State v. Orsik ( 2012 )

[Cite as State v. Orsik, 2012-Ohio-4331.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 11CA010097
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GEORGE T. ORSIK OBERLIN MUNICIPAL COURT
COUNTY OF LORAIN, OHIO
Appellant CASE No. 11TRC00919
DECISION AND JOURNAL ENTRY
Dated: September 24, 2012
CARR, Judge.
{¶1} Appellant George Orsik appeals the judgment of the Oberlin Municipal Court that
ordered the release of his truck to the lienholder. This Court affirms.
I.
{¶2} The police found Orsik staring blankly and sitting on the rocker panel of his truck
in a muddy field approximately 20 feet from the roadway. Orsik’s eyes were bloodshot and
glassy, his speech was slurred, and his responses were slow. When an officer directed him to
stand and approach, Orsik attempted to do so with difficulty and fell. The officer noticed a
strong smell of alcohol, and Orsik admitted that he had had a lot to drink. He refused, however,
to submit to a breath test. Orsik was cited for operating a vehicle while under the influence of
alcohol (third offense in six years), refusal to submit to a breath alcohol test, and failure to
control. Although “unable to sign,” Orsik was provided with a copy of a notice of forfeiture
which informed him that, if he had any previous convictions for operating a vehicle while under
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the influence, the court may order the forfeiture of his vehicle to the state if he were convicted of
the instant charge.
{¶3} At arraignment, the trial court explained to Orsik that, because of his two prior
convictions for operating while under the influence, his vehicle would be subject to forfeiture in
this case. Orsik pleaded not guilty to the charges. Subsequently, in exchange for the State’s
dismissal of the charges of refusal to submit to alcohol testing and failure to control, Orsik
pleaded no contest to the charge of operating a vehicle while under the influence of alcohol, his
third such offense within six years, in violation of R.C. 4511.19(A)(1)(a). Prior to entering his
plea, the trial court informed him that his vehicle would be subject to forfeiture. A forfeiture and
sentencing hearing was scheduled for a later date. The trial court ordered the Ohio State
Highway Patrol to search the public records and file with the court the name and address of any
lienholder in the subject vehicle.
{¶4} Ally Financial filed a motion, requesting recognition as an interested party as the
holder of the first lien of record in the subject vehicle. Ally appended the affidavit of its
confiscation specialist, an acknowledged copy of the retail installment contract relevant to
Orsik’s truck, and an acknowledged copy of the certificate of title naming Ally as the first
lienholder. Ally was represented by counsel at the forfeiture hearing and submitted the
documentation appended to its motion in an effort to demonstrate that the vehicle should be
returned to it. The trial court considered the affidavit and other documents and found that Ally
had met its burden by a preponderance of the evidence. The trial court ordered the return of the
truck to Ally, and further sentenced Orsik to 365 days in jail and imposed a $1200.00 fine. The
court suspended 335 days and $350.00. Orsik’s license was suspended for two years and six
points were assessed to his license. Orsik appealed, raising two assignments of error for review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRONEOUSLY ORDERED THE FORFEITURE OF
DEFENDANT’S MOTOR VEHICLE BASED UPON INSUFFICIENT AND
IMPROPERLY ADMITTED EVIDENCE.
{¶5} Orsik argues that the trial court ordered forfeiture of his truck based on
improperly admitted evidence. This Court disagrees.
{¶6} As a preliminary matter, we acknowledge that the truck was not forfeited to the
State, but rather that the trial court ordered that it be released to the lienholder.
{¶7} R.C. 4503.234 addresses criminal forfeitures of vehicles and exemptions from
forfeiture for lienholders and other persons with an interest in the subject vehicle. R.C.
4503.234(B)(2) states in pertinent part: “No order of criminal forfeiture shall be issued pursuant
to the section if a lienholder * * * establishes to the court, by a preponderance of the evidence
after filing a motion with the court, that the lienholder * * * neither knew nor should have known
after a reasonable inquiry that the vehicle would be used or involved, or likely would be used or
involved, in the violation resulting in the issuance of the order of criminal forfeiture * * *, that
the lienholder * * * did not expressly or impliedly consent to the use or involvement of the
vehicle in the violation, and that the lien * * * was perfected pursuant to law prior to the seizure
of the vehicle[.]”
{¶8} Ally, the purported lienholder, did not present any witness testimony at the
forfeiture hearing. Instead, it submitted the affidavit of Maribelle Rodriguez, its confiscation
specialist, who averred, on the basis of personal knowledge or knowledge obtained from
company records kept in the ordinary course of business and over which she is the custodian,
that she neither knew nor should have known that Orsik’s truck would be used in violation of
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law and that she never authorized any act in violation of law. The retail installment agreement,
appended to her affidavit, includes Orsik’s agreement “not to expose the vehicle to misuse,
seizure, confiscation, or involuntary transfer.” The certificate of title, appended to her affidavit,
indicates that Ally is the first lienholder on the vehicle. All parties agree that all the documents
submitted by Ally constituted hearsay.
{¶9} Orsik argues that the trial court erred by considering the evidence presented by
Ally because it was inadmissible hearsay. The trial court admitted and considered the evidence,
however, after concluding that the Ohio Rules of Evidence were not applicable to forfeiture
hearings. This is an issue of first impression in Ohio. We need not determine this issue here
because Orsik has not demonstrated how he was prejudiced by the release of the truck to the
lienholder in lieu of forfeiture of the truck to the State. Because his conviction for operating a
vehicle while under the influence was his third such conviction in six years, forfeiture of his
truck was mandatory barring any claim of a lienholder or other person who could establish an
interest in the truck. He has not argued or demonstrated that he could have recovered the truck
under these circumstances. Accordingly, error in the admission of Ally’s affidavit, if any, was
harmless. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 59.
{¶10} Although Orsik raises sufficiency in his assignment of error, he does not
develop any arguments in that regard in the body of his assignment of error.
Accordingly, this Court declines to develop any such argument for him. App.R.
12(A)(2); see also Cardone v. Cardone, 9th Dist. No. 18349, 1998 WL 224934 (May 6,
1998) (holding that “if an argument exists that can support [an] assignment of error, it is
not this court’s duty to root it out.”)
{¶11} Orsik’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
THE STATE OF OHIO FAILED TO COMPLY WITH THE NOTICE
REQUIREMENTS OF R.C. 4503.234(A).
{¶12} Orsik argues that the State failed to comply with the notice requirements of R.C.
4503.234(A) relevant to forfeiture hearings. This Court disagrees.
{¶13} R.C. 4503.234(A) provides in pertinent part: “A forfeiture order may be issued
only after the offender has been provided with an opportunity to be heard. The prosecuting
attorney shall give the offender written notice of the possibility of forfeiture by sending a copy of
the relevant uniform traffic ticket or other written notice to the offender not less than seven days
prior to the date of issuance of the forfeiture order.” Although the trial court did not order the
forfeiture of the truck to the State, but rather ordered its release to the lienholder, this Court
recognizes that the notice requirements are applicable to hearings where the court must
determine whether forfeiture to the State or release to a lienholder is appropriate under the
statutory scheme.
{¶14} Orsik argues that this Court must sustain his assignment of error on the authority
of State v. Knapp, 9th Dist. No. 02CA0048-M, 2003-Ohio-532, in which we affirmed the trial
court’s order precluding forfeiture of Knapp’s vehicle because the State had not strictly complied
with the statutory notice requirements. Knapp is distinguishable, however, because the criminal
forfeiture statute in effect at that time additionally required the charging instrument to contain a
notice that the subject vehicle would be criminally forfeited to the State upon conviction. Since
that time, the statute has been amended to merely require the prosecuting attorney to give written
notice of the possibility of forfeiture at least seven days prior to the date of issuance of any
forfeiture order. The statute, by its plain language, provides that the prosecuting attorney may
comply with the notice requirement by providing the offender with “a copy of the relevant
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uniform traffic ticket.” R.C. 4503.234(A). Orsik concedes in his brief that he received a copy
of the uniform traffic ticket prior to the forfeiture hearing which ultimately took place on
September 28, 2011. Accordingly, the State provided him with the requisite notice. To the
extent that he argues that the language subsumed within the uniform traffic ticket did not provide
notice of the possible forfeiture, his argument is misplaced. The legislature has already
determined that the uniform traffic ticket provides adequate notice.
{¶15} In addition, the record contains the trial court’s pink copy of a notice of
forfeiture, filed on March 21, 2011. According to the form, Orsik would have received the
goldenrod copy of the form. The form contains the following written notification: “If you are
convicted of or plead guilty to OVI, the court may issue * * * an order for the criminal forfeiture
of the vehicle to the state.” On July 27, 2011, the trial court issued an order, scheduling a
forfeiture hearing on September 6, 2011, and directing the Ohio State Highway Patrol to search
public records for any lienholders in the subject vehicle. Significantly, the trial court judge, the
assistant prosecutor, defense counsel, and Orsik all signed the July 27, 2011 order. By signing
the order, the State provided “other written notice” pursuant to R.C. 4503.234(A) to Orsik that
his truck was subject to forfeiture. Finally, at the change of plea hearing on September 6, 2011,
the trial court informed Orsik that his vehicle would be subject to forfeiture because he had two
prior convictions for operating a vehicle while under the influence. The forfeiture hearing was
then rescheduled for September 28, 2011.
{¶16} A review of the record indicates that the State provided Orsik with the statutorily
mandated notice prior to the forfeiture hearing. He admitted receiving the uniform traffic ticket
which the legislature has indicated provides the requisite notice. Both Orsik and his attorney,
along with the prosecuting attorney, signed the July 27, 2011 journal entry that scheduled the
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forfeiture hearing. Accordingly, the State complied with the statutory notice requirements.
Orsik’s second assignment of error is overruled.
III.
{¶17} Orsik’s assignments of error are overruled. The judgment of the Oberlin
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Oberlin Municipal
Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
CONCURS.
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BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.
{¶18} I concur in the majority’s resolution and analysis of Mr. Orsik’s first assignment
of error. With respect to the majority’s resolution of Mr. Orsik’s second assignment of error, I
agree that it is properly overruled and that Mr. Orsik’s reliance upon State v. Knapp, 9th Dist.
No. 02CA0048-M, 2003-Ohio-532, is misplaced. However, even if there was technical
noncompliance with that portion of R.C. 4503.234(A) requiring written notice of the possibility
of forfeiture, Mr. Orsik has not demonstrated that he was prejudiced by the error. See Crim.R.
52(A).
APPEARANCES:
BRETT F. MURNER, Attorney at Law, for Appellant.
MICHELLE D. NEDWICK, Attorney at Law, for Appellee.