State v. McCall

2022 Ohio 843

Opinion

[Cite as State v. McCall, 2022-Ohio-843.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2021CA0030 : EUGENE B. MCCALL : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case Nos. 16CR0062 & 16CR0097

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 16, 2022

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JASON W. GIVEN EUGENE B. MCCALL, PRO SE COSHOCTON COUNTY PROSECUTOR Noble Correctional Institution 318 Chestnut Street 15708 McConnelsville Road Coshocton, OH 43812 Caldwell, OH 43724 Coshocton County, Case No. 2021CA0030 2

Delaney, J.

{¶1} Defendant-Appellant Eugene B. McCall appeals the December 14, 2021

judgment entry of the Coshocton County Court of Common Pleas. Plaintiff-Appellee is

the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} In State v. McCall, 5th Dist. Coshocton No. 2017CA0002, 2017-Ohio-7860,

we outlined the following facts from Appellee's bill of particulars filed December 19, 2016.

This case arose when law enforcement made a series of controlled buys of narcotics

from Appellant.

{¶3} On July 11, 2016, a confidential informant (C.I.) bought $60 worth of crack

cocaine from Appellant while two juvenile males were present.

{¶4} On July 14, 2016, a C.I. purchased $60 worth of crack cocaine from

Appellant in a deli parking lot. Appellant drove to and from the transaction in a red

Corvette.

{¶5} Later that day, a search warrant was executed at Appellant's residence.

During the search, “evidence of drug use and suspected drug trafficking” was found

throughout the residence, including crack pipes, unmarked pills, crack cocaine, syringes,

and suspected heroin. Law enforcement also found a Ruger .45 firearm, two loaded clips,

and two boxes of ammunition. Appellant was under disability due to multiple prior

convictions of offenses involving the illegal possession, use, sale, administration,

distribution, or trafficking of any drug of abuse.

{¶6} In Case Number 16 CR 0062, Appellant was charged by indictment with

one count of having weapons while under disability, a felony of the third degree pursuant Coshocton County, Case No. 2021CA0030 3

to R.C. 2923.13(A)(3) [Count I, date of offense July 14, 2016]; one count of trafficking in

cocaine, a felony of the second degree pursuant to R.C. 2925.03(A)(2) and (C)(4)(d)

[Count II, date of offense July 14, 2016]; one count of trafficking in cocaine, a felony of

the fourth degree pursuant to R.C. 2925.03(A)(1) and (C)(4)(b) [Count III, date of offense

July 11, 2016]; and one count of trafficking in cocaine, a felony of the fourth degree

pursuant to R.C. 2925.03(A)(1) and (C)(4)(b) [Count IV, date of offense July 14, 2016].

{¶7} Count II was accompanied by two forfeiture specifications, one related to

$1,728 in cash and the other related to a 1994 Chevrolet Corvette.

{¶8} On September 19, 2016, Appellee filed a motion to forfeit Appellant's bond

because on September 17, 2016, Appellant was discovered to be driving without an

operator's license and in possession of 15 grams of cocaine. Appellee later withdrew the

motion, and it was overruled by the trial court.

{¶9} In Case Number 16 CR 0097, Appellant was charged by indictment with

one count of possession of cocaine, a felony of the fifth degree pursuant to R.C.

2925.11(A) and (C)(4) [date of offense March 5, 2016]. The single-count indictment also

included a forfeiture specification relating to $4,510 in cash.

{¶10} On November 18, 2016, an amended indictment was filed in Case Number

16 CR 0062 which added three counts to those listed supra: one count of drug

possession [heroin], a felony of the fifth degree pursuant to R.C. 2925.11(A) and

(C)(6)(a) [Count V, date of offense July 14, 2016]; one count of drug possession

[hydrocodone], a felony of the fifth degree pursuant to R.C. 2925.11(A) and (C)(2)(a)

[Count VI, date of offense July 14, 2016]; and one count of possession of drugs Coshocton County, Case No. 2021CA0030 4

[buprenorphine], a felony of the fifth degree pursuant to R.C. 2925.11(A) and (C)(2)(a)

[Count VII, date of offense July 14, 2016].

{¶11} On December 9, 2016, Appellee moved to join both cases pursuant to

Crim. R. 8 and 13. The trial court granted the motion, and the cases were consolidated.

{¶12} On January 24, 2017, based on a plea negotiation with Appellee, Appellant

changed his pleas of not guilty to no contest to Counts I through VII, including the

forfeiture specifications as to the $1,728 in cash and a 1994 Chevrolet Corvette, in Case

No. 16 CR 0062, although Count II was amended to a felony of the fourth degree.

Appellant also entered a negotiated plea of no contest to the sole count in the indictment

in Case No. 16 CR 0097, which included a forfeiture specification of $4,510 in cash. The

signed plea agreement forms were filed on January 24, 2017.

{¶13} In exchange for Appellant's pleas of no contest, Appellee agreed to

recommend a prison term of six years (concurrent with a term of 11 months in 16 CR

0097); not to oppose a pre-sentence investigation; not to pursue charges from the traffic

stop on September 17, 2016; and to return the $2,148 seized during that stop.

{¶14} During the plea colloquy, the trial court reviewed the nature of the charges

and the penalties, including the forfeiture specifications. When the trial court asked if he

had any questions, Appellant answered that he did not, and responded he wanted to

voluntarily enter a plea of no contest to the charges.

{¶15} The trial court sentenced Appellant to an aggregate prison term of six years

and advised Appellant of the optional term of post-release control and penalties for any

violation. Relevant to this appeal, the trial court also ordered forfeiture specified in the

indictments as follows: Coshocton County, Case No. 2021CA0030 5

The Court granted Specification One in Count Two of the indictment. The

Court finds that the One Thousand Seven Hundred Twenty Eight Dollars

and No Cents ($1,728.00) is contraband, and said contraband is hereby

forfeited to the Coshocton County Sheriff’s Office.

The Court also granted Specification Two in Count Two of the indictment.

The Court finds that the 1994 Chevrolet Corvette * * *2615, is contraband,

and said contraband is hereby forfeited to the Coshocton County Board of

Commissioners.

The Court granted the forfeiture specification in Count One of the

indictment. The Court finds that the Four Thousand Five Hundred Ten

Dollars and No Cents ($4,510.00) in U.S. Currency is contraband, and said

contraband is hereby forfeited to the Coshocton County Sheriff’s office.

(Case No. 16 CR 0062, Judgment Entry Plea of No Contest & Sentencing, Jan. 30, 2017,

and Case No. 16 CR 0097, Judgment Entry Plea of No Contest & Sentencing Nunc Pro

Tunc, Jan. 30, 2017). During the sentencing hearing, Appellant did not object to the trial

court’s procedures or determinations as to the forfeiture specifications.

{¶16} Appellant appealed his sentence, and we overruled his assignments of

error and affirmed the trial court’s sentencing entry. State v. McCall, 5th Dist. Coshocton

No. 2017CA0002, 2017-Ohio-7860. In his direct appeal, Appellant did not raise forfeiture

as a specific assignment of error.

{¶17} On March 8, 2018, Appellant, pro se, filed his first petition for post-

conviction relief alleging the sentences imposed were void. Appellee opposed the motion

and, on March 20, 2018, the trial court journalized its entry denying the motion, without Coshocton County, Case No. 2021CA0030 6

a hearing, finding that “the defendant's motion to be not well taken and said motion is

denied.” Appellant appealed the judgment entry to this Court. In State v. McCall, 5th Dist.

Coshocton No. 2018CA0002, 2018-Ohio-3306, we dismissed his appeal for lack of a

final appealable order.

{¶18} On November 18, 2021, Appellant filed a pro se “Motion to Vacate Void

Judgment that Violate the Defendant’s Ohio and U.S. Constitutional Rights to Due

Process and Equal Protection.” In his motion, Appellant argued the trial court committed

plain error in violation of R.C. Chapter 2981, et seq., when it failed to hold a separate

civil hearing and conduct a proportionality review before determining the property should

be forfeited. He contended the trial court’s failure resulted in the forfeiture judgments

being void.

{¶19} Appellee did not file a response to the motion.

{¶20} The trial court denied Appellant’s motion on December 14, 2021. It held his

argument was without merit because the forfeiture of the property was entered pursuant

to the plea agreement between Appellee and Appellant. The trial court reviewed the

sentencing hearing transcript and noted that within the plea agreement, there was a

reduction in the charge contained in Count II of Case No. 16 CR 0062. Appellee

recommended a maximum sentence of six years and an agreement to not charge

Appellant for any crimes arising out of a September 17, 2016 traffic stop. In exchange,

Appellant entered pleas of no contest to the charges and the forfeiture specifications.

Because the property was forfeited through a plea agreement, the trial court found that

it was not required to follow the statutory forfeiture proceedings and Appellant’s due

process protections were not violated. Coshocton County, Case No. 2021CA0030 7

{¶21} It is from this judgment that Appellant now appeals.

ASSIGNMENT OF ERROR

{¶22} Appellant raises one Assignment of Error:

{¶23} “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN FAILING TO

CONDUCT A PROPORTIONALITY REVIEW, VIOLATING THE EXCESSIVE FINES

CLAUSE OF THE 8TH AMENDMENT AND THE APPELLANT’S RIGHTS TO DUE

PROCESS.”

ANALYSIS

{¶24} In his sole Assignment of Error, Appellant contends the trial court

committed plain error when it ordered a forfeiture of his cash and vehicle as stated in the

indictments without following the procedures set forth in R.C. Chapter 2981, et seq. Upon

review of the record and relevant case law, we disagree.

The Effect of the No Contest Plea

{¶25} On January 24, 2017, pursuant to the plea agreement with Appellee in

Case No. 16 CR 0062, Appellant entered a plea of no contest to Counts I through VII

that included the following forfeiture specifications:

SPECIFICATION ONE AS TO COUNT TWO:

Further, the Grand Jurors of Coshocton County, Ohio, find that defendant,

Eugene Burton McCall, was in possession of certain property, to-wit: One

Thousand Seven Hundred and Twenty-Eight dollars ($1728), when said

property constitutes, or is derived or indirectly from, any proceeds that said

defendant obtained directly or indirectly from the commission of the felony Coshocton County, Case No. 2021CA0030 8

drug abuse offense or act and said property is subject to seizure and

forfeiture pursuant to section 2981.02(A) of the Revised Code.

Further, the Grand Jurors of Coshocton County, Ohio, find that defendant,

Eugene Burton McCall, was in possession of certain property, to-wit: 1994

Chevrolet Corvette * * *2615, when said property constitutes, or is derived

or indirectly from, any proceeds that said defendant obtained directly or

indirectly from the commission of the felony drug abuse offense or act and

said property is subject to seizure and forfeiture pursuant to section

2981.02(A) of the Revised Code.

Appellant also entered a negotiated plea of no contest to the sole count in the indictment

in Case No. 16 CR 0097, which included a forfeiture specification of $4,510 in cash. The

forfeiture specification stated:

SPECIFICATION ONE AS TO COUNT ONE:

Further, the Grand Jurors of Coshocton County, Ohio, find that defendant,

Eugene Burton McCall, was in possession of certain property, to-wit:

$4,510.00 in U.S. Currency, when said property constitutes, or is derived or

indirectly from, any proceeds that said defendant obtained directly or

indirectly from the commission of the felony drug abuse offense or act and

said property is subject to seizure and forfeiture pursuant to section

2981.02(A) of the Revised Code. Coshocton County, Case No. 2021CA0030 9

{¶26} In his motion to the trial court and on appeal, Appellant contends that he

entered a plea of no contest to all the charges and specifications in the indictment. He

did not, however, agree to any guilt or forfeiture of his property.

{¶27} “A plea of no contest is not an admission of guilt, but it is an admission of

the truth of the facts alleged in the charging instrument, as well as the facts set forth by

the state in its explanation of the circumstances surrounding the charge.” State v.

Tamburin, 145 Ohio App.3d 774, 780, 764 N.E.2d 503, 507–08, (9th Dist.2001) citing

State v. Perry, 83 Ohio St.3d 41, 43, 697 N.E.2d 624 (1998). After a plea of no contest,

the trial court does not determine if any facts are in dispute. State v. Sims, 2017-Ohio-

8379, 99 N.E.3d 1056, ¶ 14 (1st Dist.). The trial court’s role is to determine whether the

admitted facts meet all the elements of the charged offenses. Id. By entering a plea of

no contest in this case, Appellant admitted to the truth of the facts contained in the

indictments (as amended), including that the cash and motor vehicle “constitutes, or is

derived or indirectly from, any proceeds that said defendant obtained directly or indirectly

from the commission of the felony drug abuse offense or act and said property is subject

to seizure and forfeiture pursuant to section 2981.02(A) of the Revised Code.” The trial

court found Appellant guilty, which this Court affirmed on direct appeal.

The Effect of the Plea Agreement

{¶28} Appellant challenges the trial court’s order of forfeiture, arguing it failed to

follow the statutory provisions governing criminal forfeiture.

{¶29} R.C. Chapter 2981.01, et seq., set forth procedures that must be followed

to effectuate the forfeiture of seized property including contraband and money resulting Coshocton County, Case No. 2021CA0030 10

from criminal activity. R.C. 2981.02 explains the property subject to forfeiture and

provides, in relevant part:

(A)(1) The following property is subject to forfeiture to the state or a political

subdivision under either the criminal or delinquency process in section

2981.04 of the Revised Code or the civil process in section 2981.05 of the

Revised Code:

(a) Contraband involved in an offense;

(b) Proceeds derived from or acquired through the commission of an

offense;

R.C. 2981.02(A).

{¶30} R.C. 2981.04, which governs forfeiture specifications, states in pertinent

part:

If a person pleads guilty to or is convicted of, * * * an offense * * * and the

complaint, indictment, or information charging the offense * * * 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 * * * proves by clear and convincing

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.

R.C. 2981.04(B). Coshocton County, Case No. 2021CA0030 11

{¶31} R.C. 2981.09 sets forth the standard for a proportionality determination,

stating:

(A) Property may not be forfeited as an instrumentality under this chapter to

the extent that the amount or value of the property is disproportionate to the

severity of the offense. The state or political subdivision shall have the

burden of going forward with the evidence and the burden to prove by clear

and convincing evidence that the amount or value of the property subject to

forfeiture is proportionate to the severity of the offense.

(B) Contraband and any proceeds obtained from the offense are not subject

to proportionality review under this section.

R.C. 2981.09(A)-(B).

{¶32} Appellant contends that he entered a no contest plea to the charges and

the specifications in the indictment. By pleading no contest, however, he argues he did

not agree to the forfeiture of his property. “Generally, ‘[a] defendant may plead guilty to

an offense while contesting an attendant forfeiture specification.’” State v. Compton, 8th

Dist. Cuyahoga No. 109427, 2021-Ohio-3106, ¶ 18 quoting State v. Williams, 8th Dist.

Cuyahoga No. 106178, 2018-Ohio-2199, 2018 WL 2904044, ¶ 8, citing State v. Trivette,

195 Ohio App.3d 300, 2011-Ohio-4297, 959 N.E.2d 1065, ¶ 9 (9th Dist.). Appellant’s

argument overlooks one important detail as to how he came to enter his plea of no

contest to the charges and forfeiture specifications. This detail changes the nature of the

forfeiture proceedings from statutory to contractual.

{¶33} In this case, Appellant changed his plea of not guilty to a plea of no contest

to the underlying offenses, including the forfeiture specifications, based on a plea Coshocton County, Case No. 2021CA0030 12

agreement with Appellee. In exchange for his plea of no contest, Appellee agreed to

recommend a prison term of six years (concurrent with a term of 11 months in 16 CR

0097); not to oppose a pre-sentence investigation; not to pursue charges from the traffic

stop on September 17, 2016; and to return the $2,148 seized during that stop.

{¶34} Through his negotiated no contest plea, Appellant admitted to the truth of

the facts stated in the indictment. There is no indication in the plea agreement or at the

plea hearing that Appellant objected to the proceedings or contested the value or

property listed in the forfeiture specifications. At the plea hearing, Appellant stated that

he understood his obligations under the plea agreement, and he has made no argument

in his appeals relating to Case Nos. 16 CR 0062 and 16 CR 0097 that his plea was

unknowingly, unintelligently, or involuntarily made. Under these circumstances, we find

that Appellant’s agreement to forfeit the seized cash and motor vehicle were contractual

in nature. See Compton, supra at ¶ 18.

{¶35} The Eighth District Court of Appeals has recognized that, “when [a]

defendant enters a plea agreement calling for the forfeiture of seized property,

adherence to the statutory procedures [is] unnecessary.” State v. Compton, 2021-Ohio-

3106, ¶ 19 quoting State v. Eppinger, 8th Dist. Cuyahoga No. 95685, 2011-Ohio-2404,

2011 WL 1935866, ¶ 9, citing State v. Chappell, 8th Dist. Cuyahoga No. 93298, 2010-

Ohio-2465, 2010 WL 2201783, at ¶ 37-38. Stated another way, “[w]hen property is

forfeited through a plea agreement, the forfeiture is ‘not effectuated by operation of the

statutory provisions governing forfeiture of contraband, but rather by the parties’

agreement.’” State v. Compton, supra at ¶ 19 quoting State v. Glanton, 6th Dist. Wood

No. WD-18-091, 2020-Ohio-834, 2020 WL 1080422, ¶ 15, quoting State v. Sammor, 9th Coshocton County, Case No. 2021CA0030 13

Dist. Summit No. 24094, 2008-Ohio-4847, 2008 WL 4335499, ¶ 7; State v. Fogel, 9th

Dist. Lorain No. 04CA008498, 2004-Ohio-6268, 2004 WL 2674591, ¶ 7.

{¶36} Because the forfeiture of the cash and motor vehicle were effectuated by

Appellant’s negotiated plea agreement with Appellee and not R.C. Chapter 2981, the

trial court was not required to consider the statutory forfeiture proceedings at the time of

sentencing. See Compton, 2021-Ohio-3106 at ¶ 20. Upon this record, we find that

Appellant’s due process protections were not violated.

{¶37} Appellant’s sole Assignment of Error is overruled.

CONCLUSION

{¶38} The judgment of the Coshocton County Court of Common Pleas is

affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.