[Cite as State v. Van Tielen, 2017-Ohio-2799.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BROWN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2016-10-020

                                                  :            OPINION
    - vs -                                                      5/15/2017
                                                  :

JOHN VAN TIELEN,                                  :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                            Case No. 2010-2037



Zachary Corbin, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

John Van Tielen, #A629095, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe,
Ohio 45601, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, John Van Tielen, appeals a decision of Brown County

Court of Common Pleas, denying his motion for return of property. For the reasons detailed

below, we reverse the decision of the trial court and remand this matter for further

proceedings.

        {¶ 2} Van Tielen has previously been before this court several times, arguing issues
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related to his convictions for pandering sexually-oriented material involving a minor. Van

Tielen was arrested after a multi-state investigation was conducted regarding the sharing of

child pornography over the internet. A search warrant was executed on Van Tielen's

computer, and officials located photographs containing graphic child pornography.

        {¶ 3} On March 17, 2010, Van Tielen pled guilty to four counts of pandering sexually-

oriented material involving a minor.           The trial court ordered Van Tielen to six years'

imprisonment on each of the counts. Each six-year sentence was mandatory because Van

Tielen had previously been convicted of rape and attempted rape. The trial court ordered the

sentences to run consecutive to one another, for a total aggregate sentence of 24 years.

        {¶ 4} Van Tielen has since filed several appeals related to his conviction and

sentence.1 This appeal does not relate to Van Tielen's conviction or sentence, but instead

involves his June 13, 2016 motion for return of property. At the time, Van Tielen did not have

any pending matters on appeal. The trial court denied Van Tielen's motion in a judgment

entry, relying on principles of res judicata.             Van Tielen now appeals, raising three

assignments of error for review.

        {¶ 5} Assignment of Error No. 1:

        {¶ 6} THE COURT OF COMMON PLEAS VIOLATED APPELLANT'S DUE

PROCESS RIGHTS WHEN IT CLAIMED IT DOES NOT HAVE JURISDICTION AND

REFUSED TO RETURN APPELLANT'S PROPERTY.

        {¶ 7} Assignment of Error No. 2:

        {¶ 8} THE COURT OF COMMON PLEAS COMMITTED [sic] BY NOT FOLLOWING




1. State v. Van Tielen, 12th Dist. Brown No. CA2010-06-011 (Mar. 7, 2011) (Accelerated Calendar Judgment
Entry), appeal not accepted, 129 Ohio St. 3d 1410, 2011-Ohio-3244; State v. Van Tielen, 12th Dist. Brown No.
CA2012-04-007, 2013-Ohio-446, appeal not accepted, 135 Ohio St. 3d 1461, 2013-Ohio-2285; State v. Van
Tielen, 12th Dist. Brown No. CA2013-11-012, 2014-Ohio-4421, appeal not accepted, 142 Ohio St. 3d 1467,
2015-Ohio-1896; and State v. Van Tielen, 12th Dist. Brown No. CA2015-09-025, 2016-Ohio-1288.
                                                    -2-
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STATUTORY REQUIREMENTS WHEN THE COURT REFUSED TO RETURN

APPELLANT'S PROPERTY WITHOUT FOLLOWING MANDATES OF R.C. 2981 ET SEQ

AND 2941.17.

       {¶ 9} Assignment of Error No. 3:

       {¶ 10} THE COURT OF COMMON PLEAS COMMITTED ERROR WHEN IT

ATTACHED RES JUDICATA TO APPELLANT'S MOTION FOR RETURN OF PROPERTY.

       {¶ 11} Van Tielen's assignments of error are interrelated and may be addressed

together. In the present case, Van Tielen argues that the trial court erred by denying his

motion on the basis of res judicata. Procedurally, we agree with Van Tielen because his

motion was not barred by res judicata.

       {¶ 12} The doctrine of res judicata provides that a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment. State v. Wofford,

12th Dist. Butler No. CA2016-03-057, 2016-Ohio-7188, ¶ 13. A determination of whether the

doctrine of res judicata bars an action is a question of law which this court reviews de novo.

State v. Lindsey, 12th Dist. Brown No. CA2002-02-002, 2003-Ohio-811, ¶ 21.

       {¶ 13} Forfeiture proceedings are governed by R.C. Chapter 2981, which identifies

procedures and property subject to forfeiture. The record before this court is limited,

however, we agree that the trial court should not have resolved this issue on the basis of res

judicata because a trial court lacks jurisdiction to consider a motion to return property during

the pendency of an appeal. State ex rel. Special Prosecutors v. Judges, Court of Common

Pleas, 55 Ohio St.2d 94, 97 (1978) (once a case has been appealed, the trial court loses

jurisdiction except to take action in aid of the appeal); see State v. Graham, 12th Dist.
                                              -3-
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Warren No. CA2014-04-062, 2015-Ohio-576, ¶ 26.

       {¶ 14} It is undisputed that the state did not allege forfeiture of property in this case

and did not include a forfeiture specification in the indictment. Following his guilty plea, Van

Tielen filed a litany of appeals to his conviction and sentence. However, at the time Van

Tielen requested the return of his property, there were no pending matters on appeal. The

trial court could not have considered the forfeiture issue until Van Tielen filed his motion in

the present case. Accordingly, we find the trial court erred by resolving this issue on the

basis of res judicata. We reverse the decision of the trial court and remand this matter for a

determination of whether Van Tielen's property is subject to return or forfeiture based on

relevant law.

       {¶ 15} Judgment reversed and remanded.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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