[Cite as State v. Bolton, 2017-Ohio-7263.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   C.A. CASE NO. 27154
                                                   :
 v.                                                :   T.C. NO. 15-CR-777
                                                   :
 GARY D. BOLTON                                    :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                Rendered on the ___18th ___day of _____August_____, 2017.

                                              ...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

GARY D. BOLTON, 355 East Orchard Hill Drive, West Carrollton, Ohio 45449
     Defendant-Appellant

                                             .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Gary D. Bolton, acting pro se, appeals a decision of the

Montgomery County Court of Common Pleas, Criminal Division, overruling his “Motion to

Release Property.” The trial court issued its decision overruling Bolton’s motion on June
                                                                                         -2-


20, 2016. Bolton filed a timely notice of appeal with this Court on June 23, 2016.

       {¶ 2} The incident forming the basis for the instant appeal occurred on March 14,

2015, when police officers from West Carrolton, Ohio, were dispatched to Bolton’s

residence to perform a welfare check after he had contacted a nurse at a local hospital

and threatened to commit suicide. Initially, Bolton refused to come out of his house after

being ordered to by police. The SWAT team was activated and neighboring residences

were evacuated. During negotiations with police, Bolton threatened to “pick off officers

with a bow and arrow.” Eventually, Bolton came out of his house and was arrested. The

arresting officers stated that Bolton smelled of alcohol and that he admitted to having “a

few drinks.”

       {¶ 3} After Bolton was arrested and taken into custody, his residence was

searched pursuant to a warrant and the following items were removed: 1) green hatchet

with a knife attached; 2) brown survival knife; 3) black bayonet; 4) black machete; 5) black

and gold handled knife; 6) Buckshot tactical knives; 7) Homeland security knife; 8) bear

claw; 9) micro-tech spring loaded knife; 10) long swords; 11) “flip-out” knives; 12) ninja

throwing stars; 13) bat man wall climbers; 14) bow; 15) arrows; and 16) a compound bow

with arrows.

       {¶ 4} On April 4, 2015, Bolton was indicted for inducing panic, in violation of R.C.

2917.31(A)(2), a felony of the fifth degree. Shortly thereafter, on May 12, 2015, Bolton

pled guilty to the charged offense and was placed on community control. The record

establishes that neither the terms of Bolton’s plea nor the terms of his community control

sanctions contained any information regarding the disposition of the weapons seized from

his residence.    We also note that Bolton’s indictment did not contain a forfeiture
                                                                                           -3-


specification with respect to the seized items. Bolton did not file a direct appeal of his

conviction and sentence.

       {¶ 5} Bolton’s community control terminated on March 4, 2016. On March 22,

2016, Bolton filed a “Motion to Release Property,” wherein he asked the trial court for the

return of all the items that were seized from his residence when he was arrested on March

14, 2015. The State filed a memorandum opposing Bolton’s motion on May 9, 2016.

On June 20, 2016, the trial court issued a decision overruling Bolton’s motion for the

release of his property.

       {¶ 6} It is from this judgment that Bolton now appeals.

       {¶ 7} Initially,    we    note   that   Bolton's   pro    se   brief   presents     no

distinct assignments of error.    Upon review of his brief, however, Bolton’s argument

appears to be that the trial court erred when it overruled his motion to return the items that

were seized from his residence when he was arrested on March 14, 2015.

       {¶ 8} Rule 16 of the Ohio Rules of Appellate Procedure requires an appellant's

brief to include a “statement of the assignments of error presented for review, with

reference to the place in the record where each error is reflected.” App.R. 16(A)(3). This

rule also requires several other things missing from Bolton's brief: a table of contents, with

page references, App.R. 16(A)(1); a table of cases, App.R. 16(A)(2); a statement of the

case or statement of the facts relevant to the assignments of error, App.R. 16(A)(5) and

(6); and an “argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the contentions,

with citations to the authorities, statutes, and parts of the record on which appellant

relies,” App.R. 16(A)(7). Appellate Rule 12 provides that a court of appeals may
                                                                                             -4-


“disregard an assignment of error presented for review if the party raising it fails to identify

in the record the error on which the assignment of error is based or fails to argue the

assignment separately in the brief, as required under App.R. 16(A).” App.R. 12(A)(2).

       {¶ 9} While we are mindful that such omissions authorize this Court to either strike

the offending portions of the brief or sua sponte dismiss the appeal, we generally still

review the merits of appellant's claims in the interests of justice. Although Bolton has

failed to comply with App.R. 16(A)(3), we will, nevertheless, address his argument.

       {¶ 10} The property seized from Bolton's residence on March 14, 2015, was taken

pursuant to a search warrant. “Property seized under a warrant shall be kept for use as

evidence by the court which issued the warrant or by the law enforcement agency which

executed the warrant.” Crim.R. 41(D)(1); see also R.C. 2933.26 (property seized to be

kept by court) and R.C. 2933.27 (disposition of seized property before trial). R.C.

2981.11(A)(1) requires that any property seized pursuant to a warrant and that is in the

custody of a law enforcement agency “be kept safely by the agency, pending the time it

no longer is needed as evidence or for another lawful purpose.”

       {¶ 11} R.C. Chapter 29811 permits “[a] law enforcement officer [to] seize property

that the officer has probable cause to believe is property subject to forfeiture.” R.C.

2981.03(A)(2). Such property includes “contraband,” “proceeds” from the commission of

an offense, and “instrumentalities” involved in the commission of felonies and certain

other offenses. See R.C. 2981.01(B)(13) (defining “property subject to forfeiture”).          A



1
 The trial court rendered its judgment in this matter on June 20, 2016. On April 6, 2017,
certain provisions in some of the statutes contained in Chapter 2981 were amended.
References and citations to statutes in this opinion are as they existed at the time of the
trial court’s judgment.
                                                                                              -5-


State or political subdivision acquires provisional title to property subject to forfeiture,

upon commission of an offense giving rise to forfeiture. R.C. 2981.03(A)(1). This

provisional title is subject to claims of third parties and a final forfeiture adjudication. R.C.

2981.03(A)(1); State v. Jamison, 2d Dist. Montgomery No. 23211, 2010–Ohio–965, ¶ 21.

       {¶ 12} R.C. 2981.02 allows the forfeiture of contraband, proceeds, and certain

instrumentalities.

              A prosecuting attorney may then pursue forfeiture of seized property

       in a criminal proceeding under R.C. 2981.04, a civil proceeding under R.C.

       2981.05, or both. R.C. 2981.03(F).          Criminal forfeiture is initiated by

       including in the charging instrument a specification consistent with R.C.

       2941.1417 or by providing the defendant with “prompt notice,” in conformity

       with Crim.R. 7(E), that the property is subject to forfeiture. R.C.

       2981.04(A)(1) and (A)(2). Civil forfeiture is initiated by filing “a complaint

       requesting an order that forfeits the property to the state or a political

       subdivision.” R.C. 2981.05(A).

State v. Recinos, 5th Dist. Richland No. 14CA9, 2014–Ohio–3021, ¶ 21.

       {¶ 13} The State has not pursued forfeiture of the property seized from Bolton's

residence on March 14, 2015, either through a criminal or civil proceeding.                 The

indictment does not contain a forfeiture specification, precluding criminal forfeiture

under R.C. 2981.04. State v. Moreno, 2d Dist. Miami No. 2016-CA-9, 2017-Ohio-479, ¶

23. With certain exceptions not relevant here, a civil-forfeiture complaint must be filed

within 60 days of the property's seizure. However, the filing period may be extended by

agreement of the parties or by the trial court upon a showing of good cause. R.C.
                                                                                             -6-


2981.03(F).2

       {¶ 14} Forfeiture may be ordered only after the prosecuting attorney has identified

and notified parties with an interest in the property, the trial court has conducted a hearing,

and the trier of fact has found that the property is subject to forfeiture. See R.C.

2981.04(A) and (B), 2981.05(B) and (D), and 2981.03(A)(1). Before the final forfeiture

adjudication, the state or a political subdivision holds “provisional title to property subject

to forfeiture,” permitting the state or political subdivision to seize, hold, and protect the

property. “Title to the property vests with the state or political subdivision when the trier

of fact renders a final forfeiture verdict or order.” R.C. 2981.03(A)(1); see also R.C.

2981.04(G) and 2981.05(E).

       {¶ 15} A person with an interest in seized property may seek its return by means

of a motion filed in the criminal case before the prosecuting attorney has either filed a

charging instrument containing a forfeiture specification, R.C. 2981.03(A)(4), or by means

of a petition filed in a civil-forfeiture proceeding. R.C. 2981.05(C). In either case, the trial

court must conduct a hearing and must return the property upon proof of an entitlement

to the property. R.C. 2981.03(A)(4) and 2981.05(B) and (C).

       {¶ 16} In the instant case, the State retained the property seized from Bolton

without complying with R.C. Chapter 2981. The prosecuting attorney did not provide

Bolton with notice that the property was subject to forfeiture by amending his indictment

to add a forfeiture specification. The matter of forfeiture was not mentioned in Bolton’s

plea form or his judgment entry of conviction. The trial court did not conduct a hearing,


We note that effective April 6, 2017, the legislature struck the portion of R.C. 2981.03(F)
2

which contained the thirty and sixty-day time limit in which a civil forfeiture action could
be initiated by the State.
                                                                                             -7-


find that the property was subject to forfeiture, or place on the record an order of forfeiture.

Nor did the State pursue civil forfeiture of the property.

        {¶ 17} In the absence of a final forfeiture adjudication, the State's interest in the

property seized from Bolton remains “provisional.” R.C. 2981.03(A)(1); see also State v.

North, 2012-Ohio-5200, 980 N.E.2d 566, ¶12 (1st Dist.).            Additionally, the forfeiture

statutes contemplate a post-conviction adjudication by providing for, among other things,

an extension of the time for filing a civil-forfeiture complaint by agreement of the parties

or upon a showing of good cause. State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908,

972 N.E.2d 509, ¶ 33; R.C. 2981.03(F).3 Therefore, the trial court, upon Bolton's motion

for return of his property, should have provided him with the procedural protections

afforded by the civil-forfeiture statute. See State v. North, 2012-Ohio-5200, 980 N.E.2d

566, ¶12; State v. Clark, 173 Ohio App.3d 719, 2007-Ohio-6235, 880 N.E.2d 150, ¶ 16

(3rd Dist.). Where the statutory requirements for forfeiture have not been met, we have

no choice but to reverse the decision of the trial court and remand for further proceedings.

State v. Woods, 5th Dist. Licking No. 12-CA-19, 2013-Ohio-1136, ¶ 44.

        {¶ 18} Bolton’s sole assignment of error is sustained.

        {¶ 19} Bolton’s sole assignment of error having been sustained, the judgment of

the trial court is reversed, and the matter is remanded for proceedings consistent with this

opinion.

                                           .............

FROELICH, J., concurs.




3See   footnote 2, supra.
                                                                                            -8-


HALL, P.J., dissenting:

       {¶ 20} Bolton’s non-firearm weapons were removed from his residence under a

search warrant. He was convicted of the fifth-degree felony of inducing panic. The State

did not pursue either a criminal or civil forfeiture. More than a year after disposition of the

criminal case, he filed a motion for return of his property.

       {¶ 21} The time for criminal forfeiture expired long ago. Criminal forfeiture is

initiated by including a forfeiture specification in the charging instrument, R.C.

2981.04(A)(1), or if forfeiture is not reasonably foreseen at that time, by giving prompt

notice to the offender that the property is subject to forfeiture, R.C. 2981.04(A)(2). Neither

was done in this case.

       {¶ 22} The forfeiture statute provides Bolton no avenue for relief through civil

forfeiture either. A civil forfeiture action “may” be commenced by a prosecutor by filing a

complaint for civil forfeiture. R.C. 2981.05(A). I can find no statutory authority for a

“reverse” forfeiture—a forfeiture initiated by a defendant—except perhaps R.C.

2981.03(A)(4), which provides that “[a] person aggrieved by an alleged unlawful seizure

of property may seek relief from the seizure by filing a motion in the appropriate court that

shows the person’s interest in the property, states why the seizure was unlawful, and

requests the property’s return.” But that section does not apply here. R.C. 2981.03(A)(4)

further provides that at a hearing on the motion, “the person shall demonstrate by a

preponderance of the evidence that the seizure was unlawful and that the person is

entitled to the property.” 4 Here, there is no allegation or indication that the search-

warrant supported seizure of Bolton’s property was unlawful. Indeed, Bolton contests the


See footnote 1, supra.
4
                                                                                                -9-


State’s retention of the property, not the property’s seizure.

       {¶ 23} In my opinion, the proper procedure to recover the property is an action of

replevin. The Fifth District held in State v. Young, 5th Dist. Richland No. CA-2810, 1991

WL 87203 (May 3, 1991), that after judgment in a criminal case, a trial court does not

have jurisdiction to hear a motion for the return of seized property. Rather, the proper

remedy, said the Young court, is an action of replevin. Similarly, the Sixth District in State

ex rel. Jividen v. Toledo Police Dept., 112 Ohio App.3d 458, 679 N.E.2d 34 (6th

Dist.1996), held that the proper remedy for the return of property seized at the time of the

defendant’s arrest was not mandamus but a replevin action. Finally, the forfeiture statute

itself suggests that an action for return of property is the appropriate remedy. R.C.

2981.05(C) (now at (G)) provides that “[i]f a timely petition for pretrial hardship release is

not filed, or if a petition is filed but not granted, the person [with an interest in the property]

may file a claim for the release of the property under the Rules of Civil Procedure.”

(Emphasis added.). I believe that this section contemplates a counterclaim to a civil

forfeiture action, if the State has filed a forfeiture complaint, or an independent civil action

of replevin, if the State has not pursued forfeiture.

       {¶ 24} In the context of a criminal case, it would seem more efficient to allow the

owner of seized property simply to apply for the property’s return to the court that

exercised control over the criminal action. But that’s not what the forfeiture statute

allows. Perhaps the legislature should amend it.

       {¶ 25} Because I believe that the proper remedy for Bolton to seek return of his

property is a replevin action, under Chapter 2737 of the Revised Code, I would affirm the

decision of the trial court and therefore dissent.
                                           -10-


                              ..........



Copies mailed to:

Andrew T. French
Gary D. Bolton
Hon. Mary Katherine Huffman
