State v. O'Malley

155 N.E.3d 156

2020 Ohio 3141

STATE of Ohio, Appellee

v.James O'MALLEY, Appellant

No. 19CA0032-M

Court of Appeals of Ohio, Ninth District, Medina County.

Dated: June 1, 2020

DECISION AND JOURNAL ENTRY

SCHAFER, Judge.

{¶1} Defendant-Appellant, James O'Malley, appeals from the judgment of the Medina Municipal Court ordering the criminal forfeiture of his vehicle. This Court affirms.

I.

{¶2} O'Malley was charged with one count of driving while under the influence of alcohol ("OVI"), in violation of R.C. 4511.19(A)(1)(a), one count of OVI, in violation of R.C. 4511.19(A)(2), and one count of not driving within marked lanes, in violation of R.C. 4511.33. Mr. O'Malley initially entered a plea of not guilty to all charges. Mr. O'Malley's OVI charge was preceded by two prior OVI convictions. Pursuant to R.C. 4511.19(G)(1)(c)(v), Mr. O'Malley's vehicle—a 2014 Chevrolet Silverado—was seized and forfeiture proceedings commenced in accordance with R.C. 4503.234. During the pretrial proceedings, the trial court granted Mr. O'Malley's motion for an order releasing his seized vehicle from impound and immobilizing it on his property in order to avoid storage fees and charges.

{¶3} Pursuant to a plea agreement, Mr. O'Malley entered a plea of no contest and the trial court found him guilty of the OVI offense in violation of R.C. 4511.19(A)(1), his third OVI conviction within ten years. The trial court held a hearing on the forfeiture of the vehicle prior to, and in conjunction with, its sentencing of Mr. O'Malley in the matter. The trial court sentenced Mr. O'Malley and, as part of that sentence, ordered forfeiture of the vehicle. The trial court granted Mr. O'Malley's motion to stay the order of forfeiture pending appeal.

{¶4} Mr. O'Malley timely appealed the trial court's order of forfeiture of his vehicle. He raises two assignments of error for our review.

II.Assignment of Error I

The trial court erred in ordering the forfeiture of [Mr. O'Malley]'s vehicle pursuant to R.C. 4511.19(G)(1)(c)(v), as the order was an unconstitutionally excessive fine in violation of the Eighth Amendment to the U.S. Constitution.

{¶5} In his first assignment of error, Mr. O'Malley argues that an individual's limited financial circumstances are a necessary consideration in the constitutional analysis determining whether an economic sanction is an excessive fine under the Eighth Amendment to the United States Constitution. Mr. O'Malley contends the trial court erred by failing to consider his "financial position and the fact that the forfeiture value greatly exceeded the maximum fine."

{¶6} The Eighth Amendment to the United States Constitution states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Article I, Section 9, of the Ohio Constitution includes an identical prohibition. Criminal forfeiture of property as a form of punishment for a specified offense constitutes a "fine" for purposes of both the Ohio Constitution and the United States Constitution. State v. Hill , 70 Ohio St.3d 25, 635 N.E.2d 1248 (1994), syllabus. "Accordingly, prior to entering an order of forfeiture, the trial court must make an independent determination whether forfeiture of that property is an ‘excessive fine’ prohibited by the Excessive Fine Clauses of the Ohio and United States Constitutions." Id.

{¶7} Preliminarily, we must address the appropriate standard of review because Mr. O'Malley does not suggest a standard of review applicable to his first assignment of error. See Loc.R. 7(B)(7) ("Each assignment of error shall be separately discussed and shall include the standard or standards of review applicable to that assignment of error under a separate heading placed before the discussion of the issues."). Although Mr. O'Malley ultimately contends that the forfeiture of his vehicle was unconstitutional, he argues that the trial court applied incorrect law in making its decision. Mr. O'Malley asserts that the trial court relied on dated legal authority and an erroneous analysis that failed to consider factors essential to determining whether the forfeiture of his vehicle violated the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. "[T]he question whether a fine is constitutionally excessive calls for the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate."

State v. McShepard , 9th Dist. Lorain No. 07CA009118, 2007-Ohio-6006, 2007 WL 3342418, ¶ 17, quoting United States v. Bajakajian , 524 U.S. 321, 336, fn. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314, (1998).

{¶8} Here, Mr. O'Malley argues the trial court erred by failing to apply the correct constitutional standard to the facts of the case. Mr. O'Malley contends that the trial court failed to consider a recent United States Supreme Court decision holding that the Excessive Fines Clause of the Eighth Amendment is an incorporated protection applicable to the States by the Due Process Clause of the Fourteenth Amendment. Timbs v. Indiana , ––– U.S. ––––, 139 S.Ct. 682, 203 L.Ed.2d 11 (2019). Mr. O'Malley further asserts that, in Bajakajian , 524 U.S. 321, 118 S.Ct. 2028, the Supreme Court "focused on the ‘proportionality’ of a forfeiture to the alleged offense, but also indicated that a person's ‘wealth or income’ could be relevant to the Excessive Fines Clause analysis." He argues that, taken together, Timbs and Bajakajian "leave little doubt that an individual's limited financial circumstances are not only relevant, but indispensable to a constitutional analysis." Mr. O'Malley contends "[t]he fact that the [t]rial [c]ourt's decision does not contain any analysis or case law concerning the most recent Excessive Fines Clause jurisprudence renders it erroneous from the outset."

{¶9} Contrary to Mr. O'Malley's contention, however, the trial court's decision cites to a case wherein the Supreme Court of Ohio recognized more than quarter of a century ago that "prior to entering an order of forfeiture, the trial court must make an independent determination whether forfeiture of that property is an ‘excessive fine’ prohibited by the Excessive Fine Clauses of the Ohio and United States Constitutions." Hill , 70 Ohio St.3d at 34, 635 N.E.2d 1248. Relying on State v. Kish , 9th Dist. Lorain No. 02CA008146, 2003-Ohio-2426, 2003 WL 21078099, the trial court acknowledged

[f]orfeiture is a form of punishment for a specified offense and thus constitutes a fine for purposes of Section 9, Article 1 of the Ohio Constitution and the Eight[h] Amendment to the United States Constitution. As these provisions prevent the government from imposing an excessive fine upon an individual, the trial court is to determine whether the forfeiture of property would constitute such a prohibited fine prior to entering an order of forfeiture.

(Internal citations omitted.) Kish at ¶ 53, citing State v. Harold , 109 Ohio App.3d 87, 90-91, 671 N.E.2d 1078 (9th Dist.1996), citing Hill at syllabus.

{¶10} The trial court acknowledged that, to determine whether a forfeiture is a constitutionally excessive fine, a court must conduct a proportionality review. Harold at 94, 671 N.E.2d 1078 ; State v. Haponek , 9th Dist. Lorain No. 97CA006826, 1998 WL 34593, *2 (stating that failure of a trial court to properly account for constitutional proportionality factors in a forfeiture determination creates reversible error). In discussing the factors applicable to a proportionality review, the trial court focused on Kish , supra , and stated that the proportionality review entails the comparison of the harshness of the forfeiture to:

1) the culpability of the defendant; 2) the gravity of the offense; 3) the relationship of the property to the offense; and 4) the harm to the community. Additional factors to consider when determining the harshness of the forfeiture are the fair market value of the property, the intangible and subjective value of the property, and the hardship to the defendant, including the effect of forfeiture on the defendant's family and financial condition. The court should also evaluate the harm caused by the illegal activity and whether the defendant was directly involved in the illegal activity, the amount of drugs involved and their value, the duration of the illegal activity, and its effect on the community.

(Internal citations and quotations omitted.) Kish at ¶ 54, citing Harold at 94-96, 671 N.E.2d 1078 ; see McShepard , 2007-Ohio-6006 at ¶ 17 (summarizing factors).

{¶11} In its judgment entry and forfeiture order, the trial court discussed its factual findings in the context of the relevant factors. The trial court noted that the vehicle was "the medium for committing the OVI" and, therefore closely related to the crime. The trial court also discussed the circumstances of Mr. O'Malley's impairment and arrest in considering his culpability, the gravity of the offense, and the risk he presented to the public. Additionally, considering the risk of recidivism and harm to the community, the trial court discussed Mr. O'Malley's record of alcohol-related incidents and OVI history. The trial court also recognized that Mr. O'Malley's OVI had not resulted in harm to person or property in this particular instance but found under these circumstances that the potential for such harm remained great.

{¶12} Mr. O'Malley contends that the trial court's analysis did not incorporate "new requirements" that a court must consider. Specifically, Mr. O'Malley asserts that the trial court was required to "heavily consider" his financial position "and the maximum statutory fine when conducting [the] excessive fines analysis." Mr. O'Malley's contention is belied by the record. Per review of the trial court's decision discussed below, Mr. O'Malley has not identified any factor the trial court was required, but failed, to consider in its analysis.

{¶13} In its discussion, the trial court specifically...