[Cite as State v. Travis,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-17-13

v.

TERRELL K. TRAVIS, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Trial Court No. 15-CR-0220

Appeal Dismissed

Date of Decision: August 21, 2017

APPEARANCES:

Terrell Travis, Appellant

Angela M. Boes for Appellee Case No. 13-17-13

SHAW, J.

{¶1} Defendant-appellant, Terrell K. Travis (“Travis”), brings this appeal

from the March 24, 2017, judgment of the Seneca County Common Pleas Court

denying Travis’s “Motion for Order Compelling Return of Motor Vehicle without

Requiring Fees.”

Relevant Facts and Procedural History

{¶2} On November 25, 2015, the Seneca County Grand Jury indicted Travis

on seven felony drug offenses: Counts 1 through 4 were Trafficking in Heroin in

violation of R.C. 2925.03(A)(1), (C)(6)(b), all felonies of the fourth degree; Count

5 was Trafficking in Heroin in violation of R.C. 2925.03(A)(2), (C)(6)(e), a felony

of the first degree; Count 6 was Trafficking in Cocaine in violation of R.C.

2925.03(A)(2), (C)(4)(c), a felony of the third degree; and Count 7 was Possession

of Criminal Tools in violation of R.C. 2923.24(A), (C), a felony of the fifth degree.

Counts 1-6 contained specifications alleging that the offenses were committed

within the vicinity of a school and that certain property was subject to forfeiture as

proceeds derived from and/or instrumentalities used in the commission of or

facilitation of the offenses pursuant to R.C. 2981.02. Those items subject to

forfeiture included $3,370.00 in US currency, a power converter, Bluetooth, Sirius

radio, Garmin GPS, Magellan GPS, six cellular phones, Hisense Smart TV, Xbox

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with controller and games, Kindle, MP3 player, and a 2007 Ford Edge VIN

#2FMDK48C67BB33299.

{¶3} Travis originally pled not guilty to the charges. However, Travis later

entered into a written negotiated plea agreement with the State wherein he agreed

to plead guilty to all of the counts in the indictment and the specifications including

the forfeiture of all of the listed items, with the one exception that the 2007 Ford

Edge was explicitly left out of the forfeiture agreement. In exchange for the guilty

pleas, the State and Travis jointly recommended a total prison term of 9 years (7 of

which were mandatory) along with fines. The trial court accepted the guilty pleas

and Travis was sentenced to serve the jointly recommended prison term. A

judgment entry memorializing Travis’s sentence was filed March 3, 2016. A

separate judgment entry was filed that same date forfeiting the specified property

(other than the 2007 Ford Edge).

{¶4} Travis appealed his convictions and sentence to this Court, arguing that

his pleas were not made knowingly and voluntarily, that his right to a speedy trial

was violated and that his trial counsel was ineffective for failing to raise the issue

of speedy trial. In an unpublished judgment entry determined on this Court’s

accelerated calendar, this Court overruled Travis’s assignments of error. State v.

Travis, 3d Dist. Seneca No. 13-16-08.

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{¶5} Following his direct appeal, on December 1, 2016, Travis filed a pro se

“Motion for Specific Performance” in the trial court, arguing that as part of his plea

agreement the State was required to return “his 2007 Ford [E]dge.” (Emphasis

added.) (Doc. No. 65). Travis contended that his “mother went and had the title put

in her name and went again to pick up the 2007 Ford [E]dge and was then told that

it could not be released to her because the defendant had a pending appeal in this

case. The defendant’s appeal was ruled on * * * and the case is over. * * * At this

time the defendant would ask [for] * * * an order directing the state to release his

2007 Ford [E]dge as set forth in his plea agreement or to rescind his plea contract

with the [S]tate of Ohio.” (Id.)

{¶6} On February 17, 2017, the State filed a response to Travis’s motion. In

its response the State agreed that the 2007 Ford Edge had been excluded from

forfeiture in this case pursuant to the plea agreement; however, the State contended

that this exclusion was on the basis that Travis was not the owner of the 2007 Ford

Edge. The State indicated that Travis had said his mother was in the process of

having title of the 2007 Ford Edge transferred to her. Further, the State indicated

that the vehicle was released to Keller’s Towing where defendant’s mother could

recover it, but she “refused to pay the storage fees.” (Doc. No. 68). The State

argued that it was through no fault of the State that the vehicle had not been

recovered by its rightful owner.

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{¶7} On February 21, 2017, Travis filed a “Motion to Amend Defendant’s

Motion for Specific Performance and Motion to Proceed to Judgment.” Although

he characterized his motion as a “motion to amend,” Travis’s document essentially

contained additional arguments supporting his original motion, though he did

affirmatively indicate that he wanted to “rescind” his plea agreement.

{¶8} On February 24, 2017, the trial court filed a judgment entry on the

matter. After reviewing Travis’s arguments, the trial court determined that the State

of Ohio had complied with the plea agreement with Travis. The trial court found

that the 2007 Ford Edge “was properly transferred to a storage facility and out of

the possession of the State of Ohio. The Vehicle is at Keller’s Towing, and is

recoverable by the owner of the Vehicle upon the payment of storage fees.” (Doc.

No. 70). The trial court denied all of Travis’s pending motions.

{¶9} Travis did not file an appeal of the February 24, 2017, judgment of the

trial court.

{¶10} On March 20, 2017, Travis filed a new motion in the trial court titled,

“Motion for Order Compelling Return of Motor Vehicle without Requiring Fees.”

In the motion, Travis continued to argue that he had been trying to retrieve “his”

2007 Ford Edge and that the State would not release it. Travis rehashed the

arguments he had made in his motion for specific performance, essentially

contending that the State had been preventing him from obtaining the return of the

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2007 Ford Edge. Travis argued that the State took his vehicle originally without

permission on private property, and that his mother should not have been required

to pay for storage fees regarding the vehicle.

{¶11} On March 24, 2017, the trial court summarily denied Travis’s motion.

{¶12} It is from this judgment that Travis appeals, asserting the following

assignment of error for our review.

Assignment of Error The trial court erred and abused its discretion in not ordering the return of the defendant’s vehicle without him paying the storage fees.

{¶13} In his assignment of error, Travis argues that he has been trying to

retrieve “his 2007 Ford Edge” and that the State will not release it. Travis contends

that his written plea agreement excluded the 2007 Ford Edge from forfeiture and

that his mother went to retrieve the vehicle once she had title to it in her name but

the storage company would not return the vehicle without payment of a $500 storage

fee. Travis argues that under this Court’s decision in State v. McBride, 3d Dist.

Allen No. 1-15-48,

, there was no basis for the trial court to “order”

the payment of storage fees.

{¶14} Initially, we would note that many of Travis’s arguments in this appeal

were made to the trial court in Travis’s “Motion for Specific Performance.” When

that motion was denied, Travis could have filed a timely appeal but he did not, thus

the corresponding arguments are barred under the doctrine of res judicata. See State

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v. Perry,

(1967). Nevertheless, to the extent that Travis’s motion

specifically regarding storage fees raises arguments that are not barred by res

judicata, we will address them.

{¶15} In his brief, Travis appears to acknowledge that the 2007 Ford Edge is

titled in his mother’s name, though Travis does also refer to the 2007 Ford Edge as

“his” in the brief as well. The record appears to reflect that the 2007 Ford Edge was

originally seized pursuant to a search warrant related to Travis. The affidavit used

to obtain the search warrant indicated that the 2007 Ford Edge had a temporary tag

from Michigan and a search did not return any information on the owner. According

to the record Travis was found in the 2007 Ford Edge. (Doc. No. 34 at p. 8).

{¶16} The record contains no definitive documentation as to who owns the

2007 Ford Edge, but it is now seemingly undisputed that Travis’s mother is the

current owner.1 With Travis acknowledging that his mother is the owner of the 2007

Ford Edge, it would be incumbent upon her as owner of the vehicle to challenge the

payment of any storage fees. Travis lacks standing to argue for the return of a

vehicle to a third party, or to contest storage fees related to a third party. State v.

Heintz, 9th Dist. Lorain No. 02CA007997,

, ¶9 (“If the items are in

fact the property of [someone other than the appellant], appellant is not an aggrieved

1 Notably, on an affidavit of indigency just prior to his direct appeal, Travis indicated that he did not own an automobile, further supporting the State’s claim that the vehicle was not Travis’s. (Doc. No. 52). The State attaches additional documentation to its brief indicating that Travis had made statements that the 2007 Ford Edge was not his, however, those statements are not actually part of the record and we cannot consider them.

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party whose rights have been adversely affected, and, as such, appellant lacks

standing to appeal in this matter.”).

{¶17} Finally, while Travis attempts to liken this case to State v. McBride,

3d Dist. Allen No. 1-15-48,

, wherein this Court reversed a post-

sentence order for a criminal defendant to pay storage fees for his vehicle, McBride

was vastly different from the case sub judice. First and foremost, the vehicle in

McBride was actually McBride’s and he had standing to challenge the issue.

Second, in McBride the State kept a vehicle which the State had never even filed for

forfeiture on and the trial court explicitly ordered McBride to pay storage fees after

he had already been convicted and sentenced. Here the trial court has made no order

impacting Travis and has made no order requiring Travis to pay storage fees.

McBride is thus inapplicable to this case.

{¶18} As Travis lacks standing to argue for the payment of fees for a vehicle

that is not his, his appeal is dismissed.

Appeal Dismissed

PRESTON, P.J. and ZIMMERMAN, J., concur.

/jlr

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