State v. Court ( 2014 )

[Cite as State v. Court, 2014-Ohio-2712.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2013-T-0122
- vs - :
GLORIA JEAN COURT, :
Defendant-Appellant. :
Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2012 CR 435.
Judgment: Appeal dismissed.
Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor,
160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).
Gloria Jean Court, pro se, PID: W086942, Northeast Pre-Release Center, 2675 East
30th Street, Cleveland, OH 44115 (Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} This matter is before this court on the pro se motion of appellant, Gloria
Jean Court, for leave to file a delayed appeal pursuant to App.R. 5(A). Along with her
motion, appellant filed her notice of appeal on December 17, 2013. Appellant is
requesting leave to appeal the trial court’s June 7, 2013 judgment entry ordering the
forfeiture of her interest in certain real property that was used or intended to be used in
the offense of trafficking in cocaine. For the following reasons, appellant’s motion for
leave to file a delayed appeal is overruled, and her notice of appeal is dismissed.
{¶2} We note, initially, that the forfeiture order from which appellant appeals is
a final and appealable order, separate from the entry of conviction and sentence. An
entry of conviction is final and appealable when it complies with Crim.R. 32(C). State v.
Lester, 130 Ohio St.3d 303, 308 (2011). To comply with Crim.R. 32(C), an entry must
contain four substantive provisions: “(1) the fact of the conviction, (2) the sentence, (3)
the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the
clerk.” Id. at paragraph one of the syllabus. In State v. Harris, 132 Ohio St.3d 318(2012), the Ohio Supreme Court held that “Crim.R. 32(C) does not require that the
forfeiture of items be listed in the sentencing entry” because it does not constitute any of
the above-listed substantive requirements. Id. at 322-323. Further, “the forfeiture of
items contemplates judicial action and additional considerations that extend beyond a
defendant’s criminal case.” Accordingly, “the trial court need not combine the entry of
conviction and the forfeiture order.” Id. at 322. Because the forfeiture order disposed of
all issues concerning the forfeiture proceeding, it follows that a forfeiture order not
included in an entry of conviction, as occurred here, is independently final and
appealable.
{¶3} Essential to the Supreme Court’s analysis in Harris is its determination
that “[f]orfeiture is a civil, not criminal, penalty” when the forfeiture is not a statutorily-
required punishment. Id. at 324-325. See also State v. Cruise, 185 Ohio App.3d 230,
236 (9th Dist.2009); State v. Watkins, 7th Dist. No. 07 LE 54, 2008-Ohio-6634, ¶31.
When not mandatory, an order of forfeiture is neither a conviction nor a sentence and,
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therefore, does not constitute “any of the substantive requirements necessary for
compliance with Crim.R. 32(C).” Id. at 323-324. Moreover, the Supreme Court notes
that the state of Ohio is required to prove that property is subject to forfeiture “only by a
preponderance of the evidence”; “[t]o obtain a conviction, in contrast, the state must
prove all the elements of the offense beyond a reasonable doubt.” Id. at 323.
{¶4} Prior to Harris, the Supreme Court reached the same conclusion in a
matter that involved a statutorily-mandated forfeiture: “[F]orfeitures are not inherently
civil penalties; rather, whether a forfeiture is a civil rather than a criminal penalty is a
matter of statutory construction.” State v. Casalicchio, 58 Ohio St.3d 178, 181-182
(1991). In Casalicchio, the defendant’s automobile was forfeited to the state, pursuant
to former R.C. 2933.43, as contraband under former R.C. 2933.42(B). Id. at 179.
Former R.C. 2933.42(B) stated, in pertinent part and emphasis added:
For purposes of section 2933.43 of the Revised Code, if a * * *
motor vehicle * * * is used in a violation of division (A) of this
section, the * * * motor vehicle * * * is contraband and, if the
underlying offense involved in the violation of division (A) of this
section is a felony, is subject to seizure and forfeiture pursuant to
section 2933.43 of the Revised Code.
The relevant portion of former R.C. 2933.43 stated, with emphasis added: “property
shall be forfeited upon a showing by a preponderance of the evidence by the petitioner
that the person from which the property was seized was in violation of division (A) of
section 2933.42 of the Revised Code.”
{¶5} The Supreme Court concluded that, due to the statutory requirements of
former R.C. 2933.42(B), “forfeiture of that property pursuant to [former] R.C. 2933.43
constitutes a separate criminal penalty in addition to the penalty the defendant faces for
conviction of the underlying felony.” Casalicchio at 182-183.
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{¶6} The different result in Harris, supra, is simply distinguished by the
operative statutes. The defendant in Harris pled guilty and was convicted of drug
trafficking in violation of R.C. 2925.03(A)(1) and having a weapon under disability in
violation of R.C. 2923.13(A)(3), both with forfeiture specifications pursuant to R.C.
2981.04.
{¶7} R.C. 2981.04(B) states, in pertinent part:
If a person pleads guilty to or is convicted of an offense * * * and
the complaint, indictment, or information charging the offense or act
contains a specification covering property subject to forfeiture under
section 2981.02 of the Revised Code, the trier of fact shall
determine whether the person’s property shall be forfeited. * * *.
“No positive prohibition or specific duty to be enjoined is present in the statute.
Moreover, by its very terms, the statute distinguishes between the underlying criminal
offense and the forfeiture specification.” Harris, supra, at 323. Thus, forfeiture of the
defendant’s property was not a conviction for purposes of Crim.R. 32(C). Id. at 323-
324. Further, neither R.C. 2925.03(A)(1) nor R.C. 2923.13(A)(3) require forfeiture “as a
punishment for [the defendant’s] offenses.” Id. at 324. Accordingly, forfeiture of the
defendant’s property was not part of a sentence, but a civil penalty. Id.
{¶8} Similarly, in the case sub judice, appellant pled guilty and was convicted
under R.C. 2925.03(A)(1) and (C)(4)(b) for three counts of trafficking in cocaine,
felonies of the fourth degree, with specifications of forfeiture pursuant to R.C.
2981.04(B). Pursuant to Harris, the forfeiture of appellant’s property was neither a
conviction nor a sentence, but a civil penalty.
{¶9} Not only is forfeiture considered a civil penalty in these circumstances, it is
also considered a civil proceeding. “Ohio has generally considered forfeiture
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proceedings to be civil actions.” Casalicchio, supra, at 181. See also State, Dept. of
Natural Res., Div. of Wildlife v. Prescott, 42 Ohio St.3d 65, 68 (1989); Sensenbrenner v.
Crosby, 37 Ohio St.2d 43, 45 (1974). Although conducted ancillary to a criminal
proceeding, “[i]n light of the degree of proof which is needed to establish the underlying
facts for a forfeiture of property, it has been stated that * * * a forfeiture hearing is
considered a civil proceeding.” State v. Meeks, 11th Dist. Lake No. 2011-L-066, 2012-
Ohio-4098,1 ¶32, citing Watkins, supra, at ¶31.
{¶10} The trial court issued its order of forfeiture in this matter on June 7, 2013.
However, appellant did not file her notice of appeal and motion for leave to file a
delayed appeal until December 17, 2013, over six months later.2 Delayed appeals are
only available to the classes of cases outlined above by the plain language of App.R.
5(A)(1):
After the expiration of the thirty day period provided by App.R. 4(A)
for the filing of a notice of appeal as of right, an appeal may be
taken by a defendant with leave of the court to which the appeal is
taken in the following classes of cases: [c]riminal proceedings;
[d]elinquency proceedings; and [s]erious youthful offender
proceedings.
1. In Meeks, this court stated in dicta that forfeiture hearings may be “quasi-criminal” or even “criminal.”
Meeks at ¶45, ¶48. This statement, however, was made in reference to the Supreme Court’s opinion in
Casalicchio, supra, which, as discussed above, did involve the use of forfeiture as a criminal penalty.
Subsequent to Casalicchio, in Harris, supra, the Supreme Court further delineated the distinction between
the two types of forfeiture proceedings in its opinion (i.e., statutorily-mandated versus discretionary).
Further, in Meeks, this court appropriately applied the standard of review applicable to civil proceedings in
its analysis of whether the trial court’s forfeiture determination was against the manifest weight of the
evidence. Meeks at ¶32.
2. Appellant previously filed a motion for leave to file a delayed appeal of the same June 7, 2013
judgment entry on November 20, 2013. Although she did not contemporaneously file a notice of appeal
with her motion, the clerk of courts assigned it a case number: 11th Dist. No. 2013-T-0115. While that
motion was pending, she filed the instant appeal contemporaneously with another motion for leave.
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Pursuant to the analysis above, the forfeiture proceeding at issue is not included in
App.R. 5(A) because, as applied to appellant, it was a civil proceeding and a civil
penalty.
{¶11} By way of example, the Ohio Supreme Court has held that postconviction
proceedings are quasi-civil in nature, although they stem from criminal proceedings.
State v. Nichols, 11 Ohio St.3d 40, 42 (1984). Accordingly, the Sixth Amendment right
to appointed counsel does not attach to postconviction proceedings. See State v. Buell,
70 Ohio St.3d 1211, 1212 (1994), quoting Penn. v. Finley, 481 U.S. 551, 555 (1987)
(emphasis sic) (“‘[t]he right to appointed counsel extends to the first appeal as of right,
and no further’”). Thus, the Supreme Court has expressly held that delayed appeals are
not available for postconviction proceedings. Nichols at 42.
{¶12} Similarly, in Meeks, this court held that the Sixth Amendment right to
appointed counsel does not attach to forfeiture proceedings. Meeks, supra, at ¶51.
Therefore, we hold that an App.R. 5(A) delayed appeal is not available for appellant’s
untimely appeal of the trial court’s order in her forfeiture proceeding.
{¶13} The time requirement for filing a notice of appeal is jurisdictional in nature
and may not be enlarged by an appellate court. State ex rel. Pendell v. Adams Cty. Bd.
of Elections, 40 Ohio St.3d 58, 60 (1988); App.R. 14(B). An appellant must comply with
the time guidelines found in App.R. 4(A) when filing a notice of appeal, which states:
A party shall file the notice of appeal required by App.R. 3 within
thirty days of the later of entry of the judgment or order appealed or,
in a civil case, service of the notice of judgment and its entry if
service is not made on the party within the three day rule period in
Rule 58(B) of the Ohio Rules of Civil Procedure.
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{¶14} A review of the trial court docket reveals that service of the June 7, 2013
entry was made within the three-day rule period in Civ.R. 58(B). Accordingly, any
appeal from the forfeiture order was due to be filed with the clerk of the trial court no
later than July 8, 2013. Appellant’s notice of appeal was thus untimely by over five
months.
{¶15} Based upon the foregoing analysis, appellant’s motion for leave to file a
delayed appeal is hereby overruled.
{¶16} Appeal dismissed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
_________________________________
COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion.
{¶17} Finding the majority’s reliance on Harris, supra, misplaced, I would find
this forfeiture a criminal proceeding for purposes of App.R. 5(A)(1)(a), and allow the
delayed appeal.
{¶18} As long ago as 1982, the Supreme Court of Ohio determined that
forfeiture proceedings “are criminal in nature but civil in form.” State v. Lilliock, 70 Ohio
St.2d 23, paragraph two of the syllabus (referencing former R.C. 2933.41). This
remains true under present R.C. 2981.04, the statute used by the state in this case,
which is entitled “Criminal forfeiture proceedings.” The state can always choose to
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operate under R.C. 2981.05, which sets forth a civil forfeiture process. See, e.g., State
v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶34 (6th Dist.) In this case, it
did not.
{¶19} The nature of forfeiture proceedings under R.C. 2981.04 was merely
incidental in the Harris analysis. At issue was the following proposition of law:
“‘Because forfeiture of items contemplates actions and issues that extend beyond the
criminal case and sentence, Crim.R. 32(C) does not require (that) the forfeiture of items
be listed in the sentencing entry.’” Harris at ¶2. The Eighth Appellate District had ruled
that a judgment entry of conviction in a criminal case where there was an attendant R.C.
2981.04 forfeiture had to include “information about the forfeiture specifications,” to be a
final appealable order. Harris at ¶24. The Supreme Court disagreed, on the basis that
a forfeiture does not constitute any of the “substantive requirements necessary for
compliance with Crim.R. 32(C).” Id. The essential elements for a valid judgment of
conviction under Crim.R. 32(C) include: “(1) the fact of conviction, (2) the sentence, (3)
the signature of the judge, and (4) entry on the journal by the clerk of courts.” Harris at
¶22, citing State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, paragraph one of the
syllabus. The Harris court then observed that an order of forfeiture constitutes neither a
conviction, nor a sentence. Harris at ¶25-31.
{¶20} Harris does contain the statement that, “Forfeiture is a civil, not criminal,
penalty.” Id. at ¶29. I respectfully suggest that, in context of the question entertained in
Harris, this is dicta. It is not essential for deciding whether a judgment entry of sentence
is compliant with Crim.R. 32(C), and does not deal with the essential nature of forfeiture
proceedings.
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{¶21} Forfeiture is not favored at law or equity. Lilliock, supra, at 25. Forfeiture
statutes “must be construed so as to avoid a forfeiture of property.” Id. at 26. Whether
to bring an R.C. 2981.04 forfeiture proceeding against a criminal defendant is
discretionary with the prosecutor – but so is seeking an indictment. And the proceeding
cannot exist without an underlying criminal conviction. It is criminal in nature, if not
process. Lilliock at paragraph two of the syllabus. Consequently, I would find R.C.
2981.04 forfeitures to be criminal proceedings within the meaning of App.R. 5(A)(1)(a),
and allow this delayed appeal.
{¶22} R.C. 2981.04(B) mandates that the court in a forfeiture proceeding
conduct a proportionality review, R.C. 2981.09, to determine whether “the amount or
value of the property subject to forfeiture is disproportionate to the severity of the
offense.” R.C. 2981.09(A). In this case, appellant pled guilty to three fourth degree
felonies for trafficking in cocaine. Under the R.C. 2981.04 proceeding, she forfeited the
house she inherited from her mother. I am well aware that the courts of appeals
regularly approve the forfeiture of defendants’ homes in drug trafficking cases, even
when the value of the drugs sold is minor. See, e.g., State v. Adams, 11th Dist.
Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶69 (collecting cases). Without a
transcript of the proceedings below, this court is unable to consider the proportionality
review made in this case. Forfeitures being disfavored, I believe it is incumbent on us to
review these proceedings for proportionality, when the issue is raised.
{¶23} I respectfully dissent.
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