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State v. Sekse

Court of Appeals of Ohio, Twelfth District, Preble

February 26, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
MARK E. SEKSE, Defendant-Appellant.

         CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 14CR11502

          Martin P. Votel, Preble County Prosecuting Attorney, for plaintiff-appellee

          Brian A. Muenchenbach, for defendant-appellant

          OPINION

          S. POWELL, P.J.

         {¶ 1} Defendant-appellant, Mark E. Sekse, appeals from the decision of the Preble County Court of Common Pleas ordering the forfeiture of three of his vehicles after he pled no contest to a variety of felony offenses, including possession of marijuana and trafficking in marijuana. For the reason outlined below, we affirm.

         Facts and Procedural History

         {¶ 2} On April 9, 2014, the Preble County Grand Jury returned an indictment charging Sekse with a variety of felony offenses: namely, possession of marijuana, trafficking in marijuana, trafficking in drugs (Suboxone), possession of criminal tools, and having weapons while under disability. For purposes of this appeal, these charges also included forfeiture specifications seeking the forfeiture of a 1978 Pontiac Trans-Am collector's car, a 2005 Chevy Silverado 3500 truck, and a 2014 Harley Davidson motorcycle. According to the bill of particulars, the charges arose after a search of his tree cutting business and Preble County home led to the discovery of 212 pounds of marijuana, Suboxone, and a shotgun. Sekse pled not guilty to all charges and the matter was set for trial.

         {¶ 3} On June 17, 2015, after the trial court issued decisions on a number of pretrial issues, including the denial of Sekse's request for a Franks hearing, Sekse entered into a plea agreement and pled no contest to all charges against him.[1] Upon Sekse entering his no contest plea, the trial court accepted Sekse's plea and found him guilty as charged. The trial court then ordered a presentence investigation report be completed and scheduled the matter for sentencing.

         {¶ 4} On July 22, 2015, the parties reconvened for purposes of sentencing, during which the trial court sentenced Sekse to serve a mandatory aggregate term of 11 years in prison. The trial court also ordered Sekse to pay a mandatory $10, 000 fine and notified Sekse that he was subject to a mandatory maximum term of five years of postrelease control. However, instead of immediately transferring Sekse to prison, Sekse remained free on bond pending an appeal with this court challenging the trial court's decision denying his request for a Franks hearing.

         {¶ 5} On July 28, 2015, Sekse filed a notice of appeal with this court arguing the trial court erred by denying his request for a Franks hearing. In support of this claim, Sekse argued the trial court's decision was in error because he presented evidence of several inconsistent statements contained within the warrant affidavit used to obtain a search warrant for his Preble County home. Finding no merit to Sekse's claim, this court affirmed the trial court's decision to deny Sekse's request for a Franks hearing in State v. Sekse, 12th Dist. Preble No. CA2015-07-015, 2016-Ohio-2779. In so holding, this court determined that Sekse "failed to make a substantial preliminary showing that false statements knowingly and intentionally, or with reckless disregard for the truth, were included by the affiant in the warrant affidavit and that the allegedly false statements were necessary to the finding of probable case." Id. at ¶ 32. Not satisfied with this court's decision, Sekse appealed our decision to the Ohio Supreme Court.

         {¶ 6} On May 2, 2016, shortly after this court's decision was released, the trial court issued an entry ordering Sekse to appear for a hearing to impose sentence. Sekse failed to appear at this hearing and the trial court issued a capias for his arrest.

         {¶ 7} On October 5, 2016, the Ohio Supreme Court issued a decision declining jurisdiction to hear Sekse's appeal. Shortly thereafter, on October 14, 2016, Sekse was arrested and subsequently transferred to the Preble County Jail. Three days later, on October 17, 2016, the trial court issued another entry ordering Sekse to appear for a hearing to impose sentence. At this hearing, however, the parties reminded the trial court that issues regarding the forfeiture specifications contained within the indictment remained pending. As a result, the trial court issued an entry scheduling the matter for a full hearing on the still pending forfeiture specifications, a hearing that ultimately took place on March 29, 2017.

         {¶ 8} At the March 29, 2017 hearing, the state presented the testimony of Sergeant Dan Schweitzer, a detective with the Warren County Sheriffs Office, who testified the vehicles at issue were seized from Sekse's tree cutting business and from his Preble County home after a search warrant was issued and Sekse gave his consent to search the same. As part of this testimony, Sergeant Schweitzer indicated that while these searches were being conducted, Sekse boasted and bragged to him about his drug dealing and the fact that he had been selling large quantities of marijuana for "many, many years." Thereafter, when asked to explain Sekse's extensive marijuana business, Sergeant Schweitzer testified that Sekse told him he received regular monthly shipments of 80 pounds of marijuana from his suppliers that he would then sell in 20 or 30 pound bricks to his customers who then "get the marijuana and they just break it down and they distribute it." As Sergeant Schweitzer testified when describing the magnitude of Sekse's marijuana operation, "we're not talking [about] a guy that sells a pound here and a pound there. We're talking about somebody that sells large quantities of marijuana."

         {¶ 9} Continuing, as it relates to Sekse's income and finances, Sergeant Schweitzer testified that the search of Sekse's Preble County home uncovered a "drug ledger" indicating his customers currently owed him $94, 275 for "fronting dope." Sergeant Schweitzer further testified that he was able to recover evidence as part of his investigation indicating Sekse and his wife had purchased numerous vehicles and other rental properties in Ohio and Indiana mostly with cash. There was also testimony from Sergeant Schweitzer indicating Sekse and his wife had purchased many other big-ticket items with cash and that they had made several large bank deposits in cash. As Sergeant Schweitzer testified, "I * * * know that there was a lot of unexplained cash deposits going into those accounts, a lot." ...


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