In re Parker ( 2012 )

[Cite as In re Parker, 2012-Ohio-5540.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
IN RE FORFEITURE OF PROPERTY
OF ERIC D. PARKER, ET AL. : C.A. CASE NO. 25045
: T.C. CASE NO. 2011 CV 6247
: (Appeal from the Common
Pleas Court)
:
.........
OPINION
Rendered on the 30th day of November, 2012.
.........
Mathias H. Heck, Jr., Prosecuting Attorney, by Laura G. Mariani, Assistant Prosecuting
Attorney, Atty. Reg. No. 0063204, P.O. Box 972, 301 West Third Street, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
Eric D. Parker, 411 Shoop Avenue, Dayton, Ohio 45417
Pro Se Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Eric Devon Parker appeals from a default judgment granted to the State of
Ohio on its complaint seeking a civil forfeiture of property seized from Parker at the time of
his arrest on criminal charges.
{¶ 2} On August 31, 2011, the State filed its complaint for civil forfeiture pursuant to
R.C. 2901.01 and/or 2981.01. [Dkt. 1]. The complaint alleged that a 1995 Cadillac
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automobile and $580.00 in currency “possessed, concealed or transported by its owner(s), Eric
D. Parker and/or Shawndra L. Montgomery” * * * “is either contraband, proceeds and/or an
instrumentality with a relationship to the underlying criminal case * * * in that it was used, or
intended to be used, in the commission of an offense or offenses, or that it was proceeds from
an offense or offenses, to wit: Possession of Drugs in violation of Ohio Revised Code Section
2925.11 and Trafficking in Drugs in violation of Ohio Revised Code Section 2925.11.”
{¶ 3} The State requested service of the complaint and attached summons by certified
mail on Parker at 411 Shoop Avenue, Dayton, Ohio 45417, pursuant to Civ.R. 4.1(A). The
mailing was returned unclaimed. [Dkt. 7]. The State then requested service on Parker by
ordinary mail at the same address pursuant to Civ.R. 4.6(D). Such service is complete when
the fact of mailing is entered on the record by the clerk. Id. The certified copy of the docket
and journal entries prepared by the clerk pursuant to App.R. 9(A)(1) indicates that service of
the complaint and summons was reissued by ordinary mail on October 28, 2011.
{¶ 4} A defendant must file an answer to a complaint within twenty-eight days after
service of the complaint and summons on him. Civ.R. 12(A)(1). Parker had not filed an
answer or other responsive pleading when, on February 3, 2012, the State moved for a default
judgment pursuant to Civ.R. 55. The trial court granted the State’s motion and entered a
default judgment forfeiting Parker’s interests in the currency and automobile to the State on
February 9, 2012. [Dkt. 16]. A copy of the default judgment was served on Parker by
ordinary mail at 411 Shoop Avenue, Dayton, Ohio 45417. Parker filed a notice of appeal
from the default judgment on February 21, 2012.
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{¶ 5} App.R. 16(A)(2) requires an appellant to include in his brief “[a] statement of
the assignments of error presented for review.” Parker’s pro se brief fails to comply with that
requirement. However, we glean from the arguments he presents that Parker claims that (1)
he lacked notice of the State’s complaint for forfeiture, and that (2) his property was not
subject to forfeiture because he was not convicted of the underlying criminal offenses for
which he was arrested.
{¶ 6} Attached to Parker’s brief on appeal is a copy of a final judgment entered by
the court of common pleas on March 19, 2012 in Case No. 2011 CR 02873/2, dismissing the
criminal charges in that case that were filed against Eric Devon Parker on the State’s motion
and without prejudice. The same is not reflected in the record of the trial court’s proceedings
in the forfeiture case underlying this appeal. However, the State concedes in its brief on
appeal that the criminal charges against Parker and his co-defendant, Shawndra Montgomery,
on which the State’s forfeiture claim was predicated were dismissed by the court after the
court sustained a motion to suppress evidence.
{¶ 7} In Dayton Police Department v. Thompson, 2d Dist. Montgomery No. 24790,
2012-Ohio-2660, at ¶ 11, we wrote:
* * * Under R.C. 2981.05(D), a trial court “shall issue a civil forfeiture order if
it determines that the prosecutor has proved by a preponderance of the evidence
that the property is subject to forfeiture under section 2981.02 of the Revised
Code * * *.” In turn, R.C. 2981.02 provides that “[p]roceeds derived from or
acquired through the commission of an offense” are subject to civil forfeiture
under R.C. 2981.05. “Proceeds” include “any property derived directly or
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indirectly from an offense,” including money. R.C. 2981.01(B)(11)(a). An
“offense” is “any act or omission that could be charged as a criminal offense *
* * whether or not a formal criminal prosecution * * * began at the time the
forfeiture is initiated.” R.C. 2981.01(B)(10). Finally, R.C. 2981.03(F)
provides that “[a] civil action to obtain civil forfeiture may be commenced as
described in section 2981.05 of the Revised Code regardless of whether the
offender * * * has pleaded guilty to [or] been convicted of * * * the act that is
the basis of the order.”
{¶ 8} The fact that the criminal charges in Case No. 2011 CR 02873/2 on which
Parker had been arrested were subsequently dismissed did not preclude the prior order of
forfeiture. Thompson; R.C. 2981.03(F). Further, Parker’s failure to file an answer or other
pleading responsive to the State’s complaint permitted the court to grant a default judgment
against Parker on any of the grounds permitted by R.C. 2981.02 that the State alleged in its
complaint. A judgment on those grounds required the court to order the forfeiture the State
requested. R.C. 2981.05(D).
{¶ 9} With respect to Parker’s contention that he lacked notice of the State’s
complaint, successful service is presumed when service is by ordinary mail sent by the clerk
pursuant to Civ.R. 4.6(D). That presumption may be rebutted by evidence showing that
service was not in fact made. This record contains no such evidence.1 Because the default
1
We note that in his pro se brief on appeal, Parker
identifies his address as 411 Shoop Avenue, Dayton, Ohio 45417,
the same address to which ordinary mail service was sent by
the clerk.
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judgment was therefore proper, Parker’s remedy on his contention lies in a Civ.R. 60(B)
motion to vacate the default judgment on his claimed lack of notice. Such relief is available,
however, only when the three-pronged test in GTE Automatic Electric, Inc. v. ARC Industries,
Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), is satisfied by the party seeking that relief.
{¶ 10} The assignments of error are overruled. The judgment of forfeiture will be
affirmed.
Fain, J., and Hall, J., concur.
Copies mailed to:
Laura G. Mariani, Esq.
Mr. Eric D. Parker
Hon. Barbara P. Gorman