[Cite as State v. Bracy, 2016-Ohio-7536.]


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

STATE OF OHIO                                        C.A. No.      15CA010788
                                                                   15CA010795
        Appellant

        v.
                                                     APPEAL FROM JUDGMENT
TRENTON BRACY                                        ENTERED IN THE
                                                     COURT OF COMMON PLEAS
        Appellee                                     COUNTY OF LORAIN, OHIO
                                                     CASE No.   14CR088662

                                 DECISION AND JOURNAL ENTRY

Dated: October 31, 2016



        CARR, Presiding Judge.

        {¶1}     Plaintiff-Appellant, the State of Ohio, appeals from the judgment of the Lorain

County Court of Common Pleas. This Court reverses and remands.

                                                I.

        {¶2}     In December 2013, the Lorain Police Department conducted four controlled buys.

During each of the controlled buys, Defendant-Appellee, Trenton Bracy, sold 1 gram of heroin to

an informant whom the police had supplied with marked bills. Following the fourth controlled

buy, the police executed a search warrant at Bracy’s apartment. The search uncovered heroin,

large amounts of marijuana, numerous items of paraphernalia, and several stashes of money.

With regard to the money, the police found (1) $200 in a kitchen cabinet alongside various items

of paraphernalia; (2) $1,080 stuffed into a chair in the master bedroom; (3) $10,720 in a bag

concealed in the bathroom ceiling; (4) $103 on the floor of the master bedroom; (5) $99 in the

master bedroom closet; and (6) $30 tucked into a camera case.
                                                  2


       {¶3}       A grand jury indicted Bracy on five counts of trafficking in heroin and one count

each of escape, trafficking in marijuana, possession of marijuana, possession of heroin, assault,

obstructing official business, possession of criminal tools, and drug paraphernalia offenses.

Bracy’s counts for trafficking in marijuana and one of his counts for trafficking in heroin also

contained two specifications for the forfeiture of his 1997 Crown Victoria and the money that the

police found in his apartment. Bracy ultimately agreed to plead guilty to all of the charges, but

not the specifications.      Consequently, the court set the matter for a bench trial on the

specifications.

       {¶4}       Following the trial on the specifications, the court issued an order. The court

ordered the forfeiture of Bracy’s 1997 Crown Victoria, as well as the $200 from his kitchen and

the $1,080 from his master bedroom chair. Meanwhile, it determined that the $103 from the

master bedroom floor, the $99 from the bedroom closet, and the $30 from the camera case were

not subject to forfeiture. As for the $10,720 taken from Bracy’s bathroom ceiling, the court

found that the entire sum was subject to forfeiture, but that a forfeiture of the entire sum would

be “disproportionate to the charges for which [Bracy] was found guilty.” Instead, the court

ordered $1,720 of that sum forfeited for a total cash forfeiture of $3,000.         It ordered the

remaining $9,232 deposited with the clerk and distributed to Bracy, subject to court costs and

supervision fees.

       {¶5}       On May 15, 2015, the court issued Bracy’s sentencing entry. The court sentenced

Bracy to two years of community control. It also imposed upon Bracy a mandatory fine of

$5,000, but suspended the fine upon its finding that Bracy was indigent. The State filed an

appeal from the court’s sentencing entry and also sought leave from this Court to appeal from the
                                                  3


trial court’s order on the forfeiture specifications. This Court granted the State leave to appeal

and ordered the two appeals consolidated.

          {¶6}   The State’s appeal is now before us and raises three assignments of error for our

review.

                                                  II.

                                  ASSIGNMENT OF ERROR I

          THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO IMPOSE
          A MANDATORY FINE PURSUANT TO R.C. 2925.03(D)(1), R.C.
          2925.11(E)(1)(a), AND R.C. 2929.18(B)(1) AS A PART OF BRACY’S
          SENTENCE BECAUSE BRACY FAILED TO FILE AN AFFIDAVIT OF
          INDIGENCY PRIOR TO SENTENCING.

          {¶7}   In its first assignment of error, the State argues that the trial court erred by not

imposing a mandatory fine upon Bracy. The State argues that a portion of Bracy’s sentence is

void because, absent a timely filed affidavit of indigency, the court was required to impose the

fine upon him. We agree.

          {¶8}   In reviewing a felony sentence, “[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court

may vacate or modify a felony sentence on appeal only if it determines by clear and convincing

evidence” that: (1) “the record does not support the trial court’s findings under relevant statutes,”

or (2) “the sentence is otherwise contrary to law.” State v. Marcum, Slip Opinion No. 2016-

Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

          {¶9}   When a court sentences an offender on a drug trafficking charge and the charge is

a felony of the third degree, the court must impose a mandatory fine “unless, as specified in
                                                  4


[R.C. 2929.18(B)(1)], the court determines that the offender is indigent.” R.C. 2925.03(D)(1).

R.C. 2929.18(B)(1) provides, in relevant part:

       If an offender alleges in an affidavit filed with the court prior to sentencing that
       the offender is indigent and unable to pay the mandatory fine and if the court
       determines the offender is an indigent person and is unable to pay the mandatory
       fine described in this division, the court shall not impose the mandatory fine upon
       the offender.

The statute is “clear and unambiguous in requiring that an affidavit of indigency must be ‘filed’

with the court prior to sentencing * * *.” State v. Gipson, 80 Ohio St.3d 626, 632 (1998). The

Ohio Supreme Court has interpreted the “prior to sentencing” language “to mean that the

affidavit must be formally filed with the court prior to the filing of a journal entry reflecting the

trial court’s sentencing decision.” Id. Generally, “the act of filing * * * includes the concept of

time-stamping.” Id. But see State v. Calhoun, 8th Dist. Cuyahoga No. 101816, 2015-Ohio-2155,

¶ 12-15, citing Gipson at 633, fn.3 (discussing the possibility that an affidavit of indigency might

be filed at the sentencing hearing if accepted by the judge and filed pursuant to Civ.R. 5(E)).

       {¶10} The record reflects that Bracy completed an affidavit of indigency at his

sentencing hearing, but failed to formally file his affidavit with the clerk at that time. Instead, his

affidavit was filed contemporaneously with the court’s sentencing entry, such that both filings

bear the same time stamp. As set forth above, the plain language of R.C. 2929.18(B)(1) requires

an affidavit of indigency to be “filed with the court prior to the filing of a journal entry reflecting

the trial court’s sentencing decision.” Gipson at 632. Because Bracy’s affidavit was not time

stamped prior to the trial court’s sentencing entry, it was not timely filed. See id. at 633.

Further, because Bracy’s affidavit was not timely filed, the court was required to impose upon

him the mandatory fine associated with his third-degree felony drug offense.                See R.C.

2925.03(D)(1). The State’s argument that the court erred by failing to impose the fine has merit.
                                                 5


       {¶11} In issuing our decision, we acknowledge that Civ.R. 5(E) permits a trial judge to

accept documents for filing. Indeed, the Gipson Court noted in dicta the possibility that a

defendant could file his affidavit of indigency directly with the court pursuant to that rule. See

Gipson at 633, fn. 3. Bracy has not, however, referenced Civ.R. 5(E) in responding to the State’s

argument on appeal. Moreover, the rule requires a trial court to “note the filing date” on any

documents it accepts for filing before transmitting them to the clerk’s office. Civ.R. 5(E). The

trial court here never noted the filing date on Bracy’s affidavit of indigency. The only filing date

on the document is the time stamp from the clerk’s office. Accordingly, Civ.R. 5(E) does not

apply here.

       {¶12} Because the trial court failed to impose Bracy’s mandatory fine, that portion of

the court’s sentencing entry is void. State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479,

syllabus. Consequently, that portion of the court’s entry is vacated, and this matter is remanded

for resentencing “limited to the imposition of the mandatory fine.”         Id.   The State’s first

assignment of error is sustained.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO IMPOSE
       A MANDATORY FINE PURSUANT TO R.C. 2925.03(D)(1), R.C.
       2925.11(E)(1)(a), AND R.C. 2929.18(B)(1) AS A PART OF BRACY’S
       SENTENCE BECAUSE BRACY FAILED TO PROVE HIS FUTURE
       INABILITY TO PAY A MANDATORY FINE.

       {¶13} In its second assignment of error, the State argues that the trial court abused its

discretion when it failed to impose a mandatory fine upon Bracy on the basis of his future

inability to pay it. Based on our resolution of Bracy’s first assignment of error, his second

assignment of error is moot, and we decline to address it. See App.R. 12(A)(1)(c).
                                                 6


                                ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED WHEN IT FOUND THAT $9,232.00 SEIZED
        DURING THE EXECUTION OF A SEARCH WARRANT WAS
        DISPROPORTIONATE TO THE CHARGES THAT BRACY WAS FOUND
        GUILTY (sic) IN VIOLATION OF R.C. 2981.09.

        {¶14} In its third assignment of error, the State argues that the trial court erred when,

following its proportionality review, it refused to order the forfeiture of $9,232. The State argues

that Bracy failed to carry his burden and the trial court failed to consider the appropriate factors

on the issue of proportionality. Because we agree that the trial court did not consider the proper

factors when conducting its proportionality analysis, we remand for it to apply the correct law in

the first instance.

        {¶15} “This Court applies a de novo standard of review to an appeal from a trial court’s

interpretation and application of a statute.”        State v. Greathouse, 9th Dist. Medina No.

15CA0024-M, 2016-Ohio-1350, ¶ 8, quoting State v. Chandler, 9th Dist. Lorain No.

14CA010676, 2016-Ohio-164, ¶ 7. “A de novo review requires an independent review of the

trial court’s decision without any deference to the trial court’s determination.” State v. Consilio,

9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.

        {¶16} An instrumentality is subject to forfeiture if a trial court determines that it was

“used in or intended to be used in the commission or facilitation of * * * [a] felony * * *.” R.C.

2981.02(A)(3). Even so, “[p]roperty may not be forfeited as an instrumentality * * * to the

extent that the amount or value of the property is disproportionate to the severity of the offense.”

R.C. 2981.09(A). The Revised Code provides that,

        [i]n determining the severity of the offense * * *, the court shall consider all
        relevant factors including, but not limited to, the following:
                                                7


       (1) The seriousness of the offense and its impact on the community, including the
       duration of the activity and the harm caused or intended by the person whose
       property is subject to forfeiture;

       (2) The extent to which the person whose property is subject to forfeiture
       participated in the offense;

       (3) Whether the offense was completed or attempted.

R.C. 2981.09(C)(1)-(3). “The defendant has the burden to prove, by a preponderance of the

evidence, the fact that the value of the instrumentality is disproportionate to the severity of the

offense.” State v. Forney, 2d Dist. Champaign No. 2012-CA-36, 2013-Ohio-3458, ¶ 20, citing

R.C. 2981.09(A).

       {¶17} For clarification purposes, we briefly outline the relevant testimony and evidence

that emerged during the trial on Bracy’s forfeiture specifications. Detective Timothy Thompson

testified that the police conducted several controlled buys in December 2013, during which their

informant purchased heroin from Bracy. Specifically, the informant purchased from Bracy: (1) 1

gram of heroin for $120 on December 5th; (2) 1 gram of heroin for $120 on December 10th; (3)

1 gram of heroin for $120 on December 12th; and (4) 1 gram of heroin for $145 on December

19th. On December 20th, the police executed a warrant at Bracy’s apartment and seized, among

other items, heroin, marijuana, scales, blenders, baggies, and money. Detective Thompson

testified that the police found the money hidden throughout the apartment. Relevant to this

appeal, they found: (1) $200 in a kitchen cabinet alongside various items of paraphernalia; (2)

$1,080 stuffed into a chair in the master bedroom; and (3) $10,720 in a bag concealed in the

bathroom ceiling. The bag with the $10,720 also contained 434 grams of marijuana. Detective

Thompson testified that the police found a total of 1,552.5 grams of marijuana in the apartment.

       {¶18} The trial court found that all of the aforementioned money was subject to

forfeiture. With regard to the money from the bathroom ceiling, however, the court declined to
                                                 8


order the forfeiture of the entire $10,720. Following a proportionality review, the court only

ordered the forfeiture of $1,720 of that money.        The court ordered the remaining $9,000

deposited with the clerk and returned to Bracy after his court costs and supervision fees were

paid from the deposit. According to the State, the court erred in its proportionality review

because it incorrectly focused on the value of the heroin that Bracy sold during the controlled

buys rather than the severity of his offenses.

       {¶19} Initially, we note that, in several places in its brief, the State mistakenly refers to

the amount at issue in this assignment of error as $9,232. This assignment of error only concerns

the $9,000 discussed above, however, because the additional $232 that the court declined to

forfeit came from other spots in Bracy’s apartment. The court did not conduct a proportionality

analysis with regard to those funds because it determined that they were not subject to forfeiture

as instrumentalities. The State has not separately assigned as error that the court erred when it

concluded that the $232 was not subject to forfeiture. Rather, its third assignment of error is

limited to challenging the court’s proportionality analysis. Because the court’s proportionality

analysis concerned only the $10,720 from Bracy’s bathroom ceiling, we limit our review to its

decision not to order the forfeiture of $9,000 of that amount.

       {¶20} Bracy argued that a forfeiture of the entire $10,720 taken from his bathroom

ceiling would be disproportionate to his crimes because he only sold a few hundred dollars’

worth of heroin. He did not present any additional evidence regarding the severity of his

offenses, see Forney, supra, but the trial court ultimately agreed that a forfeiture of the entire

$10,720 would be excessive. Specifically, it found that a forfeiture of the entire $10,720 “would

be disproportionate to the charges in this case and the convictions in this case.” The court
                                                 9


reasoned that Bracy’s trafficking offenses “occurred over a very tight time period” and involved

“relatively small purchases.” Consequently, it limited the forfeiture to $1,720.

       {¶21} Upon review, we must conclude that the trial court failed to apply the correct

statutory factors when conducting its proportionality analysis. The court determined that a

forfeiture of the entire $10,720 at issue here would be disproportionate to Bracy’s charges, as

they occurred over a brief time span and involved a relatively small sum of money. Yet, “[i]n

order for the trial court to deny forfeiture, the forfeiture must be disproportionate to the severity

of the offense, not to the value of the contraband.” (Emphasis sic.) State v. Maxie, 3d Dist.

Marion No. 9-13-73, 2015-Ohio-816, ¶ 45. Even a less than profitable crime can be severe in

nature. See id. See also State v. Adams, 11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-

1603, ¶ 68-69 (low-level sale of heroin on three occasions justified forfeiture of house given

nature of heroin and the fact that defendant was conducting an ongoing drug operation out of the

home). To determine the severity of Bracy’s offenses, the trial court had to consider the

seriousness of his offenses, their impact on the community, the duration of the activity, the harm

caused or intended by Bracy, the extent to which he participated in the offenses, and whether the

offenses were completed or attempted. R.C. 2981.09(C)(1)-(3). The trial court, however, gave

no indication that it considered the foregoing factors in its proportionality analysis.

Consequently, we must reverse the court’s forfeiture order and remand this matter for the court

to apply the correct statutory factors in the first instance. See Stow v. S.B., 9th Dist. Summit No.

27429, 2015-Ohio-4473, ¶ 15. The State’s third assignment of error is sustained on that basis.

                                                III.

       {¶22} The State’s first and third assignments of error are sustained.             Its second

assignment of error is moot, and we decline to address it. The judgment of the Lorain County
                                                10


Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent

with the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

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

Pleas, County of Lorain, 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 Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, J.
CANNON, J.
CONCUR

(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)
                                        11


APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.

STEPHEN P. HANUDEL, Attorney at Law, for Appellee.