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In re Forfeiture of Property of Astin

Court of Appeals of Ohio, Second District, Montgomery

May 4, 2018

IN RE: FORFEITURE OF PROPERTY OF: NYKIHA ASTIN, et al.

          Civil Appeal from Common Pleas Court, Trial Court Case No. 2016-CV-2308

          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 Defendant-Appellee-Tony Sanders

          OPINION

          WELBAUM, P.J.

         {¶ 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.

         Facts 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 forfeiture.

         {¶ 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 ...


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