[Cite as Cleveland v. Belcher, 2012-Ohio-3365.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97562



                                CITY OF CLEVELAND
                                                  PLAINTIFF-APPELLEE

                                                   vs.

                               DEMETRIUS BELCHER
                                                  DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2010 CRB 020647

        BEFORE:          Cooney, J., Blackmon, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED: July 26, 2012
ATTORNEY FOR APPELLANT

John F. Corrigan
19885 Detroit Rd., #335
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Barbara Langhenry
Interim Director of Law
City of Cleveland
601 Lakeside Avenue, Rm. 106
Cleveland, Ohio 44114

Victor R. Perez
Chief City Prosecutor
Connor P. Nathanson
Assistant City Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:

       {¶1} Defendant-appellant, Demetrius Belcher (“Belcher”), appeals the trial

court’s denial of his motion to return property. Finding merit to the appeal, we reverse

and remand.

       {¶2} In June 2010, Belcher was charged by the city of Cleveland (the “City”)

with having a weapon while intoxicated, in violation of Cleveland Codified Ordinances

627.03, a first degree misdemeanor.      Belcher pled no contest, was found guilty, and

sentenced to one year of probation.     When his year of probation ended in September

2011, he filed a motion for return of property. On November 2, 2011, the trial court

held a hearing to address his motion. The court denied the motion, stating that the

firearm would be forfeited based on his two prior gun-related offenses.

       {¶3} Belcher now appeals, arguing in his sole assignment of error that the trial

court erred in denying his motion for return of property.

       {¶4} The City concedes that the trial court erred in denying Belcher’s motion to

return his firearm.

       [I]n Ohio, forfeitures are typically not favored in law or equity. State v.
       Johns (1993), 90 Ohio App.3d 456, 459, 629 N.E.2d 1069 citing State v.
       Lilliock (1982), 70 Ohio St.2d 23, 25, 434 N.E.2d 723. “Whenever possible,
       such statutes must be construed as to avoid a forfeiture of property.”
       Lilliock, 70 Ohio St.2d at 26, 434 N.E.2d 723. The Supreme Court of
       Ohio has cautioned that forfeiture may not be ordered “unless the
       expression of the law is clear and the intent of the legislature manifest.”
       Id., see also City of Dayton v. Boddie (1984), 19 Ohio App.3d 210 * * *.
       A forfeiture action, while instituted as a criminal penalty, is a civil
       proceeding. State v. Roberts (1995), 102 Ohio App.3d 514, 518, 657
       N.E.2d 547 citing State v. Casalicchio * * *. Accordingly, due process
       requires that proceedings seeking a disposition of property in forfeiture
       comply with the Rules of Civil Procedure. State v. Gaines (1990), 64 Ohio
       App.3d 230, 236, 580 N.E.2d 1158.

State v. Clark, 173 Ohio App.3d 719, 2007-Ohio-6235, 880 N.E.2d 150, ¶ 8 (3d Dist.).

       {¶5} In the instant case, Belcher pled no contest and was found guilty of a charge

for which there is no forfeiture requirement.    Furthermore, the misdemeanor complaint

charging Belcher with the violation contained no separate forfeiture specification, as

required for the forfeiture of property associated with misdemeanor charges. See R.C.

2981.02.

       {¶6} The City never mentioned forfeiture at the plea hearing, nor did the City

ever pursue forfeiture proceedings during Belcher’s probation.      The City did not oppose

Belcher’s motion for return of property. Finally, Belcher’s firearm does not constitute

property subject to forfeiture pursuant to any of the provisions listed in R.C. 2981.02.

Therefore, the trial court was without statutory authority to deny Belcher’s motion.   State

v. Coleman, 8th Dist. No. 91058, 2009-Ohio-1611. Thus, the firearm is ordered returned

to Belcher. Accordingly, his sole assignment of error is sustained.

       {¶7} Judgment is reversed and case is remanded.

       It is ordered that appellant recover of said appellee 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 municipal

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.



______________________________________________
COLLEEN CONWAY COONEY, JUDGE

PATRICIA ANN BLACKMON, A.J., and
KENNETH A. ROCCO, J., CONCUR
