forfeiture hearing in Ohio

2022Case law has “explicitly preserved the principle that an accused has forfeited his confrontation right where the accused's own misconduct is responsible for a witness's unavailability.” State v. Hand, 107 Ohio St.3d 378 , 2006-Ohio-18 , 840 N.E.2d 151 , ¶ 105, citing Crawford v. Washington, 541 U.S. 36, 43 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) (“The rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be alternative means of determining reliability.”). {¶30} Evid.R. 804(B)(6) “was promulgated to encomp

2022Pursuant to Evid.R. 804(B)(6), the forfeiture by wrongdoing hearsay exception permits the admission of a “statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying.” {¶31} Therefore, “a prosecutor must show by a preponderance of the evidence that (1) the defendant engaged in wrongdoing that caused the witness to be unavailable and (2) one purpose for the wrongdoing was to make the witness unavailable to testify.” McKelton, 148 Ohio St.3d 261 at ¶ 96 .

2026R.C. 2981.09. {¶27} The Supreme Court of Ohio has further clarified that property may be forfeited only when it was used, or intended to be used, to commit or facilitate the offense and when it constitutes “an integral part of the specified illegal activity.” State v. Hill, 70 Ohio St.3d 25, 31 (1994); see also State v. Jones, 2025-Ohio-3011, ¶ 30 (5th Dist.). {¶28} In the present case, the State conceded that Toth’s indictment did not contain a forfeiture specification concerning the 2018 Cadillac.

2025So too, the Supreme Court of Ohio has clarified that property may only be forfeited if it was used, or intended to be used, to commit or facilitate the crime, requiring the property to be “an integral part of the specified illegal activity.” State v. Hill, 70 Ohio St.3d 25, 31 (1994) (emphasis added). {¶31} Regarding property forfeiture for drug related activity at the Property, Jones’s charge under R.C. 2925.13, Permitting Drug Abuse, is a first-degree misdemeanor and carried no forfeiture specification.

2024Portage No. 2022-P-0018, 2022-Ohio-4046, ¶ 1 , motion to certify allowed, 169 Ohio St.3d 1497 , 2023-Ohio-1242 , 207 N.E.3d 829 , ¶ 1, and rev’d and remanded, 2023-Ohio-3644, ¶ 1 . {¶8} In our November 14, 2022 opinion, this court reiterated our determination in Reyes’ prior appeal, namely: “that his failure to file a timely direct appeal resulted in the forfeiture of his challenge to the trial court’s retroactive application of the Adam Walsh Act 4 Case No. 2022-P-0018 and that his collateral attack on this alleged sentencing error is barred by the doctrine of res judicata.” Reyes, 2022-Ohio-

2022Reyes, 2021-Ohio-3478, at ¶ 9, ¶ 16 ; see also State v. Henderson, 161 Ohio St.3d 285 , 2020-Ohio-4784 , 162 N.E.3d 776, ¶ 90 (Donnelly, J., dissenting), citing State v. Harper, 160 Ohio St.3d 480 , 2020-Ohio-2913 , 159 N.E.3d 248, ¶ 41 (“A direct appeal is the available legal process to address a trial court’s alleged sentencing error, and the failure to challenge a sentencing error on direct appeal operates as res judicata to any later collateral attack on the judgment.”). {¶11} Reyes attempted to reframe his challenge, filing a motion for reclassification rather than a motion to vacate his

2022Doner v. Zody, 130 Ohio St.3d 446 , 2011-Ohio-6117 , 958 N.E.2d 1235 , ¶ 54 (as opposed to the higher standard of clear and convincing evidence, which must produce a “firm belief or conviction” in the mind of the factfinder). {¶32} The forfeiture exception applies to defendants who “seek to undermine the judicial process by procuring or coercing silence from witnesses * * *.” Davis v. Washington, 547 U.S. 813, 833 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006).

2022Doner v. Zody, 130 Ohio St.3d 446 , 2011-Ohio-6117 , 958 N.E.2d 1235 , ¶ 54 (as opposed to the higher standard of clear and convincing evidence, which must produce a “firm belief or conviction” in the mind of the factfinder). {¶32} The forfeiture exception applies to defendants who “seek to undermine the judicial process by procuring or coercing silence from witnesses * * *.” Davis v. Washington, 547 U.S. 813, 833 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006).

2022See Giles v. California, 554 U.S. 353, 367 , 128 S.Ct. 2678 (2008) (explaining that Fed.R.Evid. 804(b)(6) codified the forfeiture doctrine); 2001 Staff Notes, Evid.R. 804(B)(6) (explaining that Evid.R. 804(B)(6) is “patterned on the federal rule” and “codifies a principle that has been recognized at common-law in Ohio”).

2022See Giles v. California, 554 U.S. 353, 367 , 128 S.Ct. 2678 (2008) (explaining that Fed.R.Evid. 804(b)(6) codified the forfeiture doctrine); 2001 Staff Notes, Evid.R. 804(B)(6) (explaining that Evid.R. 804(B)(6) is “patterned on the federal rule” and “codifies a principle that has been recognized at common-law in Ohio”).

2022“The purpose of the forfeiture rule is to encourage parties to call the court’s attention to an error at a time when the error can be ‘“avoided or corrected.”’” State v. Gwynne, 158 Ohio St.3d 279 , 2019-Ohio-4761 , 141 N.E.3d 169 , ¶ 10, quoting State v. Awan, 22 Ohio St.3d 120, 122 , 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56 , 236 N.E.2d 545 (1968), paragraph three of the syllabus.

2022“The purpose of the forfeiture rule is to encourage parties to call the court’s attention to an error at a time when the error can be ‘“avoided or corrected.”’” State v. Gwynne, 158 Ohio St.3d 279 , 2019-Ohio-4761 , 141 N.E.3d 169 , ¶ 10, quoting State v. Awan, 22 Ohio St.3d 120, 122 , 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56 , 236 N.E.2d 545 (1968), paragraph three of the syllabus.

2003Id. at 178. {¶ 73} Here, the court held a forfeiture hearing and signed an order of forfeiture on June 4, 2002, just before sentencing Bailey.

1996In State v. Casalicchio (1991), 58 Ohio St.3d 178 , 569 N.E.2d 916 , syllabus, the Ohio Supreme Court ruled: “Where property is ruled contraband pursuant to R.C. 2933.42(B), forfeiture of that property pursuant to R.C. 2933.43 constitutes a separate criminal penalty in addition to the penalty the defendant faces for conviction of the underlying felony.” *292 As Justice Wright noted in his lead opinion, Casalicchio challenged the scope of Ohio’s forfeiture statutes on due process grounds, questioning specifically whether the automobile he was driving when arrested, which contained marijuana and

2002See Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532 , syllabus.

2001This statute provides, in pertinent part: * * * If the property seized was determined by the seizing law enforcement officer to be contraband because of its relationship to an underlying criminal offense * * *, no forfeiture hearing shall be held under this section unless the person pleads guilty to or is convicted of the commission of, * * * the offense or a different offense arising out of the same facts and circumstances * * *; a forfeiture hearing shall be held in a case of that nature no later than forty-five days after the conviction * * *, unless the time for the hearing is extended by

2024The scope of the invited error rule is made clearer by considering it against the doctrine of forfeiture (or waiver as it is often conflated with). {¶ 18} In a dissenting opinion, Justice Cook observed in its strictest sense, waiver is an "intentional relinquishment or abandonment of a known right" where forfeiture is Knox County, Case No. 24CA00012 7 better viewed as "the failure to make a timely assertion of a right." State v. McKee, 91 Ohio St.3d 292, 298, fn. 3 (2001) (Cook, J., dissenting), quoting United States v. Olano, 507 U.S. 725, 733 (1993), quoting Johnson v. Zerbst, 304 U.S. 458,

2007Payne at ¶ 31 . {¶ 12} Although the terms are often conflated, the Court pointed out a fundamental analytic difference between a forfeiture and a waiver: "Waiver is the intentional relinquishment or abandonment of a right, and waiver of a right `cannot form the basis of any claimed error under Crim.R. 52(B)'" Id. at ¶ 23, quoting State v. McKee , 91 Ohio St.3d 292 , 299 , 2001-Ohio-41 .

2022His grandfather had died before the hearing, and O’Malley was living with his widowed grandmother on her charity and without meaningful assets of his own. {¶ 106} While the United States Supreme Court has not provided detailed criteria for determining when a forfeiture violates the Eighth Amendment, it has declared that a forfeiture violates the Excessive Fines Clause if the forfeiture is “grossly disproportional to the gravity of the defendant’s offense.” United States v. Bajakajian, 524 U.S. 321 , 337, 118 S.Ct. 2028 , 141 L.Ed.2d 314 (1998).

2019McShepard at ¶ 17; United States v. Bajakajian, 524 U.S. 321, 326, fn. 10 . {¶9} At the forfeiture hearing, Ms. Tomcik testified that the car was new when she began leasing it for three years at $276 a month.

2005We find this reasoning unpersuasive. {¶ 13} As the trial court noted in its decision, quoting a passage in Baumholtz at 200-201, "[i]f the General Assembly wanted to establish a specific time for the filing of a forfeiture petition, it certainly would have done so." The General Assembly did amend R.C. 2933.43 (C) such that "a forfeiture hearing shall be held * * * no later than forty-five days after the conviction or the admission or adjudication of the violation * * *." (Emphasis added.) However, as we are required to strictly interpret R.C. 2933.43 (C) in favor of individual property rights,

2000Plaintiffs maintain that $8,850 and Ohio cases like State v. Baumholtz (1990), 50 Ohio St.3d 198 , 553 N.E.2d 635 , can be applied only to non-innocent owners of vehicles.

2026R.C. 2981.09. {¶27} The Supreme Court of Ohio has further clarified that property may be forfeited only when it was used, or intended to be used, to commit or facilitate the offense and when it constitutes “an integral part of the specified illegal activity.” State v. Hill, 70 Ohio St.3d 25, 31 (1994); see also State v. Jones, 2025-Ohio-3011, ¶ 30 (5th Dist.). {¶28} In the present case, the State conceded that Toth’s indictment did not contain a forfeiture specification concerning the 2018 Cadillac.

2025See id. at ¶ 3-4, 8, State v. Fogel, 2004-Ohio-6268, ¶ 2-3, 8-9 (9th Dist.); see also In re T.D., 2018-Ohio-204, at ¶ 5 .

2025State v. Bracy, 2018-Ohio-1977, ¶ 8 (9th Dist.), quoting R.C. 2981.02(A)(1)(a)-(c). “‘Contraband’ means any property that is illegal for a person to acquire or possess under a statute, ordinance, or rule, or that a trier of fact lawfully determines to be illegal to possess by reason of the property’s involvement in an offense.” R.C. 2901.01(A)(13). “‘Instrumentality’ means property otherwise lawful to possess that is used in or intended to be used in an offense.” R.C. 2981.01(B)(6). {¶30} The State argued below that the firearm was an instrumentality because Stone intended to use it during the

2025See id. at ¶ 3-4, 8, State v. Fogel, 2004-Ohio-6268, ¶ 2-3, 8-9 (9th Dist.); see also In re T.D., 2018-Ohio-204, at ¶ 5 .

2025According to the written plea form Stone signed, the parties agreed that the court would “set [a] forfeiture hearing for [the] weapon[.]” This Court has held that, if the parties 7 agree to the forfeiture of property as part of a plea agreement, then “adherence to statutory forfeiture procedure is unnecessary.” State v. Hensley, 2004-Ohio-2664, ¶ 7 (9th Dist.). {¶20} Here, Stone did not agree to forfeit his firearm; he agreed to a forfeiture hearing.

2024The scope of the invited error rule is made clearer by considering it against the doctrine of forfeiture (or waiver as it is often conflated with). {¶ 18} In a dissenting opinion, Justice Cook observed in its strictest sense, waiver is an "intentional relinquishment or abandonment of a known right" where forfeiture is Knox County, Case No. 24CA00012 7 better viewed as "the failure to make a timely assertion of a right." State v. McKee, 91 Ohio St.3d 292, 298, fn. 3 (2001) (Cook, J., dissenting), quoting United States v. Olano, 507 U.S. 725, 733 (1993), quoting Johnson v. Zerbst, 304 U.S. 458,

2024The scope of the invited error rule is made clearer by considering it against the doctrine of forfeiture (or waiver as it is often conflated with). {¶ 18} In a dissenting opinion, Justice Cook observed in its strictest sense, waiver is an "intentional relinquishment or abandonment of a known right" where forfeiture is Knox County, Case No. 24CA00012 7 better viewed as "the failure to make a timely assertion of a right." State v. McKee, 91 Ohio St.3d 292, 298, fn. 3 (2001) (Cook, J., dissenting), quoting United States v. Olano, 507 U.S. 725, 733 (1993), quoting Johnson v. Zerbst, 304 U.S. 458,

2022Reyes, 2021-Ohio-3478, at ¶ 9, ¶ 16 ; see also State v. Henderson, 161 Ohio St.3d 285 , 2020-Ohio-4784 , 162 N.E.3d 776, ¶ 90 (Donnelly, J., dissenting), citing State v. Harper, 160 Ohio St.3d 480 , 2020-Ohio-2913 , 159 N.E.3d 248, ¶ 41 (“A direct appeal is the available legal process to address a trial court’s alleged sentencing error, and the failure to challenge a sentencing error on direct appeal operates as res judicata to any later collateral attack on the judgment.”). {¶11} Reyes attempted to reframe his challenge, filing a motion for reclassification rather than a motion to vacate his

2022Reyes, 2021-Ohio-3478, at ¶ 9, ¶ 16 ; see also State v. Henderson, 161 Ohio St.3d 285 , 2020-Ohio-4784 , 162 N.E.3d 776, ¶ 90 (Donnelly, J., dissenting), citing State v. Harper, 160 Ohio St.3d 480 , 2020-Ohio-2913 , 159 N.E.3d 248, ¶ 41 (“A direct appeal is the available legal process to address a trial court’s alleged sentencing error, and the failure to challenge a sentencing error on direct appeal operates as res judicata to any later collateral attack on the judgment.”). {¶11} Reyes attempted to reframe his challenge, filing a motion for reclassification rather than a motion to vacate his