[Cite as State v. Abston,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 7-21-04

v.

TYLER R. ABSTON, OPINION

DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court Trial Court No. 2019 CR 0153

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: March 21, 2022

APPEARANCES:

Nathan VanDenBerghe for Appellant

Gwen Howe-Gebers for Appellee Case No. 7-21-04

SHAW, J.

{¶1} Defendant-appellant, Tyler Abston (“Abston”), brings this appeal from

the July 26, 2021, judgment of the Henry County Common Pleas Court sentencing

him to an indefinite prison term of 8 years minimum to a maximum 12 years after

Abston plead guilty to, and was convicted of, Engaging in a Pattern of Corrupt

Activity in violation of R.C. 2923.32(A)(1), a first degree felony, two counts of

Aggravated Trafficking in Drugs in violation of R.C. 2925.03(A)(1), both first

degree felonies, and Trafficking in Heroin in violation of R.C. 2925.03(A)(1), a first

degree felony. On appeal, Abston argues that his pleas were not knowing and

voluntary, that he received ineffective assistance of counsel, that the Reagan Tokes

Law is unconstitutional, that the trial court’s forfeiture order in the absence of a

forfeiture specification was erroneous, and that the trial court erred by failing to sua

sponte consider a letter Abston sent to the court as a motion to withdraw his pleas.

Background

{¶2} On November 27, 2019, Abston was indicted for Engaging in a Pattern

of Corrupt Activity in violation of R.C. 2923.32(A)(1), a first degree felony (Count

1); Trafficking in a Fentanyl-Related Compound in violation of R.C. 2925.03(A)(1),

a second degree felony (Count 2); Aggravated Trafficking in Drugs in violation of

R.C. 2925.03(A)(1), a first degree felony (Count 3); Trafficking in a Fentanyl-

Related Compound in violation of R.C. 2925.03(A)(1), a second degree felony

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(Count 4); Aggravated Trafficking in Drugs in violation of R.C. 2925.03(A)(1), a

first degree felony (Count 5); Aggravated Trafficking in Drugs in violation of R.C.

2925.03(A)(1), a first degree felony (Count 6); Trafficking in Heroin in violation of

R.C. 2925.03(A)(1), a first degree felony (Count 7); Trafficking in a Fentanyl-

Related Compound in violation of R.C. 2925.03(A)(1), a fourth degree felony

(Count 8); and Aggravated Trafficking in Drugs in violation of R.C. 2925.03(A)(1),

a second degree felony (Count 9). The drug transactions allegedly occurred on

various dates from September 12, 2019, to October 22, 2019.1 Abston originally

pled not guilty to the charges.

{¶3} A lengthy pretrial process ensued wherein Abston replaced three

attorneys, some retained, some appointed. He repeatedly waived his right to speedy

trial as his attorneys prepared the case and engaged in motion practice.

{¶4} On June 8, 2021, Abston entered into a written, negotiated guilty plea

wherein he agreed to plead guilty to Counts 1, 3, 6, and 7 of the indictment. In

exchange, the State agreed to dismiss the remaining charges and recommend an

aggregate 8 year minimum mandatory prison term at sentencing with an indefinite

maximum term of 12 years. The written plea agreement was signed by Abston, his

attorney, the prosecutor, and the trial judge.

1 Some transactions allegedly involved fifty times the bulk amount of methamphetamines, but less than one- hundred times bulk amount, others involved fifty times the bulk amount of heroin, but less than one hundred times bulk amount. Overall there were multiple allegations of sales of over one-hundred fifty grams of methamphetamine and multiple sales of greater than ten grams of fentanyl.

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{¶5} A change-of-plea hearing was held wherein the trial court determined

that Abston was entering knowing, intelligent, and voluntary guilty pleas. The trial

court accepted Abston’s pleas, found him guilty of Counts 1, 3, 6, and 7 of the

indictment and set the matter for sentencing.

{¶6} On July 26, 2021, the case proceeded to sentencing wherein the trial

court sentenced Abston to the recommended mandatory prison term: 8 years

minimum to a maximum 12 years.2 A judgment entry memorializing Abston’s

sentence was filed that same day. It is from this judgment that Abston appeals,

asserting the following assignments of error for our review.

Assignment of Error No. 1 Appellant did not receive effective assistance of counsel which caused Appellant to enter a plea that was not knowing and voluntary and trial counsel failed to object to the constitutional validity of Reagan Tokes.

Assignment of Error No. 2 Appellant’s plea was not knowing and voluntary.

Assignment of Error No. 3 The Reagan Tokes Act is an Unconstitutional Violation of Due Process.

Assignment of Error No. 4 The forfeiture order was plain error where the indictment did not contain the required specification.

2 Abston was sentenced to a minimum indefinite prison term of 8 years to a maximum 12 years on each count, concurrently with each other.

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Assignment of Error No. 5 The Trial Court erred when it did not consider Appellant’s July 2, 2021 letter as a motion to withdraw his guilty pleas and set the matter for a hearing[.]

{¶7} For ease of discussion, we elect to address the assignments of error out

of the order in which they are raised.

Second Assignment of Error

{¶8} In his second assignment of error, Abston argues that his guilty pleas

were not knowing and voluntary. Specifically, Abston contends that at the

beginning of the change-of-plea hearing, both Abston and his attorney expressed

confusion about the fact that Abston would be entering guilty pleas rather than no-

contest pleas.

Review of a Plea

{¶9} “Because a no-contest or guilty plea involves a waiver of constitutional

rights, a defendant’s decision to enter a plea must be knowing, intelligent, and

voluntary.” State v. Dangler,

,

. “If the plea

was not made knowingly, intelligently, and voluntarily, enforcement of that plea is

unconstitutional.”

{¶10} Crim.R. 11, which outlines the procedures that trial courts must follow

when accepting pleas, “‘ensures an adequate record on review by requiring the trial

court to personally inform the defendant of his rights and the consequences of his

plea and determine if the plea is understandingly and voluntarily made.’”

at ¶

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11, quoting State v. Stone,

(1975). Crim.R. 11(C), which

applies specifically to a trial court’s acceptance of pleas in felony cases, provides in

relevant part as follows:

(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally * * * and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

Crim.R. 11(C)(2)(a)-(c).

{¶11} “When a criminal defendant seeks to have his conviction reversed on

appeal, the traditional rule is that he must establish that an error occurred in the trial-

court proceedings and that he was prejudiced by that error.”

.

However, in the criminal-plea context, the Supreme Court of Ohio has carved out

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two limited exceptions to the prejudice component of the traditional rule. Id. at ¶

14-15. First, when a trial court fails to explain the constitutional rights listed in

Crim.R. 11(C)(2)(c) that a defendant waives by pleading guilty or no contest, it is

presumed that the plea was entered involuntarily and unknowingly, and no showing

of prejudice is required. Id. at ¶ 14. Second, “a trial court’s complete failure to

comply with a portion of Crim.R. 11(C) eliminates the defendant’s burden to show

prejudice.” (Emphasis sic.) Id. at ¶ 15. “Aside from these two exceptions, the

traditional rule continues to apply: a defendant is not entitled to have his plea

vacated unless he demonstrates he was prejudiced by a failure of the trial court to

comply with the provisions of Crim.R. 11(C).” Id. at ¶ 16.

Analysis

{¶12} In this case Abston does not argue that the trial court failed to comply

with any specific provision of Crim.R. 11(C); rather, he contends generally that at

the beginning of the change-of-plea hearing, both Abston and his counsel expressed

some confusion regarding whether Abston would enter guilty pleas or no contest

pleas. This occurred during the following exchange:

[Prosecutor]: Thank you Your Honor. [Yo]ur Honor we have prepared plea papers wherein the defendant will be entering a guilty plea to count one which []is engaging in a pattern of corrupt activity.

[Defense Counsel]: I thought no contest.

[Prosecutor]: Nuh uh, guilty, guilty. I don’t take no contest pleas.

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[Defense Counsel]: Okay.

[Prosecutor]: Does that change it; I don’t take a no contest plea.

[Defense Counsel]: Okay, I just, when we were going through the paperwork.

[Prosecutor]: Nope, it says guilty.

[Defense Counsel]: Okay.

[Defendant]: I was under the impression…

[Prosecutor]: Okay, were [sic] done.

[Defense Counsel]: I was under that impression too, but…

[Defendant]: I was under the impression it was no contest.

THE COURT: Well, where do we stand right now, do the parties need 30 seconds?

[Defense Counsel]: Yes sir.

THE COURT: Okay, 30 seconds, can you talk here or do you want us to go?

[Defense Counsel]: No, that’s fine.

(June 8, 2021, Tr. at 2-4).

{¶13} There is no indication of how much time passed for any discussion.

{¶14} In the very next line of the transcript the trial court asked, “Are we all

set?” (Id. at 4). Defense counsel responded, “Yes sir.” (Id.) A full Crim.R. 11 plea

hearing was then held wherein Abston repeatedly acknowledged that he understood

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the rights he was waiving and repeatedly stated that he wanted to enter guilty pleas.

Abston never again expresses any desire to enter no contest pleas.

{¶15} On appeal, Abston now contends that both he and his trial counsel

were confused regarding the nature of his plea and that the trial court erred by

proceeded with the Crim.R. 11 colloquy without inquiring whether Abston

understood the nature of his plea. Further, Abston argues that he signed the written

plea agreement before the parties came into court, so he could not have knowingly,

intelligently, and voluntarily signed the agreement because of his purported

misunderstanding.

{¶16} Contrary to Abston’s arguments, the record reflects that following any

initial confusion, Abston understood the nature of his plea and the fact that he was

entering guilty pleas to the charges. When reviewing the rest of the hearing in its

entirety, it becomes clear that the trial court was in full compliance with Crim.R.

11(C).

{¶17} After the above-cited segment wherein the hearing paused so Abston

could speak with his attorney, the trial court had the State proceed to recite the plea

agreement, including the State’s sentencing recommendation. The trial court then

addressed Abston directly, beginning by inquiring into his background. Abston was

informed of, and indicated he understood, the maximum penalties for the counts to

which he was entering guilty pleas. He indicated he was of sound mind and that he

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was not under the influence of any drugs or narcotics. Abston indicated he had

enough time to consult his attorney, although he said “I mean, just now, yes Your

Honor.” (Id. at 12). However, Abston clarified that he had the opportunity to go

over discovery, potential defenses, and potential witnesses with his attorney. He

stated that his attorney had answered all of his questions.

{¶18} Each of the four charges to which Abston was pleading guilty were

individually read to him by the trial court. The trial court asked Abston each time

if Abston understood that by pleading guilty he was making a complete admission

that he committed the offense. He responded that he understood.

{¶19} When questioned by the trial court, Abston indicated he understood

that by pleading guilty he could be sentenced that day, that by pleading guilty he

was waiving his right to have the trial court rule on any pretrial motions, that he was

waiving his right to a trial wherein the State had to prove his guilt beyond a

reasonable doubt, that he was waiving his right to cross-examine witnesses and

waiving his right to bring witnesses in his own defense and have them compelled to

testify, and that at a trial he had the right not to testify. Abston again affirmatively

indicated that he understood that by pleading guilty he was waiving all of his rights

in open court.

{¶20} Abston was also notified that he could lose some civil rights by

“pleading guilty” such as his right to own a firearm. When the trial court mentioned

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this potential loss of civil rights, Abston asked for further explanation regarding the

firearm. Following the trial court’s explanation, Abston indicated he understood.

He also indicated he understood that by pleading guilty he had a limited right to

appeal. Abston never expressed any confusion regarding his guilty pleas or asked

any questions regarding them like he did regarding the firearm issue.

{¶21} At this point in the change-of-plea hearing, the written negotiated plea

agreement was presented to the trial court. The paperwork itself repeatedly referred

to Abston voluntarily entering “guilty” pleas. Abston and his attorney had signed

the form before coming into court.

{¶22} Following the lengthy colloquy and the presentation of the written plea

agreement, the trial court again read each charge individually to Abston and asked

Abston how he wished to plead. Abston responded, “Guilty,” all four times. (Tr.

at 32-33).

{¶23} When reviewing Abston’s argument on appeal that his pleas were not

knowing and voluntary, it is important to emphasize that that under State v. Dangler,

,

, Abston must establish an error in the trial court

proceedings and that he was prejudiced by that error in order to vacate his plea.

Here, the trial court complied with all of the constitutional and nonconstitutional

requirements of Crim.R. 11. See State v. Summit, 3d Dist. Hardin No. 6-21-06,

. Abston has not established that the trial court omitted

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anything at all in the colloquy, much less established any prejudice by the

acceptance of his pleas. Summit at ¶ 15.

{¶24} In order to vacate Abston’s pleas, we would have to ignore the entire

discussion between Abston and the trial court that followed his initial confusion, we

would have to ignore his signed, written plea agreement, and we would have to

ignore Abston’s own statements that he understood the nature of his plea and his

statement that he wanted to plead guilty. Further, we would have to presume that

Abston did not have enough time to speak with his attorney, contrary to Abston’s

own statements at the hearing, and we would have to presume that Abston was

unwilling to voice his concerns or confusion at the hearing despite the fact that he

did so on other issues. As an appellate court, we are confined to the record, and the

record simply does not establish that Abston’s pleas were anything but knowing,

intelligent, and voluntary, despite any initial, very brief, confusion by Abston and

his attorney. Therefore, Abston’s second assignment of error is overruled.

Fifth Assignment of Error

{¶25} In his fifth assignment of error, Abston argues that the trial court erred

by failing to construe a letter he wrote to the trial court prior to sentencing as a

motion to withdraw his guilty pleas.

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Analysis

{¶26} At the outset, we note that the letter Abston wrote to the trial court was

never docketed and officially introduced into the record. However, we know that

the trial court received a letter from Abston because the trial court stated as much at

the sentencing hearing.3 Abston attached the purported letter to his brief, but it is

not technically before this Court for review since it is not officially part of the

record. State v. Martin, 4th Dist. Scioto No. 04CA2946,

.

Notably, an argument similar to Abston’s has been directly rejected in the past due

to the fact that the letter was not properly filed and it was not in the form of a motion.

State v. Hill, 8th Dist. Lorain No. 96CA006548,

, *1. Nevertheless,

since we know that the trial court received his letter, we will review Abston’s

argument in the interest of justice.

{¶27} Prior to sentencing, Abston sent a trial court a letter expressing

dissatisfaction with his attorney.4 Despite Abston’s evident dissatisfaction with his

attorney in his letter, Abston affirmatively indicated at the outset of the sentencing

hearing that he wished to proceed with a sentencing hearing with his current

attorney. In fact, the trial court addressed Abston directly, mentioning the letter and

his attorney’s motion to withdraw, and said “what I’m hearing from you [Abston]

3 The trial court indicated it had received a letter written by Abston that was addressed to both the trial judge and another judge. 4 Also prior to the sentencing hearing, Abston’s attorney filed a motion to withdraw as counsel.

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today is that you wish to withdraw that and proceed to sentencing today, is that

correct?” (July 26, 2021, Tr. at 3). Abston responded, “Yes.” (Id.)

{¶28} Based on Abston’s own statement at the sentencing hearing, the record

establishes that Abston wished to proceed with the hearing. He expressed no

misgivings with his attorney or his pleas. Actually, to the extent he sent a letter to

the trial judge, he indicated he wanted to “withdraw that.” Under these

circumstances, we cannot find that the trial court erred by failing to sua sponte

consider any letter as a motion to withdraw his guilty pleas and for failing to sua

sponte hold a hearing on the matter, particularly where Abston directly expressed

his desire to proceed with sentencing. State v. Keiter, 2d Dist. Montgomery No.

25235,

. For these reasons, Abston’s fifth assignment of error

is overruled.

Third Assignment of Error

{¶29} In his third assignment of error, Abston argues that the Reagan Tokes

Law is an unconstitutional violation of due process.

Standard of Review

{¶30} We review the determination of a statute’s constitutionality de

novo. State v. Hudson, 3d Dist. Marion,

, citing Akron v.

Callaway, 9th Dist. Summit,

,

, ¶ 23

and Andreyko v. Cincinnati, 1st Dist. Hamilton,

, 2003-Ohio-

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2759,

. “De novo review is independent, without deference

to the lower court's decision.”

citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of

Ohio,

,

(1992).

Analysis

{¶31} Abston argues that his indefinite sentence of 8-12 years in prison is

unconstitutional because the indefinite sentencing provisions of the Reagan Tokes

Law,5 under which he was sentenced, run afoul of the separation-of-powers doctrine

and infringe on his right to due process. At the outset, we note that Abston failed to

object to the constitutionality of the Reagan Tokes Law in the trial court. “The

‘[f]ailure to raise at the trial court level the issue of the constitutionality of a statute

or its application, which is apparent at the time of trial, constitutes a waiver of such

issue and a deviation from this state’s orderly procedure, and therefore need not be

heard for the first time on appeal.’” State v. Barnhart, 3d Dist. Putnam No. 12-20-

08,

, quoting State v. Awan,

(1986), syllabus.

“However, we retain the discretion to consider a waived constitutional argument

under a plain-error analysis.” Id. at ¶ 8. “An error qualifies as ‘plain error’ only if

it is obvious and but for the error, the outcome of the proceeding clearly would have

been otherwise.” Id. In this case, we elect to exercise our discretion to review

5 Because we have thoroughly explained these provisions in previous opinions, we need not do so here. See, e.g., State v. Barnhart, 3d Dist. Putnam No. 12-20-08,

; State v. Hiles, 3d Dist. Union No. 14-20-21,

.

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Abston’s constitutional arguments for plain error. See id. at ¶ 8, 15 (reviewing

“waived” challenge to the constitutionality of the Reagan Tokes Law for plain

error).

{¶32} Abston’s challenge does not present a matter of first impression in this

Court. Since the indefinite sentencing provisions of the Reagan Tokes Law went

into effect in March 2019, we have repeatedly been asked to address the

constitutionality of these provisions. We have invariably concluded that the

indefinite sentencing provisions of the Reagan Tokes Law do not violate the

separation-of-powers doctrine or infringe on defendants’ due process rights. E.g.,

State v. Crawford, 3d Dist. Henry No. 7-20-05,

; State v.

Hacker, 3d Dist. Logan No. 8-20-01,

; State v. Wolfe, 3d Dist.

Union No. 14-21-16,

, ¶ 21.

{¶33} In this case, Abston asks us to reconsider our earlier decisions. In

recent months, a number of defendants have requested the same of us—requests that

we have uniformly rejected. E.g., Wolfe at ¶ 22; Barnhart at ¶ 12-15; State v.

Mitchell, 3d Dist. Allen No. 1-21-02,

; State v. Rodriguez, 3d

Dist. Seneca No. 13-20-07,

. As Abston has not presented us

with any compelling new reason to depart from our earlier precedent, we once again

decline to do so. Consequently, we find no plain error in the trial court’s decision

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to sentence Abston to an indefinite term of 8-12 years in prison consistent with the

Reagan Tokes Law. Therefore, his third assignment of error is overruled.

First Assignment of Error

{¶34} In Abston’s first assignment of error, he argues that he received

ineffective assistance of counsel. Specifically, he argues that his counsel was

ineffective for failing to communicate with Abston, for “convincing” Abston to

enter into a plea agreement, and for deficiently explaining the plea process to

Abston. Further, Abston argues that his counsel was ineffective for failing to

challenge the constitutionality of the Reagan Tokes Law.

Standard of Review

{¶35} A properly licensed attorney is presumed competent. State v.

Hamblin,

(1988). Therefore, to prevail on a claim of ineffective

assistance of counsel, Abston must show counsel’s performance fell below an

objective standard of reasonable representation and but for counsel’s error, the result

of the proceedings would have been different. Strickland v. Washington,

,

(1984); State v. Bradley,

(1989). In other

words, Abston must show counsel’s conduct so undermined the proper functioning

of the adversarial process that the trial cannot be relied upon as having produced a

just result.

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Analysis

{¶36} We have already determined that the trial court did not err by finding

that Abston’s pleas were knowing, intelligent, and voluntary. Abston may now

claim that he did not have enough time to speak with his attorney, but this is directly

contradicted in the dialogue from the plea hearing. Further, the dialogue at the plea

hearing established that Abston did understand the process and that he did desire to

change his pleas. Thus we can find no error here and no resulting prejudice.

{¶37} As to Abston’s claim that his attorney was ineffective for failing to

object to the Reagan Tokes Law, we have rejected similar challenges to Reagan

Tokes, whether raised or not, thus he cannot establish any error or prejudice on this

issue either. See

. For these reasons, his first assignment of

error is overruled.

Fourth Assignment of Error

{¶38} In his fourth assignment of error, Abston argues that the trial court

erred by ordering the “forfeiture” of $13,680 in the absence of a forfeiture

specification in the indictment.

Relevant Authority

{¶39} Revised Code 2981.02(A)(1)(b) allows for the forfeiture of

“[p]roceeds derived from or acquired through the commission of an offense.”

Generally, “proceeds” are “any property derived directly or indirectly from an

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offense,” including money. R.C. 2981.01(B)(11)(a). Money derived from a drug

transaction can constitute “proceeds.” See State v. McCorkle, 2d Dist. Greene No.

2020-CA-36,

, appeal not allowed,

,

, ¶ 15. However, in order for such “proceeds” to be forfeited, a

defendant has to be convicted of a crime and a forfeiture specification “of the type

described in section 2941.1417” has to be included in the indictment. R.C.

2981.04(A)(1).

{¶40} Importantly, “‘forfeitures are not favored in law and equity, and

forfeiture statutes must be interpreted strictly against the [S]tate.’” State v. Cave,

4th Dist. Scioto No. 13CA3575,

, ¶ 40, quoting State v. Luong, 12th

Dist. Butler No. CA2011-06-101,

, ¶ 44, citing State v. King, 12th

Dist. Fayette No. CA2008–10–035,

, ¶ 12. “The burden is on the

state to show that the money has any connection to the underlying criminal

offense.” Dayton Police Dept. v. Byrd, 2d Dist. No. 23551,

,

, ¶ 10, citing State v. Ali,

(1997). The

State “‘must demonstrate that it is more probable than not, from all the

circumstances, that the defendant used [the money] in the commission of criminal

offenses.’” (Citations omitted.)

quoting

. The same logic applies

regarding sufficient proof that the money was proceeds of the criminal offense.

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Analysis

{¶41} At the sentencing hearing in this matter, the State requested that

$13,680 be “returned and forfeited to the MAN Unit.” (July 26, 2021, Tr. at 5).

Specifically, the State argued,

there is money that was seized from the defendant as a result of the ongoing case and we had not asked the Court to release any of that yet back to the MAN Unit given his case was still pending so there is $13,680 between this defendant and the co-defendants that were seized. We are asking that that be returned and forfeited back to the MAN Unit.

(Id.)

{¶42} Although it was not explained at the sentencing hearing, or at any prior

hearing, the $13,680 the State seems to be referring to was first mentioned in

Abston’s indictment. Count 1 of the indictment, Engaging in a Pattern of Corrupt

Activity, listed four drug trafficking incidents Abston was involved with, one of

which was for the amount of $13,680. The indictment alleged that Abston sold “6

ounces of Meth and 3 ounces of Heroin/Fentanyl for $13,680.” (Doc. No. 2).

Further, the indictment alleged,

Tyler Abston (“ACE”) arrived in a car driven by Vicki W[.] The CI gets into the vehicle wherein the money & drugs are exchanged. A felony traffic stop was then conducted at the end of the buy and a safe was also located in the vehicle. The safe, although it did not contain anything, matched the safe from the buy that took place on September 18th, 2019.

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(Id.) There was no forfeiture specification attached to Count 1 of the indictment, or

any of the other counts in the indictment.6

{¶43} As the case progressed, the $13,680 was not mentioned in any material

filed in the docket after the indictment. Similarly, the $13,680 was not mentioned

as part of the written plea agreement and it was not mentioned at the change-of-plea

hearing.

{¶44} Despite the lack of any mention of the $13,680 prior to the sentencing

hearing, at the sentencing hearing the State requested the $13,680 referenced above

that was “seized” from Abston and his co-defendants. The defense objected to any

“restitution” in this matter without a separate, additional hearing7, but the defense

did not specifically make any arguments regarding forfeiture of the $13,680.

Importantly, however, failure to object does not waive any arguments regarding

forfeiture on appeal because “forfeiture of property is created by statute,” and

“forfeitures are disfavored.” State v. Christian, 2d Dist. Montgomery No. 25256,

.

{¶45} Following the State’s oral request for “return” or “forfeiture” of the

$13,680 at the sentencing hearing, the trial court ordered that the $13,680 seized

“shall become the property of * * * [the] MAN Unit.” (Id. at 24). In the trial court’s

6 The three other drug trafficking incidents listed under Count 1 of the indictment were for amounts of $1,400, $4,600, and $4,600. 7 The State was requesting $10,000 in restitution for the costs of the investigation and buy money used. The trial court denied the request. Abston was assessed $40,000 in fines in this matter.

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judgment entry, the trial court stated, “It is further ORDERED that the * * *

($13,680.00) be forfeited to the MAN Unit.” (Emphasis added.) (Doc. No. 102).

{¶46} Pursuant to R.C. 2981.04(A)(1), property may be forfeited only

following a conviction when the charging instrument contains a specification of the

type described in R.C. 2941.1417. Thus under the plain wording of the statute, the

trial court’s “forfeiture” order would be improper here. See

.

{¶47} While the trial court’s “forfeiture” order would be improper under the

statutory authority, the State argues that the trial court’s use of the word “forfeited”

was merely a misstatement. The State argues that it simply wanted the money used

in the controlled drug buys to be “released,” not “forfeited,” since the money was

no longer needed as evidence.8 Notably, R.C. 2981.01(B)(11)(a) does contain an

avenue for the recovery of money that does not meet the definition of forfeiture

proceeds outside of the forfeiture framework; however, the statute requires proof

that the money was held under clear title by a law enforcement agency, and proof

that the money was used to purchase contraband for the purpose of investigating a

drug abuse offense.9

8 Again, the State did use the word “forfeited” at the sentencing hearing. 9 Revised Code 2981.01(B)(11) defines proceeds for purposes of forfeiture, and it reads as follows:

(11) “Proceeds” means both of the following:

(a) In cases involving unlawful goods, services, or activities, “proceeds” means any property derived directly or indirectly from an offense. “Proceeds” may include, but

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{¶48} The first problem with the State’s argument that it was seeking

“release” of the $13,680 rather than “forfeiture” is that our record contains no

information as to exactly how this $13,680 was seized from Abston, or even how

much of it was seized from him rather than his co-defendant(s). It is possible that

the $13,680 constituted “proceeds” subject to forfeiture based on the definition of

proceeds in R.C. 2981.01(B)(11)(a), and it is also possible that under the same

statute the money was clearly the property of the law enforcement agency and was

used for the purpose of investigating a drug abuse offense, thus falling outside of

the forfeiture framework. We simply are unable to classify the money since no

hearing was held and no further information is contained in the record.

is not limited to, money or any other means of exchange. “Proceeds” is not limited to the net gain or profit realized from the offense. “Proceeds” does not include property, including money or other means of exchange, if all of the following apply to that property:

(i) It is held under clear title by a law enforcement agency.

(ii) It is used or may be used to purchase contraband for the purpose of investigating any drug abuse offense, as defined in section 2925.01 of the Revised Code.

(iii) If it is used to purchase contraband under division (B)(11)(a)(ii) of this section, the property continues to be considered the property of the law enforcement agency if the agency establishes a clear chain of custody of it.

(b) In cases involving lawful goods or services that are sold or provided in an unlawful manner, “proceeds” means the amount of money or other means of exchange acquired through the illegal transactions resulting in the forfeiture, less the direct costs lawfully incurred in providing the goods or services. The lawful costs deduction does not include any part of the overhead expenses of, or income taxes paid by, the entity providing the goods or services. The alleged offender or delinquent child has the burden to prove that any costs are lawfully incurred.

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{¶49} Notwithstanding this point, and perhaps the more fatal flaw to the

State’s case, is the fact that a trial court speaks through its judgment entry, and the

entry in this case specifically states that the $13,680 is “forfeited.” State v. Brown,

3d Dist. Allen No. 1-06-66,

(“A trial court speaks only through

its journal entries and not by oral pronouncement.”). Given the trial court’s order

that the $13,680 was to be “forfeited,” the lack of a forfeiture specification in the

indictment, and our lack of a record regarding the $13,680, we are compelled to

reverse the trial court’s “forfeiture” order and remand this case so that a proper

determination regarding the $13,680 can be made. For these reasons, Abston’s

fourth assignment of error is sustained.

Conclusion

{¶50} For the foregoing reasons Abston’s first, second, third, and fifth

assignments of error are overruled. His fourth assignment of error is sustained. The

judgment of the Henry County Common Pleas Court is affirmed in part, and

reversed in part. This case is remanded to the trial court for further proceedings

consistent with this opinion.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr

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