COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 84168 STATE OF OHIO Plaintiff-appellant JOURNAL ENTRY vs. AND HENRY EPP OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 16, 2004 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-416276 JUDGMENT: Affirmed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: WILLIAM D. MASON, ESQ. CUYAHOGA COUNTY PROSECUTOR SUZIE DEMOSTENES, ESQ. Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: HENRY C. EPP, SR., ESQ. 55 Public Square Suite 1350 Cleveland, Ohio 44113 -2- KARPINSKI, J.: The State of Ohio appeals the trial court's vacating an order of forfeiture pursuant to R.C. 2933.43. In November 2001, defendant was indicted on numerous counts of tampering with records in violation of R.C. 2913.42. He was also indicted for possession of criminal tools in violation of R.C. 2923.24. Upon arrest, police seized certain items of personal property used by defendant to commit the offenses charged against him. On July 23, 2002, defendant was convicted on two counts of tampering with records and one count of possessing criminal tools. Defendant appealed his felony convictions for tampering with records to this court in State v. Epp , Cuyahoga App. No. 81853, 2003-Ohio-3662, ("Epp I").1 On October 2, 2002, just before defendant filed his appeal in Epp I, the trial court entered an order of forfeiture in which the personal property items2 taken from him were forfeited to the 1 Because the facts underlying defendant's convictions are fully set forth in Epp I, they are not repeated here. Defendant's conviction for possessing criminal tools was not part of the appeal. 2 The order of forfeiture lists the following items: "SAID CONTRABAND BEING GATEWAY 2000 G-6-200 COMPUTER, SER. NO. 5513928; CANON BJC4200 PRINTER SER. NO. EEM25846; GATEWAY EV910 MONITOR, SER. NO. 19016B128629; GATEWAY 2000 KEYBOARD, SER. NO. 08300558; ZIP CD-RW IN BOX, SER. NO. 5SB0400821; 5 FLOPPY DISKS, 3 CD-R 8 ZIP DISKS, 6 CD'S IN CASE, 6 FLOPPY DISKS; ENVELOPE W/NAME OF HENRY EPP W/2 PARTIALLY COMPLETED FAKE OL; 7 CD'S & 2 FLOPPY (continued...) -3- state. In Epp I, this court determined that the state had not produced sufficient evidence to support defendant's felony convictions for tampering with records in violation of R.C. 2913.42(B)(4). Defendant 's conviction was ordered reduced to a first degree misdemeanor per R.C. 2913.42(B)(2)(a). On remand, the trial court corrected defendant's sentence. The trial court also vacated its prior order of forfeiture because defendant's convictions were no longer felonies and, therefore, his property was not subject to forfeiture. The state now appeals that order and assigns three errors. I. THE TRIAL COURT ERRED IN VACATING THE JOURNALIZED ORDER OF VOLUNTARY FORFEITURE. The state argues that the trial court erred when it vacated its order of forfeiture pursuant to R.C. 2933.43. We disagree. Before addressing the merits of the state 's arguments, we first address two procedural problems not raised or objected to by defendant below. Because defendant did not object below, we review the record under a plain error standard. State v. Collier, Cuyahoga App. No. 82961, 2004-Ohio-3471. 2 (...continued) DISKS; HP DESKJET PRINTER, SER. NO. MY0201100Q; HP SCANNER, SER. NO. TWO 5125587; HP SCANJET SCANNER, SER. NO. TWO5K20218; WHITE PLASTIC BAG W/INK CARTRIDGES, CD, & RECEIPTS ***." -4- "An error does not rise to the level of plain error unless, but for the error, the outcome of the trial clearly would have been otherwise." State v. Wickline (1990), 50 Ohio St.3d 114, 120, 552 N.E.2d 913. Furthermore, "the plain error rule is to be applied with the utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscarriage of justice." State v. Cooperrider (1983), 4 Ohio St.3d 226, 227, 448 N.E.2d 452. Forfeiture of private property is not favored in law and, therefore, the forfeiture statutes are strictly construed against the state. Id. "Whenever possible, such statutes must be construed so as to avoid a forfeiture of property." Id., at 26. "In a forfeiture procedure, the state bears the burden to prove seized property is contraband by a preponderance of the evidence." State v. Golston (1990), 66 Ohio App.3d 423, 431, 584 N.E.2d 1336. R.C. 2933.43 governs forfeiture actions related to contraband3 seized as part of an underlying criminal offense. 3 R.C. 2901.01(A)(13) defines "contraband" in relevant part as any property described in the following categories: *** (b) 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, including, but not limited to, goods and personal (continued...) -5- Section (C) of the statute describes the procedure that the state must follow when it seeks forfeiture of seized contraband. The statute specifies the following procedure for notice after the petition is filed and a search for the owner occurs: The petitioner then shall give notice of the forfeiture proceedings by personal service or by certified mail, return receipt requested, to any persons known, because of the conduct of the search, the making of the inquiries, or otherwise, to have an ownership or security interest in the property, and shall publish notice of the proceedings once each week for two consecutive weeks in a newspaper of general circulation in the county in which the seizure occurred. The notices shall be personally served, mailed, and first published at least four weeks before the hearing. They shall describe the property 3 (...continued) property described in division (D) of section 2913.34 of the Revised Code; *** (j) Any computer, computer system, computer network, computer software, or other telecommunications device that is used in a conspiracy to commit, an attempt to commit, or the commission of any offense, if the owner of the computer, computer system, computer network, computer software, or other telecommunications device is convicted of or pleads guilty to the offense in which it is used; (k) Any property that is material support or resources and that has been, is being, or is intended to be used in an attempt or conspiracy to violate, or in the violation of, section 2909.22, 2909.23, or 2909.24 of the Revised Code or of section 2921.32 of the Revised Code when the offense or act committed by the person aided or to be aided as described in that section is an act of terrorism. As used in division (A)(13)(k) of this section, "material support or resources" and "act of terrorism" have the same meanings as in section 2909.21 of the Revised Code. -6- seized; state the date and place of seizure; name the law enforcement agency that seized the property and , if applicable, that is holding the property; list the time, date, and place of the hearing; and state that any person having an ownership or security interest in the property may contest the forfeiture. (Emphasis added.) "The language of R.C. 2933.43(C) is mandatory; it requires strict compliance with the notice and publication provisions contained therein." State v. Rahmon (1993), Cuyahoga App. No. 63913, 1993 Ohio App. LEXIS 5190, at *33-34; Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 605 N.E.2d 368. The statute is specific about the timing and manner of notice. After a petition for forfeiture has been filed, personal or certified mail service must be made upon the property owner. When the statute 's notice requirements are not met, a defendant's right to due process has been violated and the forfeiture petition must be dismissed. Id. In the case at bar, the record includes a document entitled "PETITION FOR FORFEITURE OF SEIZED CONTRABAND TO THE SEIZING LAW ENFORCEMENT AGENCY." The document contains a"RECEIVED FOR FILING" stamp dated "NOV 20 2001 " and a "SERVICE" clause which reads as follows: A copy of the foregoing Petition for Forfeiture was served with the indictment by certified mail, return receipt requested to the defendant this ____________ day of _______________. The docket does not reflect that this petition was ever filed. Further, the docket does not include an entry showing that a -7- certified mail "return receipt" was ever requested or delivered back to the clerk's office. We must conclude, therefore, that service of the state 's petition for forfeiture was never accomplished on defendant by certified mail or otherwise. Our analysis, however, does not end here. Even if the state had provided defendant with the mandatory notice of its forfeiture petition, we still find error. R.C. 2933.43(C) states that "a forfeiture hearing shall be held" before a trial court grants or denies the state's request that seized property be forfeited. State v. Slayton, Medina App. No. 3181-M, 2001-Ohio-1732. Pertinent to this case, there are two primary purposes behind the statute's hearing requirement. First, the state must prove by a preponderance of the evidence that the items it claims are "contraband"actually fit within the definition set forth in R.C. 2901.01(13).4 Second, the owner of seized property must be given an opportunity to challenge the state's evidence that the seized property is contraband. Neither the docket in this case nor the trial court's order of forfeiture demonstrates that the court held a hearing before 4 R.C. 2933.43(C) in relevant part states: 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. -8- granting the state's petition. The state argues that the court's order of forfeiture describes it as a "voluntary forfeiture" by defendant. We reject this argument. The order is not signed by defendant or his attorney. Contrary to the state's arguments, the record is devoid of any evidence that defendant voluntarily agreed to forfeit the property taken from him. Under the circumstances here, the court was required to conduct a hearing. Accordingly, we conclude that the trial court erred when it failed to hold the mandatory hearing. Because the state failed to comply with mandatory notice provisions of 2933.43(C) and because the trial court failed to hold the mandatory hearing before it ordered forfeiture of defendant's property, the forfeiture order was void. There is an additional problem: the Ohio Supreme Court has held that forfeiture as a result of a conviction and after imposition of a sentence for a criminal offense violates the Double Jeopardy Clauses of both the Ohio and the United States Constitutions. State v. Casalicchio (1991), 58 Ohio St.3d 178, 569 N.E.2d 916; Art. I, § 10 of the Ohio Constitution and the Fifth Amendment to the United States Constitution. In Casalicchio, the state sought forfeiture of Casalicchio's automobile after he was sentenced. The Supreme Court held that the forfeiture was an additional criminal penalty that the state should have sought prior to sentencing. The Court explained as follows: -9- [W]here property is ruled contraband pursuant to R.C. 2933.42(B), forfeiture of that property pursuant to R.C. 2933.43 constitutes a separate criminal penalty in addition to the penalty the defendant faces for conviction of the underlying felony. *** Consequently, the Double Jeopardy clauses bar the state from seeking a new penalty to a crime after a defendant has been sentenced for that crime. Casalicchio, at 182-183. In both Casalicchio and the case at bar, it was after defendant was sentenced that the state petitioned for forfeiture. The order of forfeiture in the case at bar here was entered on October 2, 2002, almost one full month after defendant was sentenced. The dates of the petition and forfeiture order are sufficient to apply the double jeopardy holding of Casalicchio. Following Casalicchio, we conclude that defendant was subjected to an additional criminal penalty in violation of the double jeopardy clauses of the Ohio and the United States Constitutions. Defendant in the case at bar never received notice of the state's petition for forfeiture. Because of the absence of notice and hearing, the October 2nd order was void when it was made. The state's first assignment of error is overruled and the trial court's judgment is affirmed.5 5 We note that the trial court had vacated its prior order of forfeiture because the defendant's convictions were no longer felonies. In finding the prior order void, we affirm the trial court's order to vacate, but for a different reason. -10- Because the preceding decision is dispositive, the state's remaining assignments of error6 are moot. This matter is remanded for the limited purpose of having the trial court issue an immediate order for the state to return all the personal property seized from defendant in this case. We are mindful of the state's claim that some of the property seized from defendant has been disposed of and, therefore, cannot be returned to him. In the event that such disposition has occurred, the trial court shall instruct the state to pay defendant the fair market value of any previously disposed of property. The value of that property shall be determined as of November 20, 2001, the date of the state's unfiled petition for forfeiture. Judgment accordingly. 6 II. THE TRIAL COURT ERRED IN HOLDING THAT AN UNDERLYING FELONY CONVICTION IS REQUIRED FOR FORFEITURE PURSUANT TO R.C. 2933.43 WHERE THE PROPERTY IS NOT ONE OF THE PROPERTY ENUMERATED IN R.C. 2933.42(B). III. THE TRIAL COURT ERRED IN NOT CLARIFYING OR MODIFYING THE ORDER DATED JANUARY 7, 2004 AS SOME OF THE VOLUNTARILY FORFEITED PROPERTY HAS BEEN DISPOSED PURSUANT TO THE COURT ORDER, AND THE RETURN OF SOME OF THE PROPERTY WILL RESULT IN THE RETURN OF THE CONTRABAND TO THE DEFENDANT. -11- It is ordered that appellee recover of appellant his 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. FRANK D. CELEBREZZE, JR., J., CONCURS. MICHAEL J. CORRIGAN, A.J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .