State v. Freeman , 2022 Ohio 2364 ( 2022 )

[Cite as State v. Freeman, 2022-Ohio-2364.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111209
v. :
KAYLA L. FREEMAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: July 7, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-655875
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Paul E. Hanna, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Erika B. Cunliffe, Assistant Public Defender, for appellant.
SEAN C. GALLAGHER, A.J.:
Kayla Freeman appeals the trial court’s post-dismissal decision
denying a motion seeking the return of property seized upon Freeman’s arrest for
felonious assault. Freeman shot an assailant in the leg with a lawfully possessed and
carried firearm while defending another from an assault. Following the incident,
the Cleveland Police Department seized Freeman’s firearm used in the defense of
another and the state indicted Freeman for two counts of felonious assault
referencing the same alleged victim. The state filed a motion to have the criminal
proceedings dismissed, but the City of Cleveland Police Department has not
returned the property seized for the purposes of prosecuting the now terminated
action.
Following the dismissal, Freeman filed a motion requesting the court
order the City of Cleveland Police Department to return her seized property. The
state did not object to Freeman’s request. See, e.g., State v. Devore, 5th Dist.
Ashland No. 19-COA-017, 2019-Ohio-4035, ¶ 9-10 (finding reversible error in
denying a motion for the return of seized property in light of the state’s concession).
Property “seized pursuant to a search warrant[ ] or otherwise lawfully
seized or forfeited and that is in the custody of a law enforcement agency shall be
kept safely by the agency, pending the time it no longer is needed as evidence or for
another lawful purpose, and shall be disposed of” under R.C. 2981.12 (disposal of
unclaimed or forfeited property) and R.C. 2981.13 (sale of forfeited property). R.C.
2981.11(A). Under that statutory scheme, a law enforcement agency may only
dispose of unclaimed or forfeited property. In pertinent part under R.C. 2981.11(C),
before the property can be deemed unclaimed, the law enforcement agency is
required to “make a reasonable effort to locate persons entitled to possession of the
property, to notify them of when and where it may be claimed, and to return the
property to them at the earliest possible time.” (Emphasis added.) Id. Thus, there
is an affirmative duty imposed on the law enforcement agency to ensure that the
seized property is returned to the lawful owner without unnecessary delay
(especially pertinent in this type of situation since the state has no objection to the
property being returned).
The trial court denied Freeman’s motion requesting the return of her
property as moot, claiming a lack of jurisdiction to consider the post-dispositive
motion. Freeman claims the trial court possessed continuing jurisdiction to order
the police department to return the seized property and, therefore, erred by failing
to consider the merits of her motion. The state agrees that the trial court’s
conclusion was in error. Accordingly, the sole question presented for our review is
whether the trial court possesses continuing jurisdiction to resolve issues with the
retention of seized property following a dismissal of the indictment for which the
property was seized.
The parties’ position is not contrary to law: a trial court retains
continuing jurisdiction to consider a motion for return of property following the
conclusion of a case in which the seizure of the property was required. B.A.C. v. A.V.,
8th Dist. Cuyahoga No. 108259, 2019-Ohio-4166, ¶ 3, citing State v. White, 2018-
Ohio-2573, 115 N.E.3d 878, ¶ 22 (2d Dist.), and State v. Bolton, 2017-Ohio-7263, 97
N.E.3d 37 (2d Dist.); see also State v. Holloway, 6th Dist. Wood No. WD-20-021,
2021-Ohio-1843, ¶ 21 (compiling cases); State v. Castagnola, 9th Dist. Summit Nos.
29141 and 29250, 2020-Ohio-1096, ¶ 16, citing State v. Housley, 2d Dist. Miami No.
2018-CA-4, 2018-Ohio-4140, ¶ 9; State v. Harris, 10th Dist. Franklin No.
99AP-684, 2000 Ohio App. LEXIS 818, 2000 WL 249161, *2 (“[C]ourts routinely
address postconviction motions for the return of property previously seized[, and]
[c]ourts have also entertained such motions filed in criminal cases even after the
criminal charges have been dismissed.”).
Because the parties agree as to resolution of the assigned error and
the disposition of the appeal, we need not further dwell on this discussion.
App.R. 16. The trial court possessed jurisdiction to consider Freeman’s motion to
order the return of the seized property and, therefore, erred by denying the motion
as moot based on the perceived lack of jurisdiction. B.A.C. at ¶ 3, citing White and
Bolton.
In light of the foregoing, the decision of the trial court is reversed and
this matter remanded for full consideration of Freeman’s motion.
Reversed and remanded.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
EMANUELLA D. GROVES, J., CONCUR