State v. Waycaster , 2020 Ohio 1604 ( 2020 )

[Cite as State v. Waycaster, 2020-Ohio-1604.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 108476
v. :
NICHOLAS WAYCASTER, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: April 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-632463-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Tasha Forchione and David Elias, Assistant
Prosecuting Attorneys, for appellant.
Nicholas Waycaster, pro se.
SEAN C. GALLAGHER, J.:
The state of Ohio appeals the trial court order requiring the Parma
Police Department to pay Nicholas Waycaster’s mother Mamie Waycaster
(“Mamie”) $6,100.00, which related to the $6,659.00 that was forfeited by
Waycaster in the final entry of his conviction. Waycaster was convicted of several
drug-related offenses resulting in the forfeiture of $6,100.00 that was recovered, at
the time of Waycaster’s arrest for drug-related charges, in a box containing
Waycaster’s personal belongings and a ledger noting several drug transactions. The
box was located in a locked closet in the room Waycaster occupied in Mamie’s house.
Mamie claimed an interest in the cash that she claims to have earned as a waitress
and had stored in the closet, although Mamie had not declared income sufficient to
generate those savings in her tax returns during the pertinent time periods.
During the pending criminal action, Mamie filed a motion “for the
release of property,” in which she claimed that $7,059.00 was not subject to
forfeiture under R.C. 2941.1417(A) because the charging instrument (in this case the
indictment) failed to specifically articulate the nature and extent of Waycaster’s
interest in the property. In other words, Mamie was attempting to challenge a defect
in the indictment on behalf of Waycaster in an effort to secure the return of “seized”
property. It appears, however, that Mamie’s motion was an inartful attempt to
invoke R.C. 2981.03(A)(4), which in pertinent part provides:
If the motion is filed by a third party after an indictment, information,
or complaint seeking forfeiture of the property has been filed, the court
shall treat the motion as a petition of a person with an alleged interest
in the subject property, pursuant to divisions (E) and (F) of section
2981.04 of the Revised Code.
The only connection between Mamie’s “motion for release of property” and R.C.
2981.03(A)(4) is the fact that during the trial court’s change-of-plea discussion, the
trial court outlined the appropriate course of action to litigate any third-party claims
against forfeited property, including the citations to the statutory sections that set
forth the procedure and standards.1 The motion immediately followed the hearing.
Despite being provided in the statutory framework, Mamie’s motion failed to
specifically articulate the basis of her motion. This caused considerable confusion
amongst the parties.
After the state responded to Mamie’s motion for release of property,
based on arguments entirely derived from R.C. Chapter 2981, Waycaster pleaded
guilty to several charges and agreed to forfeit $6,659.00. A final entry of conviction,
including the order of forfeiture, followed.
Because of the final order, the trial court’s general jurisdiction was
terminated. See generally State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982
N.E.2d 684, ¶ 20, quoting State ex rel. White v. Junkin, 80 Ohio St.3d 335, 338,
1997-Ohio-340, 686 N.E.2d 267, and State ex rel. Hansen v. Reed, 63 Ohio St.3d
597, 589 N.E.2d 1324 (1992). However, Mamie’s inartful motion filed under R.C.
2981.03(A)(4), arguably maintained the trial court’s continuing jurisdiction over the
ancillary proceeding in the criminal case. State ex rel. West. v. McDonnell, 8th Dist.
Cuyahoga No. 99085, 2013-Ohio-1043, ¶ 9. R.C. 2981.03(A)(4) appears to preserve
the trial court’s jurisdiction to resolve the forfeiture issue under R.C. 2981.04(E)-(F)
the same as R.C. 2981.04(E)(1) provides the mechanism to invoke the trial court’s
jurisdiction following a final entry of conviction. The rule is one of convenience,
dictating the treatment of premature motions to amend a forfeiture order — at the
1The proceedings were also divided by the retirement of the then sitting trial court
judge who presided over the change-of-plea hearing. All proceedings in Waycaster’s case
following the change of plea were conducted by the succeeding judge.
time of the motion under R.C. 2981.03(A)(4), there is no final entry of forfeiture to
amend. At the least, the state has not objected to the trial court’s assertion of
continuing jurisdiction to resolve the forfeiture issue based on Mamie’s motion to
release property that was the subject of the forfeiture specification. The trial court
conducted a hearing under R.C. 2981.04(E) and concluded that the Parma Police
Department should release the $6,100.00 that had been forfeited. It is from this
order that the state appealed.
The state has a limited right to appeal final orders or judgments in
criminal actions. Under R.C. 2945.67(A), the state may appeal, as a matter of right,
decisions that grant a motion to dismiss, a motion to suppress evidence, a motion
for postconviction relief, or a motion for the return of “seized property.” All other
appeals must be by leave of court as provided under App.R. 5(C). Id.The request for leave must be concurrently filed with the notice of
appeal. State v. Fisher, 35 Ohio St.3d 22, 25, 517 N.E.2d 911 (1988). The failure to
timely file a motion for leave to appeal is jurisdictional and cannot be corrected after
the filing deadline expired. State ex rel. Steffen v. Judges of the Court of Appeals
for the First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906,
¶ 27 (the state failed to file the motion for leave concurrent with the notice of appeal,
and therefore the trial court patently and unambiguously lacked jurisdiction); State
v. Roey, 8th Dist. Cuyahoga No. 97484, 2012-Ohio-2207, ¶ 9 (failure to request leave
when required is jurisdictional); State v. Crawford, 5th Dist. Richland No. 07 CA 8,
2007-Ohio-3516, ¶ 26. “If the state is required to seek leave for an appeal but fails
to timely do so, the appellate court never obtains jurisdiction over the matter.” State
v. Powers, 10th Dist. Franklin Nos. 15AP-422 and 15AP-424, 2015-Ohio-5124, ¶ 11,
citing Roey.
Concerned that the state had not properly invoked our jurisdiction in
this particular case, we requested additional briefing to address the following:
This action is an appeal from the trial court’s decision to amend its
forfeiture order under R.C. 2981.04(F). Under R.C. 2981.03, the state
or political subdivision is authorized to seize and hold property under
a grant of provisional title to the property, but title vests to the state
upon the final forfeiture verdict. The appeal in this case was filed as a
matter of right under R.C. 2945.67(A), presumably based on the ability
of the state to appeal from a decision resolving a “motion for the return
of seized property.” However, a person may only seek the return of
seized property before the prosecuting attorney files a charging
interest. State v. Williams, 12th Dist. Warren No. CA2017-07-106,
2018-Ohio-226, ¶ 13; State v. Bolton, 2017-Ohio-7263, 97 N.E.3d 37, ¶
15 (2d Dist.). Following the final forfeiture, any person may file a
motion to “adjudicate the validity of the person’s alleged interest” in the
forfeited property. R.C. 2981.04(E)(1). The state is to file supplemental
briefing addressing whether this appeal is as of right or if it required a
timely motion for leave under R.C. 2945.67(A) based on the procedural
posture of this case.
The state responded, claiming that it had a right to appeal the trial court’s decision
to amend the forfeiture order under R.C. 2981.04 because such an order is in the
nature of a motion to return “seized” property under R.C. 2945.67(A).
The state cited several cases in which the trial court’s decision under
R.C. 2981.04 was reviewed in a direct appeal in support of its claim to an appeal as
a matter of right: Bedford v. Doerner, 8th Dist. Cuyahoga No. 98794,
2013-Ohio-1798, ¶ 12; State v. Conn, 12th Dist. Warren Nos. CA2014-04-059,
CA2014-04-061, and CA2014-06-084, 2015-Ohio-1766, ¶ 61; State ex rel. West, 8th
Dist. Cuyahoga No. 99086, 2013-Ohio-1044, at ¶ 4; State v. Brimacombe, 195 Ohio
App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 69-70 (6th Dist.); State v.
Lawless, 5th Dist. Ashland Nos. 17-COA-17 and 17-COA-20, 2018-Ohio-1471, ¶ 12.
In all the cited cases, however, the state was not the party appealing the trial court’s
decision under R.C. 2981.04. None of the cited cases support the state’s claim that
an order amending the final order of forfeiture under R.C. 2981.04 in a criminal case
constitutes a “motion to return seized property” under R.C. 2945.67(A). Further,
the state has not proffered any other reason in support of our jurisdiction. App.R.
16(A)(7).
A motion for the return of seized property is not the equivalent of a
petition “to adjudicate the validity of the person’s alleged interest” in forfeited
property. The latter is the specific and solitary mechanism for third parties to
challenge final orders of forfeitures under R.C. 2981.04(E).
Under R.C. 2981.03(A)(1), the state acquires provisional title to
property that is subject to forfeiture through a criminal proceeding. That
provisional title expressly authorizes the state to “seize” and hold the property
pending the forfeiture proceedings. R.C. 2981.03(A)(1); State v. Williams, 12th Dist.
Warren No. CA2017-07-106, 2018-Ohio-226, ¶ 12. To put this into the context of
the current proceeding, after the $6,100.00 was seized during Waycaster’s arrest
and the indictment that included the forfeiture specification was issued, the state
held provisional title to the cash pending the outcome of the criminal proceedings.
During that time, the state was entitled to “seize” and “hold” the $6,100.00 under
the grant of provisional title to the property. However, once the guilty plea resulted
in a final forfeiture order, title to the property automatically vested with the state.
R.C. 2981.03(A)(1); Williams. The forfeited property was no longer property of
another being seized by the state under a provisional title. Any actions to claim title
to that property following the final order of forfeiture must adhere to the procedures
set forth in R.C. 2981.04(E).
Under R.C. 2981.04(E), any person, other than the offender whose
conviction is the basis of the forfeiture order, may petition the court that issued the
forfeiture order for a hearing to “adjudicate the validity of the person’s alleged
interest” in the forfeited property within 30 days of receiving notice of the final order
or publication or the order itself — in this case the final order of conviction. The
alternative process is to file the same verified petition during the pending criminal
action under R.C. 2981.03(A)(4) as was attempted in this case. However, the fact
that the petition is filed during the pending criminal action does not transform the
motion filed under R.C. 2981.03(A)(4) into a “motion to return seized property.”
R.C. 2981.03(A)(4) unambiguously establishes that any motions filed under that
section adhere to the same procedures and remedies under R.C. 2981.04(E)-(F).
The procedures under R.C. 2981.04(E) specifically contemplate that the final entry
of forfeiture has been rendered. Thus, the motion filed under R.C. 2981.03(A)(4)
merely invokes the trial court’s continuing jurisdiction to resolve a petition to
adjudicate the validity of a person’s alleged interest in forfeited property following
the conclusion of the criminal proceedings. It does not create a procedure for the
return of seized property before the forfeiture specifications have been resolved. The
petition remains pending until after the forfeiture specification is resolved.
R.C. 2981.04(E) grants the trial court limited jurisdiction to amend
the final forfeiture order under the procedures set forth in that statutory section. If,
after the hearing, the court determines that the interested person proved by a
preponderance of the evidence that the interest in the property vested in the
petitioner and not the offender, the trial court “shall amend its forfeiture order”
under R.C. 2981.04(F)(1).
The legislature has unambiguously delineated the dividing line
between what property is considered “seized” and that which is “forfeited.” The state
holds provisional title to “seized” property pending “forfeiture.” The legislature is
aware of the distinction between “seized” and “forfeited” property and has
delineated as much in other sections of the Revised Code. See R.C. 2981.11(A)(1)
(noting in the disjunctive that any property lawfully “seized or forfeited” must be
maintained by the state), compare R.C. 2967.45(A) (noting that the state has the
right to appeal the granting of a motion for the return of “seized” property). Further,
the remedy provided under R.C. 2981.04(F)(1) is for an amendment to the forfeiture
order, so that the final decision in this case is in the nature of an amendment, not
the return of “seized” property. R.C. 2945.67(A) must be “strictly construed[,] and
any appeal in a criminal case taken by the state as of right must strictly comply with
the provisions of the statute.” State v. Mitchell, 6th Dist. Lucas No. L-03-1270,
2004-Ohio-2460. The order being appealed in this case is in the nature of returning
“forfeited” property to its rightful owner through the procedural mechanism of R.C.
2981.04 that permits the trial court to amend the final forfeiture order.
The legislature has not expressly authorized the state to file an appeal
as of right from an order amending a final forfeiture under R.C. 2981.04(F) in a
criminal case. Further, the state has not sought leave for this appeal as required
under App.R. 5(C) and R.C. 2945.67(A). As a result of the foregoing, we lack
jurisdiction to consider the merits of the state’s claims. This appeal is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR