State v. McMeen

[Cite as State v. McMeen, 2014-Ohio-5482.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-14-26
v.
SETH E. McMEEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin-Fostoria Municipal Court
Trial Court No. CRB1400655
Judgment Reversed and Cause Remanded
Date of Decision: December 15, 2014
APPEARANCES:
John M. Kahler, II for Appellant
Richard H. Palau for Appellee
Case No. 13-14-26
ROGERS, J.
{¶1} Defendant-Appellant, Seth E. McMeen, appeals the judgment of the
Tiffin-Fostoria Municipal Court finding him guilty of inducing panic and
discharging a firearm, sentencing him to thirty days in jail, and ordering the
forfeiture of two of his firearms. On appeal, McMeen argues that the trial court
erred by: (1) ordering the forfeiture of his firearms because it lacked the statutory
authority to do so; (2) impermissibly modifying his sentence; (3) denying him due
process; and (4) violating his double jeopardy rights. For the reasons that follow,
we reverse the trial court’s judgment.
{¶2} On June 3, 2014, two complaints were filed in the Tiffin-Fostoria
Municipal Court in Case No. CRB 1400655A, B charging McMeen with one
count of inducing panic in violation of R.C. 2917.31, a misdemeanor of the first
degree, and one count of discharging firearms in violation of Tiffin City
Ordinance § 549.08, a misdemeanor of the fourth degree. Neither complaint
contained a forfeiture specification. See (CRB 1400655A, B Docket No. 1). The
complaints arose from McMeen’s alleged conduct of firing a hand gun out of the
window of his apartment.
{¶3} On August 6, 2014, McMeen entered a plea of no contest to both
charges. He was found guilty of both charges and sentenced to serve 30 days in
jail. On August 27, 2014, Lieutenant Aaron Russell of the Tiffin Police
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Department filed two Applications for Disposition of Property. Each application
cited R.C. 2933.41 and stated that the two firearms were subject to forfeiture
because McMeen used the firearms in the commission of a crime. The trial court
granted both applications that same day.
{¶4} On August 29, 2014, McMeen filed an “Objection to Forfeiture of
Firearms and Motion to Vacate Forfeiture Order.” McMeen argued that the two
firearms were not subject to forfeiture under R.C. 2981.02 and also argued that his
complaints lacked a forfeiture specification contrary to R.C. 2941.1417. The trial
court never ruled on McMeen’s “objection.”
{¶5} McMeen filed this timely appeal from his sentencing entries and
forfeiture orders, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN ORDERING THE
CRIMINAL FORFEITURE OF THE APPELLANT’S
FIREARMS, NAMELY A TAURUS .44 MAGNUM YE300377
AND A ONE COLT GOV’T PISTOL S/N K016259, BECAUSE
THE TRIAL COURT LACKED THE STATUTORY
AUTHORITY TO ORDER THE FORFEITURE OF THE
APPELLANT’S FIREARMS.
Assignment of Error No. II
THE TRIAL COURT ERRED IN ORDERING THE
CRIMINAL FORFEITURE OF THE APPELLANT’S
FIREARMS, NAMELY A TAURUS .44 MAGNUM YE300377
AND A COLT GOV’T PISTOL S/N K016259, BECAUSE THE
ORDER OF FOREFEITURE OF THE APPELLANT’S
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FIREARMS WAS AN IMPERMISSIBLE MODIFICATION
OF SENTENCE.
Assignment of Error No. III
THE TRIAL COURT DENIED THE APPELLANT HIS
RIGHT OF DUE PROCESS WHERE THE TRIAL COURT
ORDERED THE FORFEITURE OF THE APPELLANT’S
FIREARMS WITHOUT NOTICE AND WITHOUT THE
OPPORTUNITY TO BE HEARD AT HEARING.
Assignment of Error No. IV
BY ORDERING THE CRIMINAL FORFEITURE OF THE
APPELLANT’S FIREARMS AFTER SENTENCING THE
TRIAL COURT VIOLATED THE APPELLANT’S DOUBLE
JEOPARDY RIGHTS UNDER BOTH THE UNITED STATES
AND THE OHIO CONSTITUTIONS.
{¶6} Before we can reach the merits of McMeen’s assignments of error, we
must preliminarily decide whether the trial court’s judgment entry was a final,
appealable order. The Ohio Court of Appeals is only vested with appellate
jurisdiction over final and appealable orders. Ohio Constitution, Article IV,
Section 3(B)(2). If a judgment appealed from is not a final order, an appellate
court has no jurisdiction to consider it and the appeal must be dismissed. State v.
O’Black, 3d Dist. Allen No. 1-09-46, 2010-Ohio-192, ¶ 4.
{¶7} The State argues that the trial court’s judgment is not a final
appealable order for two reasons. First it argues that the trial court must have
incorporated the criminal forfeiture order into its sentencing entry to constitute a
final, appealable order. The State relies on an opinion from this court, State v.
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Stults, 195 Ohio App.3d 488, 2011-Ohio-4328 (3d.Dist.), which held that a
criminal-forfeiture order made pursuant to R.C. 2981.04 is part of the “sentence”
for purposes of Crim.R. 32(C). Id. at ¶ 23. Therefore, in accordance with the
Ohio Supreme Court’s decision in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-
3330, we found that a criminal-forfeiture order must be incorporated into the
judgment entry of sentence in order for it to be a final, appealable order. Id.{¶8} Our decision in Stults recognized that the Eighth District Court of
Appeals had already similarly concluded that a criminal-forfeiture order must be
made part of the judgment entry of sentence to be a final, appealable order under
Baker. Id. at ¶ 16; see also State v. Harris, 190 Ohio App.3d 417, 2010-Ohio-
5374, ¶ 7 (8th Dist.), rev’d 132 Ohio St.3d 318, 2012-Ohio-1908 (“Harris I”). We
also acknowledged that the State had appealed Harris I, and the Ohio Supreme
Court had accepted review of its decision. State v. Harris, 128 Ohio St.3d 1425,
2011-Ohio-1049.
{¶9} Shortly after we released the Stults opinion, the Ohio Supreme Court
issued its decision and held that “[f]orfeiture is a civil, not a criminal, penalty.
Accordingly, the trial court was not required to include forfeiture of items in the
judgment of conviction.” (Emphasis added.) State v. Harris, 132 Ohio St.3d 318,
2012-Ohio-1908, ¶ 30 (“Harris II”).1 Therefore, the State’s argument is not well-
1
We find this holding difficult to comprehend since the General Assembly has included forfeiture in the
criminal statutes and mandated that a forfeiture specification be included in the indictment.
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taken, as “a journal entry of conviction need not include a nonmandatory, related
forfeiture in order to be a final, appealable order pursuant to Crim.R. 32(C).” Id.
at ¶ 35.2
{¶10} Furthermore, this case may be distinguished from Stults and Harris
by the fact that no specification was included in the original complaint, the post
sentence motion for forfeiture was based on a repealed statute, and the order of
forfeiture was totally without any basis of authority.
{¶11} The State also argues that the trial court’s judgment is a not a final,
appealable order because it has yet to rule of McMeen’s objection to the forfeiture
order. However, as we explained supra, the trial court’s judgment was a final,
appealable order, and the court’s failure to rule on this motion does not render an
otherwise final, appealable order interlocutory. Hager v. Norfolk & W. Ry. Co.,
8th Dist. Cuyahoga No. 87553, 2006-Ohio-6580, ¶ 64, fn. 33, citing Savage v.
Cody-Ziegler, Inc., 4th Dist. Athens No. 06CA5, 2006-Ohio-2760, ¶ 1.
Assignment of Error No. I
{¶12} In his first assignment of error, McMeen argues that the trial court
erred in ordering the forfeiture of his two firearms. Specifically, McMeen argues
that his firearms were not subject to forfeiture under R.C. 2981.02 and that the
complaints charging him did not comply with R.C. 2981.04. We agree.
2
We note that the State chose not to address the merits of McMeen’s assignments of error, and instead,
focused solely on whether the forfeiture constituted a final, appealable order.
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{¶13} Generally, forfeitures of property are not favored under Ohio law.
State v. Brownridge, 3d Dist. Marion No. 9-09-24, 2010-Ohio-104, ¶ 22; State v.
Clark, 173 Ohio App.3d 719, 2007-Ohio-6235, ¶ 8 (3d Dist.). “ ‘Whenever
possible, [forfeiture] statutes must be construed as to avoid a forfeiture of
property.’ ” Clark at ¶ 8, quoting State v. Lilliock, 70 Ohio St.2d 23, 26 (1982).
Further, statutes “ ‘in derogation of private property rights’ are strictly construed
against the state.” State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶
32 (6th Dist.), quoting Lilliock at 26. Therefore, a forfeiture will not be presumed.
Brimacombe at ¶ 32.
{¶14} We begin our analysis by noting that the Applications for Disposition
of Property and the trial court’s forfeiture orders cite R.C. 2933.41 and not Ohio’s
current forfeiture statute, Chapter R.C. 2981, which was enacted over seven years
ago. Effective July 1, 2007, R.C. 2933.41 was repealed and replaced with a
“significantly different and comprehensive scheme under R.C. Chapter 2981.”
Brimacombe at ¶ 33. R.C. 2981.01 through 2981.14 “define and establish the
mandatory procedures for the forfeiture of property involved in or relating to,
certain offenses. They also delineate the notice requirements, procedures, and
hearings * * * for reviewing the proportionality of a particular forfeiture in
relation to the value of the property involved.” Id.-7-
Case No. 13-14-26
{¶15} R.C. 2981.02(A) identifies three different categories of property that
are subject to forfeiture, i.e., contraband involved in an offense, proceeds derived
from or acquired through the commission of an offense, and
[a]n instrumentality that is used in or intended to be used in the
commission or facilitation of any of the following offenses when the
use or intended use, consistent with division (B) of this section, is
sufficient to warrant forfeiture under this chapter:
(a) A felony;
(b) A misdemeanor, when forfeiture is specifically authorized by a
section of the Revised Code or by a municipal ordinance that
creates the offense or sets forth its penalties;
(c) An attempt to commit, complicity in committing, or a
conspiracy to commit an offense of the type described in
divisions (A)(3)(a) and (b) of this section.
(Emphasis added.) R.C. 2981.02(A)(3).
{¶16} Here, McMeen’s firearms are not “contraband” or “proceeds.” The
only question to decide on appeal is whether McMeen’s use of the firearms
conformed with R.C. 2981.02(A)(3) and subjected the firearms to forfeiture. First,
we note that McMeen was not charged with a felony or an attempt to commit,
complicity in committing, or conspiracy to commit a felony. Instead, McMeen
was charged with two misdemeanors: inducing panic in violation of R.C. 2917.31
and discharging a firearm in violation of Tiffin Municipal Ordinance § 549.08.
Neither R.C. 2917.31 nor Tiffin Municipal Ordinance § 549.08 specifically
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authorize forfeiture. Therefore, under R.C. 2981.02(A)(3)(b), McMeen’s two
firearms were not subject to forfeiture.
{¶17} Moreover, R.C. 2981.04(A)(1) requires that
[p]roperty described in division (A) of section 2981.02 of the
Revised Code may be forfeited under this section only if the
complaint, indictment, or information charging the offense or
municipal violation, or the complaint charging the delinquent act,
contains a specification of the type described in section 2941.1417 of
the Revised Code that sets forth all of the following to the extent it is
reasonably known at the time of the filing:
(a) The nature and extent of the alleged offender’s or delinquent
child’s interest in the property;
(b) A description of the property;
(c) If the property is alleged to be an instrumentality, the alleged
use or intended use of the property in the commission or
facilitation of the offense.
(Emphasis added.)
{¶18} In the case sub judice, the two complaints charging McMeen did not
contain the specification required under R.C. 2981.04. “Given this deficiency, the
trial court has no authority to order the handgun[s] forfeited.” State v. Haymond,
5th Dist. Stark No. 2009-CA-00078, 2009-Ohio-6817, ¶ 35, citing State v.
Coleman, 8th Dist. Cuyahoga No. 91058, 2009-Ohio-1611, ¶ 76.
{¶19} In conclusion, we find that McMeen was never provided with notice
that the State intended to seek forfeiture of his two firearms, and further, that his
two firearms were not property subject to forfeiture.
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{¶20} Accordingly, McMeen’s first assignment of error is sustained.
Assignments of Error Nos. II, III, & IV
{¶21} In McMeen’s second, third, and fourth assignments of error, he
argues that the trial court erred by ordering the forfeiture because it impermissibly
modified his sentence, denied him his right to due process, and violated his right
against double jeopardy. Our disposition of McMeen’s first assignment of error
renders his second, third, and fourth assignments of error moot, and we decline to
address them. App.R. 12(A)(1)(c).
{¶22} Having found error prejudicial to McMeen in the first assignment of
error, we reverse the judgment of the trial court and remand this matter for further
proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW and PRESTON, J.J., concur.
/jlr
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