In re Parker

2012 Ohio 5540

• Court: Ohio Court of Appeals
• Decided: November 30, 2012
• Docket: 25045
• Status: Published

Opinion

[Cite as In re Parker, 2012-Ohio-5540.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

: IN RE FORFEITURE OF PROPERTY OF ERIC D. PARKER, ET AL. : C.A. CASE NO. 25045

: T.C. CASE NO. 2011 CV 6247

: (Appeal from the Common Pleas Court) : .........

OPINION

Rendered on the 30th day of November, 2012.

.........

Mathias H. Heck, Jr., Prosecuting Attorney, by Laura G. Mariani, Assistant Prosecuting Attorney, Atty. Reg. No. 0063204, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

Eric D. Parker, 411 Shoop Avenue, Dayton, Ohio 45417 Pro Se Defendant-Appellant

GRADY, P.J.:

{¶ 1} Eric Devon Parker appeals from a default judgment granted to the State of

Ohio on its complaint seeking a civil forfeiture of property seized from Parker at the time of

his arrest on criminal charges.

{¶ 2} On August 31, 2011, the State filed its complaint for civil forfeiture pursuant to

R.C. 2901.01 and/or 2981.01. [Dkt. 1]. The complaint alleged that a 1995 Cadillac 2

automobile and $580.00 in currency “possessed, concealed or transported by its owner(s), Eric

D. Parker and/or Shawndra L. Montgomery” * * * “is either contraband, proceeds and/or an

instrumentality with a relationship to the underlying criminal case * * * in that it was used, or

intended to be used, in the commission of an offense or offenses, or that it was proceeds from

an offense or offenses, to wit: Possession of Drugs in violation of Ohio Revised Code Section

2925.11 and Trafficking in Drugs in violation of Ohio Revised Code Section 2925.11.”

{¶ 3} The State requested service of the complaint and attached summons by certified

mail on Parker at 411 Shoop Avenue, Dayton, Ohio 45417, pursuant to Civ.R. 4.1(A). The

mailing was returned unclaimed. [Dkt. 7]. The State then requested service on Parker by

ordinary mail at the same address pursuant to Civ.R. 4.6(D). Such service is complete when

the fact of mailing is entered on the record by the clerk. Id. The certified copy of the docket

and journal entries prepared by the clerk pursuant to App.R. 9(A)(1) indicates that service of

the complaint and summons was reissued by ordinary mail on October 28, 2011.

{¶ 4} A defendant must file an answer to a complaint within twenty-eight days after

service of the complaint and summons on him. Civ.R. 12(A)(1). Parker had not filed an

answer or other responsive pleading when, on February 3, 2012, the State moved for a default

judgment pursuant to Civ.R. 55. The trial court granted the State’s motion and entered a

default judgment forfeiting Parker’s interests in the currency and automobile to the State on

February 9, 2012. [Dkt. 16]. A copy of the default judgment was served on Parker by

ordinary mail at 411 Shoop Avenue, Dayton, Ohio 45417. Parker filed a notice of appeal

from the default judgment on February 21, 2012. 3

{¶ 5} App.R. 16(A)(2) requires an appellant to include in his brief “[a] statement of

the assignments of error presented for review.” Parker’s pro se brief fails to comply with that

requirement. However, we glean from the arguments he presents that Parker claims that (1)

he lacked notice of the State’s complaint for forfeiture, and that (2) his property was not

subject to forfeiture because he was not convicted of the underlying criminal offenses for

which he was arrested.

{¶ 6} Attached to Parker’s brief on appeal is a copy of a final judgment entered by

the court of common pleas on March 19, 2012 in Case No. 2011 CR 02873/2, dismissing the

criminal charges in that case that were filed against Eric Devon Parker on the State’s motion

and without prejudice. The same is not reflected in the record of the trial court’s proceedings

in the forfeiture case underlying this appeal. However, the State concedes in its brief on

appeal that the criminal charges against Parker and his co-defendant, Shawndra Montgomery,

on which the State’s forfeiture claim was predicated were dismissed by the court after the

court sustained a motion to suppress evidence.

{¶ 7} In Dayton Police Department v. Thompson, 2d Dist. Montgomery No. 24790,

2012-Ohio-2660, at ¶ 11, we wrote:

* * * Under R.C. 2981.05(D), a trial court “shall issue a civil forfeiture order if

it determines that the prosecutor has proved by a preponderance of the evidence

that the property is subject to forfeiture under section 2981.02 of the Revised

Code * * *.” In turn, R.C. 2981.02 provides that “[p]roceeds derived from or

acquired through the commission of an offense” are subject to civil forfeiture

under R.C. 2981.05. “Proceeds” include “any property derived directly or 4

indirectly from an offense,” including money. R.C. 2981.01(B)(11)(a). An

“offense” is “any act or omission that could be charged as a criminal offense *

* * whether or not a formal criminal prosecution * * * began at the time the

forfeiture is initiated.” R.C. 2981.01(B)(10). Finally, R.C. 2981.03(F)

provides that “[a] civil action to obtain civil forfeiture may be commenced as

described in section 2981.05 of the Revised Code regardless of whether the

offender * * * has pleaded guilty to [or] been convicted of * * * the act that is

the basis of the order.”

{¶ 8} The fact that the criminal charges in Case No. 2011 CR 02873/2 on which

Parker had been arrested were subsequently dismissed did not preclude the prior order of

forfeiture. Thompson; R.C. 2981.03(F). Further, Parker’s failure to file an answer or other

pleading responsive to the State’s complaint permitted the court to grant a default judgment

against Parker on any of the grounds permitted by R.C. 2981.02 that the State alleged in its

complaint. A judgment on those grounds required the court to order the forfeiture the State

requested. R.C. 2981.05(D).

{¶ 9} With respect to Parker’s contention that he lacked notice of the State’s

complaint, successful service is presumed when service is by ordinary mail sent by the clerk

pursuant to Civ.R. 4.6(D). That presumption may be rebutted by evidence showing that

service was not in fact made. This record contains no such evidence.1 Because the default

1 We note that in his pro se brief on appeal, Parker identifies his address as 411 Shoop Avenue, Dayton, Ohio 45417, the same address to which ordinary mail service was sent by the clerk. 5

judgment was therefore proper, Parker’s remedy on his contention lies in a Civ.R. 60(B)

motion to vacate the default judgment on his claimed lack of notice. Such relief is available,

however, only when the three-pronged test in GTE Automatic Electric, Inc. v. ARC Industries,

Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), is satisfied by the party seeking that relief.

{¶ 10} The assignments of error are overruled. The judgment of forfeiture will be

affirmed.

Fain, J., and Hall, J., concur.

Copies mailed to:

Laura G. Mariani, Esq. Mr. Eric D. Parker Hon. Barbara P. Gorman