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Date: 01-29-2021
Case Style:
State of Ohio v. Delano Thomas, et al
Case Number: L-19-1108
Judge: Thomas J. Osowik
Court: IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Plaintiff's Attorney: Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney
Defendant's Attorney: center>
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Toledo, OH - Criminal defense attorney represented Delano Thomas after the state of Ohio filed a complaint for civil forfeiture.
On February 6, 2018, plaintiff-appellee, state of Ohio filed a complaint for
civil forfeiture against defendants Delano Thomas, Tamika Banks, and Santander
Consumer USA, Inc. Appellee alleged that Mr. Thomas and Ms. Banks used or derived
certain personal property, identified as $152,553 in U.S. currency and a 2009 Pontiac G6
automobile with vehicle identification No. 1G2ZG57B19412299, in the commission of
felony drug offenses in violation of R.C. 2981.05. Appellee published the complaint in
the Toledo Blade newspaper on February 13 and 20, 2018. Santander Consumer
admitted in its answer to financing Mr. Thomas’ purchase of the automobile. Mr.
Thomas and Ms. Banks generally denied the allegations and asserted various affirmative
defenses, and Ms. Banks answered that Mr. Thomas owned the automobile.
{¶ 3} On May 2, 2018, a Lucas County Grand Jury indicted Mr. Thomas on
Count 1, trafficking in cocaine, a third-degree felony violation of R.C. 2925.02(A)(2) and
(C)(4)(c); Count 2, possession of cocaine, a fourth-degree felony violation of R.C.
2925.11(A) and (C)(4)(b); Count 3, having weapons while under disability, a third-degree
felony violation of R.C. 2923.13(A)(3) and (B); and Count 4, possessing criminal tools, a
fifth-degree felony violation of R.C. 2923.24(A) and (C). The Lucas County Grand Jury
simultaneously indicted Ms. Banks on Count 5, permitting drug abuse, a fifth-degree
felony violation of R.C. 2925.13(B), (C)(1) and (C)(3). Appellee alleged that Mr.
Thomas and Ms. Banks lived together with their children in Toledo, and pursuant to the
execution of a search warrant on January 31, 2018, Toledo police found and seized
3.
cocaine, drug paraphernalia, the automobile used in drug trafficking and cash totaling
$152,553. The cash was hidden in shopping bags “stashed in the basement rafters.”
{¶ 4} On May 14, appellee moved the trial court to transfer the civil forfeiture case
to the pending criminal case pursuant to Civ.R. 42(A). Appellee stated the cases involve
the same individuals and stem from the same underlying criminal offense. As journalized
on May 23, the trial court ordered the civil case transferred to and consolidated with the
criminal case. The trial court on its own initiative then dismissed the civil case without
prejudice.1
{¶ 5} On October 1, the trial court held a change of plea hearing, and Mr. Thomas
pled no contest to Count 1, as amended, and Count 4. Appellee notified the trial court
that as part of the plea resolution with Mr. Thomas, Counts 2 and 3 against Mr. Thomas
and Count 5 against Ms. Banks were dismissed pursuant to nolle prosequi without
prejudice. At the hearing Mr. Thomas and Ms. Banks both disclaimed in writing any
interest in the $152,553 in cash seized by the Toledo police. Mr. Thomas did so in the
1
We note the potential procedural quagmire created by the trial court in dismissing the
forfeiture proceedings, sua sponte, prior to adjudicating that separate matter in the
consolidated proceedings. Despite the consolidation of the criminal proceedings with the
civil forfeiture proceedings, this dismissal ended the forfeiture case. After consolidation,
each case retains its original identity, as the matters are not merged into a single case.
See Transcon Builders, Inc., v. City of Lorain, 49 Ohio App.2d 145, 359 N.E.2d 715 (9th
Dist.1976), at the syllabus; see also Lucas County Gen.R. 5.02(A) and (B) (referencing
consolidated proceedings, and requiring transfer of a civil forfeiture case to the judge
presiding over a related criminal proceeding, with no provision for “merger” of the two,
separate cases that are consolidated). As a practical matter, once the trial court dismissed
the forfeiture proceeding, there was no longer a pending matter in which to intervene.
4.
plea agreement and, again, by his attorney signing a consent judgment entry for the
forfeiture proceedings. Ms. Banks also disclaimed her interest in the forfeiture consent
judgment entry, and on the record by her attorney. The trial court accepted the plea
agreement and found Mr. Thomas guilty of Count 1, as amended, and Count 4.
{¶ 6} At the October 1 hearing Ms. Banks’ attorney stated the following to the
trial court prior to the court’s acceptance of the plea agreement: “There is a third party
claiming the funds. I have notified the Prosecutor, and I will provide her with the
documentation. Although there is a forfeiture it is my understanding the Prosecutor is
going to hold that until * * * the third party makes his claims for those funds and certain
jewelry [seized but not subject to forfeiture].” Appellant was not identified in the record
as the third-party claimant.
{¶ 7} At the point in the October 1 hearing when the plea agreement was executed,
the trial court stated in the record:
Court: All right. Ms. Lambdin, all the documents you need for your
forfeiture case as [it] relates to these two Defendants is taken care of,
correct?
Ms. Lambdin: It is. Thank you, Judge.
Court: Thank you. Mr. Thomas, I have in front of me the plea form,
no contest to Count 1 amended as well as Count 4. It appears signed by
5.
Delano Thomas on the front as well as the back. Sir, are these your two
signatures?
Defendant: Yes.
{¶ 8} The next mention in the record of the forfeiture proceedings was at Mr.
Thomas’ November 28 sentencing hearing, for which the trial court’s sentencing entry
was journalized on December 4.
Court: Also the order of forfeiture as agreed to on the back of the
plea form is ordered enforced. Has there been a forfeiture consent signed
on that?
Ms. Roman: Correct, Your Honor.
Court: That also has already been forfeited.
{¶ 9} Then on January 24, 2019, nearly four months after the parties agreed in the
record to the forfeiture of the seized cash, Mr. Banks filed a motion to intervene, which
appellee opposed as time-barred. Mr. Banks, the brother of Ms. Banks, requested the
trial court “authorize him to intervene in the pending forfeiture action so that he can
establish his rightful claim for the property involved.” Mr. Banks alleged that on
October 1, 2018, his attorney wrote a letter to appellee, and “[i]ncluded with that letter
were certain documents that provided information to establish the claim of Mr. Banks.”
After the parties briefed the motion to the court, the trial court denied Mr. Banks’ motion
to intervene.
6.
{¶ 10} In response, Mr. Banks filed this appeal setting forth two assignments of
error:
I. The trial court erred when it denied Taron Banks the opportunity
to intervene in an ongoing criminal forfeiture action on procedural grounds
where Banks claimed ownership of the property and attempted to intervene
pursuant to O.R.C. 2981.03(A)(4).
II. The final forfeiture order, journalized after this appeal was filed,
which was made after the court denied a third party claimant the right to
intervene, and was made in a proceeding that failed to conform to the
procedural requirements of either O.R.C. 2981.04 or 2981.05 is void.
{¶ 11} We will only address appellant’s first assignment of error. “A nonparty
who seeks intervention under Civ.R. 24 and is denied intervention may appeal only the
issue of intervention.” State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas,
Juvenile Div., 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, ¶ 28, citing State ex
rel. Sawicki v. Lucas Cty. Court of Common Pleas, 121 Ohio St.3d 507, 2009-Ohio-1523,
905 N.E.2d 1192, ¶ 18. We find appellant’s second assignment of error impermissibly
ventures beyond the motion to intervene, and is not well-taken.
I. Standard of Review
{¶ 12} Appellate review of a trial court’s decision on a motion to intervene is for
an abuse of discretion, regardless of whether the Civ.R. 24 intervention sought was as of
right or by permission. State ex rel. Merrill v. Ohio Dept. of Nat. Resources, 130 Ohio
7.
St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41. Abuse of discretion “‘connotes more
than an error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980).
{¶ 13} “We construe Civ.R. 24 liberally to permit intervention.” Merrill at ¶ 41.
Nevertheless, we will not reverse the trial court’s findings of fact absent an abuse of
discretion, nor will we make a finding of fact the trial court should have made nor extract
a finding where no such finding was made. In re Guardianship of Rudy, 65 Ohio St.3d
394, 396, 604 N.E.2d 736 (1992).
II. Intervention as of Right
{¶ 14} Intervention as of right is pursuant to Civ.R. 24(A)(2), which states:
Upon timely application anyone shall be permitted to intervene in an
action: * * * (2) when the applicant claims an interest relating to the
property or transaction that is the subject of the action and the applicant is
so situated that the disposition of the action may as a practical matter
impair or impede the applicant’s ability to protect that interest, unless the
applicant’s interest is adequately represented by existing parties.
{¶ 15} This court has determined a successful applicant for intervention must
prevail on each of four elements, Houtz v. Houtz, 2018-Ohio-1738, 111 N.E.3d 888, ¶ 21
(6th Dist.):
8.
In order to intervene under Civ.R. 24(A)(2) the motion must be
(1) timely, and the following factors must be shown: (2) the intervenor’s
interest relates to the subject of the action, (3) the disposition of the action
will, as a practical matter, impair or impede the intervenor’s ability to
protect its interest, and (4) the intervenor must demonstrate that its interest
is not adequately represented by the existing parties.
Id. at ¶ 20.
{¶ 16} In support of his first assignment of error, Mr. Banks argues he has a right
to intervene pursuant to R.C. 2981.03(A)(4) and 2981.05(G). Mr. Banks argues he
“made his claim to the forfeited property at the same time that the criminal defendants in
the case disclaimed any interest in the property and prior to any judgment of forfeiture
issued by the court.” Mr. Banks argues appellee “improperly” combined the civil
forfeiture case with the criminal case and failed to comply with the procedural
requirements of R.C. 2981.05(D)(2) and 2981.04(A)(2). Mr. Banks further argues the
trial court improperly relied on R.C. 2981.03(D)(2) to find the motion to intervene was
untimely.
Taron Banks sought nothing more than to be heard as to his claim to
the property subject to the action. He did so in a criminal proceeding, in
which he was not a charged party, and pursuant to a statute to which the
Rule of Lenity, incorporated into the revised code in section 2901.04
applies. The trial court’s ruling that Mr. Banks is procedurally barred from
9.
intervening in the action to forfeit property he claims to own is not
supported by the letter or spirit of the forfeiture statutes and is inconsistent
with a just disposition of the property.
{¶ 17} We review a trial court’s decision on the timeliness of a motion to
intervene for an abuse of discretion. State ex rel. First New Shiloh Baptist Church v.
Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998). Timeliness is determined on
the facts and circumstances of the case and upon consideration of the following factors:
“(1) the point to which the suit had progressed; (2) the purpose for
which intervention is sought; (3) the length of time preceding the
application during which the proposed intervenor knew or reasonably
should have known of his interest in the case; (4) the prejudice to the
original parties due to the proposed intervenor’s failure after he knew or
reasonably should have known of his interest in the case to apply promptly
for intervention; and (5) the existence of unusual circumstances militating
against or in favor of intervention.”
Id., quoting Triax Co. v. TRW, Inc., 724 F.2d 1224, 1228 (6th Cir.1984); Fantozz v.
Cordle, 6th Dist. Erie No. E-14-130, 2015-Ohio-4057, ¶ 17.
{¶ 18} The record shows that Mr. Banks filed his motion to intervene nearly four
months after the forfeiture agreement was signed by the parties to Mr. Thomas’ plea
agreement. The plea agreement was journalized on October 1. Mr. Banks was never
identified in the record as the alleged interested third party until his motion to intervene.
10.
Mr. Banks provided no explanation for the delay of his motion, only that his intervention
“will not prejudice the State in putting forth its procedural claims in this matter.” Rather,
he merely recites that appellee rejected his claim as being untimely.
{¶ 19} The trial court’s order found Mr. Banks’ motion to be untimely under both
the criminal and civil forfeiture statutes, R.C. 2981.04 and 2981.05, respectively. The
trial court also concluded, Mr. Banks “is free to file a claim for the release of the seized
money pursuant to the Rules of Civil Procedure in accordance with R.C. 2981.05(G).”
We find Mr. Banks’ motion was untimely, but for reasons separate from the civil and
criminal forfeiture statutes.
{¶ 20} “R.C. 2981 et seq. governs both civil and criminal forfeitures in Ohio with
regard to contraband, proceeds, and criminal instrumentalities.” State v. Glanton, 6th
Dist. Wood No. WD-18-091, 2020-Ohio-834, ¶ 14. When law enforcement seizes
property subject to forfeiture pursuant to R.C. 2981.03(A)(2), the “state then acquires
provisional title and retains the property until a final adjudication can occur by means of
either a criminal forfeiture specification (R.C. 2981.04) or a civil forfeiture petition (R.C.
2981.05).” Id., citing R.C. 2981.03(A)(1). “When 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.”’” (Citations
omitted.) Id. at ¶ 15.
{¶ 21} We reviewed the record in this case and find that the plea agreement
accepted by the trial court at the October 1, 2018 hearing clearly states, “Defendant has
11.
agreed to forfeit $152,553.00 that was seized at the time of the arrest.” Ms. Banks
disclaimed any interest in the cash on the record on October 1, and the plea agreement
reflects the agreement with appellee that, “State of Ohio requests a nolle prosequi as to
* * * Count 5 as to Ms. Tamika Banks.” Also at the October 1 hearing, the attorneys for
Mr. Thomas, Ms. Banks, and appellee signed a consent judgment entry specifying, again,
their agreement to conclude the forfeiture of the disputed cash:
The Court is advised that an agreement for forfeiture has been
reached between the parties, whereby seized funds in the amount of
$152,553.00 shall be disposed as if contraband and awarded to the State of
Ohio. By stipulation of the parties, the Court finds that the sum of
$152,553.00 seized from Delano Thomas and Tamika Banks on January 31,
2018 may be disposed of as if contraband and forfeited by designated
percentage to the entities listed below: Toledo, Ohio Department Police
Operations Law Enforcement Trust Fund 70%; Lucas County, Ohio
Prosecutor Law Enforcement Trust Fund 30%. It is further ORDERED that
the funds ($152,553.00) shall be placed on deposit with the Lucas County
Clerk of Courts, who shall distribute the funds as indicated above.
{¶ 22} The consent judgment entry was journalized on June 13, 2019. Between
October 1, 2018, and June 13, 2019, we find Mr. Banks did little to support his claim of
intervention even though the forfeiture of the seized cash was agreed by all parties on
12.
October 1, deemed “enforced” by the trial court on November 28, and formally entered in
the court’s journal on June 13, 2019.
{¶ 23} Mr. Banks was not identified in the record as the third party claiming
ownership of the $152,553 stuffed in the basement rafters of a home that was not his
residence until his January 24, 2019 motion to intervene in the criminal case into which
the civil case was transferred and consolidated. Mr. Banks’ motion alleges he sent
correspondence to appellee after the October 1 hearing along with evidence to sustain his
ownership claim, but that evidence is not in the record before us. App.R. 9(A).
{¶ 24} The trial court reviewed the factors identified in R.C. 2981.05(F) and (G)
and 2981.03(D) and determined that “[Mr. Banks] did not file a petition or make known
his interest in the seized property until long after the expiration of the thirty days [of the
filing of a complaint, an indictment, or information in the forfeiture action or, if no
complaint, indictment or information is filed, within thirty days of the seizure of the
property].” The trial court further evaluated the factors in Civ.R. 24 as well as “the delay
between the time of the seizure and the filing of the motion, the amount of money
involved, and the sibling relationship between [Mr. Banks] and the Defendant Tamika
Banks.” The trial court found that appellee had complied with the necessary notice
requirements under the forfeiture statutes.
{¶ 25} Although the forfeiture statutes do not govern the forfeiture process in this
matter’s plea agreement, the basic concepts of notice and reasonableness reveal that Mr.
Banks unreasonably waited nearly four months to intervene into the pending litigation
13.
after he knew on October 1, 2018, that the forfeiture to appellee of the contraband
property would proceed by agreement of the parties.
{¶ 26} We find Mr. Banks’ motion to intervene was untimely in light of the
forfeiture agreement, his awareness of this litigation and the forfeiture proceedings on
October 1, 2018, the lack of evidence in the record of his ownership of the seized cash to
support intervention, and the prejudice to the parties posed by his intervention attempts to
reverse the final resolution of the forfeited cash. Given our determination on the first
element of intervention, it is unnecessary for us to review the remaining elements. For all
of the foregoing reasons, we find the trial court did not abuse its discretion, and the trial
court’s attitude was not unreasonable, arbitrary or unconscionable, when it denied Mr.
Banks’ motion to intervene as of right.
III. Permissive Intervention
{¶ 27} Intervention by permission is pursuant to Civ.R. 24(B), which states:
Upon timely application anyone may be permitted to intervene in an
action: (1) when a statute of this state confers a conditional right to
intervene; or (2) when an applicant’s claim or defense and the main action
have a question of law or fact in common. * * * In exercising its discretion
the court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
{¶ 28} Although unclear, to the extent that Mr. Banks seeks permissive
intervention in support of his first assignment of error, he also fails. The trial court
14.
considered the foregoing factors and found that Mr. Banks’ motion to intervene “was not
timely filed, a requirement under Civ.R. 24 pertaining to intervention of right and
permissive intervention.”
{¶ 29} “In exercising its discretion, the court ‘shall consider whether the
intervention will unduly delay or prejudice the adjudication of the rights of the original
parties.’” State ex rel. Greene Cty. Bd. of Commrs. v. O’Diam, 156 Ohio St.3d 458,
2019-Ohio-1676, 129 N.E.3d 393, ¶ 10. Having previously considered under rightful
intervention the factors of undue delay and prejudice to the rights of the original parties,
we find those factors are still present when considering permissive intervention. In
support of his motion to intervene, Mr. Banks simply argues, “Allowing [him] to
intervene will not prejudice the State in putting forth its procedural claims in this matter.”
Mr. Banks does not provide any evidence upon which this court can determine trial court
abuse of discretion.
{¶ 30} We reviewed the record and find the trial court did not abuse its discretion,
and the trial court’s attitude was not unreasonable, arbitrary or unconscionable, when it
denied Mr. Banks’ motion to permissively intervene.
{¶ 31} Mr. Banks’ first assignment of error is not well-taken
Outcome: On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Mr. Banks is ordered to pay the costs of this appeal pursuant to App.R. 24.
Plaintiff's Experts:
Defendant's Experts:
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