COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60914 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LOUIS CLAY : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 227901 JUDGMENT: AFFIRMED IN PART AND REVERSED IN PART AND REMANDED FOR RE- SENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN CARSON, ESQ. CUYAHOGA COUNTY PROSECUTOR 1949 East 105th Street BY: LINDSAY M. JERRY, ESQ. Suite 207 ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44105 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Louis Clay, was indicted on three counts of violations of R.C. 2925.03, the drug law, one count of violation of R.C. 2925.13, the drug law, and one count of R.C. 2923.24, possession of criminal tools. An acquittal was entered on count one (R.C. 2925.03) and guns and a scanner were deleted from the list of criminal tools in count five (R.C. 2923.24). Appellant was convicted on the four counts remaining and sentenced to concurrent sentences of three to fifteen years, one year, six months and one year, respectively. In addition, fines of five thousand and ten thousand dollars were ordered on counts two (R.C. 2925.03) and three (R.C. 2925.03). Appellant's motion for return of property was denied in part and granted in part. On appeal appellant assigns three errors for review. I THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT'S CONSENT TO SEARCH HIS HOUSE AND VEHICLE WAS VOLUNTARILY GIVEN IN CONTRAVENTION OF THE FOURTH AMENDMENT. Detective Charles Charney testified as follows: he "served a copy of the search warrant [for the store] on [appellant]", advised him of his rights, and asked him whether he had guns, drugs or contraband on him or in the store. Appellant said no but when Charney repeated the question appellant said yes and, after a search, they found cocaine in his pockets. Appellant was arrested, Charney again advised appellant of his rights and then searched the store where he found a large quantity of weapons and - 2 - over nine thousand dollars including over five thousand dollars found behind a pop cooler. During the search Charney asked appellant if he had a vehicle and, when appellant said his pickup was in the lot, Charney asked him if they "could check that." Appellant gave them the keys and told them there was more cocaine under the right front floor mat. On cross-examination he said that he asked appellant if he had anymore dope around and if he had a vehicle and appellant told them where the drugs were. A search revealed forty-five grams of cocaine in seventy-eight packets. Charney "asked [appellant] if he had anymore contraband, drugs, or whatever at his home." Appellant said no and when Charney asked him to sign a consent form for appellant's house appellant agreed. Charney went over the form with appellant. At the house the police found a locked closet which appellant unlocked upon being asked for the key. Inside was a scale with cocaine residue, over two hundred grams of cocaine, paraphernalia, and seventy-seven thousand dollars. [A] warrantless search ... does not mandate that we hold that [evidence] should have been suppressed as the fruit of an illegal search. Wong Sun v. United States (1963), 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441. The United States Supreme Court has held that "searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Katz v. United States (1967), 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585. One such recognized exception is the proper consent to search the premises given voluntarily. United States v. - 3 - Matlock (1974), 415 U.S. 164, 165-166, 94 S. Ct. 988, 990, 39 L. Ed 2d 242, 246. It is well settled that consent to a warrantless search will not be held invalid nor the resulting search unreasonable when one with authority over the premises voluntarily permits the search. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed 2d 854. State v. Sneed (1992), 63 Ohio St. 3d 3 (concerning consent given while in custody.) Schneckloth v. Bustamonte (1973), 412 U.S. 246, held as follows: We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Schneckloth concerned consent while not in custody but its holding was extended to in-custody cases as well. In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we affirmed in that case. - 4 - United States v. Watson (1976), 423, U.S. 427, 425. Appellant insists that he was never Mirandized, that he was told that the warrant applied to his vehicle and home and that the search would occur in front of his wife and ill child, and that force was threatened. The officer who conducted the search and obtained consent denied those accusations. The trial judge resolves questions of fact and he believed the officer. Appellant also contends that the presence of numerous, uniformed, armed police officers coerced the consent. The trial judge resolved this question of fact in favor of the state. The record does not reveal coercion. The mere fact that consent is given while in custody does not mean consent was coerced. Watson. The motion to suppress was not error. Assignment of error No. I is overruled. II THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR RETURN OF PROPERTY AS THE STATE FAILED TO PROVE SUFFICIENTLY THAT THE MONEY SOUGHT WAS REASONABLY RELATED TO THE DRUG OFFENSES. Appellant's motion requested the return of the $9,515.95 in cash and food stamps found at the store and $77,944 in cash found at appellant's house. On appeal appellant argues that the $5,108 found in a cigar box at the store and $65,000 of the cash at the house should have been returned. The trial judge issued a journal entry granting the motion, in part. The food stamps ($108.00) and the $65,000 were ordered - 5 - returned. (A subsequent journal entry merely corrected a typographical error in an irrelevant dollar amount.) Appellant contends that the $5,108 was kept in the store to pay bills. The trial judge concluded that "all cash seized [at the store] either was shown to have been involved in the sales of drugs for which defendant was convicted or to have been so commingled as to be unable to be separated." (Emphasis added.) In an affidavit attached to the motion appellant swore that "the balance of the money seized in his home, as well as the money and food stamps seized at his store, were proceeds from his business and not derived from the sale of drugs." However, appellant later "admitted that some of the cash was illegitimate." (Appellant's brief at p. 16.) Appellant was indicted for the sale of the cocaine but was acquitted. There was evidence that an informant bought cocaine at appellant's store three days before the store was searched. The "buy" money was not recovered and, as the trial judge concluded, there was no evidence that appellant was present on the day of the sale. The police confiscated every bill and coin in the store, including food stamps, and turned the money over to the federal government before a finding had been made that the money had to be forfeited. The police assumed that any money found in the store was the proceeds of drug sales. Appellant was in possession of a great deal of cocaine on his person, in his truck and in his home and the money on his person and in his home - 6 - (with the exception of the $65,000 ordered returned) was properly retained. But a forfeiture cannot be ordered unless the object is contraband. When a hearing is conducted under this section, property shall be forfeited upon a showing by a preponderance of the evidence by the petitioner that the person from which the property was seized was in violation of division (A) of section 2933.42 of the Revised Code. R.C. 2933.43(C). (A) No person shall possess, conceal, transport, receive, purchase, sell, lease, rent, or otherwise transfer any contraband. R.C. 2933.42(A). (M) "Contraband" means any property described in the following categories: ... (2) Property that is not in and of itself unlawful for a person to acquire or possess, but that has been determined by a court of this state, in accordance with law, to be contraband because of its use in an unlawful activity or manner, of its nature, or of the circumstances of the person who acquires or possesses it; ... (5) Any controlled substance, as defined in section 3719.01 of the Revised Code, or any device, paraphernalia, money as defined in section 1301.01 of the Revised Code, or other means of exchange - 7 - that has been, is being, or is intended to be used in an attempt or conspiracy to violate, or in a violation of Chapter 2925 or 3719 of the Revised Code; ... (8) Any personal property that has been, is being, or is intended to be used in an attempt or conspiracy to commit, or in the commission of, any offense or in the transportation of the fruits of any offense.... R.C. 2901.01(M). (Emphasis added.) The trial judge noted that he had to find appellant guilty of possession of criminal tools (the money) even if only one dollar was possessed with a purpose to use it criminally. The conviction cannot mean that all the money was so possessed when the trial judge has ordered the return of $65,000 of the money that was the subject of the indictment. The burden was on the state to show that the money was contraband. Not all money found at a store owned by a drug possessor is contraband. No "cash seized [at the store] either was shown have been involved in the sales of drugs ... or to have been so commingled" with such money since no sale was proven. Although the fact that a large amount of cash was hidden in cigar boxes behind a pop cooler is not dispositive, that fact, coupled with the fact that a shotgun was also found behind the cooler (instead of by the counter where it could be used for protection during a robbery of the store) establishes by a - 8 - preponderance of the evidence that the $5,108 has been, is being, or is intended to be used in an attempt or conspiracy to commit, or in the commission of any offense and thus was contraband. In an effort to show otherwise appellant testified that he kept cash at the store to pay his beer, wine and pop suppliers. The trial judge weighed his credibility and ordered the forfeiture. We find no error. Assignment of error No. II is overruled. III THE TRIAL COURT ERRED BY LEVYING A MANDATORY $10,000 FINE PURSUANT TO COUNT TWO (SIC) OF THE INDICTMENT. Count three alleged a violation of R.C. 2925.03(A)(6) (preparing for shipment, shipping, transporting, delivering, preparing for distribution, or distributing a schedule II drug, when the offender knows or has reasonable cause to believe such drug is intended for sale or resale by the offender or another). If the drug involved is included in schedule II a violation is aggravated trafficking. R.C. 2925.03(C). When an offender has violated R.C. 2925.03 (A)(6), aggravated trafficking is a felony of the third degree. Notwithstanding the fines otherwise required to be imposed pursuant to section 2929.11 .. [if] the offense is aggravated trafficking and a violation of division (A) ... (2) of this section, the court shall impose a mandatory fine of five thousand dollars and, if the offender has previously been convicted of a felony drug abuse offense, the - 9 - court shall impose a mandatory fine of ten thousand dollars. R.C. 2925.03(H)(6). (Emphasis added.) The trial court ordered appellant to pay a "mandatory fine of $10,000, count 3." There was no evidence that appellant had previously been convicted of a felony drug abuse offense. The other $5,000 was not an additional fine pursuant to R.C. 2929.11 or other section. First, the journal entry clearly states that the entire $10,000 fine was mandatory and thus pursuant to R.C. 2925.03(H), not R.C. 2929.11 (discretionary fines). Second, additional fines could not be imposed pursuant to R.C. 2929.11 because the total of the mandatory fine and additional fines may not exceed the maximum fine that could be imposed pursuant to R.C. 2929.11. R.C. 2925.03(I). $5,000 is the maximum fine that may be imposed for a felony of the third degree. R.C. 2929.11(C)(3). A trial court may only pronounce the judgment provided by law. State v. Eberling (1992), Cuyahoga App. Nos. 58559 and 58560, unreported citing State v. Dillon (1883), 38 Ohio St. 586. The trial court had no authority to order a mandatory fine of $10,000 for a violation of R.C. 2925.03(A)(2) (involving a schedule II drug) when the offender had not previously been convicted of a felony drug abuse offense. That portion of the sentence is vacated as void. Appellant must be resentenced in the trial court's presence. Crim. R. 43(A); Eberling. Assignment of error No. III is sustained. - 10 - Judgment affirmed in part and reversed in part. This cause is remanded to the trial court for resentencing. - 11 - It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN MCMANAMON, J., AND BLACKMON, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .