Bowling Green v. Coble

[Cite as Bowling Green v. Coble, 2023-Ohio-1308.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio/City of Bowling Court of Appeals No. WD-22-026
Green
Trial Court No. 21TRC05839
Appellee
v.
Phillip Coble DECISION AND JUDGMENT
Appellant Decided: April 21, 2023
*****
Alyssa M. Blackburn-Dolan, City of Bowling Green
Prosecuting Attorney, and Nicholas P. Wainwright,
Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
DUHART, J.
{¶ 1} Appellant, Phillip Coble, appeals from a judgment entered by the Bowling
Green Municipal Court, ordering the forfeiture of appellant’s 2011 Chevrolet pickup
truck, following a no contest plea to a charge of operating his vehicle while intoxicated
(“OVI”). For the reasons that follow, we affirm the judgment of the trial court.
Statement of the Case and Relevant Facts
{¶ 2} At a plea and sentencing hearing held on April 6, 2022, appellant pleaded no
contest to a charge of OVI, for operating his vehicle in violation of R.C.
4511.19(A)(1)(a). The trial court found him guilty of that offense and, at the state’s
request, ordered dismissal of two additional charges – one for a “high tier OVI,” under
R.C. 4511.19(A)(1)(h), and one for an assured clear distance violation, under R.C.
4511.21(A).
{¶ 3} After reviewing the sentence recommendation of the state, including an
indication that appellant’s vehicle would be subject to forfeiture because this was
appellant’s third OVI conviction within a ten-year period, the trial court invited defense
counsel to comment on the issue of sentencing. Defense counsel began by stating that
appellant is married, has a young son, and has full-time employment, although “[i]t’s not
a very high paying job.” He then proceeded to argue that forfeiture of appellant’s vehicle
would be excessive under the Ohio and United States Constitutions, asserting:
[I]f someone else were operating someone else’s vehicle and had this
offense, they wouldn’t have the same penalty. But, in this case because Mr.
Coble has been responsible and paid the vehicle off – and it’s worth about
$16,000, I should mention – which is admittedly a little less than the one I
had last week. But, it’s still a pretty sizable penalty for Mr. Coble. It’s one
2.
of two vehicles his family uses to get to work, to transport their child. So
that is in my mind a far more disproportionate sentence to someone who
had, say, had borrowed their friend’s car. I’m not arguing there isn’t a
relationship between the offense and the vehicle, there obviously is. But
that withstanding [sic], I do think it is excessive.
{¶ 4} Finally, defense counsel requested that “[i]f the vehicle is forfeited and sold,
I would ask that the fine be reduced by some of the proceeds or that a lower fine be
imposed.”
{¶ 5} Responding to defense counsel’s constitutional challenge, the trial court
said, “You know, on the forfeiture issue, as I recall the statute, I think the defendant is
entitled to have a separate hearing on that issue.” When defense counsel did not directly
reply to the court’s suggestion, the court reiterated, “[W]e are talking about a substantial
penalty – I would certainly allow the parties to be heard on that and evidence presented
relating to that issue.” Despite the trial court’s stated willingness to hold a separate
proceeding to deal with the question of the appropriateness of forfeiture in this case,
defense counsel did not request a hearing and, instead, indicated that if the trial court
ordered forfeiture of the vehicle, appellant would simply appeal the order.
{¶ 6} Next, the trial court heard from appellant, who said, “I just made a dumb
decision. I really don’t have anything else to say.”
{¶ 7} Addressing appellant, the trial court stated:
3.
[A]ny time you put this much alcohol in your system and get behind a
wheel, you’re putting yourself and the community at risk. And as I look at
this, this is actually the fifth time you’ve been before a court and convicted
of operating a vehicle under the influence. Five different times you put the
community at risk and you put yourself at risk. Some of them might have
been a long time ago * * * [b]ut the problem I am seeing here is you don’t
seem to be learning from the experience.
If we look at the amount of alcohol you had in your system, it’s a
tremendous amount .260. * * * The only person who can get to a 260 and
still be standing is someone who has a high amount of alcohol in use – a
high tolerance built up – which tells me that even after all of these prior
convictions, for some reason you still think alcohol is a good thing in your
life. * * *
The other thing I would note, Mr. Coble, is you have been through
treatment before * * * [and] it has never worked. And I tell you the thing
that we have to consider is if we can’t trust you to stay away from alcohol,
we can’t let you be free. We can’t have you living among the good people
of this community and putting their lives at risk. * * *
{¶ 8} The trial court then proceeded to sentencing, ordering appellant to pay a fine
in the amount of $2,750, with $750 of that amount suspended. The court further ordered
that appellant serve 360 days in jail, with 210 days suspended and 90 days to be served
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on electronic home monitoring. Appellant was also placed on probation for five years.
Six points were assessed against appellant’s license, and appellant’s license was
suspended for a period of ten years. Finally, the trial court ordered forfeiture of
appellant’s 2011 Chevrolet pickup truck, with the forfeiture stayed pending appeal.
Assignments of Error
{¶ 9} Appellant raises the following assignments of error on appeal:
I. The trial court erred in failing to conduct a proportionality analysis in
ordering the forfeiture of Coble’s vehicle pursuant to R.C.
4511.19(G)(1)(c)(v), as the order was an unconstitutionally excessive fine
in violation of the Eighth Amendment to the U.S. Constitution and Section
9 Article 1 of the Ohio Constitution.
II. The trial court erred in order[ing] the forfeiture of Coble’s vehicle as
R.C. 4511.19(G)(1)(c)(v) is unconstitutional on its face and as applied
herein pursuant to the Equal Protection Clause of the 14th Amendment and
Section 2 Article 1 of the Ohio Constitution.
Analysis
Forfeiture Statute
{¶ 10} R.C. 4511.19(G)(1)(c)(v) mandates forfeiture of an offender’s vehicle
where, as here: (1) the vehicle that was involved in the OVI offense was owned by the
offender; and (2) the offender had previously been convicted of OVI violations twice
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within ten years of the offense. See State v. O’Malley, --- Ohio St.3d---, 2022-Ohio-
3207, --- N.E.3d ---, ¶ 38.
First Assignment of Error
R.C. 4511.19(G)(1)(c)(v) does not constitute an unconstitutionally excessive fine in
violation of the Eighth Amendment to the United States Constitution.
{¶ 11} Appellant argues in his first assignment of error that the forfeiture of his
vehicle pursuant to R.C. 4511.19(G)(1)(c)(v) is an unconstitutionally excessive fine in
violation of the Eighth Amendment to the United States Constitution. For appellant to
succeed on his challenge, he must prove by clear and convincing evidence that the
statute’s application to his particular set of facts is unconstitutional. Id. at ¶32, citing
Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d 629 (1944), paragraph
six of the syllabus. (Additional citations omitted.) “This means that [he] must produce
evidence that creates a ‘firm belief’ that R.C. 4511.19(G)(1)(c)(v) is unconstitutional as
applied to him.” Id., citing Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118(1954).
{¶ 12} Acknowledging appellant’s burden of proof, a reviewing court must accept
the trial court’s factual findings if they are supported by some competent and credible
evidence. Id. at ¶ 33, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990). “However, in determining whether a fine is constitutionally excessive – applying
the constitutional standard to supported facts – we conduct a de novo review.” Id., citing
United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).
6.
{¶ 13} In evaluating whether a forfeiture under this provision is unconstitutionally
excessive under the Eighth Amendment, a court must determine whether the forfeiture is
“‘grossly disproportional to the gravity of a defendant’s offense.’” Id. at ¶ 39, citing
Bajakajian at 334. Thus, a court must weigh the value of the thing seized against the
gravity of the offense. Id. at ¶ 51.
{¶ 14} Although there is no “bright-line test” for analyzing an Eighth Amendment
excessiveness challenge, the court in O’Malley, when faced with the question of whether
a vehicle forfeiture under R.C. 4511.19(G)(1)(c)(v) was excessive, looked to: (1) the
value of the vehicle subject to forfeiture; (2) the gravity of the offense; and (3) balancing
the value of the forfeiture with the gravity of the offense. Id. at ¶ 52, 53, 102.
{¶ 15} In the case at bar, the value of the 2011 Chevrolet pickup truck is asserted
to be approximately $16,000.1 Thus, there is no question that the vehicle is valuable. The
vehicle is said to be one of two used by appellant and his wife to get to work and to
transport their child. The loss of the truck would therefore have an obvious impact on
appellant’s wealth. But this fact, while important, is not conclusive. See O’Malley at ¶ 52
(Under the Eighth Amendment, loss of a vehicle, resulting in an impact on a defendant’s
wealth, “is not nothing,” “[b]ut is not everything either.”).
{¶ 16} Regarding the gravity of the offense, we look to the factors contemplated
by the Supreme Court of Ohio in O’Malley, which case -- as here -- involved an offender
1
Although the facts in this case are derived from the undisputed statements of defense
counsel rather than from properly admitted evidence, we accept these statements as true
for purposes of analyzing appellant’s claims on the merits.
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whose vehicle was ordered forfeited after he pleaded no contest to a third-in-ten-years
violation of R.C. 4511.19(A)(1). Specifically, the court considered: (1) that the appellant
committed a crime for which the legislature had devised a graduated sentencing scheme
under which appellant became eligible to receive the scheme’s “harshest penalty, i.e., the
forfeiture of the vehicle involved.” Id. at ¶ 60; (2) that the appellant had chosen to drive
drunk -- with the fact that he fell within the highest tier of drunk-driving offenses and,
further, had been “very intoxicated” at the time of his arrest, making him all the more
culpable. Id. at ¶ 73, 79; (3) that the appellant harmed society when he drove drunk, even
if he did not cause physical harm to persons or damage to any property. Id. at ¶ 92; and
(4) that the fine-to-forfeiture value comparison would be of limited relevance, in part
because it was the intention of the legislature for the forfeiture to be in addition to the
fine, rather than as part of some ratio-based equation. Id. at ¶ 99. All of these factors
apply essentially identically to our determination of the gravity of appellant’s offense.
{¶ 17} In balancing the value of the forfeiture and the gravity of the offense, we
conclude that appellant has not proven by clear and convincing evidence that the
forfeiture of his vehicle is grossly disproportional to the gravity of his offense. As stated
by the court in O’Malley, “[t]he legislature chose to punish repeat OVI offenders with the
forfeiture of the vehicle that was used in the offense,” and “[t]he legislature’s choice of
punishment is entitled to significant weight,” Id. at ¶ 102, citing R.C.
4511.19(G)(1)(c)(v). Further, appellant chose to engage in drunk driving -- this time
while highly intoxicated -- for a third time in ten years. This, too is entitled to weight. In
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addition, although the vehicle is clearly of value and is important to appellant, he did not
demonstrate that the loss of this vehicle would be significant. As defense counsel stated,
the 2011 Chevrolet pickup is one of two vehicles that appellant’s family uses to get to
work and to transport their child. The monetary value of the vehicle and its importance to
appellant are simply not enough to overcome the gravity of the offense. Therefore,
appellant has not demonstrated that the forfeiture of his $16,000 vehicle was grossly
disproportionate to his offense. Accordingly, we conclude that R.C. 4511.19(G)(1)(c)(v)
does not violate the Eighth Amendment to the United States Constitution, as applied to
appellant.
R.C. 4511.19(G)(1)(c)(v) does not constitute an unconstitutionally excessive fine in
violation of Article I, Section 9 of the Ohio Constitution.
{¶ 18} Appellant additionally argues in his first assignment of error that the
forfeiture of his vehicle pursuant to R.C. 4511.19(G)(1)(c)(v) was a violation of Article I,
Section 9 of the Ohio Constitution. Like the Eighth Amendment to the United States
Constitution, Article I, Section 9 of the Ohio Constitution prohibits “excessive fines.” See
O’Malley at ¶ 30; see also State v. Harold, 109 Ohio App.3d 87, 671 N.E.2d 1078 (9th
Dist.1996). Although the court in O’Malley expressly limited its decision to a
determination of whether the vehicle forfeiture was an “excessive fine” under the Eighth
Amendment because O’Malley had relied exclusively on the Eighth Amendment and had
not invoked Article I, Section 9 of the Ohio Constitution, we nevertheless conclude that
the analysis set forth in O’Malley, and applied herein to appellant’s federal constitutional
9.
challenge, should apply equally to appellant’s state constitutional challenge. See State v.
Weitbrecht, 86 Ohio St.3d 368, 715 N.E.2d 167 (1999) (after observing that the
“excessive fines” provision of Article I, Section 9 of the Ohio Constitution is couched in
language “identical” to that set forth in the Eighth Amendment to the United States
Constitution, the court went on to apply federal law in a combined analysis of the
appellant’s federal and state constitutional challenges to the application of Ohio’s
involuntary manslaughter statute to a minor misdemeanor traffic offense that resulted in a
vehicular homicide); see also State v. Harold, 109 Ohio App.3d 87, 671 N.E.2d 1078 (9th
Dist.1996) (applying federal law in a combined analysis of appellant’s state and federal
constitutional “excessive fine” challenges in a case involving a forfeiture of real property
ordered in connection with convictions for drug trafficking). Inasmuch as we found that
R.C. 4511.19(G)(1)(c)(v) does not violate the Eight Amendment to the United States
Constitution as applied to appellant, we likewise find that it does not violate Article I,
Section 9 of the Ohio Constitution.
The trial court made an independent determination that the forfeiture of appellant’s
vehicle was not an excessive fine.
{¶ 19} In an effort to avoid this conclusion, appellant, citing State v. Hill, 70 Ohio
St.3d 25, 635 N.E.2d 1248 (1994), asserts that the trial court erred in failing to make an
independent determination of whether the forfeiture of appellant’s car would be an
excessive fine. Although the court in Hill does provide that “prior to entering an order of
forfeiture, the trial court must make an independent determination whether forfeiture of
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that property is an ‘excessive fine’ prohibited by the Excessive Fine Clauses of the Ohio
and United States Constitutions,” id. at 34, the court in O’Malley -- referencing this very
provision -- recognized that the court in Hill “declined to set forth a bright-line test and
instead, * * * encouraged trial courts to analyze forfeitures ‘in light of the principles’
outlined in [the Hill] opinion.” O’Malley at ¶ 41, citing Hill at 35, fn. 4.
{¶ 20} In the instant case, the trial court specifically granted appellant an
opportunity to be heard on the issue of forfeiture. Appellant provided the court with
information regarding the value of the vehicle, his employment status, and the
significance of the fine and the other penalties. The court acknowledged the severity of
the penalty, but also recognized aggravating factors, including that this was appellant’s
fifth lifetime OVI, that appellant had a blood alcohol concentration of 0.260, that he had
put members of the community at risk by his drinking, and that appellant had been
unsuccessful after multiple attempts at treatment. The court heard arguments by
appellant’s counsel that the fine was excessive, but ultimately rejected those arguments
and proceeded to sentencing, including ordering the forfeiture of appellant’s vehicle.
Under the circumstances of this case, it appears clear that the trial court did make an
independent, albeit implied, determination that forfeiture of appellant’s vehicle was not
an excessive fine.
{¶ 21} For all of the foregoing reasons, appellant’s first assignment of error is
found not well-taken.
11.
Second Assignment of Error
R.C. 4511.19(G)(1)(c)(v) is facially valid under the Equal Protection Clauses
of the Ohio and United States Constitutions and, further is valid as applied to
appellant.
{¶ 22} Appellant argues in his second assignment of error that R.C.
4511.19(G)(1)(c)(v) facially violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution and Article I, Section 2 of the Ohio
Constitution. The court in O’Malley, however, expressly determined that R.C.
4511.19(G)(1)(c)(v) is constitutional on its face, both under the Equal Protection Clause
of the Fourteenth Amendment and under Article I, Section 2 of the Ohio Constitution.
See O’Malley at ¶ 29. In O’Malley, the court held that a rational basis test was
appropriate, as no protected class or fundamental right was implicated in the statute. Id. at
¶ 22. Applying the rational basis test, the court held that there is a legitimate interest in
deterring drunk driving and that “[t]argeting a vehicle involved in an OVI offense that is
registered in the repeat offender’s name is rationally related to the government’s interest
in deterring drunk driving.” Id. at ¶ 25, 27.
{¶ 23} To the extent that appellant argues that R.C. 4511.19(G)(1)(c)(v) is
unconstitutional as applied to him because it punishes more harshly people who drive
their own car or people who can afford to buy a car, we echo the words of the court in
O’Malley, wherein the court stated:
The fact that the General Assembly does not require the forfeiture of a
vehicle for repeat OVI offenders who are nonowners is of no consequence,
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since a clear goal of the legislature was to protect Ohioans and their
property from an out-of-control vehicle driven by an impaired driver, and
the best way to do that is to prevent a drunk person from accessing a
vehicle in the first place.
Id. at ¶ 28; 2 see also Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d
104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 32 (holding that courts are compelled under
rational-basis review to accept a legislature’s generalizations even when there is an
imperfect fit between means and ends and, further, that a classification does not fail
rational-basis review simply because it is not made with mathematical nicety or because
in practice it results in some equality).
{¶ 24} Because R.C. 4511.19(G)(1)(c)(v) is constitutional, both facially and as
applied to appellant, under the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution and under Article I, Section 2 of the Ohio Constitution,
appellant’s second assignment of error is found not well-taken.
{¶ 25} The judgment of the Bowling Green Municipal Court is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
2
The court in O’Malley additionally observed that “[w]hile R.C. 4511.19(G)(1)(c)(v)
applies only to repeat offenders who are the owners of the vehicle used in the offense,
R.|C. 4511.203(C)(3)(c) permits vehicle forfeiture for owners who on more than two
occasions lent their vehicles to individuals who they knew or had reasonable cause to
believe would engage in impaired driving.” Id. at ¶ 27, citing R.C. 4511.203(A)(4). Thus,
the court concluded, “[t]he General Assembly targeted vehicles that could be accessed by
drunk drivers.” Id.
13.
Bowling Green v.
Phillip Coble
C.A. No. WD-22-026
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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