[Cite as State v. Peterson,
2024-Ohio-3276.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 21CA3973
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
BRANON PETERSON, :
: RELEASED: 08/20/2024
Defendant-Appellant. :
APPEARANCES:
L. Scott Petroff, Athens, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis,
Assistant Scioto County Prosecutor, Portsmouth, Ohio, for appellee.
Wilkin, J.
{¶1} This is an appeal from a Scioto County Court of Common Pleas
judgment entry that accepted appellant, Branon Peterson’s (“Peterson”) guilty
plea to the following offenses, which are all third-degree felonies: (1) Count 4,
having weapons while under a disability; (2) Count 5, tampering with evidence;
(3) Count 9, possession of cocaine; and (4) Count 10, aggravated possession of
drugs. Counts 9 and 10 included specifications that forfeited $1,032. Peterson
asserts two assignments of error: (1) the trial court erred when it completely
failed to comply with Crim.R. 11 by failing to advise him about the nature of the
offense he was pleading to, and (2) the order of forfeiture was improper because
it was not supported by the record.
Scioto App. No. 21CA3973 2
{¶2} After reviewing the parties' arguments, the record, and the applicable
law, we find that under the totality of the circumstances, the trial court
substantially complied with advising Peterson of the nature of the charges
against him. Therefore, because we find his plea was knowing, intelligent, and
voluntary, we overrule Peterson’s first assignment of error.
{¶3} Regarding his second assignment of error, we find that during his
plea hearing, Peterson agreed to the forfeiture of $1,032, and he voluntarily
relinquished the firearm. Having relinquished his right to challenge the forfeiture
on appeal, we overrule his second assignment of error. Therefore, we affirm
Peterson’s guilty plea.
BACKGROUND
{¶4} On June 11, 2020, a grand jury indicted Peterson on 11 criminal
counts in Case No. 20-CR-330(A), including: (a) Count 1, attempted murder in
violation of R.C. 2903.02(A) and (D) and 2929.02(B), a first-degree felony, with a
firearm specification pursuant to R.C. 2941.145(A); (b) Count 2, felonious assault
in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a second-degree felony, with a
firearm specification pursuant to R.C. 2941.145(A); (c) Counts 3 and 4, having
weapons while under disability in violation of R.C. 2923.13(A)(2) and (B), both
third-degree felonies, and both with a firearm specification pursuant to R.C.
2941.145(A); (d) Counts 5 and 6, tampering with evidence in violation of R.C.
2921.12(A)(1) and (B), both third-degree felonies; (e) Count 7, possession of
heroin in violation of R.C. 2925.11(A) and (C)(6)(b), a fourth-degree felony with a
specification forfeiting $1,032 pursuant to R.C. 2941.1417(A); (f) Count 8,
Scioto App. No. 21CA3973 3
possession of a fentanyl-related compound in violation of R.C. 2925.11(A) and
(C)(11)(b), a fourth-degree felony with a specification forfeiting $1,032 pursuant
to R.C. 2941.1417(A); (g) Count 9, possession of cocaine in violation of R.C.
2925.11(A) and (C)(4)(c), a third-degree felony with a specification forfeiting
$1,032 pursuant to R.C. 2941.1417(A); (h) Count 10, aggravated possession of
drugs in violation of R.C. 2925.11(A) and (C)(1)(b), a third-degree felony with a
specification forfeiting $1,032 pursuant to R.C. 2941.1417(A) and (i) Count 11,
possession of a fentanyl-related compound pursuant to R.C. 2925.11(A) and
(C)(11)(b), a fourth-degree felony with a specification forfeiting $1,032 pursuant
to R.C. 2941.1417(A).
{¶5} On February 19, 2021, the court held a change of plea and
sentencing hearing. The court indicated both Case No. 20-CR-330(A) (the case
on appeal herein) and Case No. 19-CR-1145 were before the court. Both the
State and Peterson were represented by counsel. The court stated:
It’s my understanding that in case number 20-CR-330(A),
that Mr. Peterson is entering a plea to Count 4, a charge of
weapon under a disability a felony of the 3rd degree. That he is
entering a plea to Count 5, a charge of tampering with evidence a
felony of the 3rd degree and Count 9, a charge of possession-is it
just drugs-possession of cocaine a felony of the 3rd degree and
that had a forfeiture specification. And Count 10, aggravated
possession of drugs a felony of the 3rd degree. It’s my
understanding that we have an agreed sentence of six years.
The court also indicated that Peterson would be forfeiting $1,032 and that he would
be entitled to 462 days of jail-time credit. Finally, Case Number 19-CR-1145 would
be dismissed.
Scioto App. No. 21CA3973 4
{¶6} The state informed the court that it was dismissing the firearm
specification for Count 4.
{¶7} The court then had the following colloquy with Peterson.
I have got to go over two forms with you today, one is a
maximum penalty form and the second is a waiver. If you have any
question or you don’t understand something, stop me and I will take
time to answer any questions you might have. You are pleading
today to four felonies of the 3rd degree. Count 4, Weapon under
Disability a Felony 3. Count 5, Tampering with evidence a Felony 3.
Count 9, Possession of Cocaine, Felony of the 3rd degree and
County 10, Aggravated Possession of Drugs a Felony of the 3rd
Degree. On a felony of the 3rd degree the maximum sentence is 36
months. In addition, I can impose court cost, order restitution or
impose other financial sanctions which are probation fees. Do you
have any questions for far?
Peterson confirmed that this was for Case No. 20-CR-330, to which the court
said “[t]hat’s the case that you will be pleading to and the other case will be
dismissed.” Peterson responded by stating “okay.” The court asked Peterson if
he had any other questions and he said “No, that’s it.”
{¶8} Next the court asked Peterson if he was on felony probation/parole.
He responded that he was. The court informed Peterson that he could not make
any promises that this plea would not affect his post-release control. Peterson
stated “yes” he understood.
{¶9} The court informed Peterson that the court had a waiver form for him
to sign that indicated that as the defendant in this case he had “been advised by
[his] counsel and by the Court of the charges against [him][.]” The court then
asked Peterson if he waived the reading of the indictment. Peterson responded
Scioto App. No. 21CA3973 5
affirmatively. The court asked Peterson if he had any questions about the four
counts to which he was pleading. Peterson replied that he had no questions.
{¶10} The court then reviewed with Peterson the constitutional rights that
he was waiving by pleading guilty: the right to a trial by jury, representation by
counsel, the right to confront witnesses, the right to compel witnesses to testify
on his behalf, the right to require the state to prove the charges beyond a
reasonable doubt, and the right not to testify against himself. Peterson confirmed
that he intended to waive these rights and to plead guilty.
{¶11} Next the trial court read onto the record each count that Peterson
was pleading guilty to as well as his agreement to forfeit $1,032. The court then
confirmed that no one had made any promises or threats to induce him to plead
guilty. Peterson confirmed that he had not been promised anything or been
threatened. Peterson signed the “maximum penalty” and “waiver of rights” forms.
The court then asked Peterson about each individual count and how he pled, to
which he stated “guilty” to all four counts.
{¶12} The court accepted Peterson’s guilty plea and proceeded to
sentence him to two years on each of the four counts, with counts 9 and 10 to
run concurrent to each other, while counts 4, 5, and 9 to run consecutively to
each other, for an aggregate prison term of six years. The court found that this
sentence was pursuant to an agreement of the parties. The court further ordered
the forfeiture of $1,032, and reminded Peterson of the possibility of post-release
control. Peterson was also given credit for 462 days of jail time previously
served.
Scioto App. No. 21CA3973 6
{¶13} At the very end of the change of plea/sentencing hearing, the court
asked if Peterson gave “up any right, title any interest to any firearm that may be
found in this case or as result of this case?” Peterson answered “[t]hey found the
firearm” and his attorney followed up with “Yeah, they confiscated a firearm.”
The Court then asked “Okay, So, I can destroy it.” Peterson’s attorney said
“[Peterson] does not claim any interest in it.” The Court then indicated that it
would “confiscate and destroy the weapon.”
{¶14} The record contains a document titled “maximum penalty” that
displays the possible maximum penalties for each of the four offenses to which
Peterson pleaded guilty and has his signature. Also in the record, is a document
that is titled: “waiver of rights.” It sets forth the constitutional rights that Peterson
waived in pleading guilty and restated the four offenses to which he pleaded
guilty. It is signed by Peterson. The second page of this document is titled
“entry[,]” which states: “The Court finds that the defendant was advised of all
applicable Constitutional rights herein, and further finds that defendant
understands the nature of the charges and consequence of a guilty plea, and that
the guilty plea to each count of the indictment herein was knowingly, voluntarily,
and intelligently made.” It is signed by the judge, prosecutor, and Peterson’s
counsel.
{¶15} The court issued an entry that stated that on February 19, 2021, the
court accepted Peterson’s guilty plea to Count 4, having a weapon under a
disability; Count 5 tampering with evidence; Count 9, possession of cocaine, and
Count 10, aggravated possession of drugs. The entry also imposed the agreed,
Scioto App. No. 21CA3973 7
aggregate six-year prison term and ordered forfeiture of $1,032 and any firearms
that were seized.
{¶16} It is this judgment that Peterson appeals.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED WHEN IT COMPLETELY FAILED TO
COMPLY WITH CRIM.R. 11 BY FAILING TO ADVISE MR.
PETERSON ABOUT THE NATURE OF THE OFFENSE HE WAS
PLEADING TO.
II. THE ORDER OF FORFEITURE WAS IMPROPER BECAUSE
THAT ORDER WAS NOT SUPPORTED BY THE RECORD.
I. First Assignment of Error
{¶17} In his first assignment of error, Peterson claims that his plea was not
was not knowing, intelligent, and voluntary. More specifically, Peterson claims
that during his plea the court completely failed to inform him of the nature of the
charges that had been filed against him. Peterson acknowledges that typically a
defendant challenging a guilty plea must show that he or she was prejudiced.
However, Peterson maintains that if a court completely fails to comply with
Crim.R. 11(C), the defendant does not need to show prejudice for their petition to
be successful. Therefore, Peterson asks this court to vacate his plea.
{¶18} In response, the state makes several arguments. First, the state
claims that this case involves an agreed sentence. The state asserts that an
agreed sentence is not reviewable on appeal.
{¶19} Next, the state maintains that a plea waives all claims related to the
deprivation of constitutional rights that occurred prior to the entry of the guilty
Scioto App. No. 21CA3973 8
plea unless such errors are shown to have precluded the defendant from
voluntarily entering his plea.
{¶20} Finally, the state argues that because understanding the nature of
the charges by a defendant, as required under Crim.R. 11(C)(2)(a), is a non-
constitutional right, literal compliance with Crim.R. 11(C)(2)(a) is not required.
Instead, the State must show only substantial compliance with Crim.R.
11(C)(2)(a) for the plea to be voluntary. Substantial compliance means that
under the totality of the circumstances, the defendant subjectively understands
the implications of his or her plea and the rights they are waiving. The State
argues when considering the totality of the circumstances, it is clear that
Peterson understood the nature of the charges against him.
{¶21} For all the aforementioned reasons, the State claims that Peterson's
plea was voluntary, knowing, and intelligent. Therefore, the judgment accepting
his guilty plea should be affirmed.
A. Law
1. Standard of Review
{¶22} “ ‘ “An appellate court determining whether a guilty plea was entered
knowingly, intelligently, and voluntarily conducts a de novo review of the record
to ensure that the trial court complied with the constitutional and procedural
safeguards.” ’ ” State v. Keene, 2017-Ohio-7058, ¶ 16 (4th Dist.), quoting State
v. Leonhart,
2014-Ohio-5601, ¶ 36 (4th Dist.), quoting State v. Moore, 2014-
Ohio-3024, ¶ 13 (4th Dist.). “[A]n appellate court conducts a de novo review,
Scioto App. No. 21CA3973 9
without deference to the trial court's determination.” State v. Blanton, 2018-Ohio-
1278, ¶ 50 (4th Dist.).
2. Guilty Pleas
{¶23} “Before accepting a guilty plea, the trial court should engage in a
dialogue with the defendant as described in Crim.R. 11(C).” State v. Jackson,
2023-Ohio-3895, ¶ 34 (4th Dist.), quoting State v. McDaniel,
2010-Ohio-5215, ¶ 8
(4th Dist.).
During that colloquy, the court may not accept a plea in a
felony case under Crim.R. 11(C)(2) without doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the
maximum penalty involved, and if applicable, that the defendant
is not eligible for probation or for the imposition of community
control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that
the court, upon acceptance of the plea, may proceed with
judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to
jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant's
favor, and to require the state to prove the defendant's guilt
beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
(Emphasis added)
State v. Brooks, 2024-Ohio-420, ¶ 10 (4th Dist.).
a. Constitutional Rights
{¶24} A trial court must strictly comply with Crim.R. 11(C)(2)(c) when
reviewing a defendant’s constitutional rights (e.g., right to have a jury trial, the
Scioto App. No. 21CA3973 10
right to confront one’s accusers, etc.). State v. Veney, 2008-Ohio-5200, ¶ 18.
Yet, failure of the trial court to quote the literal language of Crim.R. 11(C)(2)(c)
during a colloquy with the defendant “will not necessarily invalidate a plea. The
underlying purpose, from the defendant's perspective, of Crim.R. 11(C) is to
convey to the defendant certain information so that he can make a voluntary and
intelligent decision whether to plead guilty.”
Id., quoting State v. Ballard,
66 Ohio
St. 2d 473, 478-479 (1981).
b. Non-Constitutional Rights
{¶25} However, a trial court must substantially comply with Crim.R.
11(C)(2)(a) and (b) when it reviews a defendant's non-constitutional rights (e.g.,
the defendant understands “the nature of the charges and of the maximum
penalty involved”). Id. at ¶ 18. Substantial compliance is achieved “so long as
the totality of the circumstances indicates that “ ‘the defendant subjectively
understands the implications of his plea and the rights he is waiving,’ the plea
may be upheld.” State v. Clark, 2008-Ohio-3748, ¶ 31, quoting State v. Nero,
56
Ohio St.3d 106, 108 (1990).
{¶26} This Court has recognized that “ ‘[s]ubstantial compliance with
Crim.R. 11(C)(2)(a) does not necessarily require a detailed recitation of the
elements of a charge by the court.’ ” State v. Rexroad, 2023-Ohio-356, ¶ 28 (4th
Dist.), quoting State v. Hurst,
2020-Ohio-2754, ¶ 21 (5th Dist.), citing State v.
Wright,
1995 WL 368319 (4th Dist. June 19, 1995). “Additionally, there is no
requirement for the trial court to ‘explain the elements of the crime to the
Scioto App. No. 21CA3973 11
defendant at the time of the plea.’ ”
Id., quoting State v. Nicholson, 2009-Ohio-
3592, ¶ 19 (8th Dist.). Finally, we determined that
“[i]n order for a trial court to determine that a defendant is
making a plea with an understanding of the nature of the charge
to which he is entering a plea, it is not always necessary that the
trial court advise the defendant of the elements of the crime, or to
specifically ask the defendant if he understands the charge, so
long as the totality of the circumstances are such that the trial court
is warranted in making a determination that the defendant
understands the charge.” State v. Rainey, 3 Ohio App.3d 441,
442,
446 N.E.2d 188 (10th Dist.1982)
Id., quoting
Hurst at ¶ 21.
c. Requiring Proof of Prejudice
{¶27} “When a criminal defendant seeks to have his conviction reversed
on appeal, the traditional rule is that he must establish that an error occurred in
the trial-court proceedings and that he was prejudiced by that error.” State v.
Dangler, 2020-Ohio-2765, ¶ 13, citing State v. Perry,
2004-Ohio-297, ¶ 14-15;
State v. Stewart,
51 Ohio St.2d 86, 93 (1977); Crim.R. 52. However, the
Supreme Court has recognized two exceptions to the “prejudice component of
that rule in the criminal plea context.” Id. at ¶ 14. The first one applies when a
court “fails to explain the constitutional rights that a defendant waives by pleading
guilty or no contest, we presume that the plea was entered involuntarily and
unknowingly, and no showing of prejudice is required.” Id. The second is “a trial
court’s complete failure to comply with a portion of Crim.R.11(C) eliminates the
defendant’s burden to show prejudice.” Id. at ¶ 15, citing State v. Sarkozy,
2008-Ohio-509, ¶ 22.
Scioto App. No. 21CA3973 12
{¶28} “Aside from these two exceptions, the traditional rule continues to
apply: a defendant is not entitled to have his plea vacated unless he
demonstrates he was prejudiced by a failure of the trial court to comply with the
provisions of Crim.R. 11(C).” Dangler at ¶ 16, citing Nero,
56 Ohio St.3d 106,
108, (1990). “The test for prejudice is ‘whether the plea would have otherwise
been made.’ ”
Id.
B. Analysis
{¶29} We find that the totality of the circumstances indicate that Peterson
was notified of and understood the nature of the charges to which he pleaded
guilty. Peterson’s indictment named the criminal offenses, the corresponding
statutory provisions, the felony level, as well the as forfeiture specifications
for $1,032 as to Counts 7, 8, 9, 10 of the indictment. The State provided
Peterson with discovery and a bill of particulars that set out each criminal count
and the corresponding statute defining the offense, felony level, as well as facts
describing each respective offense as the state alleged occurred.
{¶30} Peterson also signed a “waiver of rights” form, which again listed the
four criminal counts to which he was pleading guilty, the corresponding statutes
defining those offenses, and the felony levels of each offense. By signing the
“waiver of rights” form, Peterson also acknowledged that he was advised by his
counsel and the court of the charges against him, the penalties provided by law,
and of his rights under the constitution.
{¶31} Further, Peterson signed a “maximum penalty” form that indicated
the maximum penalty that he could receive for each of the four counts to which
Scioto App. No. 21CA3973 13
he pleaded guilty. Finally, Peterson’s counsel signed the second page of the
maximum penalty document, titled “entry[,]” which stated: “The Court finds that
the defendant was advised of all applicable Constitutional rights herein, and
further finds that defendant understands the nature of the charges and
consequence of a guilty plea, and that the guilty plea to each count of the
indictment herein was knowingly, voluntarily, and intelligently made.” (Emphasis
added.)
{¶32} At the change of plea hearing, on three separate occasions during
the trial court’s colloquy with Peterson, the court recited the four criminal counts
to which Peterson was pleading guilty. After some questions about the
disposition of Case No. 19-CR-1145 and the court’s response that it would be
dismissed, the court asked if he had “any other questions?” Peterson replied:
“No that’s it.”
{¶33} After ensuring that Peterson understood the rights that he was
waiving by pleading guilty and ensuring that he had no questions regarding the
charges levied against him, the trial court read each of the four criminal counts
individually and asked Peterson how he pleaded. Peterson’s response to each
of the four queries was “guilty.”
{¶34} The court accepted Peterson’s guilty pleas and issued an entry that
stated:
On this 19th day of February, 2021, in open court, came the
Scioto County Prosecuting Attorney, on behalf of the state of Ohio,
and the defendant with counsel. The Court finds that the
defendant was advised of all applicable Constitutional rights
herein, and further finds that the defendant understands the
Scioto App. No. 21CA3973 14
nature of the charges and the consequences of a guilty plea, and
that the guilty plea to each count of the indictment herein was
knowingly, voluntarily, and intelligently made. The guilty plea is
accepted.
(Emphasis added.)
This entry was signed by the prosecutor, Peterson’s counsel, and the trial judge.
{¶35} Finally, the State’s response to Peterson’s request for discovery
shows that Peterson had an extensive criminal record, including 15 convictions
for, among other offenses, possession of drugs and having a weapon under a
disability. Due to his unfortunate experience in the criminal justice system,
Peterson is already familiar with the nature of the offenses of drug possession
and having a weapon under a disability, two of the charges to which he pleaded
guilty.
{¶36} Under these facts and circumstances, we find that the trial court
substantially complied with Crim.R. 11(C)(2)(a) in informing Peterson of the
nature of the charges, and that he understood the nature of the charges.
Consequently, we reject Peterson’s argument that the trial court completely failed
to inform him of the nature of the charges against him. Because Peterson’s
guilty plea was knowing, voluntary and intelligent, we overrule Peterson’s first
assignment of error.
II. Second Assignment of Error
{¶37} In his second assignment of error, Peterson asserts that the order of
forfeiture was not supported by the record.
{¶38} Regarding the forfeiture of the $1,032, Peterson acknowledges that
we have held that a defendant can agree to forfeit property as part of a plea
Scioto App. No. 21CA3973 15
agreement making compliance with statutory forfeiture requirements
unnecessary in State v. Tolbert, 2022-Ohio-1159, ¶ 24 (4th Dist.). However,
Peterson maintains that Tolbert is not applicable in his case because Tolbert
involved a written plea agreement that reflected that forfeiture was part of the
agreement. In the instant case, there is no reference in the written plea
agreement to forfeiture. Therefore, Peterson maintains that this court should
“defer to the written plea and determine that forfeiture was not part of any
agreement.”
{¶39} Peterson also argues that there is no indication in the record that
forfeiture of $1,032 was part of his guilty plea. In support, Peterson cites the
following exchange in which he states the trial court “relay[ed] what it believ[ed]
to be the plea, indicating that the count for possession of cocaine contained a
forfeiture specification[,]” and then the court goes on to say “[i]t’s my
understanding that we have an agreed sentence of six years.” Peterson’s
counsel responded: “Correction your honor.” Peterson claims that “[i]t is unclear
from the record if counsel was indicating that the court was correct about the
sentence or the entire recitation of the plea.” Therefore, he maintains that there
is no clear indication that his guilty plea included forfeiture of the $1,032.
Accordingly, he asserts that the forfeiture of $1,032 was improper.
{¶40} Peterson also maintains that the forfeiture of his firearm was not
agreed upon. He claims that there was not a firearm forfeiture specification in
the indictment, and forfeiture of the firearm is not mentioned anywhere during the
change of plea hearing. Thus, Peterson claims that he neither agreed to nor was
Scioto App. No. 21CA3973 16
he aware that the firearm would be subject to forfeiture. Accordingly, he asserts
forfeiture of the firearm was also improper.
{¶41} In response, the State argues that the indictment contained a
forfeiture specification for the $1,032. The State asserts that the plea agreement
herein was oral and it was clearly stated on the record during sentencing that
Peterson understood that he was forfeiting the $1,032.
{¶42} Regarding the firearm, the State maintains that Peterson voluntarily
relinquished it so the forfeiture statute does not apply.
{¶43} Accordingly, the State moves this court to affirm the forfeiture of the
$1,032.00 and the firearm.
A. Law
1. Standard of Review
{¶44} Peterson claims that the State failed to comply with the
requirements in the forfeiture statutes in executing the forfeitures. “Questions of
the application and interpretation of a statute present a question of law we review
de novo.” Bandaru v. State, 2024-Ohio-1490, ¶ 8 (10th Dist.), citing Turner v.
Certainteed Corp.,
2018-Ohio-3869, ¶ 11. However, Peterson never objected to
any such alleged failures during his change-of-plea hearing, which means we
employ a plain error analysis. State v. West,
2022-Ohio-1556, ¶ 22, citing State
v. Rogers,
2015-Ohio-2459, ¶ 21-22. Under a plain error analysis, “the
defendant bears the burden of ‘showing that but for a plain or obvious error, the
outcome of the proceeding would have been otherwise, and reversal must be
necessary to correct a manifest miscarriage of justice.’ ”
Id., quoting State v.
Scioto App. No. 21CA3973 17
Quarterman,
2014-Ohio-4034, ¶ 16. “An appellate court has discretion to notice
plain error and therefore ‘is not required to correct it.’ ”
Id., citing
Rogers at ¶ 23.
2. Forfeiture
{¶45} Pursuant to R.C. 2981.03(A)(2), “a law enforcement officer may
seize property that the officer has probable cause to believe is property subject to
forfeiture.” “ ‘Property subject to forfeiture’ is defined to include ‘contraband’,
‘proceeds’, and ‘instrumentalities’ involved in the commission of a felony.’ ” State
v. Cave, 2015-Ohio-2233, ¶ 37 (4th Dist.), citing R.C. 2981.01(B)(13) and R.C.
2981.02(A). “A prosecuting attorney may choose to pursue forfeiture of seized
property in a criminal proceeding under R.C. 2981.04, a civil proceeding under
R.C. 2981.05, or both.” Id. at ¶ 38, citing R.C. 2981.03(F). “Criminal forfeiture is
initiated by including in the charging instrument a specification of the type
described in R.C. 2941.1417, or by providing the defendant with prompt notice, in
conformity with Crim.R. 7(E)[.]” Id. “In a criminal forfeiture proceeding, where
the specification was included in the charging instrument and the defendant
pleads guilty to or is convicted of an offense, ‘the trier of fact shall determine
whether the person's property shall be forfeited.’ ” (Emphasis sic.) Id. at ¶ 39,
citing R.C. 2981.04(B) and R.C. 2941.1417(B).
{¶46} However, this Court and others have recognized that “when [a]
defendant enters a plea agreement calling for the forfeiture of seized property,
adherence to the statutory procedures [is] unnecessary.” State v. Compton,
2021-Ohio-3106, ¶ 19 (8th Dist.), citing State v. Eppinger,
2011-Ohio-2404, ¶ 9
(8th Dist.), citing Chappell,
2010-Ohio-2465 ¶ 37-38 (8th Dist.); State v. Gladden,
Scioto App. No. 21CA3973 18
86 Ohio App.3d 287 (1st Dist.1993); State v. Tolbert,
2022-Ohio-1159 (4th Dist.);
State v. Hunter,
1989 WL 80515 (9th Dist. July 19, 1989). “In other words,
‘[w]hen property is forfeited through a plea agreement, the forfeiture is “not
effectuated by operation of the statutory provisions governing forfeiture of
contraband, but rather by the parties’ agreement.” ’ ”
Id., quoting State v.
Glanton,
2020-Ohio-834, ¶ 15 (6th Dist.), quoting State v. Sammor, 2008-Ohio-
4847, ¶ 7 (9th Dist.). For example, we recognized infra, criminal forfeiture is
initiated by including in the charging instrument a specification of the type
described in R.C. 2941.1417, or by providing the defendant with prompt notice, in
conformity with Crim.R. 7(E). These statutory requirements would not be
necessary if forfeiture was made part of the defendant’s plea agreement.
{¶47} A person can also abandon their property, which occurs when the
property’s “ ‘owner has relinquished all right, title, claim, and possession with the
intention of not reclaiming it or resuming its ownership, possession or enjoyment.’
” Labay v. Caltrider, 2005-Ohio-1282, ¶ 22 (9th Dist.), quoting Doughman v.
Long,
42 Ohio App.3d 17, 21 (12th Dist. 1987). Similar to a property forfeiture
that is part of a plea, a court may order forfeiture of abandoned property without
needing to comply with statutory forfeiture requirements. See State v.
Gloeckner,
1994 WL 111337, *5 (4th Dist. March 21, 1994). “In Gloeckner, the
defendant did not object to the forfeiture of his vehicle and, therefore, voluntarily
relinquished the vehicle as a part of the plea agreement. We held that no
forfeiture statute applied to the relinquishment.”
Tolbert at ¶ 22, citing
Gloeckner
at *5.
Scioto App. No. 21CA3973 19
B. Analysis
1. Forfeiture of the $1,032
{¶48} As we recognized infra, a number of Ohio courts, including this one
have held that if forfeiture is part of the defendant’s plea bargain, compliance with
statutory requirements is unnecessary. See e.g., Tolbert, 2022-Ohio-1159 (4th
Dist.). Peterson maintains that the reasoning in Tolbert does not apply herein
because that case involved a written plea and the offense was drug trafficking.
Neither Tolbert nor the other cases cited infra, expressly limit their holdings to
written pleas. Rather, critical in determining whether the forfeiture is permissible
is whether there is evidence that the forfeiture was part of the defendant’s plea
agreement. That the charges in the two cases differ is of no consequence in
determining whether Tolbert applies herein. Consequently, even absent an
indication in a written plea agreement that forfeiture is part of the plea, if other
evidence shows that the forfeiture was part of the plea, compliance with statutory
requirements for forfeiture is unnecessary. Therefore, the trial court did not err,
let alone commit plain error, in finding that Peterson’s plea included forfeiture of
the $1,032 even though it was not reflected in a written plea agreement.
{¶49} Written documents aside, Peterson also asserts that there is no
evidence in the record that forfeiture of the $1,032 was part of his guilty plea. In
addition to counts 4 and 5, Peterson also pleaded guilty to counts 9 and 10.
Each of those counts included a specification indicating that Peterson would
forfeit $1,032. Moreover, during the change-of-plea hearing, the court several
times alluded to the fact that Peterson’s plea agreement included the forfeiture of
Scioto App. No. 21CA3973 20
$1,032 that was confiscated as contraband when he was arrested. Peterson
never objected to the forfeiture. In fact, in its initial discussion about the forfeiture
being part of Peterson’s guilty plea, the court mistakenly stated that the amount
of the forfeiture was $132, which resulted in the following exchange:
Defense counsel: “Is it a $1,032 or $132?” Peterson: “Thousand.” Court: “No, I
am sorry it is $1,032.”
{¶50} If Peterson did not believe that his plea included a forfeiture of
$1,032, then he had ample opportunity to object but neither he nor his attorney
did so. Therefore, we find the record supports that Peterson understood that
forfeiture of the $1,032 was part of his plea agreement. Accordingly, we reject
his argument that his guilty plea did not include forfeiture of $1,032.
2. Forfeiture of the Firearm
{¶51} Counts 1 through 4 of Peterson’s indictment contained
specifications that indicated that Peterson possessed, brandished, used, etc., a
firearm during the commission of those offenses, but there was no specification
seeking forfeiture of the firearm. During the change-of-plea hearing, the trial
court dismissed the firearm specification that was attached to Count 4 having a
weapon while under a disability. There was no discussion during the hearing that
forfeiture of a firearm would be part of Peterson’s guilty plea. The court accepted
Peterson guilty plea, imposed sentence, and adjourned court.
{¶52} However, immediately after adjourning court, the court asked
Peterson’s counsel “does [Peterson] give up any right, title any interest to any
firearm that may be found in this case or as a result of this case?” The court
Scioto App. No. 21CA3973 21
further asked if the firearm could be destroyed. Counsel confirmed that a firearm
had been confiscated and told the judge that Peterson “does not claim any
interest in it.”
{¶53} Unlike the $1,032, the firearm was not discussed as being part of
Peterson’s guilty plea. However, when considering the court’s inquisition as to
whether the firearm could be destroyed and counsel’s response that Peterson
does not claim an interest in the firearm, counsel’s response cannot be
interpreted as anything less than abandonment of the firearm. Caltrider, 2005-
Ohio-1283, ¶ 22 (9th Dist.) On appeal, Peterson does not argue that his counsel
lacked authority to speak to the judge regarding disposition of the firearm.
Accordingly, because Peterson, through his counsel, voluntarily relinquished
ownership of the firearm, the trial court did not err in not applying the
requirements of the forfeiture statutes. Therefore, we overrule Peterson’s
argument that the trial court erred in ordering forfeiture of the firearm.
{¶54} Accordingly, we reject Peterson’s argument that the court erred in
ordering forfeiture of the $1,032 and the firearm. The record reflects that the
forfeiture of the $1,032 was part of the plea agreement and any ownership of the
firearm was voluntarily relinquished by Peterson. Consequently, we overrule his
second assignment of error.
CONCLUSION
{¶55} Having overruled both of Peterson’s assignments of error, we affirm
the trial court’s judgment entry of conviction.
JUDGMENT AFFIRMED.
Scioto App. No. 21CA3973 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and the appellant shall
pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
SCIOTO COUNTY COURT OF COMMON PLEAS to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
P.J., Smith and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
