State v. Casalicchio

569 N.E.2d 916, 58 Ohio St. 3d 178, 1991 Ohio LEXIS 905

• Court: Ohio Supreme Court
• Decided: April 3, 1991
• Docket: No. 89-1865
• Status: Published

Opinions

Wright, J.

The state asserts that Casalicchio’s automobile falls within Ohio’s contraband forfeiture statutes and the trial court’s action was proper in all respects. Casalicchio raises several constitutional challenges to the forfeiture statutes on cross-appeal, challenging them on their face and as applied in this case. The state’s and Casalicchio’s assertions require a significant review of R.C. 2933.42 and R. C. 2933.43, Ohio’s contraband forfeiture statutes.

I

Initially, Casalicchio challenges on due process grounds the scope of the forfeiture statutes. Specifically, he questions whether his automobile is constitutionally subject to forfeiture when it bears no substantial relationship to the underlying crimes for which he was convicted. Casalicchio also argues that even if constitutional strictures do not prevent a forfeiture statute from reaching his automobile under these facts, nevertheless, R.C. 2933.42 and 2933.43 are void for vagueness under the Fourteenth Amendment. Casalicchio argues that he was not put on notice by R.C. 2933.42 and 2933.43 that his vehicle was subject to forfeiture. At the outset, we address Casalicchio’s attack on the clarity of these statutes.

The 1986 amendments to the Revised Code contained in Am. Sub. S. B. No. 69, 141 Ohio Laws, Part I, 173, restructured Ohio’s laws governing forfeitures. See Legislative Service Commission Analysis, Sub. S.B. No. 69 (1985). This legislation greatly expanded the definition of “contraband” and detailed the procedure for the seizure, forfeiture, and disposition of contraband. See R.C. 2901.01(M)(8), 2933.42, and 2933.43. Casalicchio contends that R.C. 2933.42 and 2933.43 should be limited to contraband that is either illegal to possess or is legal to possess but is subject to forfeiture because it was employed in the commission of a crime. This interpretation ignores the plain meaning of R.C. 2933.42.

R.C. 2901.01(M) defines “contraband,” in part, as “[a]ny personal property that has been, is being, or is intended to be used in an attempt or conspiracy to commit, or in the commission of, any offense or in the transportation of the fruits of any offense[.]” R.C. 2901.01(M)(8). Casalicchio’s automobile falls within this definition of “contraband.” However, R.C. 2933.42 expands this definition of “contraband” so as to leave no question that Casalicchio’s automobile is contraband. R.C. 2933.42 reads:

“(A) No person shall possess, conceal, transport, receive, purchase, sell, lease, rent, or otherwise transfer any contraband.

“(B) For purposes of section 2933.43 of the Revised Code, if a watercraft, motor vehicle, aircraft, or other personal property that is not within the scope of the definition of contraband in section 2901.01 of the Revised Code is used in a violation of division (A) of this section, the watercraft, motor vehicle, aircraft, or personal property is contraband and, if the underlying offense involved in the violation of division (A) of this section is a felony, is subject to seizure and forfeiture pursuant to section 2933.43 of the Revised Code. It is rebuttably presumed that a watercraft, motor vehicle, aircraft, or other personal property in or on which contraband is found at the time of seizure has been, is being, or is intended to be used in a violation of division (A) of this section.”

Casalicchio possessed and transported cocaine and a cocaine inhaler in his automobile. The cocaine is contraband as a controlled substance pursuant to R.C. 2901.01(M)(5), which states that controlled substances are contraband.¹ Further, pursuant to R.C. 2925.11, possession of cocaine is a felony. In addition, the cocaine inhaler is contraband pursuant to R.C. 2901.01(M)(8) and its possession is also a felony pursuánt to R.C. 2923.24. Because the cocaine and the cocaine inhaler constitute contraband involving felonies, and because they were possessed and transported in a motor vehicle, the motor vehicle is contraband pursuant to R.C. 2933.42. Accordingly, Casalicchio’s automobile was subject to forfeiture pursuant to R.C. 2933.43(C), which states: “* * * property shall be forfeited upon a showing by a preponderance of the evidence by the petitioner that the person from which the property was seized was in violation of division (A) of section 2933.42 of the Revised Code. * * *” Manifestly, the forfeiture provisions apply to Casalicchio’s automobile and neither R.C. 2933.42 nor 2933.43 is void for vagueness.

Casalicchio also challenges these provisions for exceeding the bounds of due process because of the breadth of their scope. Particularly, Casalicchio asserts that because Ms automobile bears no substantial relationship to the underlying criminal offenses for wMch he was convicted, due process bars forfeiture of Ms automobile. This argument fails.

The United States and Ohio alike have long used forfeiture as a weapon against criminal behavior and public nMsances. See Ohio Dept. of Natural Resources v. Prescott (1989), 42 Ohio St. 3d 65, 67-68, 537 N.E. 2d 204, 206-207; Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663, 680-685; United States v. Seifuddin (C.A. 9, 1987), 820 F. 2d 1074, 1076-1077. An item may be forfeited because the item itself is unlawful to possess, or an item may be forfeited because of its connection to unlawful activity. The extent of the connection need not be great. Casalicchio’s automobile was connected to an illegal activity in that it was used to possess and transport property that was felonious to possess.

A similar federal statute provides for similar forfeitures. In United States v. One 1982 28' Internatl. Vessel (C.A. 11, 1984), 741 F. 2d 1319, the court was confronted with a challenge to a forfeiture under Sections 781 and 782, Title 49, U.S. Code. Section 781 makes it unlawful to transport contraband wMle Section 782 provides for the forfeiture of any “vessel, vehicle, or aircraft” used in violation of Section 781.² Intematl. Vessel held that because marijuana is contraband, the discovery of trace amounts of marijuana upon an oceangoing vessel warranted forfeiture of the vessel. Specifically, the court held that there need be no particular criminal purpose to the transportation of the contraband and stated, “* * * the statute is silent as to the purpose for such transportation, and so no particular purpose need be shown.” Id. at 1322. Accord United States v. Premises Known as 3639-2nd St., N.E. (C.A.8, 1989), 869 F. 2d 1093; United States v. One 1976 Porsche 911S (C.A.9, 1979), 670 F. 2d 810. See, also, Calero-Toledo, swpra, upholding a Puerto Rican forfeiture statute upon similar facts but subject to a different challenge. These cases required only that a vehicle, vessel, or house contain contraband in order to warrant forfeiture. Such are the undisputed facts in the case at bar. We hold that R.C. 2933.42 and 2933.43 are constitutional in their clarity and scope, and Casalicchio’s automobile falls within.their purview.

II

We next address three of Casalicchio’s assertions that challenge the civil nature of the forfeiture proceedings. Specifically, Casalicchio urges that any forfeiture proceeding against his automobile is criminal and as such the state must prove the facts establishing forfeiture beyond a reasonable doubt. Accordingly, Casalicchio asserts that the evidentiary presumption in R.C. 2933.42(B) fails to satisfy the constitutional requirement of proof beyond a reasonable doubt in a criminal proceeding. Lastly, Casalicchio challenges the acceptance of his plea of no contest because he was unaware of the additional penalty of forfeiture at the time his plea was entered. Seemingly, each of these three challenges attacks the civil nature of the forfeiture proceedings. However, in reality, only the challenge to the acceptance of Casalicchio’s plea properly calls into question whether the forfeiture of Casalicchio’s automobile is a civil or a criminal penalty.

Casalicchio’s attack on the standard of proof found in R.C. 2933.43 fails because, even if this forfeiture is a criminal penalty, proof by a preponderance of the evidence is appropriate at the sentencing stage of a criminal proceeding. McMillan v. Pennsylvania (1986), 477 U.S. 79, 84; United States v. Sandini (C.A.3,1987), 816 F. 2d 869, 875-876. Further, a presumption in favor of forfeiture is constitutional under the preponderance-of-the-evidence standard, provided that the fact presumed rationally relates to the facts necessary to establish the presumption. Id. at 876.³ The evidentiary presumption in R.C. 2933.42(B) rationally relates to the facts necessary to establish the presumption and as such is constitutional, because finding contraband in a vehicle reasonably leads to the conclusion that the vehicle was used in violation of R.C. 2933.42(A).

Casalicchio’s challenge to the voluntariness of his plea questions whether the forfeiture of his automobile is a civil or criminal penalty. Ohio has generally considered forfeiture proceedings to be civil actions. Prescott, supra, at 68, 537 N.E. 2d at 207; Sensenbrenner v. Crosby (1974), 37 Ohio St. 2d 43, 45, 66 O.O. 2d 106, 107, 306 N.E. 2d 413, 415; but, see, State v. Lilliock (1982), 70 Ohio St. 2d 23, 25, 24 O.O. 3d 64, 65, 434 N.E. 2d 723, 724, reversing a forfeiture under former R.C. 2933.41, stating “* * * that a proceeding under [former] R.C. 2933.41 is criminal in nature, but civil in form * * *.” Federal courts have also treated most forfeitures as civil penalties. See, e.g., United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354; One Lot Emerald Cut Stones & One Ring v. United States (1972), 409 U.S. 232; Helvering v. Mitchell (1938), 303 U.S. 391. However, forfeitures are not inherently civil penalties; rather, whether a forfeiture is a civil rather than a criminal penalty is a matter of statutory construction. One Assortment of Firearms, supra, at 362; One Lot of Emerald Cut Stones, supra, at 237; Mitchell, supra, at 399. The United States Supreme Court has provided guidelines in determining whether a statutory penalty is remedial and therefore civil, or punitive and therefore criminal:

“* * * “Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may point in differing directions. * * *” (Footnotes deleted) Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169. See, also, United States v. Ward (1980), 448 U.S. 242, 249, approving of these considerations but declaring them “neither exhaustive nor dispositive.”

Applying the Mendoza-Martinez considerations to the case before us reveals the accuracy of the prediction that a review of these considerations “may point in differing directions,” as this case presents us with a traditionally civil remedy employed in a particularly criminal context. Although this forfeiture attaches to criminal behavior and appears to serve the traditionally criminal purposes of punishment and deterrence, the state may provide both civil and criminal penalties for the same conduct. Prescott, supra, at 68, 537 N.E. 2d at 207; One Assortment of Firearms, supra, at 359. Prescott is the most instructive Ohio case in our analysis as it involved a similar challenge to the forfeiture provisions of R.C. 1531.20. R.C. 1531.20 provides for forfeiture of any device “used in the unlawful taking of wild animals.” In holding that R.C. 1531.20 provided a civil penalty, we found it relevant that the forfeiture provisions did not require a criminal conviction and could . be brought against property even though a third party and not the property owner unlawfully utilized the property. Prescott, supra, at 67, 537 N.E. 2d at 207. Forfeiture of R.C. 2933.42(B) contraband pursuant to R.C. 2933.43, however, requires a conviction for a felony prior to forfeiture and insulates innocent lien holders and property owners from loss. R.C. 2933.43(C). Both of these characteristics strongly suggest that the forfeiture in the context of this case is intended as a penalty for the underlying felony. See Seifuddin, supra, at 1078. Thus, we must hold that where 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.

Because the forfeiture of Casalicchio’s automobile is an additional criminal penalty that the state failed to seek prior to sentencing, the forfeiture violates both the Ohio and the federal Constitutions. The Double Jeopardy Clauses of both Constitutions forbid punishing a defendant twice for the same offense. Section 10, Article I, Ohio Constitution; the Fifth Amendment to the United States Constitution. See State v. Beasley (1984), 14 Ohio St. 3d 74, 14 OBR 511, 471 N.E. 2d 774; United States v. Halper (1989), 490 U.S. 435. Consequently, the Double Jeopardy Clauses bar the state from seeking a new penally to a crime after a defendant has been sentenced for that crime. Beasley, supra; Halper, supra; see, also, United States v. DiFrancesco (1980), 449 U.S. 117. Accordingly, the state was barred from seeking forfeiture in this case.⁴

For the foregoing reasons, the judgment of the court of appeals is affirmed, albeit for different reasons than expressed by that tribunal.

Judgment affirmed.

Sweeney, Holmes and H. Brown, JJ., concur. Moyer, C.J., concurs in judgment only. Douglas, J., concurs separately. Re snick, J., concurs in part and dissents in part.

1 R.C. 3719.01(D) and (FF) state that a controlled substance is any substance listed in the schedules established by R.C. 3719.41. Cocaine is listed in Schedule II(AX4) of R.C. 3719.41.

2 Section 781, Title 49, U.S. Code provides in part:

“(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by any means of any vessel, vehicle, or aircraft * *

Section 782 provides in part:

“Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of said section has taken or is taking place, shall be seized and forfeited * * *.”

3 Sandini reviewed the constitutionality of Section 853(d), Title 21, U.S. Code, which reads:

“There is a rebuttable presumption at trial that any property of a person convicted of a felony under this subchapter or subchapter II of this chapter is subject to forfeiture under this section if the United States establishes by a preponderance of the evidence that—

“(1) such property was acquired by such person during the period of the violation of this subchapter or subchapter II of this chapter or within a reasonable time after such period; and

“(2) there was no likely source for such property other than the violation of this subchapter or subchapter II of this chapter.”

4 Although Casalicchio has never specifically raised the issue of double jeopardy in this case, he has steadfastly maintained the unconstitutionality of the forfeiture of his automobile. In addition, Casalicchio’s claim that his plea of no contest was involuntarily entered because he was not informed of the possibility of the forfeiture of his car puts the criminal nature of the forfeiture directly at issue.

Crim. R. 11(C)(2)(a) requires that the court inform the defendant of the maximum possible penalty to which the defendant is subject prior to accepting defendant’s plea. Federal case law interpreting Fed. R. Crim. P. 11 requires that the defendant be informed of “the definite, immediate and automatic consequences of his plea” and not the “range of civil penalties or judgments he may face * * *.” United States v. Suter (C.A. 7, 1985), 755 F. 2d 523, 525. As such, Casalicchio’s attack on his plea asserts the criminal nature of the forfeiture penalty.

While Casalicchio is correct that there is a problem with his plea, that problem yields to the more profound constitutional violation of double jeopardy.