Opinion · Ohio Supreme Court
State v. Hill
State v. Hill, 70 Ohio St. 3d 25 (Ohio 1994)
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1994-08-03
- Topic
- general
“as a general rule, an appellate court will not review a trial court’s exercise of discretion in sentencing when the sentence is authorized by statute and is within the statutory limits” | “as a general rule, an appellate court will not review a trial court’s exercise of discretion in sentencing when the sentence is authorized by statute and is within the statutory limits”
Citator
- Cited by
- 65 opinions
[This opinion has been published in Ohio Official Reports at70 Ohio St.3d 25
.]
THE STATE OF OHIO, APPELLEE, v. HILL, APPELLANT.
[Cite as State v. Hill, 1994-Ohio-12
.]
Criminal law—Drug offenses—Forfeiture of property relating to felony drug abuse
offense—R.C. 2925.42—Prior to entering order of forfeiture, trial court
must make an independent determination whether forfeiture of that property
is an "excessive fine" prohibited by the Excessive Fine Clauses of the Ohio
and United States Constitutions.
Forfeiture of property, pursuant to R.C. 2925.42, is a form of punishment for a
specified offense and, therefore, is a "fine" for purposes of Section 9, Article
I of the Ohio Constitution and the Eighth Amendment to the United States
Constitution. Accordingly, prior to entering an order of forfeiture, the trial
court must make an independent determination whether forfeiture of that
property is an "excessive fine" prohibited by the Excessive Fine Clauses of
the Ohio and United States Constitutions.
(No. 93-715—Submitted April 20, 1994—Decided August 3, 1994.)
APPEAL from the Court of Appeals for Lorain County, No. 92CA005332.
___________________
{¶ 1} Appellant, Frederick A. Hill, is the owner of various rental properties.
One of his properties is an apartment complex located at 47 Morgan Street, Oberlin,
Ohio. The complex consists of two buildings. There is a building which contains
seven apartment units and a separate garage building containing an apartment
where appellant resides. According to appellant, the complex is valued at
approximately $110,000.
{¶ 2} Benjamin Newbauer, while a tenant at the 47 Morgan Street
apartment complex, asked appellant if he could use an area in the basement of the
complex, which apparently was adjacent to Newbauer's apartment, to grow
SUPREME COURT OF OHIO
marijuana. Newbauer informed appellant that he intended to grow the marijuana
solely for his personal use. Appellant gave Newbauer permission to grow the
plants.
{¶ 3} On February 27, 1991, a police officer for the village of Grafton
executed a search warrant at the 47 Morgan Street apartment complex. It appears
that the search uncovered eighty-five marijuana plants. The total weight of
marijuana seized was 6,172 grams. Subsequently, Newbauer pleaded guilty to
trafficking in marijuana. He was placed on probation and apparently ordered to
pay a mandatory fine of $2,000.
{¶ 4} Appellant also was indicted for trafficking in marijuana in violation
of R.C. 2925.03(A)(3). The grand jury further concluded that the apartment
complex was owned by appellant, and that it was used in the commission of the
offense and, as such, may be subject to forfeiture pursuant to R.C. 2925.42. The
case proceeded to a jury trial.
{¶ 5} At trial, Newbauer was a witness for appellee, the state of Ohio.
Newbauer testified that initially he intended to grow marijuana solely for his
personal use. However, when more seeds germinated than anticipated, Newbauer
changed his mind. Newbauer then decided to sell some of the marijuana, give a
portion to friends and retain some for his personal use. The state essentially
attempted to demonstrate that appellant gave Newbauer permission to grow the
marijuana plants, that appellant knew the quantity of plants being grown, and that
he aided and abetted Newbauer in the illegal operation.
{¶ 6} With regard to proving that appellant assisted Newbauer, the state
emphasized that appellant allowed his credit card to be used to order some
equipment needed to grow the marijuana. Newbauer testified that appellant
actually ordered the equipment and that he (Newbauer) agreed to reimburse
appellant. Newbauer also testified he owed appellant $700. The record further
indicates appellant paid certain utility bills for Newbauer's apartment, and that a
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note was found which suggested Newbauer may have given appellant directions on
how to care for the plants in Newbauer's absence.
{¶ 7} Appellant admitted that he gave Newbauer permission to grow
marijuana for Newbauer's personal use. It is undisputed appellant knew the plants
were being grown by Newbauer and that appellant had even seen the plants on
various occasions. The mainstay of appellant's defense, however, was that he did
not know Newbauer had changed his mind and intended to sell some of the
marijuana or give some of it away. Further, when questioned about the use of his
credit card in acquiring certain equipment, appellant maintained he owed Newbauer
money for work Newbauer had performed as a handyman in the apartment
complex. Newbauer testified that he had worked for appellant. Appellant admitted
that he allowed Newbauer to use his credit card, but denied he (appellant) actually
ordered the equipment. In addition, appellant denied that he had ever cared for the
plants or had ever received watering instructions from Newbauer.
{¶ 8} The jury found appellant not guilty of trafficking in marijuana, but
guilty of complicity to the offense charged in violation of R.C. 2923.03 and
2925.03(A)(3), a fourth-degree felony. The jury further found that the apartment
complex owned by appellant was used to commit or to facilitate the commission of
the offense. Subsequently, appellant was sentenced to one year in prison, fined
$1,000 and, pursuant to R.C. 2925.42, ordered to forfeit the 47 Morgan Street
apartment complex. Thereafter, pursuant to Crim.R. 33, appellant filed a motion
for a new trial. The trial court denied his request.
{¶ 9} On appeal, the Court of Appeals for Lorain County affirmed
appellant's conviction and sentence. The court of appeals also affirmed the
forfeiture of appellant's apartment complex.
{¶ 10} The cause is now before this court pursuant to the allowance of a
motion for leave to appeal.
__________________
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Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E.
Rosenbaum, Assistant Prosecuting Attorney, for appellee.
Gold, Rotatori & Schwartz Co., L.P.A., and Niki Z. Schwartz; and Robert A.
Nagy, for appellant.
__________________
DOUGLAS, J.
{¶ 11} Appellant raises various propositions of law for our determination.
Appellant essentially challenges the jury's finding of guilt, the sentence imposed by
the trial court, and the forfeiture of his apartment complex.
I
Finding of Guilt
{¶ 12} As a threshold matter, appellant assails his conviction of complicity
to trafficking in marijuana. R.C. 2923.03(A)(2) provides that "[n]o person, acting
with the kind of culpability required for the commission of an offense, shall * * *
[a]id or abet another in committing the offense * * *." R.C. 2925.03(A)(3) sets
forth that "[n]o person shall knowingly * * * [c]ultivate, manufacture, or otherwise
engage in any part of the production of a controlled substance * * *." R.C.
2925.03(F), however, provides a person, charged for possession of a bulk amount
of a controlled substance or for cultivating marijuana, with an affirmative defense
if the person can demonstrate that the possession or cultivation was solely for his
or her personal use.
{¶ 13} Appellant contends that the evidence demonstrated he was only
aware that Newbauer intended to grow the marijuana for Newbauer's personal use.
Appellant further claims he could not have known that Newbauer intended to sell
the drug because of his (appellant's) ignorance of the drug and, based on his naivety,
would not have known how many marijuana plants would be appropriate for
personal use. Therefore, appellant claims there was no evidence from which a
4
January Term, 1994
reasonable jury could have concluded that he shared Newbauer's intent to traffic in
marijuana.
{¶ 14} The state disagrees with appellant's contentions and raises the issue
that appellant, as an aider and abettor, is not entitled to the personal-use defense set
forth in R.C. 2925.03(F). The state contends that such a defense is "personal" and,
consequently, Newbauer, as the principal offender, would be the only person
entitled to claim this defense.
{¶ 15} It is obvious that appellant did not assert a "personal use" defense
regarding his possible consumption of the drug. Rather, appellant attempted to
demonstrate that he acquiesced in Newbauer's original intent allowing Newbauer
to grow marijuana for Newbauer's personal use. The state's argument, if followed
to its extreme, would allow a defendant who has been charged with aiding and
abetting to be prosecuted for assisting a principal in an act which the principal is
privileged to do. This would be comparable to allowing a defendant to be convicted
for aiding and abetting without proof that a principal offense was committed. We
have held that although the state need not establish the principal's identity, it must,
at the very least, prove that a principal committed the offense. State v. Perryman
(1976), 49 Ohio St.2d 14
,3 O.O.3d 8
,358 N.E.2d 1040
, paragraph four of the
syllabus.
{¶ 16} We believe that appellant was entitled to raise the defense provided
for in R.C. 2925.03(F), particularly where, in a case such as this, a complicitor can
be liable to prosecution and punishment as a principal offender. See R.C.
2923.03(F).1 The state's theory was that appellant aided and abetted Newbauer in
cultivating the marijuana. Thus, it is only reasonable to conclude that a defendant
who has been charged with complicity to trafficking in marijuana may, under
1. R.C. 2923.03(F) provides that "[w]hoever violates this section is guilty of complicity in the
commission of an offense, and shall be prosecuted and punished as if he were a principal offender.
A charge of complicity may be stated in terms of this section, or in terms of the principal offense."
5
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proper circumstances, be entitled to the personal-use defense set forth in R.C.
2925.03(F).
{¶ 17} In the case at bar, the jury was instructed by the trial court that in
order to find appellant guilty of complicity to trafficking in marijuana, it must
determine that appellant knowingly aided or abetted Newbauer in cultivating or
manufacturing marijuana, or that appellant engaged in any part of the production
of the drug. Further, the jury was charged that "* * * if you find that this [d]efendant
had a good faith belief that Benjamin Newbauer was merely growing marijuana at
47 Morgan Street solely for Benjamin Newbauer's personal use, then the [s]tate has
not proven the element of knowingly."
{¶ 18} The jury, having been properly instructed on the law, returned a
verdict of guilty and apparently rejected appellant's defense. Resolution of these
issues was clearly within the province of the jury which heard all the evidence and
observed the demeanor and candor of the witnesses. The court of appeals stated,
and we agree, that "[t]he record in this case shows that the jury could infer from the
sheer volume of marijuana and the number of plants confiscated that appellant must
have known that Newbauer intended to sell the drug." There was sufficient
evidence to support the jury's finding of guilt and, accordingly, we are unwilling to
disturb the jury's determination on these matters.
II
The Sentence
{¶ 19} Appellant also challenges the trial court's imposition of a one-year
prison sentence. Appellant claims that by not pleading guilty to the offense he was
punished for exercising his constitutional right to a jury trial. Appellant's
underlying criticism is that the trial court abused its discretion in giving him a
harsher sentence than that given to Newbauer.
{¶ 20} There is no question that on its face the sentence received by
appellant, when compared to Newbauer's punishment, is disproportionate. Given
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January Term, 1994
the fact that Newbauer received probation, appellant's one-year prison sentence
does appear to be harsh. However, as a general rule, an appellate court will not
review a trial court's exercise of discretion in sentencing when the sentence is
authorized by statute and is within the statutory limits. See, generally, Toledo v.
Reasonover (1965), 5 Ohio St.2d 22, 24
,34 O.O.2d 13, 14
,213 N.E.2d 179
, 180- 181. See, also, State v. Cassidy (1984),21 Ohio App.3d 100, 102
, 21 OBR 107, 108-109,487 N.E.2d 322, 323
; State v. Burge (1992),82 Ohio App.3d 244, 249
,611 N.E.2d 866, 869
; and State v. Grigsby (1992),80 Ohio App.3d 291, 302
,609 N.E.2d 183, 190
.
{¶ 21} In the case sub judice, the trial court followed the sentencing scheme
set forth by the General Assembly and apparently elected the median imprisonment
permitted for a fourth-degree felony. See R.C. 2929.11(D)(2). The sentence was
within the statutory limits and, for this reason, we will not interfere with the trial
court's exercise of discretion. We do respectfully suggest, however, that upon
remand, as provided for infra, the trial court take into consideration our stated
feelings with regard to the sentence given appellant and consider all the options
available to the court in sentencing, including, but not limited to, shock probation.
In making such observation, we are mindful that any suspension of sentence and
terms upon which a suspension is granted are clearly within the discretion of the
trial court.
III
Forfeiture
{¶ 22} As a final matter, appellant contests the forfeiture of his apartment
complex. Appellant argues that forfeiture of his entire property does not fall within
the scope of R.C.2925.42(A)(1)(b) and does not withstand scrutiny under Section
9, Article I of the Ohio Constitution or the Eighth Amendment to the United States
Constitution.
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A
R.C. 2925.42(A)(1)(b)
{¶ 23} R.C. 2925.42 permits forfeiture of certain property in connection
with specific felony drug abuse offenses. The portion of the statute relevant herein
provides that:
"(A)(1) In accordance with division (B) of this section, a person who is
convicted of or pleads guilty to a felony drug abuse offense, * * * loses any right
to the possession of property and forfeits to the state any right, title, and interest he
may have in that property if * * *:
"* * *
"(b) The property was used or intended to be used in any manner to commit,
or to facilitate the commission of, the felony drug abuse offense or act.
"(2) All right, title, and interest of a person in property described in division
(A)(1) of this section vests in the state upon the person's commission of the felony
drug abuse offense of which he is convicted or to which he pleads guilty and that
is the basis of the forfeiture * * *." (Emphasis added.)
{¶ 24} Appellant contends that forfeiture of his entire apartment complex
was beyond the intended scope of R.C. 2925.42(A)(1)(b), in that only a portion of
the complex was actually involved in the illegal drug activity. In support of his
position, appellant argues that R.C. 2925.42(A)(1)(b) is patterned after Section
853(a)(2), Title 21, U.S. Code,2 the federal criminal forfeiture section of the
Comprehensive Drug Abuse Prevention and Control Act. Therefore, argues
appellant, because Section 853(a)(2) contains the language "or part," which
language has been interpreted to allow forfeiture of the entire property, and because
such language is absent from Ohio's criminal forfeiture statute, the General
2. Section 853(a)(2), Title 21, U.S. Code provides in part that "[a]ny person convicted of a violation
of this subchapter * * * punishable by imprisonment for more than one year shall forfeit to the
United States * * * any of the person's property used, or intended to be used, in any manner or part,
to commit, or to facilitate the commission of, such violation * * *." (Emphasis added.)
8
January Term, 1994
Assembly did not intend that an entire parcel be forfeited when only a portion
thereof has been used to commit the offense. Appellant urges that "[t]he omission
of this language therefore evidences a deliberate deletion, rather than inartful
phraseology which simply fails to express the legislature's intent."
{¶ 25} While there are similarities and obvious differences between R.C.
2925.42 and the federal scheme, we need not resort to federal law, or a federal
court's interpretation of a federal statute for that matter, to construe our own
criminal forfeiture statute. At issue here is state law and, absent a clear
pronouncement from Congress preempting the field, it will be given independent
construction. See, generally, Arnold v. Cleveland (1993), 67 Ohio St.3d 35
,616 N.E.2d 163
.
{¶ 26} We begin our analysis of R.C. 2925.42(A)(1)(b) with the well-
settled proposition that a criminal statute is to be strictly construed against the state.
State v. Hooper (1979), 57 Ohio St.2d 87, 89
,11 O.O.3d 250, 251
,386 N.E.2d 1348, 1350
. This is also true with regard to a criminal statute that involves a penalty. R.C. 2901.04(A). Further, the law does not favor forfeiture. State v. Lilliock (1982),70 Ohio St.2d 23, 25-26
,24 O.O.3d 64
, 65-66,434 N.E.2d 723, 725
. See, also, Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992),65 Ohio St.3d 532, 534
,605 N.E.2d 368
, 369 ("The law requires that we favor
individual property rights when interpreting forfeiture statutes."). However, we are
also mindful of the rule that legislative intent is to be drawn from the explicit terms
of the statute. Moreover, in assessing the application of a forfeiture statute, we
must keep in mind the purpose for which the legislation was enacted. State v.
Baumholtz (1990), 50 Ohio St.3d 198, 202
,553 N.E.2d 635, 638
.
{¶ 27} The General Assembly, in enacting R.C. 2925.42(A)(1)(b),
established specific requirements. First, it is "property" which is subject to
forfeiture. "Property," as defined in R.C. 2925.42(A)(1)(b), is all-inclusive,
encompassing both real and personal property. See R.C. 2901.01(J)(1). Second,
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in order for "the property" to be subject to forfeiture, that particular property must
have been "used" or intended to be used in any manner to commit or "facilitate" the
illegal activity. Black's Law Dictionary (6 Ed.1990) 1541, defines "use" as
"* * * to avail oneself of; to utilize; to carry out a purpose or action by means of;
to put into action or service, especially to obtain an end." "Facilitate" is defined as
"[t]o free from difficulty or impediment." Id. at 591. Further, "facilitation" is
defined as "* * * the act of making it easier for another to commit crime * * *." Id.
{¶ 28} By its very terms, the statutory provision at issue incorporates a
proportionality requirement. The state had the initial burden of proving by a
preponderance of the evidence that the apartment complex was used to facilitate
the illegal activity. Notwithstanding, appellant claims that the portion of the
complex where the marijuana was actually grown was the area limited to forfeiture
or, alternatively, a monetary value should have been placed on that area because it
"constitutes the statutory outer limits of permissible forfeiture in this case." Given
the situation here, we disagree.
{¶ 29} The language of R.C.2925.42(A)(1)(b) is clear. The statute
establishes that in certain instances a person who is convicted of a specific felony
drug abuse offense forfeits all right, title and interest he or she may have in property
if that property was an integral part of the specified illegal activity. Most notably,
the statute requires that the property be forfeited—not a monetary assigned value
to that property. Obviously, R.C. 2925.42 was enacted to combat various felony
drug offenses or acts and, as a means to achieve this goal, the General Assembly
intended to allow the state to take possession of those instrumentalities that were
connected with the illicit conduct. R.C.2925.42 was enacted with various purposes
in mind. Not only does forfeiture function as a penalty to those who choose to
commit certain crimes, but it dispossesses a defendant of the means to commit
further offenses. Further, forfeiture may also help the state defray expenses
associated with the investigation and prosecution of those offenses.
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January Term, 1994
{¶ 30} Following the jury's determination that appellant was guilty of
complicity to trafficking in marijuana, the trial court instructed the jury with regard
to the additional issue of forfeiture. After thoroughly reviewing the record, we are
convinced that the jury's response to the special interrogatory, finding that the
apartment complex was used to commit or to facilitate the offense of complicity to
trafficking in marijuana, was proper. The jury was presented with sufficient
evidence and, if believed, supported a finding that the complex provided a means
to foster, shelter and conceal the illegal operation. As such, we will not disturb the
findings of the jury.
B
Constitutionality of the Forfeiture
{¶ 31} Appellant also maintains that the forfeiture of his entire interest in
the apartment complex violated the Excessive Fines Clauses of Section 9, Article I
of the Ohio Constitution and the Eighth Amendment to the United States
Constitution. Appellant's contention is predicated on two recent decisions from the
United States Supreme Court—Austin v. United States (1993), 509 U.S. __
,113 S.Ct. 2801
,125 L.Ed.2d 488
; and Alexander v. United States (1993),509 U.S. __
,113 S.Ct. 2766
,125 L.Ed.2d 441
.
{¶ 32} In Austin, the federal government, pursuant to Sections 881(a)(4)
and (7), Title 21, U.S. Code, sought forfeiture of a defendant's mobile home and
auto body shop following a guilty plea by the defendant in a South Dakota state
court for possessing cocaine with the intent to distribute. The defendant argued that
forfeiture of his properties would violate the Eighth Amendment.
{¶ 33} As a threshold matter, the court determined that the Excessive Fines
Clause is applicable to criminal and civil cases and, further, ascertained that its
purpose is to prevent government from abusing its power to punish. Id.
at __, 113
S.Ct. at 2805, 125 L.Ed.2d at 497. The court, after exploring historical aspects of
forfeiture and the legislative history of the federal provisions at issue, concluded
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that the in rem forfeiture under these provisions serves not simply remedial goals
but also those of punishment and deterrence and, therefore, is subject to the
limitation of the Excessive Fines Clause. Id. at __, 113 S.Ct. at 2812, 125 L.Ed.2d
at 505-506.
{¶ 34} In Alexander, the defendant was convicted in a federal district court
of obscenity offenses and Racketeer Influenced and Corrupt Organizations Act
("RICO") violations. In addition to imposing a six-year prison term and a $100,000
fine, the court ordered the defendant to forfeit his wholesale and retail businesses
and approximately $9,000,000 acquired through racketeering activity. The court
of appeals affirmed. The appellate court did not consider whether the forfeiture
provision resulted in an "excessive" penalty within the meaning of the Eighth
Amendment.
{¶ 35} On appeal, the United States Supreme Court held, inter alia, that
"[t]he in personam criminal forfeiture at issue here is clearly a form of monetary
punishment no different, for Eighth Amendment purposes, from a traditional 'fine.'
Accord Austin, supra.
Accordingly, the forfeiture in this case should be analyzed under the Excessive Fines Clause." (Footnote omitted.)Alexander, supra,
at __,
113 S.Ct. at 2775-2776, 125 L.Ed.2d at 455.
{¶ 36} The tone of the court in Austin and Alexander, and other recent cases
from the United States Supreme Court,3 seems to be one of caution, encouraging
fairness in the enforcement of forfeiture laws. The court, however, has given little
guidance as to what factors constitute an "excessive fine" within the meaning of the
Eighth Amendment. In Austin and Alexander the issue was remanded.
Specifically, the Austin court declined an invitation to establish a multifactor test
3. See, also, United States v. James Daniel Good Real Property (1993), 510 U.S. __
,114 S.Ct. 492
,126 L.Ed.2d 490
; Republic Natl. Bank of Miami v. United States (1992),506 U.S. __
,113 S.Ct. 554
,121 L.Ed.2d 474
; and United States v. Parcel of Land, Buildings, Appurtenances & Improvements (1993),507 U.S. __
,113 S.Ct. 1126
,122 L.Ed.2d 469
.
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January Term, 1994
for determining whether a forfeiture is "excessive," finding that "[p]rudence
dictates that we allow the lower courts to consider that question in the first
instance." Id.
at __, 113 S.Ct. at 2812, 125 L.Ed.2d at 506.
{¶ 37} Some courts have recognized certain factors that may be relevant in
determining whether forfeiture is grossly disproportionate to the seriousness of the
offense, thereby violating the Eighth Amendment. In United States v. Sarbello
(C.A.3, 1993), 985 F.2d 716
, 724, the court stated that a lower court's
proportionality analysis "must necessarily accommodate the facts of the case and
weigh the seriousness of the offense, including the moral gravity of the crime
measured in terms of the magnitude and nature of its harmful reach, against the
severity of the criminal sanction. Other helpful inquires might include an
assessment of the personal benefit reaped by the defendant, the defendant's motive
and culpability, and, of course, the extent that the defendant's interest and the
enterprise itself are tainted by criminal conduct." The court also emphasized that
"[t]he language of the eighth amendment demands that a constitutionally
cognizable disproportionality reach such a level of excessiveness that in justice the
punishment is more criminal than the crime." Id.
{¶ 38} Similarly, in United States v. Busher (C.A.9, 1987), 817 F.2d 1409, 1415
, the court wrestled with the issue of forfeiture of a defendant's business and observed that the Eighth Amendment "* * * embodies fluid concepts that vary in application with the circumstances of each case * * *."Id.
The court commented that the "penalty," when compared with the offense, should include not only the actual forfeiture but also any sentence, fine or probation imposed on the defendant.Id. at 1415, fn. 10
. The court further stated that:
"In considering the harm caused by defendant's conduct, it is certainly
appropriate to take into account its magnitude: the dollar volume of the loss caused,
whether physical harm to persons was inflicted, threatened or risked, or whether
the crime has severe collateral consequences, e.g., drug addiction. * * * In
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addition, the court may consider the benefit reaped by the convicted defendant.
However, the forfeiture is not rendered unconstitutional because it exceeds the
harm to the victims or the benefit to the defendant. After all, RICO's forfeiture
provisions are intended to be punitive. The eighth amendment prohibits only those
forfeitures that, in light of all the relevant circumstances, are grossly
disproportionate to the offense committed." (Emphasis sic.) Id. at 1415
.
{¶ 39} The court in Busher also added the caveat that a court should be
reluctant to order forfeiture of a defendant's entire interest in an enterprise where
the defendant has committed minor violations. "Conversely, if illegal activity
accounts for all or almost all of an enterprise's activity, or an interest in an enterprise
was acquired entirely or almost entirely with ill-gotten funds, it would not normally
violate the eighth amendment to order forfeiture of all of defendant's interest in that
enterprise." Id. at 1415-1416
.
{¶ 40} With the foregoing discussion in mind, we hold that forfeiture of
property, pursuant to R.C. 2925.42, is a form of punishment for a specified offense
and, therefore, is a "fine" for purposes of Section 9, Article I of the Ohio
Constitution and the Eighth Amendment to the United States Constitution.
Accordingly, prior to entering an order of forfeiture, the trial court must make an
independent determination whether forfeiture of that property is an "excessive fine"
prohibited by the Excessive Fine Clauses of the Ohio and United States
Constitutions.
{¶ 41} In this case, the lower courts did not have the benefit of the United
States Supreme Court's decisions in Austin and Alexander, supra,
or assistance of
our discussion on the issue. Hence, the lower courts did not consider whether the
forfeiture of appellant's property, under the circumstances, was "excessive" within
the contemplation of Section 9, Article I and the Eighth Amendment. This being
the case, we reverse and remand in part this cause to allow the trial court to
14
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specifically address this issue (and possibly appellant's sentence) in light of the
principles delineated in this opinion.4
Judgment affirmed in part,
reversed in part
and cause remanded.
MOYER, C.J., F.E. SWEENEY and PFEIFER, JJ., concur.
RESNICK, J., concurs separately.
A.W. SWEENEY and WRIGHT, JJ., concur in part and dissent in part.
__________________
ALICE ROBIE RESNICK, J., concurring.
{¶ 42} I concur in the majority opinion, but write separately to highlight
certain concerns with today's holding.
{¶ 43} Drug abuse and trafficking are at the root of many other crimes in
this state and nation. That is the very reason that forfeiture of property used or
intended to be used to facilitate illegal activity was devised and is employed. While
I concur that forfeiture of property amounts to a penalty, I hope that today's holding
will not emasculate our forfeiture statute. I am afraid that it will result in disparate
and unequal treatment of persons charged with crime. Under the present system
any property used or intended to be used in furtherance of criminal activity is
forfeited. Under such a procedure, all persons are treated equally, all property used
or intended to be used to facilitate a crime is forfeited and, lastly, everyone
engaging in criminal activity is forewarned that if one acts in this illegal manner,
one's property will be seized. Resultantly, forfeiture acts as a deterrent to certain
criminal behavior. Given today's ruling, forfeiture will occur on a case-by-case
4. In doing so, we are mindful of the expected criticism that we have not established specific
guidelines or a "bright line" test to assist trial courts in the task of applying the forfeiture law. There
are two reasons for this apparent omission. First, we believe that the law should be developed in its
normal and appropriate course—by trial courts and courts of appeals. Second, we readily admit that
we are no more clairvoyant than our sisters and brothers in those courts. State v. Hill.
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basis, dependent upon the individual bias, sympathies and philosophy of each
judge.
{¶ 44} Forfeiture of property is good policy. It deters criminal activity and
it assists in paying for costs involved in law enforcement. While I reluctantly
concur in today's majority opinion, I do hope that it does not weaken or erode a
very wise and useful tool of law enforcement.
__________________
A. WILLIAM SWEENEY, J., concurring in part and dissenting in part.
{¶ 45} While I agree with the law enunciated by the majority in the syllabus,
I believe that the nature of the instant forfeiture was so excessive as to constitute a
clear violation of Section 9, Article I of the Ohio Constitution and the Eighth
Amendment to the United States Constitution. Therefore, I respectfully dissent in
part to the majority's disposition of this case.
{¶ 46} The emerging trend established by the United States Supreme Court
in both Alexander v. United States (1993), 509 U.S. __
,113 S.Ct. 2766
,125 L.Ed.2d 441
, and Austin v. United States (1993),509 U.S. __
,113 S.Ct. 2801
,125 L.Ed.2d 488
, is to emphasize the scrutiny that courts must employ when
confronting forfeitures of property authorized by statute as punishment for certain
criminal offenses.
{¶ 47} I appreciate the majority's desire to allow the trial court to
specifically address the excessive-fine issue as an orderly disposition of this case.
However, I believe that the instant forfeiture was so excessive as to constitute a
clear violation of the "excessive fines" clauses of both the state and federal
Constitutions. Accordingly, in the interests of judicial economy, I would reverse
the forfeiture of appellant's apartment complex as a patent constitutional violation
of the "excessive fines" clauses under the facts and circumstances of this case.
WRIGHT, J., concurs in the foregoing opinion.
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January Term, 1994
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