[Cite as State v. Leet,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28870 : v. : Trial Court Case No. 2019-CRB-1678 : ROY B. LEET, II : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the 16th day of April, 2021.

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CHRISTINE L. BURK, Atty. Reg. No. 0050559, City of Miamisburg Prosecutor’s Office, 10 North First Street, Miamisburg, Ohio 45342 Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, 101 Southmoor Circle NW, Dayton, Ohio 45429 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Defendant-appellant Roy B. Leet, II, appeals from an order of the Miamisburg

Municipal Court which denied his motion for return of a firearm. Leet filed a timely notice

of appeal on August 10, 2020.

{¶ 2} On October 13, 2019, Miami Township Police responded to a report of two

individuals fighting with one another. Leet and another individual, Brian Whitehead, were

both charged with disorderly conduct, in violation of R.C. 2917.11(A)(1), a minor

misdemeanor. On October 16, 2019, Leet pled guilty to the charged offense; the trial

court imposed a fine of $130 and court costs in the amount of $120.

{¶ 3} On October 25, 2019, the trial court sent a letter to the Chief of the Miami

Township Police Department (MTPD), Charlie Stiegelmeyer, which stated in pertinent

part:

I am contacting you at the request of Mr. Whitehead, because I am

concerned with Mr. Roy Leet’s behavior. Mr. Leet seems to be suffering

from some mental health problems, and his conduct is disturbing. I wanted

to make you aware of the situation, and ask that you check on Mr. Leet

before this escalates further and results in someone really getting hurt.

Supplemental Motion and Memorandum for Return of Firearm, Exhibit A.

{¶ 4} Thereafter, Chief Stiegelmeyer directed Sergeant Paul Nienhaus to conduct

a welfare check on Leet and place him in a hospital for a 72-hour mental health admission.

Exhibit B. On October 28, 2019, Sergeant Nienhaus and two other officers traveled

to Leet’s residence. Sergeant Nienhaus informed Leet that they had been ordered by

the Chief of Police to place Leet into protective custody and to transport him to a hospital

for a mental health evaluation. Once at Kettering Hospital, an application for emergency -3-

admission was completed by an MTPD officer. Nienhaus, however, remained at Leet’s

residence; he asked Leet’s mother to turn over Leet’s firearm to the MTPD, but she

refused. Nienhaus then contacted Chief Stiegelmeyer and asked him how to proceed.

Stiegelmeyer ordered Nienhaus to seize the firearm because “Leet was considered under

disability now since he was being mentally evaluated.” Sergeant Nienhaus then

proceeded to seize the firearm, a .45 caliber Springfield XD handgun.

MTPD Receipt,

Exhibit C.

{¶ 5} On November 22, 2019, counsel for Leet sent a letter to Chief Stiegelmeyer

in which he requested the immediate return of the firearm. Shortly thereafter, Leet’s

counsel received an undated reply letter from Chief Stiegelmeyer which stated in pertinent

part:

* * * We will be unable to comply with this request, however, as the

Miamisburg Municipal Court Hnbl Judge Robert Rettich III has attached a

forfeiture order to the final docket (termination) entry advising that this

handgun is to be forfeited to authorities (for destruction).

Exhibit F.

{¶ 6} After receiving Chief Stiegelmeyer’s letter, Leet’s counsel reviewed the

online docket and discovered that a handwritten notation dated November 21, 2019, had

been added to the judgment entry, which stated “Forfeit 45 cal Handgun.” Judgment Entry

of Conviction, Oct. 16, 2019. The record does not establish that Leet was served with a

notice of forfeiture, and no forfeiture hearing was held prior to the November 21, 2019

order.

{¶ 7} On December 2, 2019, Leet filed a motion for the return of his firearm. On -4-

June 9, 2020, Leet filed a supplemental memorandum in support of that motion. On July

6, 2020, a hearing was held before the trial court on Leet’s motion for the return of his

firearm. On July 15, 2020, the trial court denied Leet’s motion. Leet made an oral

motion to stay the forfeiture of the firearm, which the trial court granted.

{¶ 8} It is from this decision that Leet now appeals.

{¶ 9} Leet’s sole assignment of error is as follows:

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR RETURN OF HIS FIREARM.

{¶ 10} Leet contends that the trial court erred when it denied his motion for the

return of his firearm for the following reasons: 1) he was not under a mental health

disability; 2) his firearm was not subject to forfeiture under R.C. 2981; and 3) his firearm

was seized and ordered forfeited without due process. We agree.

{¶ 11} R.C. Chapter 2981 permits “[a] law enforcement officer [to] seize property

that the officer has probable cause to believe is property subject to forfeiture.” R.C.

2981.03(A)(2). Such property includes “contraband,” “proceeds” from the commission of

an offense, and “instrumentalities” involved in the commission of felonies and certain

other offenses. See R.C. 2981.01(B)(13) (defining “property subject to forfeiture”). A

State or political subdivision acquires provisional title to property subject to forfeiture upon

commission of an offense giving rise to forfeiture. R.C. 2981.03(A)(1). This provisional

title is subject to claims of third parties and a final forfeiture adjudication. R.C.

2981.03(A)(1); State v. Jamison, 2d Dist. Montgomery No. 23211,

, ¶ 21.

{¶ 12} R.C. 2981.02 allows the forfeiture of contraband, proceeds, and certain

instrumentalities. -5-

A prosecuting attorney may then pursue forfeiture of seized property in a

criminal proceeding under R.C. 2981.04, a civil proceeding under R.C.

2981.05, or both. R.C. 2981.03(F). Criminal forfeiture is initiated by

including in the charging instrument a specification consistent with R.C.

2941.1417 or by providing the defendant with “prompt notice,” in conformity

with Crim.R. 7(E), that the property is subject to forfeiture. R.C.

2981.04(A)(1) and (A)(2). Civil forfeiture is initiated by filing “a complaint

requesting an order that forfeits the property to the state or a political

subdivision.” R.C. 2981.05(A).

State v. Recinos, 5th Dist. Richland No. 14CA9,

.

{¶ 13} The State has not pursued forfeiture of the firearm seized from Leet's

residence on October 13, 2019, through a proper criminal or civil proceeding. The

disorderly conduct charge did not contain a forfeiture specification, precluding criminal

forfeiture under R.C. 2981.04. State v. Moreno,

,

, ¶ 23 (2d

Dist.).

{¶ 14} Forfeiture may be ordered only after the prosecuting attorney has identified

and notified parties with an interest in the property, the trial court has conducted a hearing,

and the trier of fact has found that the property is subject to forfeiture. See R.C.

2981.04(A) and (B), R.C. 2981.05(B) and (D), and R.C. 2981.03(A)(1). Before the final

forfeiture adjudication, the State or a political subdivision holds “provisional title to

property subject to forfeiture,” permitting the State or political subdivision to seize, hold,

and protect the property. “Title to the property vests with the state or political subdivision

when the trier of fact renders a final forfeiture verdict or order.” R.C. 2981.03(A)(1); see -6-

also R.C. 2981.04(G) and R.C. 2981.05(E).

{¶ 15} A person with an interest in seized property may seek its return by means

of a motion filed in the criminal case before the prosecuting attorney has filed a charging

instrument containing a forfeiture specification, R.C. 2981.03(A)(4), or by means of a

petition filed in a civil-forfeiture proceeding. R.C. 2981.05(C). In either case, the trial

court must conduct a hearing and must return the property upon proof of an entitlement

to the property. R.C. 2981.03(A)(4) and R.C. 2981.05(B) and (C).

{¶ 16} In State v. Bolton,

,

(2d Dist.), the trial court

denied the defendant's motion for the return of property, which was filed after he was

convicted and after he served his sentence. Id. at ¶ 5. The property at issue was seized

from the defendant's residence pursuant to a search warrant and remained in the

possession of the police. Id. at ¶ 3. As in this case, the State failed to pursue either

criminal or civil forfeiture of the property. Id. at ¶ 13. Therefore, we reversed the

judgment of the trial court and held that, “where the statutory requirements for forfeiture

have not been met, we have no choice but to reverse the decision of the trial court and

remand for further proceedings.” Id. at ¶ 17.

{¶ 17} Unlike Bolton, Leet’s firearm was not seized pursuant to a search warrant.

Rather, the MTPD acted on behalf of the trial judge, who sent a letter to Chief

Stiegelmeyer after Leet had pled guilty and been convicted. The MTPD then placed Leet

into protective custody, transported him to a hospital for a mental health evaluation, and

completed an application for emergency admission. When asked how to further

proceed, Chief Stiegelmeyer told Sergeant Nienhaus to seize the firearm because “Leet

was considered under disability now since he was being mentally evaluated.” Nienhaus -7-

then seized the firearm.

{¶ 18} The State argues that Leet was under a disability because he was “being

mentally evaluated” and that he is not entitled to the return of his firearm pursuant to R.C.

2923.13(A)(5), which states in pertinent part:

(A) Unless relieved from disability under operation of law or legal

process, no person shall knowingly acquire, have, carry, or use any firearm

or dangerous ordnance, if any of the following apply:

***

(5) The person is under adjudication of mental incompetence, has been

adjudicated as a mental defective, has been committed to a mental

institution, has been found by a court to be a mentally ill person subject to

court order, or is an involuntary patient other than one who is a patient only

for purposes of observation. As used in this division, “mentally ill person

subject to court order” and “patient” have the same meanings as in section

5122.01 of the Revised Code.

(Emphasis added.)

{¶ 19} As previously stated, Leet was admitted as an involuntary patient at

Kettering Hospital on October 28, 2019, for a 72-hour hold for purposes of observation.

In our view, Leet was specifically excluded from the disability language set forth in R.C.

2923.13(A)(5). Therefore, he cannot be denied the return of his firearm based upon that

section of the statute because he was merely being observed during his time as an

involuntary patient at Kettering Hospital and was not under a mental health disability.

{¶ 20} On November 22, 2019, counsel for Leet sent a letter to Chief Stiegelmeyer -8-

requesting the immediate return of the firearm. Stiegelmeyer sent a letter to Leet’s

counsel in reply which referenced the handwritten notation, ostensibly included by the

trial court and dated November 21, 2019, which stated “Forfeit 45 cal Handgun.” The

record does not establish that Leet was served with notice of forfeiture, and no forfeiture

hearing was held prior to the November 21, 2019 order. It was only after Leet filed the

motion for the return of his firearm on December 2, 2019, that the trial court finally held a

hearing on the matter.

{¶ 21} The State retained the firearm seized from Leet without complying with R.C.

Chapter 2981. The prosecuting attorney did not provide Leet with notice that the

property was subject to forfeiture, nor did the State initiate civil forfeiture of the property.

Additionally, the matter of forfeiture was not mentioned in Leet's plea form or his judgment

entry of conviction until over a month after he was convicted, and then only in a short

handwritten notation.

{¶ 22} In the absence of a final forfeiture adjudication, the State's interest in the

property seized from Leet remains “provisional.” R.C. 2981.03(A)(1); see also State v.

North,

,

, ¶ 12 (1st Dist.). Additionally, the forfeiture

statutes contemplate a post-conviction adjudication by providing for, among other things,

an extension of the time for filing a civil-forfeiture complaint by agreement of the parties

or upon a showing of good cause. State v. Harris,

,

,

; R.C. 2981.03(F). Therefore, upon Leet's motion for return of his

firearm, the trial court should have provided him with the procedural protections afforded

by the civil-forfeiture statute. See North at ¶ 12; State v. Clark,

,

,

(3d Dist.). Where the statutory requirements for -9-

forfeiture have not been met, we have no choice but to reverse the decision of the trial

court and remand for further proceedings. See Bolton,

,

.

{¶ 23} Leet’s assignment of error is sustained.

{¶ 24} The judgment of the trial court is reversed, and the matter is remanded for

further proceedings consistent with this opinion.

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WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Christine L. Burk J. David Turner Hon. Robert W. Rettich, III