State v. Bracy

[Cite as State v. Bracy, 2016-Ohio-7536.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 15CA010788
15CA010795
Appellant
v.
APPEAL FROM JUDGMENT
TRENTON BRACY ENTERED IN THE
COURT OF COMMON PLEAS
Appellee COUNTY OF LORAIN, OHIO
CASE No. 14CR088662
DECISION AND JOURNAL ENTRY
Dated: October 31, 2016
CARR, Presiding Judge.
{¶1} Plaintiff-Appellant, the State of Ohio, appeals from the judgment of the Lorain
County Court of Common Pleas. This Court reverses and remands.
I.
{¶2} In December 2013, the Lorain Police Department conducted four controlled buys.
During each of the controlled buys, Defendant-Appellee, Trenton Bracy, sold 1 gram of heroin to
an informant whom the police had supplied with marked bills. Following the fourth controlled
buy, the police executed a search warrant at Bracy’s apartment. The search uncovered heroin,
large amounts of marijuana, numerous items of paraphernalia, and several stashes of money.
With regard to the money, the police found (1) $200 in a kitchen cabinet alongside various items
of paraphernalia; (2) $1,080 stuffed into a chair in the master bedroom; (3) $10,720 in a bag
concealed in the bathroom ceiling; (4) $103 on the floor of the master bedroom; (5) $99 in the
master bedroom closet; and (6) $30 tucked into a camera case.
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{¶3} A grand jury indicted Bracy on five counts of trafficking in heroin and one count
each of escape, trafficking in marijuana, possession of marijuana, possession of heroin, assault,
obstructing official business, possession of criminal tools, and drug paraphernalia offenses.
Bracy’s counts for trafficking in marijuana and one of his counts for trafficking in heroin also
contained two specifications for the forfeiture of his 1997 Crown Victoria and the money that the
police found in his apartment. Bracy ultimately agreed to plead guilty to all of the charges, but
not the specifications. Consequently, the court set the matter for a bench trial on the
specifications.
{¶4} Following the trial on the specifications, the court issued an order. The court
ordered the forfeiture of Bracy’s 1997 Crown Victoria, as well as the $200 from his kitchen and
the $1,080 from his master bedroom chair. Meanwhile, it determined that the $103 from the
master bedroom floor, the $99 from the bedroom closet, and the $30 from the camera case were
not subject to forfeiture. As for the $10,720 taken from Bracy’s bathroom ceiling, the court
found that the entire sum was subject to forfeiture, but that a forfeiture of the entire sum would
be “disproportionate to the charges for which [Bracy] was found guilty.” Instead, the court
ordered $1,720 of that sum forfeited for a total cash forfeiture of $3,000. It ordered the
remaining $9,232 deposited with the clerk and distributed to Bracy, subject to court costs and
supervision fees.
{¶5} On May 15, 2015, the court issued Bracy’s sentencing entry. The court sentenced
Bracy to two years of community control. It also imposed upon Bracy a mandatory fine of
$5,000, but suspended the fine upon its finding that Bracy was indigent. The State filed an
appeal from the court’s sentencing entry and also sought leave from this Court to appeal from the
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trial court’s order on the forfeiture specifications. This Court granted the State leave to appeal
and ordered the two appeals consolidated.
{¶6} The State’s appeal is now before us and raises three assignments of error for our
review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO IMPOSE
A MANDATORY FINE PURSUANT TO R.C. 2925.03(D)(1), R.C.
2925.11(E)(1)(a), AND R.C. 2929.18(B)(1) AS A PART OF BRACY’S
SENTENCE BECAUSE BRACY FAILED TO FILE AN AFFIDAVIT OF
INDIGENCY PRIOR TO SENTENCING.
{¶7} In its first assignment of error, the State argues that the trial court erred by not
imposing a mandatory fine upon Bracy. The State argues that a portion of Bracy’s sentence is
void because, absent a timely filed affidavit of indigency, the court was required to impose the
fine upon him. We agree.
{¶8} In reviewing a felony sentence, “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence” that: (1) “the record does not support the trial court’s findings under relevant statutes,”
or (2) “the sentence is otherwise contrary to law.” State v. Marcum, Slip Opinion No. 2016-
Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶9} When a court sentences an offender on a drug trafficking charge and the charge is
a felony of the third degree, the court must impose a mandatory fine “unless, as specified in
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[R.C. 2929.18(B)(1)], the court determines that the offender is indigent.” R.C. 2925.03(D)(1).
R.C. 2929.18(B)(1) provides, in relevant part:
If an offender alleges in an affidavit filed with the court prior to sentencing that
the offender is indigent and unable to pay the mandatory fine and if the court
determines the offender is an indigent person and is unable to pay the mandatory
fine described in this division, the court shall not impose the mandatory fine upon
the offender.
The statute is “clear and unambiguous in requiring that an affidavit of indigency must be ‘filed’
with the court prior to sentencing * * *.” State v. Gipson, 80 Ohio St.3d 626, 632 (1998). The
Ohio Supreme Court has interpreted the “prior to sentencing” language “to mean that the
affidavit must be formally filed with the court prior to the filing of a journal entry reflecting the
trial court’s sentencing decision.” Id. Generally, “the act of filing * * * includes the concept of
time-stamping.” Id. But see State v. Calhoun, 8th Dist. Cuyahoga No. 101816, 2015-Ohio-2155,
¶ 12-15, citing Gipson at 633, fn.3 (discussing the possibility that an affidavit of indigency might
be filed at the sentencing hearing if accepted by the judge and filed pursuant to Civ.R. 5(E)).
{¶10} The record reflects that Bracy completed an affidavit of indigency at his
sentencing hearing, but failed to formally file his affidavit with the clerk at that time. Instead, his
affidavit was filed contemporaneously with the court’s sentencing entry, such that both filings
bear the same time stamp. As set forth above, the plain language of R.C. 2929.18(B)(1) requires
an affidavit of indigency to be “filed with the court prior to the filing of a journal entry reflecting
the trial court’s sentencing decision.” Gipson at 632. Because Bracy’s affidavit was not time
stamped prior to the trial court’s sentencing entry, it was not timely filed. See id. at 633.
Further, because Bracy’s affidavit was not timely filed, the court was required to impose upon
him the mandatory fine associated with his third-degree felony drug offense. See R.C.
2925.03(D)(1). The State’s argument that the court erred by failing to impose the fine has merit.
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{¶11} In issuing our decision, we acknowledge that Civ.R. 5(E) permits a trial judge to
accept documents for filing. Indeed, the Gipson Court noted in dicta the possibility that a
defendant could file his affidavit of indigency directly with the court pursuant to that rule. See
Gipson at 633, fn. 3. Bracy has not, however, referenced Civ.R. 5(E) in responding to the State’s
argument on appeal. Moreover, the rule requires a trial court to “note the filing date” on any
documents it accepts for filing before transmitting them to the clerk’s office. Civ.R. 5(E). The
trial court here never noted the filing date on Bracy’s affidavit of indigency. The only filing date
on the document is the time stamp from the clerk’s office. Accordingly, Civ.R. 5(E) does not
apply here.
{¶12} Because the trial court failed to impose Bracy’s mandatory fine, that portion of
the court’s sentencing entry is void. State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479,
syllabus. Consequently, that portion of the court’s entry is vacated, and this matter is remanded
for resentencing “limited to the imposition of the mandatory fine.” Id. The State’s first
assignment of error is sustained.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO IMPOSE
A MANDATORY FINE PURSUANT TO R.C. 2925.03(D)(1), R.C.
2925.11(E)(1)(a), AND R.C. 2929.18(B)(1) AS A PART OF BRACY’S
SENTENCE BECAUSE BRACY FAILED TO PROVE HIS FUTURE
INABILITY TO PAY A MANDATORY FINE.
{¶13} In its second assignment of error, the State argues that the trial court abused its
discretion when it failed to impose a mandatory fine upon Bracy on the basis of his future
inability to pay it. Based on our resolution of Bracy’s first assignment of error, his second
assignment of error is moot, and we decline to address it. See App.R. 12(A)(1)(c).
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ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT FOUND THAT $9,232.00 SEIZED
DURING THE EXECUTION OF A SEARCH WARRANT WAS
DISPROPORTIONATE TO THE CHARGES THAT BRACY WAS FOUND
GUILTY (sic) IN VIOLATION OF R.C. 2981.09.
{¶14} In its third assignment of error, the State argues that the trial court erred when,
following its proportionality review, it refused to order the forfeiture of $9,232. The State argues
that Bracy failed to carry his burden and the trial court failed to consider the appropriate factors
on the issue of proportionality. Because we agree that the trial court did not consider the proper
factors when conducting its proportionality analysis, we remand for it to apply the correct law in
the first instance.
{¶15} “This Court applies a de novo standard of review to an appeal from a trial court’s
interpretation and application of a statute.” State v. Greathouse, 9th Dist. Medina No.
15CA0024-M, 2016-Ohio-1350, ¶ 8, quoting State v. Chandler, 9th Dist. Lorain No.
14CA010676, 2016-Ohio-164, ¶ 7. “A de novo review requires an independent review of the
trial court’s decision without any deference to the trial court’s determination.” State v. Consilio,
9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.
{¶16} An instrumentality is subject to forfeiture if a trial court determines that it was
“used in or intended to be used in the commission or facilitation of * * * [a] felony * * *.” R.C.
2981.02(A)(3). Even so, “[p]roperty may not be forfeited as an instrumentality * * * to the
extent that the amount or value of the property is disproportionate to the severity of the offense.”
R.C. 2981.09(A). The Revised Code provides that,
[i]n determining the severity of the offense * * *, the court shall consider all
relevant factors including, but not limited to, the following:
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(1) The seriousness of the offense and its impact on the community, including the
duration of the activity and the harm caused or intended by the person whose
property is subject to forfeiture;
(2) The extent to which the person whose property is subject to forfeiture
participated in the offense;
(3) Whether the offense was completed or attempted.
R.C. 2981.09(C)(1)-(3). “The defendant has the burden to prove, by a preponderance of the
evidence, the fact that the value of the instrumentality is disproportionate to the severity of the
offense.” State v. Forney, 2d Dist. Champaign No. 2012-CA-36, 2013-Ohio-3458, ¶ 20, citing
R.C. 2981.09(A).
{¶17} For clarification purposes, we briefly outline the relevant testimony and evidence
that emerged during the trial on Bracy’s forfeiture specifications. Detective Timothy Thompson
testified that the police conducted several controlled buys in December 2013, during which their
informant purchased heroin from Bracy. Specifically, the informant purchased from Bracy: (1) 1
gram of heroin for $120 on December 5th; (2) 1 gram of heroin for $120 on December 10th; (3)
1 gram of heroin for $120 on December 12th; and (4) 1 gram of heroin for $145 on December
19th. On December 20th, the police executed a warrant at Bracy’s apartment and seized, among
other items, heroin, marijuana, scales, blenders, baggies, and money. Detective Thompson
testified that the police found the money hidden throughout the apartment. Relevant to this
appeal, they found: (1) $200 in a kitchen cabinet alongside various items of paraphernalia; (2)
$1,080 stuffed into a chair in the master bedroom; and (3) $10,720 in a bag concealed in the
bathroom ceiling. The bag with the $10,720 also contained 434 grams of marijuana. Detective
Thompson testified that the police found a total of 1,552.5 grams of marijuana in the apartment.
{¶18} The trial court found that all of the aforementioned money was subject to
forfeiture. With regard to the money from the bathroom ceiling, however, the court declined to
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order the forfeiture of the entire $10,720. Following a proportionality review, the court only
ordered the forfeiture of $1,720 of that money. The court ordered the remaining $9,000
deposited with the clerk and returned to Bracy after his court costs and supervision fees were
paid from the deposit. According to the State, the court erred in its proportionality review
because it incorrectly focused on the value of the heroin that Bracy sold during the controlled
buys rather than the severity of his offenses.
{¶19} Initially, we note that, in several places in its brief, the State mistakenly refers to
the amount at issue in this assignment of error as $9,232. This assignment of error only concerns
the $9,000 discussed above, however, because the additional $232 that the court declined to
forfeit came from other spots in Bracy’s apartment. The court did not conduct a proportionality
analysis with regard to those funds because it determined that they were not subject to forfeiture
as instrumentalities. The State has not separately assigned as error that the court erred when it
concluded that the $232 was not subject to forfeiture. Rather, its third assignment of error is
limited to challenging the court’s proportionality analysis. Because the court’s proportionality
analysis concerned only the $10,720 from Bracy’s bathroom ceiling, we limit our review to its
decision not to order the forfeiture of $9,000 of that amount.
{¶20} Bracy argued that a forfeiture of the entire $10,720 taken from his bathroom
ceiling would be disproportionate to his crimes because he only sold a few hundred dollars’
worth of heroin. He did not present any additional evidence regarding the severity of his
offenses, see Forney, supra, but the trial court ultimately agreed that a forfeiture of the entire
$10,720 would be excessive. Specifically, it found that a forfeiture of the entire $10,720 “would
be disproportionate to the charges in this case and the convictions in this case.” The court
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reasoned that Bracy’s trafficking offenses “occurred over a very tight time period” and involved
“relatively small purchases.” Consequently, it limited the forfeiture to $1,720.
{¶21} Upon review, we must conclude that the trial court failed to apply the correct
statutory factors when conducting its proportionality analysis. The court determined that a
forfeiture of the entire $10,720 at issue here would be disproportionate to Bracy’s charges, as
they occurred over a brief time span and involved a relatively small sum of money. Yet, “[i]n
order for the trial court to deny forfeiture, the forfeiture must be disproportionate to the severity
of the offense, not to the value of the contraband.” (Emphasis sic.) State v. Maxie, 3d Dist.
Marion No. 9-13-73, 2015-Ohio-816, ¶ 45. Even a less than profitable crime can be severe in
nature. See id. See also State v. Adams, 11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-
1603, ¶ 68-69 (low-level sale of heroin on three occasions justified forfeiture of house given
nature of heroin and the fact that defendant was conducting an ongoing drug operation out of the
home). To determine the severity of Bracy’s offenses, the trial court had to consider the
seriousness of his offenses, their impact on the community, the duration of the activity, the harm
caused or intended by Bracy, the extent to which he participated in the offenses, and whether the
offenses were completed or attempted. R.C. 2981.09(C)(1)-(3). The trial court, however, gave
no indication that it considered the foregoing factors in its proportionality analysis.
Consequently, we must reverse the court’s forfeiture order and remand this matter for the court
to apply the correct statutory factors in the first instance. See Stow v. S.B., 9th Dist. Summit No.
27429, 2015-Ohio-4473, ¶ 15. The State’s third assignment of error is sustained on that basis.
III.
{¶22} The State’s first and third assignments of error are sustained. Its second
assignment of error is moot, and we decline to address it. The judgment of the Lorain County
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Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent
with the foregoing opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, 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 Appellee.
DONNA J. CARR
FOR THE COURT
MOORE, J.
CANNON, J.
CONCUR
(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)
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APPEARANCES:
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.
STEPHEN P. HANUDEL, Attorney at Law, for Appellee.