*1 personally Schwartz appeared before the trial court to argue some of his seized was exempt from execution under Although R.C. 2329.66. issue, he did not incarceration, attend second on the due his this does not mean that he was deprived process of due of law.18 The personally court notified Schwartz about the second hearing, and there is no indication that requested Moreover, Schwartz ever to attend.19 his counsel did attend and presented argument. record, On this we cannot say Schwartz lacked either notice or a meaningful opportunity be heard. We overrule his second assignment of error. Therefore, court is affirmed.
Judgment affirmed. P.J., J., concur. Dinkelacker, Cunningham, Ohio, Appellant,
The STATE of
v.
TRIVETTE, Appellee.
Trivette,
as
300,
[Cite
State v.
App.3d
195 Ohio
Court of
District, Wayne
Ninth
County.
No. 10CA0048.
29,
Aug.
Decided
2011.
Shepard
377,
Clarke for appellee. Judge.
Whitmore, Ohio, Appellant, the state of appeals from the Wayne {¶ 1} Pleas, County Court of Common concluding Trivette, that the vehicle of Ashley appellee, was not to forfeiture. This court affirms.
I 2010, individual, In February Trivette twice drove another Greg Conley Jr., to Explorer. Conley Walmart her 2002 Ford laptop computers stole three from the store on laptops the first occasion and two on the second occasion. Surveillance video from captured Conley together Walmart Trivette and using Trivette’s vehicle as a means of transportation to and from the store. The $2,990. total value of laptops the stolen amounted to The police were able to laptop Conley’s recover one from they residence when executed a search warrant vehicle, there. The police also searched Trivette’s but did not find evidence Nevertheless, inside it. police seized the vehicle as a criminal instrumen- tality. 27, 2010, April On a grand jury indicted Trivette on one count of
complicity to commit theft violation of R.C. 2913.02. The count included a forfeiture specification, pertained which to Trivette’s 2002 Ford Explorer. On 14, 2010, June vehicle, Trivette filed a motion for the return of her on based its unlawful seizure. Trivette later guilty decided enter a plea, but indicated she “would still like a on vehicle, her motion for return of limited [the] solely to the grounds the value of the vehicle exceeds her liabilities to the 24, 2010, State.” The court held a hearing August on at which the court accepted guilty as plea to the complicity charge. The court also received evidence on the forfeiture and took that matter under advisement. 29, 2010, September On the trial court entered two separate judgment entries. The first constituted Trivette’s sentencing entry, as set forth her guilty plea and sentenced her to years two of community control. The second granted Trivette’s motion for the return of her vehicle and dismissed the specification. 5, 2010, forfeiture On October the state filed a request findings for of fact and conclusions of law with regard to the ruling. forfeiture The court entered its findings and conclusions on October 2010. *4 The state now appeals from the judgment
{¶ 5} court’s and raises two assignments of error for our review. For analysis, ease of we consolidate the assignments of error.
II Assignment Error Number One of
The trial entry court’s stating Trivette’s unlawfully vehicle was seized and subject thus not to forfeiture inwas error and trial court’s factual findings are inconsistent with such a finding.
Assignment Error Number Two
trial
court erred in ordering the return of the defendant’s vehicle.
error,
its assignments argues
state
that the trial court
by
{¶ 6}
erred
act
failing to
and issue a
decision
with
procedural
accordance
scheme set
that Trivette’s vehicle
determining
ultimately
by
and
seq.
in R.C. 2981 et
forth
disagree.
to forfeiture. We
subject
not
review of the
independent
an
requires
“A de novo review
court’s determination.” State
to the trial
any deference
without
court’s decision
¶
142450,
4.
regard to 2981.02(A). offense, may officer of an law enforcement “[a] the commission Upon subject to property cause to believe is probable that the officer has seize 2981.03(A)(2). title and acquires provisional then The state forfeiture.” R.C. a criminal by can occur means of either adjudication until a final retains the same 2981.05). (R.C. (R.C. 2981.04) petition or a civil forfeiture forfeiture 2981.03(A)(1). challenge wishes to by If a the seizure person aggrieved R.C. the return of the unlawful, request file a motion to may as he or she seizure 2981.03(A)(4). a defendant after an “If the motion is filed property. * * * filed, the court shall has been seeking forfeiture indictment Id. suppress a motion to evidence.” treat the motion as indictment, trial court by way forfeiture pursues Where the state question from the ultimate separate apart forfeiture issue may resolve the may guilty plead defendant Specifically, guilt. a defendant’s specification. its attendant forfeiture contesting offense while underlying to an * * * * * * * * * complaint and the offense person pleads guilty Id. “If a *5 * * * of fact shall determine the trier specification[,] contains a [forfeiture] prove, by must be forfeited.” Id. The state shall person’s property whether the forfeiture. Id. On the evidence, is to property that preponderance on proportionality contest forfeiture hand, who wishes to a defendant other bears the “that the amount or value of the grounds proving property burden subject to the disproportionate severity forfeiture is to of the offense.” R.C. 2981.09(A). similar, production for each but distinct. elements burden are 2981.02(B) Compare (setting prove R.C. forth that the state must to elements 2981.09(C) (D) warrant criminal with instrumentality) through forfeiture of a elements). Thus, (setting forth in a case proportionality criminal where the indictment includes a forfeiture for an criminal instrumental- specification alleged (1) is, the trial court be least ity, could faced with at four distinct issues—that (2) guilty specification, whether the defendant is underlying the crime (3) lawfully cause, property probable whether officer seized based on whether (4) forfeiture, property instrumentality subject is an to whether and forfeiture of the instrumentality would be to disproportionate the offense. See R.C. 2981.03(A)(2), 2981.02(A) (B), 2981.04(B), 2981.09(A), (C), (D). and and initially Trivette filed a return grounds motion to her vehicle on the that 10}
{¶ 2981.03(A)(4) it had been unlawfully seized. Her specifically motion cited R.C. and indicated that court had to treat as a motion to filing suppress. theft, Trivette later pleaded guilty to to commit but not complicity to the attendant forfeiture specification. Specifically, Trivette to agreed plead guilty the understanding that there would be hearing. forfeiture After a hearing, the trial issued a judgment entry court that both dismissed the forfeiture granted Trivette’s to return motion property because had been unlawfully seized. later its issuing findings of fact and conclusions of law, the court that reasoned the state failed to prove had that Trivette’s vehicle a criminal instrumentality 2981.02(B), pursuant and even if the was an instrumentality, vehicle forfeiture would be disproportionate offense, severity pursuant to R.C. 2981.09. argues The state that any challenge Trivette waived as to
{¶
11}
unlawful seizure
of her vehicle
pleading guilty. To the extent
that
criminal-forfeiture
categorizes
scheme
a motion to return
property
seized
as a
to suppress,
agree
motion
we
court
grant
the trial
could not
2981.03(A)(4)
motion to return her
after
pleaded guilty.
she
See R.C.
(providing
a defendant’s postindictment
motion to return
shall be
as a
suppress).
treated
motion to
A
who pleads guilty
defendant
waives any
nonjurisdictional
motions,
from
arising
pretrial
including
issues
motions to sup
Schlauch,
05CA0077-M,
state * * * of that by a the evidence the proves preponderance If the state under 2981.02 of the subject is in or to forfeiture section part whole Code, under 2981.09 of the review section proportionality Revised after relevant, of the fact shall return a verdict forfeiture Revised Code when trier of property subject the of the to forfeiture. specifically that describes extent 2981.04(B). Therefore, ultimately piece the must of prove state R.C. forfeiture, instrumentality subject regardless a criminal to whether is guilty plea merely files to return. Trivette’s waived a defendant a motion 2981.03, unlawfully that the state seized her vehicle. pursuant to R.C. argument, Accordingly, not a to forfeiture while Trivette’s plea specification. It was as the lawfully for the state that Trivette’s vehicle was plea prove eliminated the need to seized, to not state of ultimate burden that the vehicle prove did relieve the its judgment to The trial included a dismissal the was forfeiture. court’s If the failed to its forfeiture because state had meet burden. in on support judgment record contains credible evidence competent, forfeiture, therefore, erroneously granted it is irrelevant that the also motion Trivette’s to' return. one who may instrumentality state seek to forfeit an used is The 13}
{¶ 2981.02(A)(3)(c). in felony. of a R.C. complicit commission in instrumentality an or determining alleged whether was used was * * * facilitation of intended to be used in the commission or an offense forfeiture, its trier of consider manner sufficient to warrant fact shall of fact are relevant: following factors the trier determines (1) could or but attempted Whether the offense not have been committed for instrumentality; presence (2) purpose using instrumentality commit primary Whether the offense; attempt or commit the [and]
(3) of, furthered instrumentality The extent to which the commission or commit, attempt the offense. 2981.02(B)(1) (3). “A instrumentality,’ constitutes a through
R.C.
vehicle
‘mobile
2981,
long
an
for
et
so
as the
‘instrumentality’
purposes
seq[.],
which is
R.C.
Jelenic,
v.
offense.” State
to be
vehicle was used or intended
used to commit
¶
2981.01(B)(6)
10CA0024-M,
elicited at the bore rather whether vehicle was used “in a manner sufficient to warrant its forfeiture.” only testimony the actual use of the vehicle was regarding *7 occasions, Conley separate Trivette drove to on two wherein he commit- Walmart occasion, a along ted theft. Trivette the store on the second only entered individual, not in Trivette’s vehicle police laptops third and the did find it. no to when the they testimony police when later searched There was as vehicle, lived, it is Conley. searched the where Trivette or how she knew While record, entirely appears only police not clear from the that the reason the Conley identified Trivette as a was that after he suspect they apprehended returned to to some items” the same by day Walmart himself “return[] him Conley managed go Trivette had taken there. therefore to Walmart bring some unidentified “items” with him without the aid of Trivette or her vehicle. in committing There is no doubt that Trivette used her vehicle
{¶ 15}
Code, however,
the crime of
to commit theft. The
not
complicity
Revised
does
Rather,
provide
person
for forfeiture based on use alone.
must have used an
“in
instrumentality
a manner
sufficient
to warrant
its forfeiture.” R.C.
¶
Jelenic,
{¶ 16} vehicle, return her that error was harmless. The trial court correctly refused order the forfeiture of Trivette’s prove vehicle because the state did not that it was an instrumentality subject assignments to forfeiture. The state’s of error are overruled.
Ill The state’s assignments error are overruled. The Wayne County Court of Common Pleas is affirmed.
Judgment affirmed. P.J., J., in judgment only. concur Belfance, Dickinson, concurring. Judge, Dickinson, THE TRIAL IN COURT
WHAT OCCURRED to a store where he Ashley boyfriend Trivette twice drove her Walmart theft, complicity arrested her for to commit laptop computers. police stole When subject to instrumentality 2002 Ford as a mobile they also seized her grand jury Revised Code. The indicted Chapter forfeiture under 2981 of the Ohio in the indictment a specification her for to commit theft and included complicity for criminal forfeiture of the in accordance with R.C. 2981.04. not and moved for relief from the initially pleaded guilty Trivette 2981.03(A)(4). That for the provides
seizure of her under R.C. section if moving return of seized for relief person “demonstrate[s] person of the evidence that the seizure was unlawful and preponderance minimum, is entitled to the At a a seizure of as mobile property.” if instrumentality subject seizing to forfeiture is unlawful officer did not have *8 “probable property subject cause to believe to forfeiture.” [that was] 2981.03(A)(2). R.C. seizure, in support In her memorandum of her motion for relief from
Trivette did not address whether the officer who seized her had cause to it was or the seizure was probable believe forfeiture whether Rather, unlawful. of in otherwise she addressed the merits whether the 2981.02(B) 2981.09(A). 2981.02(B) forfeited, citing fact should be and R.C. consider, relevant, lists factors that a trier of fact is to to the extent it finds them in determining alleged instrumentality whether was used or was intended “[i]n * * * in to be used the commission or facilitation of an offense in a manner sufficient to warrant its forfeiture.” Those listed factors are whether the offense presence instrumentality,” could have been committed “but for the whether * * * in “primary purpose using instrumentality was to commit offense,” to which instrumentality and extent furthered the commission “[t]he * * * 2981.02(B)(1) (3). through the offense.” R.C. The other section cited Trivette, 2981.09(A),provides, “Property may not be forfeited as an instru- mentality chapter under this to the extent that the amount or value of the disproportionate severity is to the of the offense.” trial court a for hearing Before the could hold on Trivette’s motion vehicle,” “unlawfully captioned return of the seized she filed document “Motion Plea; Continuance; on for Change Position Maintain Motion Return Seized Vehicle,” in which she moved for leave “to do a other change plea,” among things, hearing told the court that would still like a on her motion for “[s]he vehicle, solely grounds return of limited to the the value of the vehicle is, That exceeds her liabilities to the State.” she told the court she still wanted on one aspect of the merits of whether the should be forfeited, whether its value was disproportionate severity to the of her offense 2981.09(A). so, within the meaning of R.C. By doing she in effect abandoned both her argument that the Explorer illegally had been seized that it was not * * * forfeitable because it had not in been “used or in intended to be used * * * commission or facilitation of an offense a manner sufficient to warrant its forfeiture.” R.C. On the day Trivette in court appeared her change plea, her
lawyer confirmed to the court that she intended to withdraw plea her of not guilty and plead guilty to the complicity charge. He also reiterated her desire for a hearing limited to one aspect whether the Explorer should be forfeited:
THE COURT: But Okay. we need to have a hearing on the forfeiture that the State is pursuing.
[MS. TRIVETTE’S Yes. requested LAWYER]: We’ve a hearing on that because we believe that the value of the vehicle is than higher potential liabilities. And under the statute the forfeiture is not permitted in that situation.
THE COURT: Are you ready to proceed on that hearing, Ms. [Prosecutor]? Yes, Your [PROSECUTOR]: Honor.
THE All right. COURT: Why don’t we do that first and then— [MS. TRIVETTE’S Okay. LAWYER]:
THE can COURT:—we handle the All pleas. right. Sgt.
[PROSECUTOR]: State calls Conwell. prosecutor had Sergeant {¶ Conwell give 28} brief description of boyfriend’s involvement stealing laptops, including that she *9 had twice used Explorer the to drive him to Walmart. Not surprisingly, however, in view of Trivette’s statement that she wanted a hearing only on whether the value of the Explorer was disproportionate to the severity of the offense, the prosecutor did not attempt to prove any of the factors listed in R.C. 2981.02(B). She did have him briefly Explorer: describe the “It’s tan in color. Has a different color tailgate. Appears to maybe have been replaced at one time. tailgate The is actually maroon. speaking Ms. Trivette she did acknowl- edge that she is the owner of the vehicle. That the paid vehicle is off. She did note to me when actually we seized it that it wasn’t in very good working order as the four wheel drive or the transmission of it part currently was going out on it. It was not functioning correctly. The overall appearance of the vehicle including interior, the I would call it fair to poor.” cross-examination, On lawyer did not question Sergeant Conwell about Trivette’s use of Explorer the in taking boyfriend her to and from question Walmart. He did him regarding the value of $3,000, that and the value at around placed Sergeant which the laptops,
the stolen range in a between Sergeant put the which Explorer, on the place would he in an published Explorers for 2002 $2,975 $3,850 descriptions on and based “closer it would be that he believed specified Sergeant The price guide. NADA $2,975.” to the her, to she had According rested, Trivette testified. and The state then
{¶ 24} it, seized and $8,000 police months before eight about for Explorer the purchased that she needed the also testified its tires. She recently replaced had she acknowledged a She baby.” to have ready was “getting she Explorer because that after her but suspension,” at a license looking “probably was that she not ask lawyer Her did a vehicle.” to need “definitely going suspension, she and boyfriend take her to the her use of regarding any questions her from Walmart. argue. sides to rested, court allowed both the After Trivette Tri- under R.C. 2981.09. argument proportionality her restricted
prosecutor forfeitable was not however, that only argued not lawyer, vette’s that it 2981.09, prove that the state had failed suggested also but under R.C. the issue of whether The court took was forfeitable under advisement. be forfeited under Explorer should the court filed change plea, hearing and Trivette’s days Two after scheduling Plea,” plea noting change her Entry Change “Judgment not say it did specification, mentioned the entry sentencing. Although forfeited should be of whether question
that the court had taken or result, for Clarification “Request Trivette filed As a under advisement. Tunc,” had failed to mention Pro noted that the court Entry Nunc which she result, As a the court under advisement. question it taken the forfeiture that had Tunc,” of Plea Nunc Pro in which it wrote Entry Change “Judgment filed a question taken the forfeiture and had hearing it held a on the had advisement. under for sentencing Trivette entry court filed day On theft, entry regarding the a separate to commit filed
complicity was before it on Trivette’s it wrote that the matter entry, In that specification. Vehicle, to R.C. 2981.03” pursuant Unlawfully for Return of Seized “Motion It noted that Explorer.” Ford seizure of objected [her] had to “the she crime and on the value circumstances of the “on the it had held review of found, evidence and consideration and that it “[a]fter vehicle” *10 * * * unlawfully Code, that vehicle was Revised Ohio Chapter the state to instructed “granted,” motion was It held that Trivette’s seized.” her, specification. and “dismissed” the Explorer return the of fact and conclusions request findings thereafter filed a for The state {¶ 28} an entry noted that the court had filed request, of law. In its the state unlawfully was seized” and that the Court found that the vehicle “indicating to Rule 52 of the Ohio pursuant of fact and conclusions of law requested “findings Procedure on the forfeiture issue.” Rules of Civil Entry In response, entry captioned “Judgment the court filed In that that the matter entry, of Fact & Conclusions of Law.” wrote
Findings of fact and conclusions of timely request findings was before it “on the State’s for * * * * * * Judgment Entry granting law based on the Court’s [Trivette’s] 2981.03(A)(4) Vehicle, dismissing RC Unlawfully Motion for Return Seized testimony in the Indictment.” The court recited the a forfeiture that at the and reviewed the law relevant to forfeiture of presented was instrumentalities, in It then including criminal the factors listed R.C. that Ms. Trivette’s prove found “that the State failed to meet its burden to instrumentality was an used ‘in a manner sufficient to warrant forfeiture’ vehicle that Explorer under 2981.02.” It further found the market value of the [Section] $4,000, boyfriend’s that Trivette’s involvement in her theft of approximately was minor,” that had computers “relatively Explorer from Walmart was [Trivette],” and, court, according importantly,” value to to the “more “significant forfeiture, by it had value to “an innocent affected significant person court concluded that “a forfeiture of the vehicle in this namely baby.” committed, case is in its total effect to the effect of the crime disproportionate necessary and is not for of restitution or other envisioned purposes purpose “ORDERED, ADJUDGED, statutory scheme.” It AND DECREED that * * * Explorer 2002 Ford shall be returned to her forthwith.” The [Trivette’s] state appealed.
THE STATE’S FIRST ASSIGNMENT OF ERROR assignment finding The state’s first of error is that the trial court’s unlawfully seized “was in error and trial court’s factual findings finding.” are inconsistent with such a of this support assignment, argued question illegally the state has that the of whether the state further, seized the became moot when Trivette pleaded guilty, findings only question court’s of fact related to the ultimate of whether than probable should be forfeited rather whether the state had cause to believe that it was to forfeiture at the time it was seized. required immediately The state is not seize order seek indictment, by specification complaint, its forfeiture a criminal or information through proceeding under R.C. 2981.04 or a civil forfeiture under 2981.05. R.C. 2981.03, however, permits a law enforcement officer to do so when he or she has *11 That subject that it is to forfeiture. same property cause to believe
probable a to person property pending section two avenues for seek return provides it be forfeited. the ultimate determination of whether should Under R.C. 2981.03(A)(4), person aggrieved by alleged may a unlawful seizure seek return property by demonstrating “by preponderance of the evidence that the person property.” seizure was unlawful and that the is entitled to the Under 2981.03(D)(3), certain can seek conditional exceptions, person release that property subject by demonstrating possesso- to forfeiture he or she has it, in that or that ry community interest he she has sufficient ties to the assure trial, will be at the time of the and that property available failure conditionally hardship release the will cause substantial to the claimant. 2981.03(A)(4) Trivette cited R.C. in of her motion for support return that the Explorer, thereby asserting unlawfully state had seized it. At the court, however, held present any before she failed to evidence that illegally Explorer, the state had seized her either it probable because lacked subject cause to that it was any believe to forfeiture or for other reason. did She not, therefore, carry proving by her burden of a preponderance of the evidence unlawful, that the seizure trial was and the court erred that the holding state error, however, unlawfully because, had seized the That vehicle. was harmless at the same time the court held that the state unlawfully Explorer, had seized the that Explorer also held should not be forfeited and dismissed the seeking its forfeiture. At that point, Trivette was entitled to the return of the Explorer regardless of whether it unlawfully had been seized. Accordingly, the state’s first of error assignment properly is overruled.
THE STATE’S SECOND ASSIGNMENT OF ERROR assignment The state’s second of error is that incorrectly court ordered Explorer. the return of Trivette’s It has argued Explorer both that the subject was instrumentality to forfeiture as an used in the commission or facilitation of an in a offense manner sufficient to warrant its forfeiture under R.C. 2981.02 and that its disproportionate value was not to the seriousness of Trivette’s offense under R.C. 2981.09. 2981.04(B) places proving by the burden of a preponderance of the
evidence that “subject is to forfeiture” under on R.C. 2981.02 the state political or subdivision forfeiture. The trial seeking court determined that the carry state failed to its burden on that It question. by doing erred so—not burden, in fact because the state carried its but that question because was not properly before the court. Trivette had twice that represented she wished a on hearing only question proportionality, once in her “Motion to Change Plea; Continuance; Position on Maintain Motion for Return of Seized Vehicle” hearing. thereby argument once at the outset of the She abandoned it had not been an was not to forfeiture because in a manner in the commission or facilitation of an offense instrumentality used holding the trial court’s error sufficient to warrant its forfeiture. Just as harmless, however, its determination unlawfully seized was was used proving its burden of that the carry the state failed its facilitation of an offense in a manner sufficient to warrant commission or *12 was harmless because the trial court forfeiture was also harmless. This error to the disproportionate found in the alternative that the value of the was severity of Trivette’s offense under R.C. 2981.09. 2981.09(A) to forfeiture property subject on the owner of places by preponderance forward and the of going proving
both the burden burden subject to forfeiture is property of the evidence “that the amount or value of the 2981.09(C), in disproportionate severity to the of the offense.” Under R.C. offense, severity of the “the court shall consider all relevant determining (1) to, including, factors but not limited seriousness of the following: [t]he impact community, including activity offense and its on the the duration of the subject and the harm or person property caused intended whose is (2) forfeiture; subject extent to which person property whose is [t]he (3) offense; forfeiture in participated the offense was [and] [w]hether 2981.09(D), completed attempted.” determining or Under R.C. in the value of “the court shall property, including, consider relevant factors but not limited (1) (2) to, following: property; fair market value of the value [t]he [and] [t]he forfeiture, property to the whose is person including hardship to the or to innocent if the were forfeited.” person persons going by introducing Trivette met her burden of forward evidence on 2981.09(C) (D). the factors listed in it and The court had before evidence stole, regarding laptops boyfriend value her the fact her role was him driving using Explorer, limited to to and from Walmart on two occasions her and the fact that It completed being caught. he the thefts before also had regarding testimony evidence the value of the the form of Trivette’s $8,000 bought eight that she had it months to its seizure for and had prior recently its tires. It also had replaced testimony regarding appearance its mechanical condition. a trial court regarding R.C. 2981.09 does not instruct how to the factors in it or other factors it deems exactly weigh listed Rather, relevant. is committed to the trial court’s discretion. The weighing trial court not that Trivette had met by determining did err as matter law weighed her burden of forward with the evidence factors to be going regarding 2981.09, discretion in those proper weighing under Section exercised determining factors and the value of the to Trivette and her to the of her involvement baby disproportionate severity unborn assign- from The state’s second boyfriend’s laptop computers theft Walmart. overruled. properly ment of error is
WALLACE, Appellee,
v.
WALLACE, Appellant.
Wallace,
App.3d
as Wallace v.
195 Ohio
[Cite
Court of District, County. Ninth Summit No. 25719. *13 Sept. Decided 2011.