2018, a Lucas County Grand Jury indicted Mr. Thomas on Count 1, trafficking in cocaine, a third-degree felony violation of
{¶ 4} On May 14, appellee moved the trial court to transfer the civil forfeiture case to the pending criminal case pursuant to Civ.R. 42(A). Appellee stated the cases involve the same individuals and stem from the same underlying criminal offense. As journalized on May 23, the trial court ordered the civil case transferred to and consolidated with the criminal case. The trial court on its own initiative then dismissed the civil case without prejudice.1
{¶ 5} On October 1, the trial court held a change of plea hearing, and Mr. Thomas pled no contest to Count 1, as amended, and Count 4. Appellee notified the trial court that as part of the plea resolution with Mr. Thomas, Counts 2 and 3 against Mr. Thomas and Count 5 against Ms. Banks were dismissed pursuant to nolle prosequi without prejudice. At the hearing Mr. Thomas and Ms. Banks both disclaimed in writing any interest in the $152,553 in cash seized by the Toledo police. Mr. Thomas did so in the
{¶ 6} At the October 1 hearing Ms. Banks’ attorney stated the following to the trial court prior to the court‘s acceptance of the plea agreement: “There is a third party claiming the funds. I have notified the Prosecutor, and I will provide her with the documentation. Although there is a forfeiture it is my understanding the Prosecutor is going to hold that until * * * the third party makes his claims for those funds and certain jewelry [seized but not subject to forfeiture].” Appellant was not identified in the record as the third-party claimant.
{¶ 7} At the point in the October 1 hearing when the plea agreement was executed, the trial court stated in the record:
Court: All right. Ms. Lambdin, all the documents you need for your forfeiture case as [it] relates to these two Defendants is taken care of, correct?
Ms. Lambdin: It is. Thank you, Judge.
Court: Thank you. Mr. Thomas, I have in front of me the plea form, no contest to Count 1 amended as well as Count 4. It appears signed by
Delano Thomas on the front as well as the back. Sir, are these your two signatures? Defendant: Yes.
{¶ 8} The next mention in the record of the forfeiture proceedings was at Mr. Thomas’ November 28 sentencing hearing, for which the trial court‘s sentencing entry was journalized on December 4.
Court: Also the order of forfeiture as agreed to on the back of the plea form is ordered enforced. Has there been a forfeiture consent signed on that?
Ms. Roman: Correct, Your Honor.
Court: That also has already been forfeited.
{¶ 9} Then on January 24, 2019, nearly four months after the parties agreed in the record to the forfeiture of the seized cash, Mr. Banks filed a motion to intervene, which appellee opposed as time-barred. Mr. Banks, the brother of Ms. Banks, requested the trial court “authorize him to intervene in the pending forfeiture action so that he can establish his rightful claim for the property involved.” Mr. Banks alleged that on October 1, 2018, his attorney wrote a letter to appellee, and “[i]ncluded with that letter were certain documents that provided information to establish the claim of Mr. Banks.” After the parties briefed the motion to the court, the trial court denied Mr. Banks’ motion to intervene.
{¶ 10} In response, Mr. Banks filed this appeal setting forth two assignments of error:
- The trial court erred when it denied Taron Banks the opportunity to intervene in an ongoing criminal forfeiture action on procedural grounds where Banks claimed ownership of the property and attempted to intervene pursuant to
O.R.C. 2981.03(A)(4) . - The final forfeiture order, journalized after this appeal was filed, which was made after the court denied a third party claimant the right to intervene, and was made in a proceeding that failed to conform to the procedural requirements of either
O.R.C. 2981.04 or2981.05 is void.
{¶ 11} We will only address appellant‘s first assignment of error. “A nonparty who seeks intervention under Civ.R. 24 and is denied intervention may appeal only the issue of intervention.” State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas, Juvenile Div., 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, ¶ 28, citing State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 18. We find appellant‘s second assignment of error impermissibly ventures beyond the motion to intervene, and is not well-taken.
I. Standard of Review
{¶ 12} Appellate review of a trial court‘s decision on a motion to intervene is for an abuse of discretion, regardless of whether the Civ.R. 24 intervention sought was as of right or by permission. State ex rel. Merrill v. Ohio Dept. of Nat. Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41. Abuse of discretion “connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 13} “We construe Civ.R. 24 liberally to permit intervention.” Merrill at ¶ 41. Nevertheless, we will not reverse the trial court‘s findings of fact absent an abuse of discretion, nor will we make a finding of fact the trial court should have made nor extract a finding where no such finding was made. In re Guardianship of Rudy, 65 Ohio St.3d 394, 396, 604 N.E.2d 736 (1992).
II. Intervention as of Right
{¶ 14} Intervention as of right is pursuant to Civ.R. 24(A)(2), which states:
Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant‘s ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.
{¶ 15} This court has determined a successful applicant for intervention must prevail on each of four elements, Houtz v. Houtz, 2018-Ohio-1738, 111 N.E.3d 888, ¶ 21 (6th Dist.):
In order to intervene under Civ.R. 24(A)(2) the motion must be (1) timely, and the following factors must be shown: (2) the intervenor‘s interest relates to the subject of the action, (3) the disposition of the action will, as a practical matter, impair or impede the intervenor‘s ability to protect its interest, and (4) the intervenor must demonstrate that its interest is not adequately represented by the existing parties.
{¶ 16} In support of his first assignment of error, Mr. Banks argues he has a right to intervene pursuant to
Taron Banks sought nothing more than to be heard as to his claim to the property subject to the action. He did so in a criminal proceeding, in which he was not a charged party, and pursuant to a statute to which the Rule of Lenity, incorporated into the revised code in
{¶ 17} We review a trial court‘s decision on the timeliness of a motion to intervene for an abuse of discretion. State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998). Timeliness is determined on the facts and circumstances of the case and upon consideration of the following factors:
“(1) the point to which the suit had progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor‘s failure after he knew or reasonably should have known of his interest in the case to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.”
Id., quoting Triax Co. v. TRW, Inc., 724 F.2d 1224, 1228 (6th Cir.1984); Fantozz v. Cordle, 6th Dist. Erie No. E-14-130, 2015-Ohio-4057, ¶ 17.
{¶ 18} The record shows that Mr. Banks filed his motion to intervene nearly four months after the forfeiture agreement was signed by the parties to Mr. Thomas’ plea agreement. The plea agreement was journalized on October 1. Mr. Banks was never identified in the record as the alleged interested third party until his motion to intervene.
{¶ 19} The trial court‘s order found Mr. Banks’ motion to be untimely under both the criminal and civil forfeiture statutes,
{¶ 20} ”
{¶ 21} We reviewed the record in this case and find that the plea agreement accepted by the trial court at the October 1, 2018 hearing clearly states, “Defendant has
The Court is advised that an agreement for forfeiture has been reached between the parties, whereby seized funds in the amount of $152,553.00 shall be disposed as if contraband and awarded to the State of Ohio. By stipulation of the parties, the Court finds that the sum of $152,553.00 seized from Delano Thomas and Tamika Banks on January 31, 2018 may be disposed of as if contraband and forfeited by designated percentage to the entities listed below: Toledo, Ohio Department Police Operations Law Enforcement Trust Fund 70%; Lucas County, Ohio Prosecutor Law Enforcement Trust Fund 30%. It is further ORDERED that the funds ($152,553.00) shall be placed on deposit with the Lucas County Clerk of Courts, who shall distribute the funds as indicated above.
{¶ 22} The consent judgment entry was journalized on June 13, 2019. Between October 1, 2018, and June 13, 2019, we find Mr. Banks did little to support his claim of intervention even though the forfeiture of the seized cash was agreed by all parties on
{¶ 23} Mr. Banks was not identified in the record as the third party claiming ownership of the $152,553 stuffed in the basement rafters of a home that was not his residence until his January 24, 2019 motion to intervene in the criminal case into which the civil case was transferred and consolidated. Mr. Banks’ motion alleges he sent correspondence to appellee after the October 1 hearing along with evidence to sustain his ownership claim, but that evidence is not in the record before us. App.R. 9(A).
{¶ 24} The trial court reviewed the factors identified in
{¶ 25} Although the forfeiture statutes do not govern the forfeiture process in this matter‘s plea agreement, the basic concepts of notice and reasonableness reveal that Mr. Banks unreasonably waited nearly four months to intervene into the pending litigation
{¶ 26} We find Mr. Banks’ motion to intervene was untimely in light of the forfeiture agreement, his awareness of this litigation and the forfeiture proceedings on October 1, 2018, the lack of evidence in the record of his ownership of the seized cash to support intervention, and the prejudice to the parties posed by his intervention attempts to reverse the final resolution of the forfeited cash. Given our determination on the first element of intervention, it is unnecessary for us to review the remaining elements. For all of the foregoing reasons, we find the trial court did not abuse its discretion, and the trial court‘s attitude was not unreasonable, arbitrary or unconscionable, when it denied Mr. Banks’ motion to intervene as of right.
III. Permissive Intervention
{¶ 27} Intervention by permission is pursuant to Civ.R. 24(B), which states:
Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant‘s claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
{¶ 28} Although unclear, to the extent that Mr. Banks seeks permissive intervention in support of his first assignment of error, he also fails. The trial court
{¶ 29} “In exercising its discretion, the court ‘shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.‘” State ex rel. Greene Cty. Bd. of Commrs. v. O‘Diam, 156 Ohio St.3d 458, 2019-Ohio-1676, 129 N.E.3d 393, ¶ 10. Having previously considered under rightful intervention the factors of undue delay and prejudice to the rights of the original parties, we find those factors are still present when considering permissive intervention. In support of his motion to intervene, Mr. Banks simply argues, “Allowing [him] to intervene will not prejudice the State in putting forth its procedural claims in this matter.” Mr. Banks does not provide any evidence upon which this court can determine trial court abuse of discretion.
{¶ 30} We reviewed the record and find the trial court did not abuse its discretion, and the trial court‘s attitude was not unreasonable, arbitrary or unconscionable, when it denied Mr. Banks’ motion to permissively intervene.
{¶ 31} Mr. Banks’ first assignment of error is not well-taken.
{¶ 32} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Mr. Banks is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
C.A. No. L-19-1108
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Gene A. Zmuda, P.J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.