State v. Freeman

2022 Ohio 2364

Opinion

[Cite as State v. Freeman, 2022-Ohio-2364.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111209 v. :

KAYLA L. FREEMAN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: July 7, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-655875

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Paul E. Hanna, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.

SEAN C. GALLAGHER, A.J.:

Kayla Freeman appeals the trial court’s post-dismissal decision

denying a motion seeking the return of property seized upon Freeman’s arrest for

felonious assault. Freeman shot an assailant in the leg with a lawfully possessed and carried firearm while defending another from an assault. Following the incident,

the Cleveland Police Department seized Freeman’s firearm used in the defense of

another and the state indicted Freeman for two counts of felonious assault

referencing the same alleged victim. The state filed a motion to have the criminal

proceedings dismissed, but the City of Cleveland Police Department has not

returned the property seized for the purposes of prosecuting the now terminated

action.

Following the dismissal, Freeman filed a motion requesting the court

order the City of Cleveland Police Department to return her seized property. The

state did not object to Freeman’s request. See, e.g., State v. Devore, 5th Dist.

Ashland No. 19-COA-017, 2019-Ohio-4035, ¶ 9-10 (finding reversible error in

denying a motion for the return of seized property in light of the state’s concession).

Property “seized pursuant to a search warrant[ ] or otherwise lawfully

seized or forfeited and that is in the custody of a law enforcement agency shall be

kept safely by the agency, pending the time it no longer is needed as evidence or for

another lawful purpose, and shall be disposed of” under R.C. 2981.12 (disposal of

unclaimed or forfeited property) and R.C. 2981.13 (sale of forfeited property). R.C.

2981.11(A). Under that statutory scheme, a law enforcement agency may only

dispose of unclaimed or forfeited property. In pertinent part under R.C. 2981.11(C),

before the property can be deemed unclaimed, the law enforcement agency is

required to “make a reasonable effort to locate persons entitled to possession of the property, to notify them of when and where it may be claimed, and to return the

property to them at the earliest possible time.” (Emphasis added.) Id. Thus, there

is an affirmative duty imposed on the law enforcement agency to ensure that the

seized property is returned to the lawful owner without unnecessary delay

(especially pertinent in this type of situation since the state has no objection to the

property being returned).

The trial court denied Freeman’s motion requesting the return of her

property as moot, claiming a lack of jurisdiction to consider the post-dispositive

motion. Freeman claims the trial court possessed continuing jurisdiction to order

the police department to return the seized property and, therefore, erred by failing

to consider the merits of her motion. The state agrees that the trial court’s

conclusion was in error. Accordingly, the sole question presented for our review is

whether the trial court possesses continuing jurisdiction to resolve issues with the

retention of seized property following a dismissal of the indictment for which the

property was seized.

The parties’ position is not contrary to law: a trial court retains

continuing jurisdiction to consider a motion for return of property following the

conclusion of a case in which the seizure of the property was required. B.A.C. v. A.V.,

8th Dist. Cuyahoga No. 108259, 2019-Ohio-4166, ¶ 3, citing State v. White, 2018-

Ohio-2573, 115 N.E.3d 878, ¶ 22 (2d Dist.), and State v. Bolton, 2017-Ohio-7263, 97

N.E.3d 37 (2d Dist.); see also State v. Holloway, 6th Dist. Wood No. WD-20-021,

2021-Ohio-1843, ¶ 21 (compiling cases); State v. Castagnola, 9th Dist. Summit Nos. 29141 and 29250, 2020-Ohio-1096, ¶ 16, citing State v. Housley, 2d Dist. Miami No.

2018-CA-4, 2018-Ohio-4140, ¶ 9; State v. Harris, 10th Dist. Franklin No.

99AP-684, 2000 Ohio App. LEXIS 818, 2000 WL 249161, *2 (“[C]ourts routinely

address postconviction motions for the return of property previously seized[, and]

[c]ourts have also entertained such motions filed in criminal cases even after the

criminal charges have been dismissed.”).

Because the parties agree as to resolution of the assigned error and

the disposition of the appeal, we need not further dwell on this discussion.

App.R. 16. The trial court possessed jurisdiction to consider Freeman’s motion to

order the return of the seized property and, therefore, erred by denying the motion

as moot based on the perceived lack of jurisdiction. B.A.C. at ¶ 3, citing White and

Bolton.

In light of the foregoing, the decision of the trial court is reversed and

this matter remanded for full consideration of Freeman’s motion.

Reversed and remanded.

It is ordered that appellant recover of appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and EMANUELLA D. GROVES, J., CONCUR