State v. McCall , 2022 Ohio 843 ( 2022 )

[Cite as State v. McCall, 2022-Ohio-843.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2021CA0030
:
EUGENE B. MCCALL :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County
Court of Common Pleas, Case Nos.
16CR0062 & 16CR0097
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 16, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JASON W. GIVEN EUGENE B. MCCALL, PRO SE
COSHOCTON COUNTY PROSECUTOR Noble Correctional Institution
318 Chestnut Street 15708 McConnelsville Road
Coshocton, OH 43812 Caldwell, OH 43724
Coshocton County, Case No. 2021CA0030 2
Delaney, J.
{¶1} Defendant-Appellant Eugene B. McCall appeals the December 14, 2021
judgment entry of the Coshocton County Court of Common Pleas. Plaintiff-Appellee is
the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} In State v. McCall, 5th Dist. Coshocton No. 2017CA0002, 2017-Ohio-7860,
we outlined the following facts from Appellee's bill of particulars filed December 19, 2016.
This case arose when law enforcement made a series of controlled buys of narcotics
from Appellant.
{¶3} On July 11, 2016, a confidential informant (C.I.) bought $60 worth of crack
cocaine from Appellant while two juvenile males were present.
{¶4} On July 14, 2016, a C.I. purchased $60 worth of crack cocaine from
Appellant in a deli parking lot. Appellant drove to and from the transaction in a red
Corvette.
{¶5} Later that day, a search warrant was executed at Appellant's residence.
During the search, “evidence of drug use and suspected drug trafficking” was found
throughout the residence, including crack pipes, unmarked pills, crack cocaine, syringes,
and suspected heroin. Law enforcement also found a Ruger .45 firearm, two loaded clips,
and two boxes of ammunition. Appellant was under disability due to multiple prior
convictions of offenses involving the illegal possession, use, sale, administration,
distribution, or trafficking of any drug of abuse.
{¶6} In Case Number 16 CR 0062, Appellant was charged by indictment with
one count of having weapons while under disability, a felony of the third degree pursuant
Coshocton County, Case No. 2021CA0030 3
to R.C. 2923.13(A)(3) [Count I, date of offense July 14, 2016]; one count of trafficking in
cocaine, a felony of the second degree pursuant to R.C. 2925.03(A)(2) and (C)(4)(d)
[Count II, date of offense July 14, 2016]; one count of trafficking in cocaine, a felony of
the fourth degree pursuant to R.C. 2925.03(A)(1) and (C)(4)(b) [Count III, date of offense
July 11, 2016]; and one count of trafficking in cocaine, a felony of the fourth degree
pursuant to R.C. 2925.03(A)(1) and (C)(4)(b) [Count IV, date of offense July 14, 2016].
{¶7} Count II was accompanied by two forfeiture specifications, one related to
$1,728 in cash and the other related to a 1994 Chevrolet Corvette.
{¶8} On September 19, 2016, Appellee filed a motion to forfeit Appellant's bond
because on September 17, 2016, Appellant was discovered to be driving without an
operator's license and in possession of 15 grams of cocaine. Appellee later withdrew the
motion, and it was overruled by the trial court.
{¶9} In Case Number 16 CR 0097, Appellant was charged by indictment with
one count of possession of cocaine, a felony of the fifth degree pursuant to R.C.
2925.11(A) and (C)(4) [date of offense March 5, 2016]. The single-count indictment also
included a forfeiture specification relating to $4,510 in cash.
{¶10} On November 18, 2016, an amended indictment was filed in Case Number
16 CR 0062 which added three counts to those listed supra: one count of drug
possession [heroin], a felony of the fifth degree pursuant to R.C. 2925.11(A) and
(C)(6)(a) [Count V, date of offense July 14, 2016]; one count of drug possession
[hydrocodone], a felony of the fifth degree pursuant to R.C. 2925.11(A) and (C)(2)(a)
[Count VI, date of offense July 14, 2016]; and one count of possession of drugs
Coshocton County, Case No. 2021CA0030 4
[buprenorphine], a felony of the fifth degree pursuant to R.C. 2925.11(A) and (C)(2)(a)
[Count VII, date of offense July 14, 2016].
{¶11} On December 9, 2016, Appellee moved to join both cases pursuant to
Crim. R. 8 and 13. The trial court granted the motion, and the cases were consolidated.
{¶12} On January 24, 2017, based on a plea negotiation with Appellee, Appellant
changed his pleas of not guilty to no contest to Counts I through VII, including the
forfeiture specifications as to the $1,728 in cash and a 1994 Chevrolet Corvette, in Case
No. 16 CR 0062, although Count II was amended to a felony of the fourth degree.
Appellant also entered a negotiated plea of no contest to the sole count in the indictment
in Case No. 16 CR 0097, which included a forfeiture specification of $4,510 in cash. The
signed plea agreement forms were filed on January 24, 2017.
{¶13} In exchange for Appellant's pleas of no contest, Appellee agreed to
recommend a prison term of six years (concurrent with a term of 11 months in 16 CR
0097); not to oppose a pre-sentence investigation; not to pursue charges from the traffic
stop on September 17, 2016; and to return the $2,148 seized during that stop.
{¶14} During the plea colloquy, the trial court reviewed the nature of the charges
and the penalties, including the forfeiture specifications. When the trial court asked if he
had any questions, Appellant answered that he did not, and responded he wanted to
voluntarily enter a plea of no contest to the charges.
{¶15} The trial court sentenced Appellant to an aggregate prison term of six years
and advised Appellant of the optional term of post-release control and penalties for any
violation. Relevant to this appeal, the trial court also ordered forfeiture specified in the
indictments as follows:
Coshocton County, Case No. 2021CA0030 5
The Court granted Specification One in Count Two of the indictment. The
Court finds that the One Thousand Seven Hundred Twenty Eight Dollars
and No Cents ($1,728.00) is contraband, and said contraband is hereby
forfeited to the Coshocton County Sheriff’s Office.
The Court also granted Specification Two in Count Two of the indictment.
The Court finds that the 1994 Chevrolet Corvette * * *2615, is contraband,
and said contraband is hereby forfeited to the Coshocton County Board of
Commissioners.
The Court granted the forfeiture specification in Count One of the
indictment. The Court finds that the Four Thousand Five Hundred Ten
Dollars and No Cents ($4,510.00) in U.S. Currency is contraband, and said
contraband is hereby forfeited to the Coshocton County Sheriff’s office.
(Case No. 16 CR 0062, Judgment Entry Plea of No Contest & Sentencing, Jan. 30, 2017,
and Case No. 16 CR 0097, Judgment Entry Plea of No Contest & Sentencing Nunc Pro
Tunc, Jan. 30, 2017). During the sentencing hearing, Appellant did not object to the trial
court’s procedures or determinations as to the forfeiture specifications.
{¶16} Appellant appealed his sentence, and we overruled his assignments of
error and affirmed the trial court’s sentencing entry. State v. McCall, 5th Dist. Coshocton
No. 2017CA0002, 2017-Ohio-7860. In his direct appeal, Appellant did not raise forfeiture
as a specific assignment of error.
{¶17} On March 8, 2018, Appellant, pro se, filed his first petition for post-
conviction relief alleging the sentences imposed were void. Appellee opposed the motion
and, on March 20, 2018, the trial court journalized its entry denying the motion, without
Coshocton County, Case No. 2021CA0030 6
a hearing, finding that “the defendant's motion to be not well taken and said motion is
denied.” Appellant appealed the judgment entry to this Court. In State v. McCall, 5th Dist.
Coshocton No. 2018CA0002, 2018-Ohio-3306, we dismissed his appeal for lack of a
final appealable order.
{¶18} On November 18, 2021, Appellant filed a pro se “Motion to Vacate Void
Judgment that Violate the Defendant’s Ohio and U.S. Constitutional Rights to Due
Process and Equal Protection.” In his motion, Appellant argued the trial court committed
plain error in violation of R.C. Chapter 2981, et seq., when it failed to hold a separate
civil hearing and conduct a proportionality review before determining the property should
be forfeited. He contended the trial court’s failure resulted in the forfeiture judgments
being void.
{¶19} Appellee did not file a response to the motion.
{¶20} The trial court denied Appellant’s motion on December 14, 2021. It held his
argument was without merit because the forfeiture of the property was entered pursuant
to the plea agreement between Appellee and Appellant. The trial court reviewed the
sentencing hearing transcript and noted that within the plea agreement, there was a
reduction in the charge contained in Count II of Case No. 16 CR 0062. Appellee
recommended a maximum sentence of six years and an agreement to not charge
Appellant for any crimes arising out of a September 17, 2016 traffic stop. In exchange,
Appellant entered pleas of no contest to the charges and the forfeiture specifications.
Because the property was forfeited through a plea agreement, the trial court found that
it was not required to follow the statutory forfeiture proceedings and Appellant’s due
process protections were not violated.
Coshocton County, Case No. 2021CA0030 7
{¶21} It is from this judgment that Appellant now appeals.
ASSIGNMENT OF ERROR
{¶22} Appellant raises one Assignment of Error:
{¶23} “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN FAILING TO
CONDUCT A PROPORTIONALITY REVIEW, VIOLATING THE EXCESSIVE FINES
CLAUSE OF THE 8TH AMENDMENT AND THE APPELLANT’S RIGHTS TO DUE
PROCESS.”
ANALYSIS
{¶24} In his sole Assignment of Error, Appellant contends the trial court
committed plain error when it ordered a forfeiture of his cash and vehicle as stated in the
indictments without following the procedures set forth in R.C. Chapter 2981, et seq. Upon
review of the record and relevant case law, we disagree.
The Effect of the No Contest Plea
{¶25} On January 24, 2017, pursuant to the plea agreement with Appellee in
Case No. 16 CR 0062, Appellant entered a plea of no contest to Counts I through VII
that included the following forfeiture specifications:
SPECIFICATION ONE AS TO COUNT TWO:
Further, the Grand Jurors of Coshocton County, Ohio, find that defendant,
Eugene Burton McCall, was in possession of certain property, to-wit: One
Thousand Seven Hundred and Twenty-Eight dollars ($1728), when said
property constitutes, or is derived or indirectly from, any proceeds that said
defendant obtained directly or indirectly from the commission of the felony
Coshocton County, Case No. 2021CA0030 8
drug abuse offense or act and said property is subject to seizure and
forfeiture pursuant to section 2981.02(A) of the Revised Code.
SPECIFICATION ONE AS TO COUNT TWO:
Further, the Grand Jurors of Coshocton County, Ohio, find that defendant,
Eugene Burton McCall, was in possession of certain property, to-wit: 1994
Chevrolet Corvette * * *2615, when said property constitutes, or is derived
or indirectly from, any proceeds that said defendant obtained directly or
indirectly from the commission of the felony drug abuse offense or act and
said property is subject to seizure and forfeiture pursuant to section
2981.02(A) of the Revised Code.
Appellant also entered a negotiated plea of no contest to the sole count in the indictment
in Case No. 16 CR 0097, which included a forfeiture specification of $4,510 in cash. The
forfeiture specification stated:
SPECIFICATION ONE AS TO COUNT ONE:
Further, the Grand Jurors of Coshocton County, Ohio, find that defendant,
Eugene Burton McCall, was in possession of certain property, to-wit:
$4,510.00 in U.S. Currency, when said property constitutes, or is derived or
indirectly from, any proceeds that said defendant obtained directly or
indirectly from the commission of the felony drug abuse offense or act and
said property is subject to seizure and forfeiture pursuant to section
2981.02(A) of the Revised Code.
Coshocton County, Case No. 2021CA0030 9
{¶26} In his motion to the trial court and on appeal, Appellant contends that he
entered a plea of no contest to all the charges and specifications in the indictment. He
did not, however, agree to any guilt or forfeiture of his property.
{¶27} “A plea of no contest is not an admission of guilt, but it is an admission of
the truth of the facts alleged in the charging instrument, as well as the facts set forth by
the state in its explanation of the circumstances surrounding the charge.” State v.
Tamburin, 145 Ohio App.3d 774, 780, 764 N.E.2d 503, 507–08, (9th Dist.2001) citing
State v. Perry, 83 Ohio St.3d 41, 43, 697 N.E.2d 624 (1998). After a plea of no contest,
the trial court does not determine if any facts are in dispute. State v. Sims, 2017-Ohio-
8379, 99 N.E.3d 1056, ¶ 14 (1st Dist.). The trial court’s role is to determine whether the
admitted facts meet all the elements of the charged offenses. Id. By entering a plea of
no contest in this case, Appellant admitted to the truth of the facts contained in the
indictments (as amended), including that the cash and motor vehicle “constitutes, or is
derived or indirectly from, any proceeds that said defendant obtained directly or indirectly
from the commission of the felony drug abuse offense or act and said property is subject
to seizure and forfeiture pursuant to section 2981.02(A) of the Revised Code.” The trial
court found Appellant guilty, which this Court affirmed on direct appeal.
The Effect of the Plea Agreement
{¶28} Appellant challenges the trial court’s order of forfeiture, arguing it failed to
follow the statutory provisions governing criminal forfeiture.
{¶29} R.C. Chapter 2981.01, et seq., set forth procedures that must be followed
to effectuate the forfeiture of seized property including contraband and money resulting
Coshocton County, Case No. 2021CA0030 10
from criminal activity. R.C. 2981.02 explains the property subject to forfeiture and
provides, in relevant part:
(A)(1) The following property is subject to forfeiture to the state or a political
subdivision under either the criminal or delinquency process in section
2981.04 of the Revised Code or the civil process in section 2981.05 of the
Revised Code:
(a) Contraband involved in an offense;
(b) Proceeds derived from or acquired through the commission of an
offense;
R.C. 2981.02(A).
{¶30} R.C. 2981.04, which governs forfeiture specifications, states in pertinent
part:
If a person pleads guilty to or is convicted of, * * * an offense * * * and the
complaint, indictment, or information charging the offense * * * contains a
specification covering property subject to forfeiture under section 2981.02
of the Revised Code, the trier of fact shall determine whether the person's
property shall be forfeited. If the state * * * proves by clear and convincing
evidence that the property is in whole or part subject to forfeiture under
section 2981.02 of the Revised Code, after a proportionality review under
section 2981.09 of the Revised Code when relevant, the trier of fact shall
return a verdict of forfeiture that specifically describes the extent of the
property subject to forfeiture.
R.C. 2981.04(B).
Coshocton County, Case No. 2021CA0030 11
{¶31} R.C. 2981.09 sets forth the standard for a proportionality determination,
stating:
(A) Property may not be forfeited as an instrumentality under this chapter to
the extent that the amount or value of the property is disproportionate to the
severity of the offense. The state or political subdivision shall have the
burden of going forward with the evidence and the burden to prove by clear
and convincing evidence that the amount or value of the property subject to
forfeiture is proportionate to the severity of the offense.
(B) Contraband and any proceeds obtained from the offense are not subject
to proportionality review under this section.
R.C. 2981.09(A)-(B).
{¶32} Appellant contends that he entered a no contest plea to the charges and
the specifications in the indictment. By pleading no contest, however, he argues he did
not agree to the forfeiture of his property. “Generally, ‘[a] defendant may plead guilty to
an offense while contesting an attendant forfeiture specification.’” State v. Compton, 8th
Dist. Cuyahoga No. 109427, 2021-Ohio-3106, ¶ 18 quoting State v. Williams, 8th Dist.
Cuyahoga No. 106178, 2018-Ohio-2199, 2018 WL 2904044, ¶ 8, citing State v. Trivette,
195 Ohio App.3d 300, 2011-Ohio-4297, 959 N.E.2d 1065, ¶ 9 (9th Dist.). Appellant’s
argument overlooks one important detail as to how he came to enter his plea of no
contest to the charges and forfeiture specifications. This detail changes the nature of the
forfeiture proceedings from statutory to contractual.
{¶33} In this case, Appellant changed his plea of not guilty to a plea of no contest
to the underlying offenses, including the forfeiture specifications, based on a plea
Coshocton County, Case No. 2021CA0030 12
agreement with Appellee. In exchange for his plea of no contest, Appellee agreed to
recommend a prison term of six years (concurrent with a term of 11 months in 16 CR
0097); not to oppose a pre-sentence investigation; not to pursue charges from the traffic
stop on September 17, 2016; and to return the $2,148 seized during that stop.
{¶34} Through his negotiated no contest plea, Appellant admitted to the truth of
the facts stated in the indictment. There is no indication in the plea agreement or at the
plea hearing that Appellant objected to the proceedings or contested the value or
property listed in the forfeiture specifications. At the plea hearing, Appellant stated that
he understood his obligations under the plea agreement, and he has made no argument
in his appeals relating to Case Nos. 16 CR 0062 and 16 CR 0097 that his plea was
unknowingly, unintelligently, or involuntarily made. Under these circumstances, we find
that Appellant’s agreement to forfeit the seized cash and motor vehicle were contractual
in nature. See Compton, supra at ¶ 18.
{¶35} The Eighth District Court of Appeals has recognized that, “when [a]
defendant enters a plea agreement calling for the forfeiture of seized property,
adherence to the statutory procedures [is] unnecessary.” State v. Compton, 2021-Ohio-
3106, ¶ 19 quoting State v. Eppinger, 8th Dist. Cuyahoga No. 95685, 2011-Ohio-2404,
2011 WL 1935866, ¶ 9, citing State v. Chappell, 8th Dist. Cuyahoga No. 93298, 2010-
Ohio-2465, 2010 WL 2201783, at ¶ 37-38. Stated another way, “[w]hen property is
forfeited through a plea agreement, the forfeiture is ‘not effectuated by operation of the
statutory provisions governing forfeiture of contraband, but rather by the parties’
agreement.’” State v. Compton, supra at ¶ 19 quoting State v. Glanton, 6th Dist. Wood
No. WD-18-091, 2020-Ohio-834, 2020 WL 1080422, ¶ 15, quoting State v. Sammor, 9th
Coshocton County, Case No. 2021CA0030 13
Dist. Summit No. 24094, 2008-Ohio-4847, 2008 WL 4335499, ¶ 7; State v. Fogel, 9th
Dist. Lorain No. 04CA008498, 2004-Ohio-6268, 2004 WL 2674591, ¶ 7.
{¶36} Because the forfeiture of the cash and motor vehicle were effectuated by
Appellant’s negotiated plea agreement with Appellee and not R.C. Chapter 2981, the
trial court was not required to consider the statutory forfeiture proceedings at the time of
sentencing. See Compton, 2021-Ohio-3106 at ¶ 20. Upon this record, we find that
Appellant’s due process protections were not violated.
{¶37} Appellant’s sole Assignment of Error is overruled.
CONCLUSION
{¶38} The judgment of the Coshocton County Court of Common Pleas is
affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.