State v. Stults

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[Cite as State v. Stults, 2011-Ohio-4328.] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 13-10-42 v. DAVID C. STULTS, OPINION DEFENDANT-APPELLANT. Appeal from Seneca County Common Pleas Court Trial Court No. 09-CR-0268 Appeal Dismissed Date of Decision: August 29, 2011 APPEARANCES: Scott B. Johnson for Appellant Derek W. DeVine for Appellee Case No. 13-10-42 PRESTON, J. {¶1} Defendant-appellant, David C. Stults (hereinafter Stults ), appeals the Seneca County Court of Common Pleas judgment entry of conviction and sentence and its separately entered forfeiture order. We dismiss the appeal for lack of a final, appealable order. {¶2} On December 2, 2009, the Seneca County Grand Jury indicted Stults on: Count one (1) of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(b), a fourth degree felony; and Count two (2) of permitting drug abuse in violation of R.C. 2925.13(B), a fifth degree felony. (Doc. No. 1). Count one contained a specification that the offense was committed within the vicinity of a juvenile, and Count two contained a criminal forfeiture specification seeking twenty (20) items of personal property. (Id.). {¶3} On December 29, 2009, Stults appeared for arraignment and entered pleas of not guilty to both Counts. (Doc. No. 9). {¶4} On July 2, 2010, Stults filed a motion to suppress evidence seized as a result of a search of his residence. (Doc. No. 30). A brief hearing on the motion was held on July 6, 2010, and the trial court overruled the motion the next day. (Doc. No. 32). {¶5} On August 30, 2010, the State filed a motion to amend Count two of the indictment to reduce the number of items sought in the criminal forfeiture -2- Case No. 13-10-42 specification from twenty (20) to sixteen (16). (Doc. No. 51). The trial court granted the State s motion that same day. (Doc. No. 53). {¶6} On August 30-31 and September 1, 2010, a jury trial was held, and thereafter, the jury found Stults guilty on both Counts of the indictment. (Doc. Nos. 55-56). {¶7} On October 6, 2010, the trial court held a bifurcated hearing on forfeiture and sentencing. (Doc. No. 60). The trial court sentenced Stults to seven (7) months imprisonment on each Count and ordered that the terms be served concurrently for a total of seven (7) months imprisonment. (Doc. No. 61). The trial court also ordered forfeiture of the sixteen (16) items sought by the State. (Doc. No. 60). On October 8, 2010, the trial court filed its entry of conviction and sentence and separately filed its forfeiture order. (Doc. Nos. 60-61). {¶8} On October 29, 2010, Stults filed a notice of appeal. (Doc. No. 63). Stults now appeals raising two assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN DENYING DEFENDANT S MOTION TO SUPPRESS. THE ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN ITS FINDING THAT CERTAIN ARTICLES SEIZED WERE USED OR INTENDED TO BE USED IN THE COMMISSION OF THE OFFENSE -3- Case No. 13-10-42 AND THEREBY ERRED IN ORDERING SAID ARTICLES BE FORFEITED. {¶9} In his first assignment of error, Stults argues that Detective Boyer s affidavit in support of the search warrant did not meet the statutory pre-conditions for non-consensual, forcible entry under R.C. 2933.231(B)(1) and (2). Therefore, Stults argues that the trial court should have suppressed the evidence seized as a result of the erroneously-granted no-knock search warrant. {¶10} In his second assignment of error, Stults argues that the trial court erred in determining that the following seized items were used or intended to be used in the commission of the drug trafficking offense: (1) $356 in U.S currency, less $275 that was attributable to drug buy money; (2) Samsung cell phone; (3) $890 in U.S. currency; (5) Hi Point Model C-9 SCR, 9mm handgun; (7) black monitor; (8) night vision wireless camera; (11) wireless motion cameras; (12) Blackberry cell phone; (13) Westernfield bolt action 20 gauge;1 (14) Remington .22 caliber rifle; and (15) .22 caliber magazine. {¶11} Before we can reach the merits of Stults assignments of error, though, we must determine whether the entry Stults appealed from is a final, appealable order. The Ohio Court of Appeals has appellate jurisdiction over final 1 Stults refers to this firearm as a Bolt action rifle Westernfield since the firearm is referred to as such in the specification of the indictment. (Doc. No. 1); (Appellant s Brief at 10). The record, however, indicates that the firearm was a Westernfield bolt action .20 gauge, which is not a rifle, but a shotgun. (Aug. 30-31, 2010 Tr. at 505). -4- Case No. 13-10-42 appealable orders. Section 3(B)(2), Article IV of the Ohio Constitution. If a judgment appealed is not a final order, an appellate court has no jurisdiction to consider it and the appeal must be dismissed. State v. O Black, 3d Dist. No. 1-0946, 2010-Ohio-192, ¶4, citing State v. Sandlin, 4th Dist. No. 05CA23, 2006-Ohio5021, ¶9, citing Davison v. Rini (1996), 115 Ohio App.3d 688, 692, 686 N.E.2d 278; Prod. Credit Assn. v. Hedges (1993), 87 Ohio App.3d 207, 210, 621 N.E.2d 1360, Fn. 2; Kouns v. Pemberton (1992), 84 Ohio App.3d 499, 501, 617 N.E.2d 701. Moreover, we must raise jurisdictional issues sua sponte. In re Murray (1990), 52 Ohio St.3d 155, 159-60, 556 N.E.2d 1169, Fn. 2; Whitaker-Merrell Co. v. Geupel Const. Co. (1972), 29 Ohio St.2d 184, 186, 280 N.E.2d 922. {¶12} The Ohio Supreme Court in State v. Baker was presented with two questions: (1) whether a judgment of conviction must include the defendant s plea entered at arraignment to be a final, appealable order under R.C. 2505.02; and (2) whether the plea, the verdict or findings, and the sentence required by Crim.R. 32(C) must be contained in one document to be a final, appealable order under R.C. 2505.02. 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶¶1, 5. At the time Baker was decided, Crim.R. 32(C) provided, in pertinent part: [a] judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. * * * The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk. Id. -5- Case No. 13-10-42 at ¶10.2 The Court of Appeals for the Ninth District had previously determined that, to be a final, appealable order under R.C. 2505.02, Crim.R. 32(C) s plain language required that the judgment entry of conviction contain five elements: (1) the plea; (2) the verdict or findings; (3) the sentence; (4) the signature of the judge; and (5) the time stamp of the clerk to indicate journalization. Id. at ¶13, citing State v. Miller, 9th Dist. No. 06CA0046-M, 2007-Ohio-1353, ¶5. In order to satisfy the first element, the Ninth District held, [t]he trial court s judgment entry must comply fully with Crim.R. 32(C) by setting forth the defendant s plea of not guilty, guilty, no contest, or not guilty by reason of insanity. Miller, 2007-Ohio1353, at ¶10. The Court in Baker acknowledged that the Ninth District s approach may be supported grammatically because in the phrase the plea, the verdict or findings the missing comma after the word verdict confuses whether the plea, the verdict or findings is intended to be a series. 2008-Ohio-3330, at ¶13. Nevertheless, the Court concluded that the more logical interpretation of the phrase the plea, the verdict or findings, and the sentence in Crim.R. 32(C) was 2 Following Baker, Crim.R. 32(C) was amended to provide, in pertinent part: [a] judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence. Multiple judgments of conviction may be addressed in one judgment entry. * * * The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk. (Eff. 7-1-09, amendments emphasized). State ex rel. DeWine v. Burge, 128 Ohio St.3d 1230, 2011-Ohio-1755, 948 N.E.2d 954, ¶17 (O Donnell, J., Dissenting); State v. Jackson, 188 Ohio App.3d 803, 2010-Ohio-1846, 937 N.E.2d 120, ¶4, Fn.2. The Ohio Supreme Court continues to follow Baker after the amendment. State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943 N.E.2d 535, ¶¶8, 13 (per curiam). -6- Case No. 13-10-42 that the trial court was required to sign and journalize a document memorializing the sentence and the manner of the conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial. 2008-Ohio-3330, at ¶¶1, 14. Consequently, the Court in Baker concluded that a judgment of conviction is a final, appealable order under R.C. 2505.02 when it sets forth the following four elements: (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court. 2008-Ohio-3330, at ¶18, syllabus. {¶13} Concerning the second question, the Court of Appeals for the Twelfth District concluded that two separate journal entries could be read together to meet Crim.R. 32(C) s requirements. State v. Postway, 12th Dist. No. CA200206-154, 2003-Ohio-2689, ¶7. Although the judgment entry of conviction in Postway stated that the defendant had been found guilty of robbery, it did not state that the defendant had pled guilty to that charge. Id. Instead, a separate journalized entry stated that the defendant pled guilty, and that the trial court accepted defendant s plea. Id. The Court in Baker rejected Postway s approach, because allowing multiple documents to constitute a final appealable order, is * * * an erroneous interpretation of [Crim.R. 32(C)]. Only one document can constitute a final appealable order. 2008-Ohio-3330, at ¶17. This holding became -7- Case No. 13-10-42 known as Baker s one document rule, which requires that Crim.R. 32(C) s four elements be recorded in one document to constitute a final, appealable order under R.C. 2505.02. {¶14} A little over two years after Baker, the Ohio Supreme Court made an exception to Baker s one document rule when it determined that, for aggravatedmurder cases subject to R.C. 2929.03(F), the final, appealable order consists of the combination of the judgment entry and the sentencing opinion. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶17. The Court in Ketterer distinguished Baker as follows: Because R.C. 2929.03(F) requires the court to file a sentencing opinion, Baker does not control this case, because Baker addressed only noncapital criminal cases, in which a judgment of conviction alone constitutes a final, appealable order. R.C. 2929.03(F) requires that a separate sentencing opinion be filed in addition to the judgment of conviction, and the statute specifies that the court s judgment is not final until the sentencing opinion has been filed. Capital cases, in which an R.C. 2929.03(F) sentencing opinion is necessary, are clear exceptions to Baker s one document rule. Id. (Emphasis added). {¶15} The entry from which Stults appeals sets forth the means of conviction, is signed by the trial court judge, and was entered upon the journal by the clerk. (Oct. 8, 2010 Entry, Doc. No. 61). The entry sets forth the terms of imprisonment ordered pursuant to R.C. 2929.14, restitution ordered pursuant to -8- Case No. 13-10-42 R.C. 2929.18, the order to pay court costs pursuant to R.C. 2947.23, and the order to pay appointed counsel fees pursuant to R.C. 2941.51; however, the entry does not set forth the forfeiture order pursuant to R.C. 2981.04. (Oct. 8, 2010 Entry, Doc. No. 61). Instead, the trial court s forfeiture order is contained in a separate entry, entitled Judgment Entry Forfeiture, which was filed on the same day as the above-described entry. (Oct. 8, 2010 Entry, Doc. No. 60). As such, the issue we must address is whether the entry Stults appealed from sets forth the sentence in conformity with Crim.R. 32(C) and Baker s one document rule. 2008-Ohio-3330, at ¶17. More specifically, the issue is whether a criminal forfeiture order made pursuant to R.C. 2981.04 is part of the sentence for purposes of Crim.R. 32(C) and Baker s one document rule. We answer this inquiry in the affirmative. {¶16} As an initial matter, we acknowledge that the Court of Appeals for the Eighth District has already determined that a criminal forfeiture order must be made part of the judgment entry of sentence to be a final, appealable order under State v. Baker, supra. State v. Harris, 190 Ohio App.3d 417, 2010-Ohio-5374, 942 N.E.2d 407, ¶7. The State of Ohio appealed the Eighth District s decision, and the Ohio Supreme Court has accepted review of the following proposition of law: [b]ecause forfeiture of items contemplates actions and issues that extend beyond the criminal case and sentence, Crim.R. 32(C) does not require the forfeiture of -9- Case No. 13-10-42 items be listed in the sentencing entry. State v. Harris, 128 Ohio St.3d 1425, 2011-Ohio-1049, 943 N.E.2d 572. Although we agree with the Eighth District s conclusion, their conclusion was reached without much analysis of the issue. Therefore, we set forth our reasons for joining the Eighth District s application of Baker s one document rule for cases involving criminal forfeitures ordered pursuant to R.C. 2981.04. {¶17} Crim.R. 32(C) does not set forth a definition of the term sentence, nor has the Ohio Supreme Court defined the term sentence as it is used in Crim.R. 32(C). However, R.C. 2929.01 provides the following: (DD) Sanction means any penalty imposed upon an offender who is convicted of or pleads guilty to an offense, as punishment for the offense. Sanction includes any sanction imposed pursuant to any provision of sections 2929.14 to 2929.18 or 2929.24 to 2929.28 of the Revised Code. (EE) Sentence means the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense. (Emphasis added). The criminal forfeiture statute, R.C. 2981.04, provides, in relevant part: (A)(1) Property described in division (A) of section 2981.02 of the Revised Code may be forfeited under this section only if the * * * indictment * * * contains a specification of the type described in section 2941.1417 of the Revised Code[.] *** -10- Case No. 13-10-42 (B) If a person * * * is convicted of an offense * * * and the * * * indictment * * * 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 or political subdivision proves by a preponderance of the 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. If the trier of fact is a jury, on the offender s * * * motion, the court shall make the determination of whether the property shall be forfeited. (C) If the court enters a verdict of forfeiture under this section, the court imposing sentence or disposition, in addition to any other sentence authorized by Chapter 2929 of the Revised Code or any disposition authorized by Chapter 2152 of the Revised Code, shall order that the offender * * * forfeit to the state or political subdivision the offender s * * * interest in the property. The property vests with the state or political subdivision subject to the claims of third parties. The court may issue any additional order to affect the forfeiture, including, but not limited to, an order under section 2981.06 of the Revised Code. (Emphasis added). {¶18} Consequently, whether a criminal forfeiture order pursuant to R.C. 2981.04 is a sentence as defined by R.C. 2929.01(EE) depends upon whether a criminal forfeiture order is a sanction under R.C. 2929.01(DD). While R.C. 2929.01(DD) s second clause does not specifically list criminal forfeiture orders under R.C. 2981.04 as a sanction, the list of possible sanctions includes other monetary penalties, such as fines and restitution. Furthermore, by using the term -11- Case No. 13-10-42 includes in R.C. 2929.01(DD) s second clause, the legislature did not intend to provide an exhaustive list of sanctions, only common examples. Any interpretation of R.C. 2929.01(DD) that would limit the term sanction to only those enumerated within the subsection s second clause, would render R.C. 2929.01(DD) s first clause superfluous. A basic rule of statutory construction requires that words in statutes should not be construed to be redundant, nor should any words be ignored. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶26, quoting E. Ohio Gas Co. v. Pub. Util. Comm. (1988), 39 Ohio St.3d 295, 299, 530 N.E.2d 875. Statutory language must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative. Id., quoting State ex rel. Myers v. Bd. of Ed. of Rural School Dist. of Spencer Twp., Lucas Cty., (1917), 95 Ohio St. 367, 372-73, 116 N.E. 516. {¶19} R.C. 2929.01(DD) s first clause states that [s]anction means any penalty imposed upon an offender who is convicted of or pleads guilty to an offense, as punishment for the offense. The Ohio Supreme Court has previously held the 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 -12- Case No. 13-10-42 of the Ohio Constitution and the Eighth Amendment to the United States Constitution. State v. Hill (1994), 70 Ohio St.3d 25, 34, 635 N.E.2d 1248 (emphasis added). Former R.C. 2925.42(A)(1)(b) permitted forfeiture if [t]he 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. Similarly, R.C. 2981.02(A)(3)(a) permits forfeiture of [a]n instrumentality that is used in or intended to be used in the commission or facilitation of * * * [a] felony. Although R.C. 2981.02 expands forfeiture to all felonies, not just felony drug offenses like former R.C. 2925.42, the language and effect of R.C. 2981.02 is similar to R.C. 2925.42, at issue in State v. Hill, supra. Accordingly, we conclude that a criminal forfeiture order under R.C. 2981.04 is a form of punishment or penalty imposed for specified offenses. {¶20} Therefore, since a criminal forfeiture order under R.C. 2981.04 is a form of punishment or penalty imposed for specified offenses, a criminal forfeiture order is a sanction under R.C. 2929.01(DD). As a sanction under R.C. 2929.01(DD), a criminal forfeiture order is also a sentence under R.C. 2929.01(EE). As such, we conclude that a criminal forfeiture order made pursuant to R.C. 2981.04 is part of the sentence for purposes of Crim.R. 32(C); and therefore, the criminal forfeiture order must be incorporated into the judgment entry of sentence to constitute a final, appealable order under State v. Baker, 2008-13- Case No. 13-10-42 Ohio-3330. A separately entered forfeiture order does not comply with Baker s one document rule. {¶21} Furthermore, we conclude that a criminal forfeiture order made pursuant to R.C. 2981.04 is not an exception to Baker s one document rule, like the sentencing opinions for aggravated-murder cases subject to R.C. 2929.03(F). Ketterer, 2010-Ohio-3831, at ¶17. Unlike R.C. 2929.03(F), R.C. 2981.04 does not explicitly require a separate entry or indicate that the trial court s sentence is not final until forfeiture is ordered. To the contrary, R.C. 2981.04(C), provides that the court imposing sentence * * *, in addition to any other sentence authorized by Chapter 2929[] of the Revised Code * * *, shall order that the offender * * * forfeit to the state or political subdivision the offender s * * * interest in the property. (Emphasis added). This language indicates that the court imposing sentence should make the criminal forfeiture order part of the offender s sentence for the specified offense(s) at the time of sentencing. {¶22} Requiring criminal forfeiture orders to be incorporated into the judgment entry of sentence is a matter of good public policy. Just as an indictment initiates the criminal proceedings against the accused and provides the accused with notice of all the charges in one document, the judgment entry of sentence should finalize the criminal proceedings with notice of all of the corresponding penalties and responsibilities imposed upon the convicted offender in one -14- Case No. 13-10-42 document. Notice was an implicit public policy undergirding Baker s one document rule and firmly rooted in the right to due process of law. Additionally, criminal forfeitures are by specification within the indictment. The punishment for other criminal specifications (e.g., firearm specifications, prior offense specifications, drug specifications, etc.) within an indictment and upon which the trier of fact makes an affirmative finding is resolved at sentencing and incorporated into the judgment entry of sentence. Why should criminal forfeiture specifications within an indictment be treated differently? {¶23} For all these reasons, we hold that a criminal forfeiture order made pursuant to R.C. 2981.04 is part of the sentence for purposes of Crim.R. 32(C); and therefore, the criminal forfeiture order must be incorporated into the judgment entry of sentence for the judgment entry of sentence to constitute a final, appealable order under State v. Baker, 2008-Ohio-3330. {¶24} The criminal forfeiture order sub judice was a separate document and not incorporated into the sentencing entry. (Doc. Nos. 60-61). As such, the entry Stults is appealing is not a final, appealable order under Baker, supra. {¶25} Having found that the entry Stults appealed from is not a final, appealable order, we sua sponte dismiss the appeal for lack of jurisdiction. Appeal Dismissed ROGERS, P.J. and WILLAMOWSKI, J., concur. -15-

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