[Cite as State v. Tomcik, 2019-Ohio-1396.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.       18CA0079-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
KATHLEEN TOMCIK                                       MEDINA MUNICIPAL COURT
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   18TRC02423

                                 DECISION AND JOURNAL ENTRY

Dated: April 15, 2019



        HENSAL, Judge.

        {¶1}     Kathleen Tomcik appeals a judgment of the Medina Municipal Court that

convicted and sentenced her for operating a vehicle under the influence and a judgment of that

court that ordered her car forfeited. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     Following a traffic stop, a police officer charged Ms. Tomcik with two counts of

operating a vehicle under the influence (OVI). Before trial, Ms. Tomcik agreed to plead no

contest to an amended OVI charge in exchange for the dismissal of the other count. In her

pretrial agreement, Ms. Tomcik acknowledged that she had two prior OVI convictions. At

sentencing, however, she argued that the court should sentence her as if she only had one prior

OVI conviction because she did not have counsel in one of the cases. The municipal court

rejected her argument because the plea agreement stated that she had two prior offenses. It
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sentenced her to 30 days in jail. It also ordered her to forfeit the car she had been driving at the

time of the offense. Ms. Tomcik has appealed, assigning two errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

        THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

       {¶3}    Ms. Tomcik argues that her trial counsel was ineffective. To prevail on a claim of

ineffective assistance of counsel, Ms. Tomcik must show: (1) that counsel’s performance was

deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” and (2) that there is a reasonable probability that, but for

counsel’s deficient performance, the result of the trial would have been different. Strickland v.

Washington, 466 U.S. 668, 687, 694 (1984). A deficient performance is one that falls below an

objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph two of the syllabus. A court, however, “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Strickland at 689, quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955).      To establish prejudice, Ms. Tomcik must show that there exists a

reasonable probability that, were it not for counsel’s errors, the result of the trial would have

been different. Id. at 694.

       {¶4}    Ms. Tomcik argues that her trial counsel failed to advise her that, if she admitted

that she had two prior OVI offenses in her plea agreement, her car would be subject to forfeiture.

See R.C. 4511.19(G)(1)(c)(v). She also argues that her counsel should have done a better job

addressing the fact that one of her prior convictions was uncounseled and, therefore, was not
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eligible to enhance her offense. She asserts that, if she had known correctly about all of the

potential penalties, she would have insisted upon going to trial.

       {¶5}    Upon review of the record, we note that it does not contain a transcript of Ms.

Tomcik’s plea hearing. Under Criminal Rule 11(E), a court shall not accept a plea of no contest

to a petty offense “without first informing the defendant of the effect of the plea * * *.” Without

a transcript of what the municipal court told Ms. Tomcik, we are unable to review whether she

understood the potential penalties she would face if she pleaded no contest and the court found

her guilty of the amended OVI charge.

       {¶6}    “It is an appellant’s duty to ensure that the record, or the portion necessary for

review on appeal, is filed with the appellate court.” Swedlow v. Riegler, 9th Dist. Summit No.

26710, 2013-Ohio-5562, ¶ 14, quoting Shumate v. Shumate, 9th Dist. Lorain No. 09CA009707,

2010-Ohio-5062, ¶ 6; App.R. 9(B). “[If] the transcript of a hearing is necessary to resolve

assignments of error, but such transcript is missing from the record, the reviewing court has ‘no

choice but to presume the validity of the lower court’s proceedings, and affirm.’” Shumate at ¶

9, quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).

       {¶7}    Because the record does not contain a transcript of Ms. Tomcik’s plea hearing, we

are unable to review whether her counsel’s performance was deficient at the time that she

entered her plea and whether she suffered any prejudice from the alleged deficiency.

Accordingly, we conclude that Ms. Tomcik has failed to establish that she received ineffective

assistance from her trial counsel. Ms. Tomcik’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE
       APPELLANT’S VEHICLE FORFEITED.
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       {¶8}   Ms. Tomcik next argues that the municipal court incorrectly determined that

forfeiture of her car would not constitute an excessive fine under the Ohio and United States

Constitutions. The Ohio Supreme Court has recognized that:

       Forfeiture of property, pursuant to R.C. 2925.42, is a form of punishment for a
       specified offense and, therefore, is a “fine” for purposes of Section 9, Article I of
       the Ohio Constitution and the Eighth Amendment to the United States
       Constitution. Accordingly, prior to entering an order of forfeiture, the trial court
       must make an independent determination whether forfeiture of that property is an
       “excessive fine” prohibited by the Excessive Fine Clauses of the Ohio and United
       States Constitutions.

State v. Hill, 70 Ohio St.3d 25 (1994), syllabus. To determine whether a fine is excessive, this

Court has adopted a proportionality test. State v. McShepard, 9th Dist. Lorain No. 07CA009118,

2007-Ohio-6006, ¶ 17.

       [T]he court should consider several factors, including: (1) the harshness of the
       forfeiture in comparison to the severity of the offense and the potential sentence;
       (2) the relationship between the property and the offense; (3) the culpability of the
       owner of the property, including whether the owner was directly involved in the
       illegal activity; (4) the fair market value of the property; (5) the subjective value
       of the property; and (6) the hardship to the defendant.

Id., citing State v. Harold, 109 Ohio App.3d 87, 93-94 (9th Dist.1996). No one factor is

dispositive. Harold at 94. We review whether a fine is constitutionally excessive de novo.

McShepard at ¶ 17; United States v. Bajakajian, 524 U.S. 321, 326, fn. 10.

       {¶9}   At the forfeiture hearing, Ms. Tomcik testified that the car was new when she

began leasing it for three years at $276 a month. She had made all of her payments and would

reach the end of the lease in four months. She did not know what the sticker price of the car had

been but estimated $20,000. She indicated that she had received an employee discount because

she worked at the dealership where she acquired the vehicle. She testified that she intended to

turn the car in at the end of the lease term and did not know the residual value the car had been
                                                  5


assigned in the lease or how much the car was presently worth. She agreed that she had paid at

least $8,280 under her lease agreement.

       {¶10} Regarding the proportionality test factors, Ms. Tomcik admits that her car was

involved in the offense and that she was the one driving it at the time of the offense. She argues,

however, that the offense was only a petty crime, that she did not cause any type of collision, that

the offense occurred over a brief duration, and that there was no harm to the community.

       {¶11} It is difficult to ascertain the harshness of the forfeiture based on the information

in the appellate record. It is not clear whether the car was Ms. Tomcik’s only vehicle. It is also

not clear whether the residual value of the car is higher or lower than its fair market value. The

municipal court noted that, because the State did not desire the car, it would be sold, and the

proceeds paid to the lienholder. R.C. 4503.234(C)(2). Thus, we cannot say that Ms. Tomcik

will owe the lienholder anything other than her remaining monthly lease payments. We note that

forfeiture hearing occurred in September 2018. Ms. Tomcik testified that her lease ran through

January 2019. She, therefore, had either four or five more payments, which would total either

$1,104 or $1,380. We note that, under Section 4511.19(G)(1)(c)(iii), the municipal court was

allowed to fine Ms. Tomcik between $850 and $2,750. Adding the amount of her remaining

lease payments to the $900 fine it imposed is within those limits. Accordingly, upon review of

the record, we conclude that Ms. Tomcik has failed to establish that the forfeiture of her car

constituted a constitutionally excessive fine.        Ms. Tomcik’s second assignment of error is

overruled.

                                                 III.

       {¶12} Ms. Tomcik’s assignments of error are overruled. The judgment of the Medina

Municipal Court is affirmed.
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                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



TEODOSIO, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ERIC DYSERT, Attorney at Law, for Appellant.

J. MATTHEW LANIER, Prosecuting Attorney, for Appellee.
