[Cite as Erie Cty. Sheriff's Office v. Lacy, 2015-Ohio-72.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 ERIE COUNTY 

Erie County Sheriff’s Office Court of Appeals Nos. E-14-022 

 E-14-023 

 Appellant 

 Trial Court Nos. 2013-CV-018 

v. 2012-CR-519 

In re: One 2011 Chevy Cruze, et al. 

 Defendants 

Charlene Lacy DECISION AND JUDGMENT

Appellee Decided: January 9, 2015 

* * * * * 

 Kevin J. Baxter, Erie County Prosecuting Attorney, Mary Ann 

 Barylski, Frank Romeo Zeleznikar and Jeanne Lippert, Assistant 

 Prosecuting Attorneys, for appellant. 

* * * * * 

 SINGER, J. 

{¶ 1} Appellant, the Erie County Sheriff’s Office, appeals from the March 24 

and 28, 2014 judgments of the Erie County Court of Common Pleas denying forfeiture of 

the property of appellee, Charlene Lacy. For the reasons which follow, we affirm. 
2.

{¶ 2} On December 2, 2012, Lacy utilized her 2011 Chevy Cruze automobile to 

commit a criminal offense for which she was later convicted. On January 14, 2013, 

appellant filed a petition (case No. 2013-CV-018) for forfeiture of Lacy’s automobile 

pursuant to R.C. 2981.05 (civil forfeiture). The sheriff’s office alleged that the vehicle 

was an instrumentality used in the commission of a felony and subject to forfeiture 

pursuant to R.C. 2981.02(A)(3). 

{¶ 3} Appellee was indicted on January 23, 2013, with complicity to commit 

burglary, a felony of the second degree, and complicity to commit theft, a felony of the 

fourth degree (case No. 2012-CR-519). Appellant alleged that due to a typographical 

error, the indictment failed to include a forfeiture specification which the grand jury had 

found and specified. The indictment was amended on February 12, 2013, to include a 

criminal forfeiture specification, but the specification contained an error. 

{¶ 4} On April 29, 2013, appellee pled guilty to an amended Count 1 of the 

indictment, complicity to commit burglary. As a condition of the plea agreement, 

appellee agreed to pay $500 in restitution. On July 11, 2013, appellee was sentenced to 

four years of community control and was ordered to pay $500 in restitution. A forfeiture 

hearing was scheduled. 

{¶ 5} Following a joint hearing of both forfeiture actions on September 11, 2013, 

the trial court held in a March 24, 2014 judgment in the civil forfeiture case that appellant 

had “demonstrated that the vehicle should be forfeited for its use in the commission of 

the offense in which the party in interest was guilty.” However, the trial court denied 
3.

appellants’ civil forfeiture because at the hearing, appellant did not produce evidence of 

compliance with certain procedural requirements. In a March 28, 2014 judgment in the 

criminal forfeiture case, the trial court held that the evidence supported an order of 

forfeiture, but the trial court denied the forfeiture, holding that appellant failed to use the 

correct language in the criminal forfeiture specification. 

{¶ 6} Appellant appealed from both judgments on April 21, 2014, which were 

consolidated into the instant appeal. Appellant asserts the following assignments of error 

on appeal: 

 I. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED 

APPELLANT’S CIVIL FORFEITURE PETITION IN CASE NUMBER 

2013-CV-018, WHEN IT INCORRECTLY DETERMINED THAT 

APPELLANT WAS REQUIRED TO PRESENT EVIDENCE OF 

COMPLIANCE WITH THE NOTICE REQUIREMENTS SET FORTH IN 

O.R.C. SECTION 2981.05 (B) BEFORE IT COULD ISSUED THE CIVIL 

FORFEITURE. 

 II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION 

IN DENYING AND DISMISSING THE CRIMINAL FORFEITURE 

SPECIFICATION IN CASE NUMBERS 2012-CR-519 WHEN IT SUA 

SPONTE DETERMINED THAT THE CRIMINAL FORFEITURE 

SPECIFICATION IN THE INDICTMENT WAS DEFICIENT. 
4.

{¶ 7} In its first assignment of error, appellant argues that in the civil forfeiture 

action, the trial court erred as a matter of law. In his second assignment of error, 

appellant argues that in the criminal forfeiture case, the trial court abused its discretion. 

We address both assignments of error together. 

{¶ 8} Pursuant to R.C. 2981.03, a prosecutor may seek forfeiture of a seized 

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

2981.04, or by filing a civil action, R.C. 2981.05, or both. State v. Hagan, 11th Dist. 

Ashtabula No. 2014-A-0013, 2014-Ohio-4308, ¶ 13. 

{¶ 9} Pursuant to R.C. 2981.05(A), the prosecutor where property subject 

to forfeiture is located may commence a civil forfeiture action by filing a 

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

subdivision. Prior to filing the petition, 

the prosecutor shall attempt to identify any person with an interest in the 

property subject to forfeiture by searching appropriate public records and 

making reasonably diligent inquiries. The prosecutor shall give notice of 

the commencement of the civil action, together with a copy of the 

complaint, to each person who is reasonably known to have any interest in 

the property, by certified mail, return receipt requested, or by personal 

service. The prosecutor shall cause a similar notice to be published once 
5.

each week for two consecutive weeks in a newspaper of general circulation 

in the county in which the property is located. R.C. 2981.05(B) (emphasis 

added). 

{¶ 10} Pursuant to R.C. 2981.05(D), the trial court shall issue a civil 

forfeiture order if: (1) “the prosecutor proved by a preponderance of the evidence 

that the property is subject to forfeiture under section 2981.02 and after a 

proportionality review under section 2981.09 of the Revised Code when relevant, 

the trier of fact specifically describes the extent of the property to be forfeited.” 

R.C. 2981.02 permits forfeiture of property that is: 

 (1) Contraband involved in an offense; 

 (2) Proceeds derived from or acquired through the commission of an 

offense; 

 (3) An instrumentality that is used in or intended to be used in the 

commission or facilitation of any of the following offenses when the use or 

intended use, consistent with division (B) of this section, is sufficient to 

warrant forfeiture under this chapter: 

 (a) A felony; 

 * * * 

 (c) An attempt to commit, complicity in committing, or a conspiracy 

to commit an offense of the type described in divisions (A)(3)(a) and (b) of 

this section. 
6.

{¶ 11} The trial court held that while appellant established that the car should be 

subject to forfeiture, it denied forfeiture because appellant had not established that it 

complied with the notice requirements of R.C. 2981.05 by publishing notice of the 

forfeiture action in the newspaper. 

{¶ 12} Appellant concedes that it did not present evidence that the procedural 

requirements set forth in R.C. 2981.05(B) had been followed. Appellant did send a copy 

of the complaint for forfeiture to appellee by certified mail, return receipt requested, but 

did not publish notice of the commencement of the forfeiture proceeding in a newspaper 

of general circulation. Appellant argues on appeal that this requirement is not an element 

that must be proven by the state when determining whether an instrumentality is subject 

to forfeiture pursuant to R.C. 2981.02. 

{¶ 13} A prosecutor may also elect to pursue criminal forfeiture. R.C. 2981.04 

provides that the prosecutor must include in the charging instrument a specification of 

forfeiture that complies with R.C. 2941.1417 for all property foreseen to be subject to 

foreclosure. The forfeiture specification gives notice to the defendant of the potential 

forfeiture penalty. State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 

N.E.2d 1042, ¶ 65 (6th Dist.). The specification must notify the defendant of: 

 (a) The nature and extent of the alleged offender’s or delinquent 

child’s interest in the property; 

 (b) A description of the property; 
7.

 (c) If the property is alleged to be an instrumentality, the alleged use 

or intended use of the property in the commission or facilitation of the 

offense. R.C. 2981.04(A). 

The forfeiture specification in this case stated as follows: 

 SPECIFICATION OF CRIMINAL FORFEITURE PURSUANT TO 

O.R.C. SEC. 2981.02 AS TO BOTH COUNTS: The Grand Jurors further 

find and specify that Charlene M. Lacy was in possession of, and/or owner 

of, a 2011 Chevrolet Cruze, VIN# ending in 3231, said cash being proceeds 

and/or instrumentalities in the commission of the offense under both Counts 

of the indictment. (Emphasis added). 

{¶ 14} The trial court held that the forfeiture specification was not sufficient in 

this case because it indicated that cash was the proceeds and/or instrumentalities used in 

commission of the offense, not the car. The court found that there was sufficient 

evidence the car was used in the commission of the offense (but not the cash) and that

Lacy was the titled owner of the vehicle. However, the court concluded that the order of 

forfeiture could not be issued because appellant never amended the indictment to correct 

the erroneous use of the word cash instead of car. 

{¶ 15} The question presented by both forfeiture cases on appeal is whether an 

order of forfeiture could be granted when appellant did not strictly comply with the 

forfeiture statutory procedures. 
8.

{¶ 16} Appellant argues the prosecutor must only prove that the “property is 

subject to forfeiture under section 2981.02” and, pursuant to that statute, that the property 

at issue was “[a]n instrumentality * * * used in * * * the commission or facilitation of 

* * * [a] felony.” He further argues the prosecutor was not required to prove that he 

complied with the notice requirements of the statute unless an opposing party first raises 

the issue. Alternatively, appellant argues it is clear from the record that appellee had 

actual notice that her vehicle was subject to forfeiture: appellant filed a petition for 

forfeiture of seized property pursuant to R.C. 2981.05; appellee’s indictment included a 

criminal forfeiture specification pursuant to R.C. 2981.04 (A); appellee requested the 

forfeiture hearing as part of a negotiated plea agreement regarding the vehicle; appellee 

participated in the forfeiture hearing; and appellant presented the testimony of the 

supervisor of the Erie County title department who testified that the certified titled was 

transferred to appellee, there were no lienholders, and the purchase price was zero. 

{¶ 17} Appellant also argues it is clear that the use of the word “cash” in the 

forfeiture specification was merely a typographical error and that Lacy understood the 

intent of the specification. 

{¶ 18} We find there are few cases discussing strict application of the statutory 

notice requirements of R.C. Chapter 2981. However, courts have been divided as to 

whether the notice requirements of forfeiture statutes under the forfeiture provisions of 

R.C. Chapter 45 must be strictly applied or whether the court can consider whether the 

purpose of the statutory requirement was fulfilled with actual notice. Some courts apply 
9.

waiver or harmless error doctrines if there was evidence of actual notice. In Mayfield 

Heights v. Berlin, 8th Dist. Cuyahoga No. 81071, 2002-Ohio-4040, ¶ 5 (interpreting R.C. 

4511.99(A)(3)(b) and 4503.234(B), notice of possible forfeiture gave the owner actual 

notice governing forfeiture and failure to object constituted waiver of the notice 

requirement); City of Xenia v. Mellotte, 2d Dist. Greene No. 2001CA90, 2002-Ohio2700, ¶ 1-2 (although the notice requirements of R.C. 4503.234(B) and 4511.195(B)(1) 

are mandatory, no prejudice shown by failure to provide notice when forfeiture was part 

of a negotiated plea); State v. Guy, 9th Dist. Summit No. 16760, 1994 WL 605598, *2 

(Nov. 2, 1994) (failure to receive R.C. 4503.234(C)(1) notice of forfeiture harmless 

where party had actual notice through another form); and City of Columbus v. Robison, 

10th Dist. Franklin No. 95APC10-1364, 1996 WL 274095, *6-7 (May 21, 1996) (actual 

notice of the forfeiture hearing in an R.C. 4503.234 forfeiture proceeding was sufficient 

to satisfy the notice requirements under the statute). 

{¶ 19} In contrast, however, the court in State v. Knapp, 9th Dist. Medina No. 

02CA0048-M, 2003-Ohio-532, ¶ 20, held that because R.C. 4503.234 is a forfeiture 

statute, both versions of that statute in effect had to be strictly construed against the state. 

Because the state had failed to satisfy the mandate of written notice, the automobile at 

issue could not be subject to forfeiture even though the court had orally given defendant 

notice of the potential forfeiture upon conviction. In State v. Orsik, 9th Dist. Lorain No. 

11CA010097, 2012-Ohio-4331, ¶ 14, the same court distinguished Knapp on the ground 
10. 

that the criminal forfeiture statute requiring a forfeiture specification in the charging 

instrument was no longer effective and that a uniform traffic ticket satisfied the necessary 

notice requirement. 

{¶ 20} We have held that the Chapter 2981 forfeiture statutes must be strictly 

construed and applied. In Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960 

N.E.2d 1042, at ¶ 33, we held that R.C. 2981.01 through 2981.14 established mandatory 

procedures for forfeiture proceedings for certain offenses. Therefore, the authority of the 

trial court to order forfeiture requires compliance with the procedural requirements of the 

processes established by the General Assembly. Id. at ¶ 52. We found the trial court 

erred in part by issuing an order to destroy the defendant’s weapons without a forfeiture 

hearing or notice of a potential forfeiture penalty as required by these statutes. Id. at ¶ 66. 

{¶ 21} While we could distinguish Brimacombe because it involved a wholesale 

disregard for the statutory forfeiture process, we believe the underlying principle still 

applies to the more limited failures to provide the required published notice and to 

include an accurate forfeiture specification in the charging instrument. 

{¶ 22} Appellant is correct that for the typical criminal prosecution, the prosecutor 

must comply with certain criminal procedural rules, but need only prove the elements of 

the crime at trial to obtain a conviction. If the prosecution fails to comply with the 

criminal rules, the defendant must generally assert his rights were violated. However, the 

court’s jurisdiction to adjudicate the forfeiture of property is special and limited by 

statute. Therefore, strict compliance with the statutory requirements is necessary to 
11. 

invoke the subject-matter jurisdiction of the trial court. See State v. Little, 12th Dist. 

Butler No. CA2014-01-020, 2014-Ohio-4756, ¶ 34, fn. 4, and State v. Cavin, 12th Dist. 

Butler No. CA2003-08-197, 2004-Ohio-4978, ¶ 18 (applying former statutory 

requirements for disposition of seized property). Subject-matter jurisdiction is not 

presumed and must be clear upon the face of the record. In re Toney, 114 Ohio App. 397, 

399, 183 N.E.2d 141 (3d Dist.1961). The lack of subject-matter jurisdiction can be raised 

sua sponte at any stage of the proceeding by the trial judge. Fox v. Eaton Corp., 48 Ohio 

St.2d 236, 238, 358 N.E.2d 536 (1976), overruled on other grounds in Manning v. Ohio 

State Library Bd., 62 Ohio St.3d 24, 29, 577 N.E.2d 650 (1991). A party who opposes 

the forfeiture does not waive the notice requirement by failing to object. Little, supra. 

The lack of subject-matter jurisdiction renders the judgment void ab initio. Pratts v. 

Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11. 

{¶ 23} Although the judgment appears harsh in light of the fact that the trial court 

found that forfeiture was appropriate, we agree with the trial court that it had no recourse 

but to deny appellant’s prayer for an order of forfeiture. Accordingly, appellant’s two 

assignments of error are found not well-taken. 

{¶ 24} Having found that the trial court did not commit error prejudicial to 

appellant, the judgment of the Erie County Court of Common Pleas is affirmed. 

Appellant is ordered to pay the court costs of this appeal pursuant to App.R. 24. 

Judgment affirmed. 
12. 

 Erie County Sheriff’s Office v. 

 In re: One 2011 Chevy Cruze 

 C.A. Nos. E-14-022 

 E-14-023 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Stephen A. Yarbrough, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.