Court of Appeals of Ohio, Second District, Montgomery
IN RE: FORFEITURE OF PROPERTY OF: NYKIHA ASTIN, et al.
Appeal from Common Pleas Court, Trial Court Case No.
MATHIAS H. HECK, JR., by ADAM M. LAUGLE, Atty. Reg. No.
0092013, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Montgomery
County Courts Building, 301 West Third Street, Dayton, Ohio
45422 Attorney for Plaintiff-Appellant
ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth
Street, Dayton, Ohio 45402 Attorney for
1} Petitioner-appellant, the State of Ohio, appeals
from the decision of the Montgomery County Court of Common
Pleas dismissing a civil forfeiture action against
respondent-appellee, Tony Sanders, after finding that the
State failed to state a claim upon which relief can be
granted. In support of its appeal, the State contends that
the trial court erred in dismissing the forfeiture action
because the dismissal was based on the trial court's
improper retroactive application of R.C. 2981.05, the civil
forfeiture statute. For the reasons outlined below, the
judgment of the trial court dismissing the State's
forfeiture action will be reversed and the matter will be
remanded for further proceedings.
and Course of Proceedings
2} On May 6, 2016, the State filed a petition for
civil forfeiture of property pursuant to R.C. 2981.05 against
the following five individuals: Nykiha D. Astin, Steviona L.
Blackshear, Tony D. Sanders, Demetrius M. Howard, and Marvin
R. Gaines. In filing the petition, the State sought to seize
various sums of money from each individual totaling $14, 371.
The State alleged in its petition that the money was seized
by the Dayton Police Department and that it was contraband,
proceeds, and/or an instrumentality used or intended be used
in the commission of possessing and trafficking drugs.
3} Unlike the other respondents who simply filed
answers to the petition, on June 7, 2016, respondent Sanders
filed a 12(B)(6) motion to dismiss the forfeiture action on
grounds that the State failed to state essential facts
necessary to support its forfeiture claim. On November 8,
2016, the trial court issued a written decision overruling
Sanders' motion to dismiss. Shortly thereafter, Sanders
filed an answer to the State's petition, in which he
generally asserted that the State failed to state a claim
upon which relief can be granted.
4} Following the responsive pleadings, the matter
was scheduled for a forfeiture hearing on April 7, 2017,
which was continued to June 2, 2017. As the forfeiture
hearing date neared, three of the five respondents, Gaines,
Howard, and Astin, settled the matter with the State and had
their claims dismissed. Respondent Sanders, however, filed
another motion to dismiss on May 3, 2017.
5} In his second motion to dismiss, Sanders
contended that the State's petition failed to state a
claim upon which relief could be granted due to recent
changes in the law governing forfeiture. The changes Sanders
referred to were those precipitated by Sub. H.B. No. 347,
which became effective April 6, 2017, and substantially
modified the statutes governing criminal and civil asset
6} As relevant to this case, Sub. H.B. No. 347
modified the civil forfeiture statute, R.C. 2981.05, to
include the following language:
[T]he state may file a civil forfeiture action, in the form
of a civil action, against any person who is alleged to
have received, retained, possessed, or disposed of
proceeds, in an amount exceeding fifteen thousand
dollars, knowing or having reasonable cause to believe
that the proceeds were allegedly derived from the
commission of an offense subject to forfeiture proceedings
in violation of section 2927.21 of the Revised Code. * * *
(Emphasis added.) R.C. 2981.05(D)(1).
7} In light of these changes to the civil forfeiture
statute, Sanders contended that the State no longer had a
viable forfeiture claim against him because amended R.C.
2981.05 provides that a prosecuting attorney may only seek
funds in excess of $15, 000. Since the State's petition
only sought forfeiture of $14, 371 ($3, 027 of which was