Opinion
C.A. No. 3097-M.
Dated: March 21, 2001.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE NO. 99 CR 0455.
J. GARY SEEWALD, Attorney at Law, 550 Courthouse Square, 310 W. Lakeside Avenue, Cleveland, Ohio 44113, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, JOSEPH F. SALZGEBER, and MARY ANN KOVACH, Assistant Prosecuting Attorneys, 72 Public Square, Medina, Ohio 44256, for Appellee.
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Defendant, Aaron Danisek, appeals from the decision of the Medina County Court of Common Pleas granting the State's forfeiture petition with respect to Defendant's automobile. We affirm.
On December 28, 1999, Defendant was indicted on one count of preparation of drugs for sale, in violation of R.C. 2925.07(A) (C)(3)(b), a fourth degree felony. Defendant pled not guilty. On January 3, 2000, the State filed a petition for forfeiture of seized contraband, which included Defendant's car and $117 in cash. On April 7, 2000, Defendant changed his plea to guilty. On May 26, 2000, the trial court sentenced Defendant to five years community control and the sentencing entry was journalized on June 1, 2000.
A hearing on the petition for forfeiture was conducted on June 30, 2000. During the hearing Defendant moved to dismiss the forfeiture action, arguing that the time limit for holding the hearing had expired, pursuant to R.C. 2933.43(C). On July 7, 2000, the trial court granted the State's forfeiture petition as to the car and found that the hearing was held within forty-five days of Defendant's conviction. Defendant subsequently moved the trial court to reconsider its ruling on the forfeiture petition. The trial court denied the motion on July 20, 2000. Defendant timely appealed and has raised one assignment of error for review.
ASSIGNMENT OF ERROR
The trial court erred by failing to grant [D]efendant's motion to dismiss the State's forfeiture petition, because [R.C. 2933.43] requires a forfeiture hearing to [ sic.] be held within 45 days after [D]efendant's conviction (plea) or the admission or adjudication of the violation and the trial court held its hearing eighty [ sic.] (84) days after [D]efendant's conviction (plea). * * *
In his sole assignment of error, Defendant asserts that the trial court erred in denying Defendant's motion to dismiss the State's forfeiture petition. He contends that the forfeiture hearing was conducted beyond the statutory limit provided by R.C. 2933.43(C). We disagree.
R.C. 2933.43(C) provides:
* * *
If the property seized was determined by the seizing law enforcement officer to be contraband because of its relationship to an underlying criminal offense or administrative violation, no forfeiture hearing shall be held under this section unless the person pleads guilty to or is convicted of the commission of, or an attempt or conspiracy to commit, the offense or a different offense arising out of the same facts and circumstances or unless the person admits or is adjudicated to have committed the administrative violation or a different violation arising out of the same facts and circumstances[.]
The statutory section then provides, in relevant part:
[A] forfeiture hearing shall be held in such a case no later than forty-five days after the conviction or the admission or adjudication of the violation, unless the time for the hearing is extended by the court for good cause shown.
According to the statutory language, the triggering event for the forfeiture hearing time limit is the conviction, admission, or adjudication of the violation. The definition of these terms is a matter of statutory construction, subject to de novo review as a matter of law. State v. Werner (1996), 112 Ohio App.3d 100, 103. Defendant argues that his conviction occurred and time began to run when he entered his guilty plea. Conversely, the State argues that the conviction took place when Defendant was sentenced. Thus, the issue presented is the intended meaning of the word "conviction" in R.C. 2933.43(C).
Crim.R. 32(C) provides that "[a] judgment of conviction shall set forth the plea, the verdict or findings, and the sentence." Furthermore, the Ohio Supreme Court has held that a conviction consists of both a finding of guilt and a sentence. State v. Henderson (1979), 58 Ohio St.2d 171, 177-79 (finding that in order to constitute a prior conviction for a theft offense, there must be a judgment of conviction, as defined in former Crim.R. 32(B), since amended as Crim.R. 32(C)). See, also State v. Poindexter (1988), 36 Ohio St.3d 1, 5 (reiterating that "conviction" includes both the guilt determination and the penalty imposition). Accord State v. Goff (1998), 82 Ohio St.3d 123, 135.
We also note that "[i]t is well recognized that a court speaks through its journals and an entry is effective only when it has been journalized." State v. Moss (July 26, 2000), Lorain App. No. 99CA007304, unreported, at 3-4, quoting San Filipo v. San Filipo (1991), 81 Ohio App.3d 111, 112. Accordingly, we hold that the term "conviction" as used in R.C. 2933.43(C) occurs at the time Defendant's sentence is journalized.
In this case, Defendant was sentenced on May 26, 2000, and the corresponding judgment entry was journalized on June 1, 2000. The hearing on the forfeiture petition was conducted on June 30, 2000. Therefore, the forfeiture hearing was held twenty-nine days after Defendant's conviction, well within the forty-five day limit provided by R.C. 2933.43(C). Accordingly, Defendant's assignment of error is without merit.
Defendant's sole assignment of error is overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
The Court finds that 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 Medina, 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(E).
Costs taxed to Appellant.
Exceptions.
___________________________ LYNN C. SLABY
WHITMORE, CONCURS.
I respectfully dissent. "Conviction" as used in R.C. 2933.43(C) refers only to a determination of guilt and does not include sentencing upon that determination. Therefore, because the forfeiture hearing was held more than the proscribed forty-five days after Danisek's conviction, the trial court erred in not dismissing the state's forfeiture petition.
The majority holds that the word "conviction," as used in R.C. 2933.43(C), is interpreted to have the same meaning as "judgment of conviction," as defined in Crim.R. 32(C), which reads, "[a] judgment of conviction shall set forth the plea, the verdict or findings, and the sentence." The majority also relies on State v. Henderson (1979), 58 Ohio St.2d 171, wherein the Supreme Court of Ohio held that the term "conviction" includes both the finding of guilt and the imposition of sentence. Additionally, the majority cites this Court's decision in State v. Moss (July 26, 2000), Lorain App. No. 99CA007304, unreported, which I authored, for the proposition that "`a court speaks through its journals and an entry is effective only when it has been journalized.'" Applying these definitions, the majority holds that "`conviction' as used in R.C. 2933.43(C) occurs at the time [a] Defendant's sentence is journalized.'"
Normally the term "conviction" does include both the finding of guilt and the sentence imposed. However, the Supreme Court of Ohio has not applied the restricted definition set forth in Crim.R. 32(C) and imputed Henderson to every statute in which the term "convicted" appears. In fact, the Supreme Court of Ohio explained such in State ex rel. Watkins v. Firoenzo (1994), 71 Ohio St.3d 259, 260:
Henderson recognizes that the term "conviction" normally includes both the finding of guilt and the sentence. State v. Carter (1992), 64 Ohio St.3d 218, 222, 594 N.E.2d 595, 599; State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568, 572; cf. State v. Cash (1988), 40 Ohio St.3d 116, 532 N.E.2d 111, syllabus. However, the language of R.C. 2921.41(C)(1) specifies permanent disqualification from, inter alia, any public office in this state if the public official is either "convicted of or pleads guilty to, theft in office." (Emphasis added.) Unlike in R.C. 2913.02(B), the General Assembly placed "convicted" on equal footing with a guilty plea in R.C. 2921.41(C)(1).
Thus, the plain language of R.C. 2921.41(C)(1) requires only a plea of guilty to invoke the sanction of permanent disqualification. Therefore, we believe the word "convicted" as used in R.C. 2921.41(C)(1) logically refers only to a determination of guilt and does not include sentencing upon that determination. The Court of Appeals for Auglaize County in In re Forfeiture of One 1986 Buick Somerset Auto. (1993), 91 Ohio App.3d 558, 562-563, 632 N.E.2d 1351, 1353-1354, reached a similar conclusion in construing the phrase "pleads guilty to or is convicted" of R.C. 2933.43(C).
(Bold emphasis added.).
In analyzing the precise issue presently before this Court, both the Third and Fourth Appellate Districts found that "conviction" as used in R.C. 2933.43(C), means only a determination of guilt and does not include sentencing upon that determination, and that the time for forfeiture begins to run on the date of such determination. See In re Forfeiture of One 1986 Buick Somerset Auto. (1993), 91 Ohio App.3d 558; State v. Lowry (Apr. 6, 1995), Ross App. No. 94CA2061, unreported.
Rejecting the argument that "conviction" under R.C. 2933.43(C) should be construed in accordance with the former Crim.R. 32(B), now Crim.R. 32(C), the Third Appellate District reasoned:
Finally, an analysis of the language of the forfeiture statute also supports the proposition that "conviction" occurs at the time guilt is legally ascertained, and not at the point sentence is imposed. First of all, the statute provides that no forfeiture hearing may be held "unless the person pleads guilty to or is convicted of the commission of * * * the offense." R.C. 2933.43(C). Thus, the statutory language appears to equate a defendant's pleading guilty with a defendant's being convicted, with either serving as the triggering event for the forfeiture hearing time limit. Second, the R.C. 2933.43(C) language applicable to cases involving administrative violations provides that a forfeiture hearing may not be held "unless the person admits or is adjudicated to have committed the administrative violation." To the extent that an administrative proceeding can be compared with a criminal case, an "adjudication of commission" in the administrative context seems more analogous to the determination of guilt in the criminal context, as opposed to the sentencing phase.
Upon careful consideration of all of the foregoing factors, we conclude that, for purposes of R.C. 2933.43(C), "conviction" occurs at the time a defendant is found guilty of the offense charged.
In re Forfeiture of One 1986 Buick, supra, at 562-563. Accord Lowry, supra.
The Third District also correctly noted that the Supreme Court of Ohio referred to "conviction" under R.C. 2933.43(C), as the determination of guilt excluding the sentence:
Moreover, in State v. Casalicchio (1991), 58 Ohio St.3d 178, the Supreme Court reviewed the contraband forfeiture statutes which are at issue here. In that case, the defendant pled no contest to the underlying criminal charges and was found guilty on October 22, 1987, the entry finding the defendant guilty was filed on October 29, 1987, and the defendant was sentenced on November 20, 1987. Although the issue of what constitutes a "conviction" under the statute was not specifically before the court in that case, Justice Douglas notes in his concurring opinion that "the defendant here was convicted on October 29, 1987." (Emphasis sic.) Id. at 183. Furthermore, in her concurring and dissenting opinion in the same case, Justice Resnick notes that the forfeiture petition filed on November 23, 1987 was filed "thirty-two days after conviction and three days after sentencing." Id. at 188.
In re Forfeiture of One 1986 Buick, supra, at 562. Furthermore, scrutiny of the Casalicchio majority opinion reveals that the majority also recognized that "conviction," for purposes of R.C. 2933.43(C), excludes the sentence for the underlying felony. The Supreme Court of Ohio noted that "[f]orfeiture of R.C. 2933.42(B) contraband pursuant to R.C. 2933.43, * * * requires a conviction for a felony prior to forfeiture[.]" Casalicchio, supra, at 182. The Court held that "[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." Casalicchio, supra, syllabus. The Court then found that "[b]ecause the forfeiture of Casalicchio's automobile is an additional criminal penalty that the state failed to seek prior to sentencing, the forfeiture violate[d] [the Double Jeopardy Clauses of] both the Ohio and the federal Constitutions." (Emphasis sic.) Id. at 183. Therefore, the Supreme Court of Ohio recognized that a forfeiture brought under R.C. 2933.43 can only follow a felony conviction, and that the state must petition a court for such forfeiture prior to imposition of the penalty — the sentence — for the conviction of the underlying felony.
For the foregoing reasons, I would reverse the decision of the lower court.