[Cite as State v. Harris, 2014-Ohio-2415.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
DAVID HARRIS                                 :       Case No. 13CA76
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2012-CR-0658 D



JUDGMENT:                                            Affirmed in Part; Reversed and
                                                     Remanded in Part



DATE OF JUDGMENT:                                    June 4, 2014



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JAMES J. MAYER, JR.                                  CASSANDRA J. M. MAYER
Prosecuting Attorney                                 234 Park Ave. West
                                                     Mansfield, OH 44902
By: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 13CA76                                                         2



Baldwin, J.

      {¶1}    Defendant-appellant David Harris appeals from the July 24, 2013

Sentencing Entry of the Richland County Court of Common Pleas. Plaintiff-appellee is

the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On September 10, 2012, the Richland County Grand jury indicted

appellant on one count of improperly handling firearms in a motor vehicle in violation of

R.C. 2923.16(D)(1), a felony of the fifth degree, one count of driving while under the

influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the

first degree, one count of    driving while under the influence of alcohol or drugs in

violation of R.C. 4511.19(A)(1)(d), a misdemeanor of the first degree, one count of

failure to stay within marked lanes in violation of R.C. 4511.33(A)(1), a minor

misdemeanor, and speeding in violation of R.C.4511.21(C), also a minor misdemeanor.

Appellant pleaded not guilty to the charges.

      {¶3}    Following a jury trial, the jury, on January 29, 2013, found appellant guilty

of exceeding the speed limit and improper marked lane usage. A mistrial was declared

on the remaining counts after the jury was unable to reach a verdict and a jury trial on

those counts was scheduled for March 14, 2013. The trial was later continued.

      {¶4}    Thereafter, on June 12, 2013, appellant withdrew his former not guilty plea

and entered a plea of guilty to carrying a concealed weapon in violation of R.C.

2923.12(B)(1), a misdemeanor of the first degree, and having physical control of a

vehicle while under the influence in violation of R.C. 4511.194(B)(2), also a

misdemeanor of the first degree. Both were amended charges. The remaining charge of
Richland County, Case No. 13CA76                                                        3


driving while under the influence of alcohol or drugs was dismissed. Pursuant to a

Sentencing Entry filed on July 24, 2013, appellant was sentenced to two years of

community control, a suspended one year term of incarceration, and was fined

$2,200.00. The trial court also ordered that appellant forfeit his .357 Magnum revolver,

which was seized at the scene, and, as a condition of probation, revoked appellant’s

concealed carry permit. In addition, the trial court prohibited appellant from reapplying

for his permit while on probation and prohibited him from cohabitating with girlfriends or

boyfriends with whom he engaged in a sexual relationship, among other sanctions.

      {¶5}   Appellant now raises the following assignments of error on appeal:

      {¶6}   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

FORFEITED MR. HARRIS’ HANDGUN BECAUSE THE STATE FAILED TO COMPLY

WITH THE PROVISIONS SET FORTH [IN] ORC [SECTIONS] 2981.01 THROUGH

298114.

      {¶7}   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

ORDERED, AS CONDITIONS OF COMMUNITY CONTROL, THAT MR. HARRIS

SURRENDER HIS CONCEAL CARRY PERMIT TO THE SHERRIFF’S OFFICE;

PROHIBITED MR. HARRIS FROM RE-APPLYING FOR A CONCEAL CARRY PERMIT

WHILE ON COMMUNITY CONTROL AND PROHIBITED MR. HARRIS FROM ANY

COHABITATION WITH GIRLFRIENDS WHILE ON COMMUNITY CONTROL.

      {¶8}   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

FAILED TO APPLY THE SENTENCE RELATED TO THE CCW CHARGE AS

REQUIRED IN ORC [SECTION] 2923.12 IN SITUATIONS WHEN THE LAW
Richland County, Case No. 13CA76                                                            4


ENFORCEMENT OFFICER HAD ACTUAL KNOWLEDGE THAT MR. HARRIS HAD

BEEN ISSUED A CONCEAL CARRY PERMIT.

                                                 I

      {¶9}    Appellant, in his first assignment of error, argues that the trial court erred

when it ordered the forfeiture of his handgun without complying with the requirements

set forth in R.C. 2981.01 through 2981.14. We note that at the sentencing hearing,

appellant’s counsel objected to the State’s request for forfeiture of the handgun, arguing

that appellant had no notice of the request and that the handgun had been returned to

appellant.

      {¶10}   In Ohio, forfeitures are generally not favored in law or equity. State v.

Johns, 90 Ohio App.3d 456, 459, 629 N.E.2d 1069 (9th Dist. Wayne 1993), citing State

v. Lilliock, 70 Ohio St.2d 23, 25, 434 N.E.2d 723 (1982). Whenever possible, statutes

imposing restrictions upon the use of private property, in derogation of private property

rights, “must be construed as to avoid a forfeiture of property.” Lilliock at 26, citing State

ex rel. Jones v. Board of Deputy State Supervisors and Inspectors of Elections, 93 Ohio

St. 14, 16, 112 N.E. 136 (1915).

      {¶11}   R.C. 2981.04 Specification concerning forfeiture petitions, provides as

follows:

      {¶12}   “(A)(1) Property described in division (A) of section 2981.02 of the Revised

Code may be forfeited under this section only if the complaint, indictment, or information

charging the offense or municipal violation, or the complaint charging the delinquent act,

contains a specification of the type described in section 2941.1417 of the Revised Code
Richland County, Case No. 13CA76                                                              5

that sets forth all of the following to the extent it is reasonably known at the time of the

filing:

          {¶13}   “(a) The nature and extent of the alleged offender's or delinquent child's

interest in the property;

          {¶14}   “(b) A description of the property;

          {¶15}   “(c) If the property is alleged to be an instrumentality, the alleged use or

intended use of the property in the commission or facilitation of the offense.

          {¶16}   “(2) If any property is not reasonably foreseen to be subject to forfeiture at

the time of filing the indictment, information, or complaint, the trier of fact still may return

a verdict of forfeiture concerning that property in the hearing described in division (B) of

this section if the prosecutor, upon discovering the property to be subject to forfeiture,

gave prompt notice of this fact to the alleged offender or delinquent child under Criminal

Rule 7(E) or Juvenile Rule 10(B).

          {¶17}   “(3) For good cause shown, the court may consider issues of the guilt of

the alleged offender or the delinquency of the alleged delinquent child separate from

whether property specified as subject to forfeiture should be forfeited.

          {¶18}   “(B) If a person pleads guilty to or is convicted of an offense or is

adjudicated a delinquent child for committing a delinquent act and the complaint,

indictment, or information charging the offense or act contains a specification covering

property subject to forfeiture under section 2981.02 of the Revised Code, the trier of fact

shall determine whether the person's property shall be forfeited. If the state or political

subdivision proves by a preponderance of the evidence that the property is in whole or

part subject to forfeiture under section 2981.02 of the Revised Code, after a
Richland County, Case No. 13CA76                                                              6


proportionality review under section 2981.09 of the Revised Code when relevant, the

trier of fact shall return a verdict of forfeiture that specifically describes the extent of the

property subject to forfeiture. If the trier of fact is a jury, on the offender's or delinquent

child's motion, the court shall make the determination of whether the property shall be

forfeited.” (Emphasis added.)

      {¶19}   In the case sub judice, it is undisputed that compliance with R.C. 2981.04

was not afforded appellant prior to the ordered seizure of his firearm. The indictment

charging the offenses contained no specification covering property subject to forfeiture

under section 2981.02 of the Revised Code. In addition, the statutes under which

appellant was charged and the statutes to which he pled do not specifically authorize

firearm forfeiture. See R.C. 2981.02(A)(3)(b). Accordingly, we hold the trial court erred

in issuing a forfeiture order in this case. Appellant was never provided with notice that

appellee intended to seek forfeiture of the handgun.

      {¶20}   Appellant’s first assignment of error is, therefore, sustained.

                                                  II

      {¶21}   Appellant, in his second assignment of error, argues that the trial court

erred in ordering, as a condition of community control, that appellant surrender his

conceal carry permit and that he was prohibited from re-applying for a permit while on

community control. Appellant also challenges the trial court’s order that prohibited

appellant from any cohabitation with girlfriends while on community control.

      {¶22}   Generally, misdemeanor sentencing is within the sound discretion of the

trial court and will not be disturbed upon review if the sentence is within the limits of the

applicable statute. State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006-Ohio-1558, ¶
Richland County, Case No. 13CA76                                                        7

21, citing State v. Pass, 6th Dist., Lucas No. L-92-017, 1992 WL 386011 (Dec. 30,

1992). An abuse of discretion implies the court's attitude is “unreasonable, arbitrary or

unconscionable.” State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

      {¶23}   R.C. 2929.27(C) provides that in addition to the specific sanctions

authorized under division (A) of that section, a court imposing a sentence for a

misdemeanor, other than a minor misdemeanor, “may impose any other sanction that is

intended to discourage the offender or other persons from committing a similar offense

if the sanction is reasonably related to the overriding purposes and principles of

misdemeanor sentencing.” The overriding purposes of misdemeanor sentencing are to

protect the public from future crime by the offender and others and to punish the

offender. R.C. 2929.21(A). In order to achieve those purposes, a sentencing court must

consider “the impact of the offense upon the victim and the need for changing the

offender's behavior, rehabilitating the offender, and making restitution to the victim of

the offense, the public, or the victim and the public.” Id.; State v. Coleman, 4th Dist.

Scioto. No. 05CA3037, 2006-Ohio-3200, ¶ 21.

      {¶24}   It is well-established that probation cannot be overly broad so as to

unnecessarily impinge upon a defendant's liberty. State v. Meldrum, 5th Dist. Stark .No.

2001 CA00289, 2002-Ohio-1859, citing State v. Maynard, 47 Ohio App.3d 76, 547

N.E.2d 409 (6th Dist. Wood 1988). Likewise, “[w]hile a trial court has broad discretion in

imposing probation conditions, that discretion is not limitless. * * * In determining

whether probation conditions are reasonably related to the statutory purpose of

probation and overbroad, a reviewing court should consider ‘whether the condition (1) is

reasonably related to rehabilitating the offender, (2) has some relationship to the crime
Richland County, Case No. 13CA76                                                          8


of which the offender was convicted, and (3) relates to conduct which is criminal or

reasonably related to future criminality and serves the statutory ends of probation.’”

Coleman at ¶ 22, citing State v. Jones, 49 Ohio St.3d 51, 52-53, 550 N.E.2d 469 (1990)

(additional citations omitted). The Ohio Supreme Court recognized that the same

rationale applies to the imposition of community control sanctions. State v. Talty, 103

Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201.

      {¶25}     We concur with appellee that the trial court did not abuse its discretion in

requiring appellant to surrender his legal conceal carry permit and preventing him from

reapplying for the same during the period of his community control, which was two

years . Appellant, in this matter, was not convicted of driving while intoxicated, but was

convicted of physical control of a motor vehicle under the influence of alcohol. At the

time, appellant had a loaded handgun in the center console of his vehicle. We find that

the conditions bore some relationship to such crime, were related to rehabilitating

appellant and related to conduct which is criminal or reasonably related to future

criminality and served the statutory ends of probation. We note that, at the sentencing

hearing, the trial court stated that appellant “had the bad judgment …to have your

loaded gun along and then operate your vehicle under the influence of alcohol. As a

result you forfeited your right to have such a license.” Transcript of July 22, 2013

hearing at 4.

      {¶26}     However, we find the condition that appellant was prevented from

cohabitating with anyone with whom he had sexual relations violated the factors set

forth in Jones, supra. Such condition has no relation whatsoever to the crimes at issue

in this case. That is, with the record before this Court, there is no relationship between
Richland County, Case No. 13CA76                                                          9


appellant's convictions and the prohibition regarding sexual relations. While appellee

argues that such sanction “supports a healthy and crime-free lifestyle”, such argument

can be made in every criminal case.        Accordingly, this sanction is overbroad and

unreasonable.

      {¶27}   Appellant’s second assignment of error is, therefore, sustained in part and

overruled in part.

                                                III

      {¶28}   Appellant, in his third assignment of error, argues that the trial court erred

when it sentenced appellant regarding R.C. 2923.12(B)(1) as a misdemeanor of the

first degree rather than a minor misdemeanor pursuant to R.C. 2923.12(F)(3).

      {¶29}   In the case sub judice, appellant plead to a violation of R.C.

2923.12(B)(1). Generally, a violation of R.C. 2923.12(B)(1), is a first-degree

misdemeanor that carries with it the one-year concealed carry license suspension set

out in R.C. 2923.128(A)(2)(a). R.C. 2923.12(F)(3). But there is an exception. R.C.

2923.12(F)(3) provides:

      {¶30}   “If, at the time of the stop of the offender for a law enforcement purpose

that was the basis of the violation, any law enforcement officer involved with the stop

had actual knowledge that the offender has been issued a license or temporary

emergency license to carry a concealed handgun, carrying concealed weapons in

violation of division (B)(1) of this section is a minor misdemeanor, and the offender's

license or temporary emergency license to carry a concealed handgun shall not be

suspended pursuant to division (A)(2) of section 2923.128 of the Revised Code.”

(Emphasis added.)
Richland County, Case No. 13CA76                                                        10


      {¶31}   Appellant contends that “the arresting officer’s testimony at the first trial

supports the fact that the arresting officer had actual knowledge that [appellant] was

issued a concealed handgun permit.”

      {¶32}   However, it is clear that appellant plead to a misdemeanor of the first

degree rather than a minor misdemeanor. At the June 12, 2013 hearing, appellee

stated that “Count 1 of the indictment, which is improper handling of a firearm, is being

amended to carrying a concealed weapon, in violation of 2923.12(B)(1), a misdemeanor

of the first degree.” Transcript of June 12, 2013 plea hearing at 5. The trial court later

informed appellant that both charges were first degree misdemeanors. In addition, the

form signed by appellant on June 12, 2013 states that appellant was pleading guilty to

carrying a concealed weapon, a misdemeanor of the first degree.

      {¶33}   We note that a plea of guilty constitutes a complete admission of guilt.

Crim. R. 11(B)(1). “By entering a plea of guilty, the accused is not simply stating that he

did the discreet acts described in the indictment; he is admitting guilt of a substantive

crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927(1989).

      {¶34}   Appellant’s third assignment of error is, therefore, overruled.
Richland County, Case No. 13CA76                                                 11


      {¶35}   Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed in part and reversed and remanded in part.

By: Baldwin, J.

Hoffman, P.J. and

Farmer, J. concur.
