[Cite as State v. Clayton, 2013-Ohio-2198.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98795




                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 DEMARCO CLAYTON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-561140


        BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: May 30, 2013
ATTORNEY FOR APPELLANT

James R. Willis
323 West Lakeside Avenue
420 Lakeside Place
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Ma’Rion D. Horhn
       Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant Demarco Clayton (“Clayton”) appeals the denial of his

motion for return of forfeited property.     We find no merit to the appeal and affirm the

trial court’s judgment.

       {¶2} Clayton was charged with drug trafficking, possession of criminal tools,

carrying a concealed weapon, and having weapons while under disability.           All the

charges included forfeiture specifications for a scale, a handgun, and $22,832 found in

Clayton’s vehicle.

       {¶3} Clayton filed a motion to dismiss and a motion for pretrial release of money.

In its response, the state provided evidence that Clayton’s money and other forfeited

property were seized pursuant to a federal warrant and were in the custody of the federal

government.

       {¶4} A month later, Clayton filed a second motion to dismiss.            The state

responded by filing a motion to dismiss without prejudice. The court granted the state’s

motion and dismissed the case without prejudice. In a separate entry, the court denied

Clayton’s motion for return of property as moot. It ruled that the return of property,

which was in federal custody, had to be addressed in the federal court. Clayton now

appeals, raising two assignments of error.

                                Final, Appealable Order
       {¶5} As a preliminary matter, we address the state’s assertion that we lack

jurisdiction to hear this appeal. The state contends that because the trial court dismissed

the case without prejudice and denied Clayton’s motion for return of property as moot,

there is no final, appealable order. We disagree.

       {¶6} Pursuant to R.C. 2505.02(B)(4), the Ohio Supreme Court has held that an

order granting or denying a provisional remedy is a final, appealable order if it satisfies

the following three-part test:

       (1) the order must either grant or deny * * * a “provisional remedy,” (2) the
       order must both determine the action with respect to the provisional remedy
       and prevent a judgment in favor of the appealing party with respect to the
       provisional remedy, and (3) the reviewing court must decide that the party
       appealing from the order would not be afforded a meaningful or effective
       remedy by an appeal following final judgment as to all proceedings, issues,
       claims, and parties in the action.

State v. Muncie, 91 Ohio St.3d 440, 446, 2001-Ohio-93, 746 N.E.2d 1092.

       {¶7} R.C. 2505.02(A)(3) defines “provisional remedy” as “a proceeding ancillary

to an action, including, but not limited to, a proceeding for a preliminary injunction,

attachment, discovery of privileged matter, [or] suppression of evidence.”               A

“proceeding ancillary to an action” is “‘one that is attendant upon or aids another

proceeding.’” Muncie at 449, quoting Bishop v. Dresser Indus., Inc., 134 Ohio App.3d

321, 324, 1999-Ohio-911, 730 N.E.2d 1079 (3d Dist.). A motion for the return of

forfeited property creates an ancillary proceeding to the underlying criminal case because

it presents a claim that arises from the criminal prosecution. Therefore, the trial court’s
order denying Clayton’s motion for return of seized property is a provisional remedy.

R.C. 2505.02(A)(3).

        {¶8} The second prong of the test requires the court to “both determine the action

with respect to the provisional remedy and prevent a judgment in favor of the appealing

party with respect to the provisional remedy.” Muncie at 446. An order denying a motion

for return of seized property “determine[s] the action with respect to the provisional

remedy” because it precludes the defendant from obtaining the relief he requested,

namely the return of his property. It also prevents a judgment in the movant’s favor with

respect to the provisional remedy. Thus, the trial court’s order meets the second prong of

the test.

        {¶9} Under the third prong, the order must satisfy R.C. 2505.02(B)(4)(b), which

requires a determination of whether the order precludes “a meaningful or effective

remedy” via appeal, following a final judgment as to all the claims in the action. Id.

R.C. 2505.02(B)(4)(b) does not require “the absence of every theoretical remedy in order

to find that appellant would be denied a ‘meaningful’ or ‘effective’ remedy following

final judgment.” Bob Krihwan Pontiac-GMC Truck Inc. v. Gen. Motors Corp., 141 Ohio

App.3d 777, 781, 753 N.E.2d 864 (10th Dist.2001). “[T]he statute asks whether a

postponed appeal is sufficient to remedy the effects of the order granting or denying the

provisional remedy, not whether appellants have other separate remedies available at the

trial court level.” Premier Health Care Servs. Inc. v. Schneiderman, 2d Dist. No. 18795,

2001 Ohio App. LEXIS 5170, *7 (Aug. 21, 2001).
       {¶10} Here, the trial court dismissed the entire case without prejudice and denied

Clayton’s motion for return of property as moot. The dismissal of the case without

prejudice leaves the defendant in limbo and prevents him from appealing some other

“final” order whereby he may also appeal this ancillary judgment. If Clayton were never

reindicted, he would be precluded from ever obtaining review of the trial court’s denial of

his request for return of his property.       Therefore, a trial court’s order denying a

defendant’s motion for return of forfeited property precludes a meaningful and effective

remedy on appeal after final judgment where the case was dismissed without prejudice.

See DiBella v. United States, 369 U.S. 121, 131-132, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962)

(holding that the denial of motion for return of forfeited property is a final, appealable

order when the “motion [wa]s solely for return of property”); United States v. Elliott, 149

Fed.Appx. 489, 492 (7th Cir.2005) (holding that preliminary forfeiture order, rather than

final forfeiture order, was final because it was conclusive as to defendant’s interest in the

property “and thus was the final order in the matter as to him”); Epstein v. United States,

359 A.2d 274, 277 (D.C.Cir.1976) (holding that denial of motion for return of seized

property was final and appealable where a “nolle prosequi” was entered on the original

charges).

       {¶11} Therefore, the trial court’s denial of Clayton’s motion for return of forfeited

property is a final, appealable order.

                                         Forfeiture
       {¶12} In his first assignment of error, Clayton argues the trial court erred in

dismissing the case without disposing of all aspects of the case.             In the second

assignment of error, he argues that, “absent a dispositive order, the case cannot be finally

resolved.” In both assigned errors, Clayton argues that the trial court erred in dismissing

the case without ordering the return of his property.

       {¶13} R.C. 2981.03(A), Ohio’s forfeiture statute, provides in relevant part:

       A person aggrieved by an alleged unlawful seizure of property may seek
       relief from the seizure by filing a motion in the appropriate court that shows
       the person’s interest in the property, states why the seizure was unlawful,
       and requests the property’s return. * * * If the motion is filed by a
       defendant after an indictment, information, or a complaint seeking
       forfeiture of the property has been filed, the court shall treat the motion as a
       motion to suppress evidence. R.C. 2981.03(A)(4).

       {¶14} It is undisputed that the charges against Clayton were dismissed without

prejudice. He was not convicted of any crimes for which he was arrested, and his

property was seized. Therefore, his motion for return of property would likely have been

successful pursuant to R.C. 2981.03(A), but for the fact that the police transferred the

property to the federal government pursuant to 18 U.S.C. 981(b)(2).

       {¶15} 18 U.S.C. 981(b)(2), which governs federal forfeitures, provides that

“[s]eizures pursuant to this section shall be made pursuant to a warrant obtained in the

same manner as provided for a search warrant” unless certain exceptions apply. In

response to Clayton’s motion for return of property, the state provided copies of two

federal warrants for the seizure of Clayton’s property, including $22,832 in U.S. currency.
 Therefore, local police legally transferred Clayton’s property to federal authorities

pursuant to federal warrant.

       {¶16} The Ohio Supreme Court made it clear that when property and money are

forfeited under federal law, it is immaterial what Ohio’s forfeiture statute provides by

way of relief. State ex rel. Chandler v. Butler, 61 Ohio St.3d 592, 593, 575 N.E.2d 833

(1991). See also State v. Primm, 8th Dist. No. 94630, 2011-Ohio-328. Clayton’s claim,

if any, is against the federal government. Id.

       {¶17} This court shares the same concerns articulated in the concurring opinion in

Primm regarding a loophole that permits local law enforcement to circumvent the

procedural protections contained in the state forfeiture statute by simply transferring the

property to federal authorities pursuant to federal statute. Nevertheless, “we are bound to

follow the Supremacy Clause codified in Article VI of the United States Constitution as

well as the Ohio Supreme Court’s holding in State ex rel. Chandler v. Butler.” State v.

Scott, 7th Dist. No. 98 CA 174, 2000 Ohio App. LEXIS 1221 (Mar. 22, 2000).

       {¶18} Therefore, Clayton’s two assignments of error are overruled.

       {¶19} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)

EILEEN A. GALLAGHER, J., DISSENTING:

      {¶20} I respectfully dissent.      I would sustain Clayton’s first and second

assignments of error in part, reverse the judgment of the trial court denying as moot

appellant’s motion for return of forfeited property, and remand for further proceedings to

properly dispose of the motion.

      {¶21} To the extent that both of Clayton’s assignments of error present, in part,

arguments challenging the trial court’s order granting the state’s motion to dismiss the

criminal case without prejudice, I would find that this court is without jurisdiction to

consider those portions of Clayton’s arguments. The dismissal of a criminal complaint,

without prejudice, is not a final, appealable order. Fairview Park v. Fleming, 8th Dist.

Nos. 77323 and 77324, 2000 Ohio App. LEXIS 5714 (Dec. 7, 2000); State v. Brown, 8th

Dist. No. 84229, 2004-Ohio-5587, ¶ 6.

      {¶22} I agree with the majority opinion’s well-reasoned conclusion that the trial

court’s denial of Clayton’s motion for return of forfeited property as moot is a final,

appealable order. However, under the unique facts of the present case, I disagree with

the majority’s conclusion that Clayton’s sole remedy lies against the federal government.
       {¶23} This court has previously expressed its concern with the now commonplace

circumvention of Ohio’s forfeiture statute by local and federal authorities. See, e.g.,

Harris v. Mayfield Hts., 8th Dist. No. 95601, 2011-Ohio-1943; State v. Primm, 8th Dist.

No. 94630, 2011-Ohio-328; Cleveland v. Cunningham, 8th Dist. No. 95267,

2011-Ohio-2276; Long v. State, 8th Dist. No. 97044, 2012-Ohio-366. The fact that the

transfer of funds, originally seized by local law enforcement, allegedly occurred by means

of a federal warrant, pursuant to 18 U.S.C. 981(b)(2), during a brief period where the

underlying state criminal charges against appellant were not pending does not lessen my

concerns of systematic abuse. The same underlying problems noted in the “adoptive”

forfeiture cases pursuant to 18 U.S.C. 981(b)(2)(C) persist here.

       {¶24} Primm presented an instance of an adoptive seizure by the federal

government where the trial court subsequently declined to hear a criminal defendant’s

motion for the return of his property on jurisdictional grounds. Primm resulted in three

separate opinions. I find the reasoning of the dissent in Primm to be persuasive in the

present instance. The Primm dissent found that the state court retained jurisdiction over

the seized funds despite the alleged federal transfer based on in rem jurisdiction,

explaining:

       In in rem jurisdiction cases, the court first assuming jurisdiction over the
       property maintains jurisdiction to the exclusion of all other courts. Penn
       Gen. Cas. Co. v. Commonwealth of Pennsylvania, ex rel. Schnader (1935),
       294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850. In this case, once the state
       forfeiture action was filed * * * the [later] federal forfeiture claim * * * was
       of no consequence.

State v. Primm, 8th Dist. No. 94630, 2011-Ohio-328, ¶ 20.
       {¶25} The dissent in Primm rejected the contention that the transfer of the seized

funds to the federal government conferred in rem jurisdiction on the federal government

over and above the state’s jurisdiction. Id. at ¶ 21.       While I am cognizant of the

well-reasoned argument contained in the concurring opinion in Primm, I find the dissent’s

analysis to be salient in the present case.

       {¶26} Pursuant to R.C. 2981.03(A)(1):

       The state or political subdivision acquires provisional title to property
       subject to forfeiture under this chapter upon a person’s commission of an
       offense giving rise to forfeiture, subject to third party claims and a final
       adjudication under section 2981.04 or 2981.05 of the Revised Code.
       Provisional title authorizes the state or political subdivision to seize and
       hold the property, and to act to protect the property, under this section
       before any proceeding under this chapter. Title to the property vests with
       the state or political subdivision when the trier of fact renders a final
       forfeiture verdict or order under section 2981.04 or 2981.05 of the Revised
       Code, but that title is subject to third party claims adjudicated under those
       sections.

       {¶27} As this court explained in Harris v. Mayfield Hts., 8th Dist. No. 95601,

2011-Ohio-1943:

       The State’s arguments that they do not have the seized property are
       disingenuous. The State, by acting as a conduit from the owner or
       possessor of the property to the United States of America is entitled, upon
       forfeiture, to the return of a substantial amount of the monies seized.
       Accordingly, the State has a genuine pecuniary interest in any seized
       property. The artificiality of their specious claims that since they no longer
       are in possession of the seized property, they cannot be held accountable in
       replevin, can be viewed as an attempt by the State to knowingly circumvent
       the replevin statutes. The State levies a preposterous argument. For
       example, if a thief places stolen property in the home of a third person,
       should he not be held accountable for its return when the whereabouts of
       the property are discovered? The mere deposit of currency in a repository
       operated by the United States government does not obviate the obvious, the
       depositor has rights to that which has been deposited.
Id. at ¶ 48.

       {¶28} Consistent with the Primm dissent’s rationale, Chapter 9-116.110 of the

United States Attorney’s Manual specifically forbids a federal agency from adopting a

seizure while the property remains subject to the jurisdiction of a state court. Cleveland

v. Cunningham, 8th Dist. No. 95267, 2011-Ohio-2276, ¶ 34 (Eileen A. Gallagher, J.,

dissenting).

       {¶29} The Fifth Amendment to the Constitution of the United States, made

applicable to the several states through the Fourteenth Amendment, states: “No person

shall be * * * deprived of life, liberty or property without due process of law.”

       {¶30} Article I of the Ohio Constitution provides: “All men are, by nature, free

and independent, and have certain inalienable rights, among which are those of * * *

acquiring, possessing, and protecting property * * *.”

       {¶31} In the present instance, the state, having twice dismissed the underlying

criminal charges against appellant and by its own admission abandoned any pursuit of

forfeiture specifications relating to the subject funds, has offered no argument either

before the trial court or on appeal that would support any further deprivation on its part of

appellant’s right to possess his property.

       {¶32} For these reasons, I would sustain Clayton’s first and second assignments of

error in part.
