[Cite as State ex rel. West v. McDonnell, 139 Ohio St.3d 115, 2014-Ohio-1562.]




 THE STATE EX REL. WEST, APPELLANT, v. MCDONNELL, JUDGE, APPELLEE.
[Cite as State ex rel. West v. McDonnell, 139 Ohio St.3d 115, 2014-Ohio-1562.]
Forfeiture proceedings are not a component of a sentencing order—Trial judge
        did not patently and unambiguously lack jurisdiction to conduct forfeiture
        proceedings after notice of appeal from criminal conviction was filed—
        Court of appeals’ judgment dismissing petition for writ of prohibition
        affirmed.
   (No. 2013-0714—Submitted November 19, 2013—Decided April 17, 2014.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 99086,
                                      2013-Ohio-1044.
                                 ____________________
        Per Curiam.
        {¶ 1} Appellant, Todd West, appeals the judgment of the Eighth District
Court of Appeals dismissing his petition for a writ of prohibition against
Cuyahoga County Common Pleas Court Judge Nancy McDonnell.                              For the
reasons set forth below, we affirm the judgment of the court of appeals.
Background
        {¶ 2} On March 29, 2011, West was indicted by a Cuyahoga County
grand jury for running a marijuana-distribution operation with his brother,
Timothy West,1 out of a building the brothers owned at 2341 Scranton Road, in
Cleveland. State v. West, Cuyahoga Cty. C.P. No. CR-548609-A.
        {¶ 3} On September 16, 2011, a jury found West guilty of four felonies,
with forfeiture specifications. Judge McDonnell issued a sentencing entry on



1. Timothy West is the appellant in a nearly identical case, State ex rel. West v. McDonnell, 139
Ohio St.3d 120, 2014-Ohio-1563, ___ N.E.3d ___, also decided today.
                             SUPREME COURT OF OHIO




September 26, 2011, and in it, she listed property to be forfeited, including the
property at 2341 Scranton Road.
       {¶ 4} West appealed the sentencing order to the Eighth District Court of
Appeals on October 11, 2011. 8th Dist. Cuyahoga No. 97398. West contends
that the filing of that notice of appeal divested Judge McDonnell of jurisdiction to
conduct further forfeiture hearings.
       {¶ 5} On October 17, 2011, Nicholas Kulon filed a petition, pursuant to
the criminal forfeiture proceedings described in R.C. 2981.04, to determine the
validity of his interest in the Scranton Road property. The West brothers’ mother,
Donnalee West, also filed an R.C. 2981.04 petition related to the property. Judge
McDonnell held two hearings on the petitions, one on November 23 and another
on December 28, 2011.
       {¶ 6} Judge McDonnell issued a journal entry on January 13, 2012,
reiterating West’s sentence and resolving the R.C. 2981.04 petitions.         Judge
McDonnell dismissed Donnalee West’s petition as untimely. She further found
that Kulon was a bona fide purchaser of the property, but that the attempted sale
of the property violated R.C. 2981.07 and was void. She therefore ordered the
transfer of the property to Kulon and ordered that the proceeds of the sale be
forfeited to the appropriate trust funds operated by the city of Cleveland and
Cuyahoga County.
       {¶ 7} West filed a notice of appeal on February 2, 2012. 8th Dist.
Cuyahoga No. 97899.
       {¶ 8} On October 23, 2012, almost a year after Judge McDonnell entered
her order on the forfeiture petitions, West commenced an original action in the
Eighth District Court of Appeals, seeking a writ of prohibition to vacate Judge
McDonnell’s January 13, 2012 order. West argued that Judge McDonnell had
lacked jurisdiction to enter the order for two reasons. First, he maintained that
jurisdiction over the matter transferred to the court of appeals when he appealed




                                         2
                                 January Term, 2014




his criminal conviction on October 11, 2011. And second, he argued that the
criminal indictment specified only permanent parcel No. 004-10-005 as subject to
forfeiture, but the Scranton Road property that Judge McDonnell declared
forfeited also included permanent parcel No. 004-10-006, and so she (allegedly)
did not have jurisdiction to declare that portion of the property forfeited.
       {¶ 9} The Eighth District granted Judge McDonnell’s motion to dismiss.
The appellate court held that R.C. 2981.04 vested Judge McDonnell with
jurisdiction to conduct forfeiture proceedings even after the notice of appeal was
filed. In addition, the court held that any error by the court in the sentencing entry
was correctable on appeal. And the court held that West’s argument concerning
the indictment’s alleged failure to include both parcel numbers failed because
West unsuccessfully raised the very same issue in his direct appeal, and therefore
the argument was barred by issue preclusion.
       {¶ 10} West timely filed a notice of appeal with this court. The parties
have filed briefs, and the matter is ripe for decision.
Legal analysis
       {¶ 11} On appeal to this court, West presents two arguments. In his first
proposition of law, he argues that the appellate court erred in dismissing his
complaint based upon its review of evidence outside the pleadings. And in his
second proposition of law, he contends that the appellate court erred as a matter of
law in not granting the requested writ. Neither proposition has merit.
       {¶ 12} West claims that the appellate court erred by considering evidence
outside the record in deciding to dismiss his prohibition complaint. Specifically,
he quotes the following paragraph from the court of appeals’ decision.


                 A review of the record in the underlying case indicates that
       the brothers had “sold” the Scranton Road property to Nicholas
       Kulon in May 2011. It is apparent that Kulon realized that this sale



                                           3
                            SUPREME COURT OF OHIO




       may be problematic and commenced a civil lawsuit, Kulon v.
       Timothy West, Todd West, State of Ohio & Cuyahoga Cty.,
       Cuyahoga C.P. No. CV-761802, on August 8, 2011, to resolve the
       matter. Thus, the state of Ohio in the underlying case on October
       3, 2011, filed a brief in support of forfeiture that asked the trial
       judge to declare that the May 2011 contract was null and void and
       to vest title unencumbered with the city of Cleveland. On October
       17, 2011, Kulon filed a petition, pursuant to R.C. 2981.04, criminal
       forfeiture proceedings, to determine the validity of his interest in
       the Scranton Road property. In between these filings, the brothers
       appealed their convictions and sentences; State v. Timothy West,
       8th Dist. No. 97391 and State v. Todd West, 8th Dist. No. 97398.
       On December 28, 2011, Donnalee West, the brothers’ mother, filed
       a petition to determine her interest in the property.


8th Dist. Cuyahoga No. 99086, 2013-Ohio-1044, ¶ 4.
       {¶ 13} Judge McDonnell argues that the factual averments in the
paragraph quoted above were all properly considered by the court of appeals
because all this information was part of the record in West’s criminal/forfeiture
case, Cuyahoga C.P. No. CR-548609-A.
       {¶ 14} As a general rule, courts cannot rely on evidence or allegations
outside the complaint to decide a Civ.R. 12(B)(6) motion to dismiss. State ex rel.
Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). Judge
McDonnell correctly notes that courts have recognized narrow exceptions to this
rule. State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859
N.E.2d 923, ¶ 26 (in deciding a motion to dismiss, a court may consider legal
arguments set forth in a separate pleading); France v. Celebrezze, 8th Dist.




                                          4
                                 January Term, 2014




Cuyahoga No. 98147, 2012-Ohio-2072, ¶ 6-7 (court may take judicial notice of its
own docket to dismiss sua sponte a complaint for a writ of prohibition).
        {¶ 15} It is unnecessary for the court to decide whether the appellate court
in this case correctly took judicial notice of evidence and allegations in the
underlying criminal complaint because those specific facts played no part in the
court’s decision.       The court dismissed the complaint based on legal
determinations: that R.C. 2981.04 gave Judge McDonnell jurisdiction to hold a
forfeiture hearing and that West had an adequate remedy in the ordinary course of
law by way of direct appeal. West’s merit brief does not explain how specific
facts outside the record concerning the dispute with Kulon were relevant, much
less pivotal, to the appellate court’s decision.
        {¶ 16} That said, however, the appellate court did exceed its bounds in
ruling on the Civ.R. 12(B)(6) motion, at least with regard to the issue of the
Scranton Road parcels. The appellate court held that West’s claim was barred by
issue preclusion.     Issue preclusion is a subset of res judicata.   State ex rel.
Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-
1704, 905 N.E.2d 1210, ¶ 27. It is not proper for a court to grant a motion to
dismiss based on res judicata, because res judicata is an affirmative defense,
Shaper v. Tracy, 73 Ohio St.3d 1211, 1212, 654 N.E.2d 1268 (1995); State ex rel.
Freeman v. Morris, 62 Ohio St.3d 107, 109, 579 N.E.2d 702 (1991), and because
resolution of a res judicata defense typically requires resort to materials outside
the pleadings, Folck v. Khanzada, 2d Dist. Clark No. 2012-CA-18, 2012-Ohio-
4971, ¶ 8-9; Commons v. Raaber, 8th Dist. Cuyahoga No. 96867, 2011-Ohio-
6084, ¶ 12; Hillman v. Edwards, 10th Dist. Franklin No. 10AP-950, 2011-Ohio-
2677, ¶ 14.
        {¶ 17} The question, then, is whether the court of appeals properly
dismissed the complaint for purely legal reasons, which implicates West’s second
proposition of law.



                                           5
                             SUPREME COURT OF OHIO




        {¶ 18} In his second proposition of law, West argues that he is entitled to
a writ of prohibition because Judge McDonnell lacked jurisdiction to conduct a
forfeiture hearing after West filed his notice of appeal from the criminal
conviction.
        {¶ 19} If a court patently and unambiguously lacks jurisdiction, a writ of
prohibition will issue to prevent any future unlawful exercise of jurisdiction and
to correct the results of prior jurisdictionally unauthorized actions. State ex rel.
Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633,
¶ 26.   However, if the court does not patently and unambiguously lack
jurisdiction, then a party who disputes that jurisdiction has an adequate remedy by
way of appeal, and so a writ of prohibition will not issue. State ex rel. Bradford v.
Trumbull Cty. Court, 64 Ohio St.3d 502, 504, 597 N.E.2d 116 (1992); State ex
rel. Pearson v. Moore, 48 Ohio St.3d 37, 38, 548 N.E.2d 945 (1990).
        {¶ 20} The court of appeals held that Judge McDonnell did not patently
and unambiguously lack jurisdiction, because R.C. 2981.04 vested her with at
least apparent jurisdiction to conduct forfeiture proceedings even after the notice
of appeal was filed. Specifically, R.C. 2981.04(E)(1) allows any person (other
than the offender) who asserts a legal interest in the forfeited property to petition
the court for a hearing to adjudicate the validity of that interest after the court has
entered the forfeiture order. This is precisely what happened with respect to the
Scranton Road property.
        {¶ 21} In his current appeal, West does not directly dispute this legal
conclusion.   Instead, he argues that Judge McDonnell’s actions amounted to
modifying his sentencing order while the case was on appeal. West contends that
the trial court is without jurisdiction to amend a criminal sentence while the case
is on appeal, citing State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas, 55 Ohio St.2d 94, 378 N.E.2d 162 (1978).




                                          6
                               January Term, 2014




        {¶ 22} This court’s decision in State v. Harris, 132 Ohio St.3d 318, 2012-
Ohio-1908, 972 N.E.2d 509, is dispositive of West’s argument. In Harris, this
court held that an order of forfeiture is not a criminal penalty, and thus, the
forfeiture need not be in the sentencing entry. Id. at ¶ 27-28. “[T]he forfeiture of
items contemplates judicial action and additional considerations that extend
beyond a defendant’s criminal case.” Id. at ¶ 33. The statute anticipates that the
court may have to conduct additional proceedings regarding forfeiture after the
conviction is finalized. R.C. 2981.04(E).
        {¶ 23} Because forfeiture proceedings are not a component of the
sentencing order itself, the holding in Special Prosecutors does not apply to them.
For that reason, the court of appeals was correct in holding that Judge McDonnell
did not patently and unambiguously lack jurisdiction and that any errors in the
proceedings should be addressed on appeal.
        {¶ 24} That principle extends to West’s argument that Judge McDonnell
lacked jurisdiction to order the entire Scranton Road property forfeited because
the indictment failed to list one of the parcel numbers in describing the property
subject to forfeiture. Any error in that regard was an error in the exercise of
jurisdiction, rather than an action undertaken in the absence of subject-matter
jurisdiction. See State ex rel. Obojski v. Perciak, 113 Ohio St.3d 486, 2007-Ohio-
2453, 866 N.E.2d 1070, ¶ 22 (entry that rezoned property in violation of city
charter requiring voter approval for residential zoning changes was an error in the
exercise of jurisdiction, not an error establishing lack of subject-matter
jurisdiction).
        {¶ 25} Based on the foregoing, we affirm the judgment of the court of
appeals.
                                                                Judgment affirmed.
        O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.



                                         7
                            SUPREME COURT OF OHIO




                            ____________________
       Todd West, pro se.
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
                         _________________________




                                        8
