[Cite as State v. O'Malley , 2020-Ohio-3141.]

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

STATE OF OHIO Appellee

v. JAMES O'MALLEY Appellant C.A. No. 19CA0032-M

APPEAL FROM JUDGMENT ENTERED IN THE MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 18 TRC 04868

DECISION AND JOURNAL ENTRY Dated: June 1, 2020

SCHAFER, Judge. {¶1} Defendant-Appellant, James O’Malley, appeals from the judgment of the Medina Municipal Court ordering the criminal forfeiture of his vehicle . This Court affirms.

I. {¶2} O’Malley was charged with one count of driving while under the influence of alcohol (“OVI”), in violation of R.C. 4511.19(A)(1)(a), one cou nt of OVI, in violation of R.C. 4511.19(A)(2), and one count of not driving within marked lanes , in violation of R.C. 4511.33. Mr. O’Malley initially entered a plea of not guilty to all char ges. Mr. O’Malley’s OVI charge was preceded by two prior OVI convictions. Pursuant to R.C. 4511.1 9(G)(1)(c)(v), Mr. O’Malley’s

vehicle—a 2014 Chevrolet Silvera do—was seized and forfeiture pr oceedings commenced in accordance with R.C. 4503.234. During the pretrial proceedings , the trial court granted Mr. O’Malley’s motion for an order releasing his seized vehicle fro m impound and immobilizing it on his property in order to avoid s torage fees and charges.2

{¶3} Pursuant to a plea agreement, Mr. O’Malley entered a plea of no contest and the

trial court found him guilty of the OVI offense in violation of R.C. 4511.19(A)(1), his third OVI conviction within ten years. The trial court held a hearing on the forfeiture of the vehicle prior to, and in conjunction with, its sente ncing of Mr. O’Malley in the matter. The trial court sentenced Mr. O’Malley and, as part of that sentence, ordered forfeiture of the vehicle. The trial court granted Mr. O’Malley’s motion to stay th e order of forfeiture pending a ppeal. {¶4} Mr. O’Malley timely appealed the trial court’s order of forfeit ure of his vehicle. He raises two assignments of error for our review.

II. Assignment of Error I The trial court erred in ordering the forfeiture of [Mr. O’Mall ey]’s vehicle pursuant to R.C. 4511.19(G)(1)(c)(v ), as the order was an uncon stitutionally excessive fine in violation of the Eighth Amendmen t to the U.S. Constitution. {¶5} In his first assignment of error, Mr. O’Malley argues that an i ndividual’s limited

financial circumstances are a nec essary consideration in the co nstitutional analysis determining whether an economic sanction is an excessive fine under the Eig hth Amendment to the United States Constitution. Mr. O’Malley contends the trial court err ed by failing to consider his “financial position and the fact tha t the forfeiture value grea tly exceeded the maximum fine.” {¶6} The Eighth Amendment to the United States Constitution states t hat “[e]xcessive bail shall not be required, nor ex cessive fines imposed, nor cr uel and unusual punishments inflicted.” Article I, Section 9, of the Ohio Constitution inc ludes an identical prohibition. Criminal forfeiture of property as a form of punishment for a specified offense constitutes a “fine” for purposes of both the Ohio Constitution and the United States Co nstitution. State v. Hill , 70 Ohio St.3d 25 (1994), syllabus. “Accordingly, prior to entering an order of forfeiture, the trial court3

must make an independent determination whether forfeiture of th at property is an ‘excessive fine’ prohibited by the Excessive Fine Clauses of the Ohio and United States Constitutions.” Id

. {¶7} Preliminarily, we must address the appropriate standard of revi ew because Mr. O’Malley does not suggest a standard of review applicable to hi s first assignment of error. See Loc.R. 7(B)(7) (“Each assignment of error shall be separately d iscussed and shall include the standard or standards of review applicable to that assignment o f error under a separate heading placed before the discussion of the issues.”). Although Mr. O’ Malley ultimately contends that the forfeiture of his vehicle was unconstitutional, he argues that the trial court applied incorrect law in making its decision. Mr. O’Malley asserts that the trial court relied on dated le gal authority and an erroneous analysis that faile d to consider factors essential to determining whether the forfeiture of his vehicle violated the Excessive Fines Clause of the Eight h Amendment to the United States Constitution. “[T]he question whether a fine is constitutional ly excessive calls f or the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate.” State v. McShepard , 9th Dist. Lorain No. 07CA009118, 2007-Ohio6006, ¶ 17, quoting United States v. Bajakajian , 524 U.S. 321, 336, fn. 10, (1998). {¶8} Here, Mr. O’Malley argues the trial court erred by failing to a pply the correct constitutional standard to the facts of the case. Mr. O’Malley contends that the tr ial court failed to

consider a recent United States Supreme Court decision holding that the Excessive Fines Clause of the Eighth Amendment is an incorporated protection applicabl e to the States by the Due Process

Clause of the Fourteenth Amendment. Timbs v. Indiana , 139 S.Ct. 682 (2019). Mr. O’Malley further asserts that, in Bajakajian , 524 U.S. 321, the Supreme Court “focused on the ‘proportionality’ of a forfeiture to the alleged offense, but a lso indicated that a person’s ‘wealth or income’ could be relevant to the Excessive Fines Clause analysi s.” He argues that, taken together,4

Timbs and Bajakajian “leave little doubt that an indi vidual’s limited fi nancial cir cumstances are not only relevant, but indispensable to a constitutional analys is.” Mr. O’Malley contends “[t]he fact that the [t]rial [c]ourt’s decision does not contain any a nalysis or case law concerning the most recent Excessive Fines Clause jurisprudence renders it erroneou s from the outset.” {¶9} Contrary to Mr. O’Malley’s cont ention, however, the trial court ’s decision cites to a case wherein the Supreme Court of Ohio recognized more than q uarter of a century ago that “prior to entering an order of forfeiture, the trial court must make an independent determination whether forfeiture of that property is an ‘excessive fine’ proh ibited by the Excessive Fine Clauses

of the Ohio and United States Constitutions.” Hill , 70 Ohio St.3d at 34. Relying on State v. Kish , 9th Dist. Lorain No. 02CA008146, 2003-Ohio-2426, the trial cour t acknowledged [f]orfeiture is a form of punishme nt for a specified offense an d thus constitutes a fine for purposes of Section 9, Article 1 of the Ohio Constitut ion and the Eight[h] Amendment to the United States Constitution. As these provisio ns prevent the government from imposing an excessive fine upon an individual, the trial court is to determine whether the forfeiture of property would constitut e such a prohibited fine prior to entering an order of forfeiture. (Internal citations omitted.) Kish at ¶ 53, citing State v. Harold , 109 Ohio App.3d 87, 90-91 (9th Dist.1996), citing Hill at syllabus. {¶10} The trial court acknowledged that , to determine whether a forfe iture is a constitutionally excessive fine, a court must conduct a proport ionality review. Harold at 94; State v. Haponek , 9th Dist. Lorain No. 97CA006826, 1998 WL 34593, *2 (stating t hat failure of a trial court to properly account for constitutional proportionality fa ctors in a forfeiture determination creates reversible error). In discussing the factors applicabl e to a proportionality review, the trial

court focused on Kish , supra , and stated that the proportiona lity review entails the compar ison of

the harshness of the forfeiture to:5

1) the culpability of the defendant; 2) the gravity of the offe nse; 3) the relationship of the property to the offense; and 4) the harm to the communit y. Additional factors to consider when determining th e harshness of the forfeiture ar e the fair market value of the property, the intan gible and subjective value of t he property, and the hardship to the defendant, including the effect of forfeiture o n the defendant's family and financial condition. T he court should also evaluate the harm caused by the illegal activity and whether the defendant was directly inv olved in the illegal activity, the amount of drugs i nvolved and their value, the dur ation of the illegal activity, and its effect on the community. (Internal citations and quotations omitted.) Kish at ¶ 54, citing Harold at 94-96; see McShepard , 2007-Ohio-6006 at ¶ 17 (summarizing factors). {¶11} In its judgment entry and forfeiture order, the trial court dis cussed its factual findings in the context of the r elevant factors. The trial cou rt noted that the vehicle was “the medium for committing the OVI” and, therefore closely related t o the crime. The trial court also discussed the circumstances of Mr. O’Malley’s impairment and ar rest in considering his culpability, the gravity of the offense, and the risk he presen ted to the public. Additionally, considering the risk of recidivi sm and harm to the community, t he trial court discussed Mr. O’Malley’s record of alcohol-related incidents and OVI history. The trial court also recognized that Mr. O’Malley’s OVI had not resulted in harm to person or p roperty in this particular instance

but found under these circumstances that the potential for such harm remained great. {¶12} Mr. O’Malley contends that the trial court’s analysis did not i ncorporate “new requirements” that a court must consider. Specifically, Mr. O’ Malley asserts that the trial court was required to “heavily consid er” his financial position “and the maximum statutory fine when conducting [the] excessive fines a nalysis.” Mr. O’Malley’s con tention is belied by the record. Per

review of the trial court’s deci sion discussed below, Mr. O’Mal ley has not identified any factor the trial court was required, but failed, to consider in its an alysis.6

{¶13} In its discussion, the trial court specifically considered the value of Mr. O’Malley’s vehicle—approximately $31,000.00— in light of the $2,750.00 maxi mum fine for his conviction.

The trial court considered the fine-to-forfeiture ratio in the present matter to the ratios of other

cases. The trial court conclude d that the forfeiture was not d isproportionate or an excessive penalty in that regard. {¶14} Further, the trial court discussed the hardship that forfeiture would impose on Mr. O’Malley. Considering Mr. O’Malley’s testimony, the trial cour t observed that he was a single, unemployed 31-year old living with his grandmother. The court noted that, although Mr. O’Malley

testified that he used the vehic le for work, he had been unempl oyed since this OVI incident. The

trial court found that Mr. O’Malley was w ithout notable expense s or obligations a nd he enjoyed a stable standard of living without employment. {¶15} Upon consideration of the evide nce and the proportionality fact ors it deemed relevant, the trial c ourt concluded that Mr. O’Malley had not s hown by a preponderance of the

evidence that the forfeiture of this vehicle was an unconstitut ionally excessive fine or disproportionate penalty. See State v. Ziepfel , 107 Ohio App.3d 646, 653 (1st Dist.1995). Upon finding that the forfeiture was not unconstitutionally excessiv e, and further finding that the forfeiture was mandatory pursuant to R.C. 4511.19(G)(1)(c)(v), the trial court ordered forfeiture

of the vehicle. {¶16} Within this same assignment of error, Mr. O’Malley discussed fa cts he believes

relevant to the factors he accu ses the trial court of omitting from its analysis. He suggests that, in light of such facts, if the trial court had considered those fa ctors and conducted the proper analysis,

it would have concluded that the forfeiture of his vehicle was unconstitutionally excessive. Additionally, Mr. O’Malley argues, because of the Supreme Court ’s decision in Timbs , “this Court7

faces the task of interpreting and applying [the Excessive Fine s Clause of the Eighth Amendment]

to the facts of this case.” {¶17} Mr. O’Malley improperly attempts to merge this limited factual or evidentiary argument with his argument that trial court erred as a matter o f law. See Loc.R. 7(B)(7). Further, Mr. O’Malley has not developed this limited argument to establi sh that the forfeiture was a constitutionally excessive fine in violation of the Eighth Amen dment. See App.R. 16(A)(7). “[T]his Court will not ‘guess at undeveloped claims on appeal’ or construct arguments to support an assignment of error.” State v. Beverly , 9th Dist. Summit No. 28627, 2019- Ohio-957, ¶ 6, quoting McPherson v. Goodyear Tire & Rubber Co. , 9th Dist. Summit No. 21499, 2003-Ohio7190, ¶ 31. We have repeatedly held that, “[i]f an argument ex ists that can support [an] assignment of error, it is not [our] duty to root it out.” Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). {¶18} Even assuming he could establish that the trial court applied t he wrong standard, this Court would not, as Mr. O’Malley suggests in his brief, un dertake a review to make findings on the issue in the first instance. Rather, it would require t his Court to remand the matter for the trial court to analyze the issu e under the correct standard. See Hill , 70 Ohio St.3d at 34-35; Haponek 1998 WL 34593 at *2. Nonetheless, our review of the record de monstrates that the trial

court did consider relevant le gal authority and, specifically, the factors that Mr. O’Malley faults it for failing to consider. Mr. O’Malley has not identified an er ror in the trial court’s application of law. Accordingly, his argument l acks merit and his first assig nment of error is overruled. Assignment of Error II The trial court erred in ordering the forfeiture of [Mr. O’Mall ey]’s vehicle as R.C. 4511.19G)(1)(c)(v) is unconstitutional on its face and as applied herein pursuant to the Equal Protection Clauses of the Fourteenth Amen dment to the U.S. Constitution and Section Two, Article One of the Ohio Cons titution.8

{¶19} In his second assignment of error, Mr. O’Malley argues that R.C

. 4511.19(G)(1)(c)(v) is unconstitutional because it violates the Equal Protection Clauses of the

Fourteenth Amendment to the United States Constitution and Arti cle I, Section 2 of the Ohio Constitution. Mr. O’Malley’s assignment of error asserts that the statute is unconstitutional both “on its face and as applied[.]” {¶20} An independent review of the reco rd reflects that the trial cou rt entered an order granting Mr. O’Malley leave to file an “objection to vehicle fo rfeiture and request for proportional review hearing.” Although the tr ial court’s judgment entry imp lies Mr. O’Malley filed this motion seeking leave on August 16, 2018, the motion is not in the reco rd. In the judgment entry, the trial court specified that if Mr. O’Malley is found guilty of a third OVI in ten years, the court would schedule a forfeiture hearing under R.C. 4503.234 “automaticall y.” The trial court granted leave “to address by brief in advance of such hearing the excessive p enalty and proportionality issues”

and stated that the brief needed to be filed and served at leas t seven days prior to the forfeiture hearing. However, the record reveals no written objection or o ther filing reflecting an argument that R.C. 4511.19(G)(1)(c)(v) is unconstitutional on equal prot ection grounds. {¶21} Although Mr. O’Malley asserts in h is brief that he “filed a wri tten objection to the forfeiture of his vehicle, alleging that the forfeiture was an unconstitutionally excessive fine and the statute itself was unconstitutional[,]” he does not provide a citation to the record to indicate where this written objection was filed. App.R. 16(A)(7). Nor does Mr. O’Malley’s brief contain a citation to the part of the record where, as he claims, the t rial court “denied [his] constitutional objections.” See id

. See also App.R. 16(A)(6). As appella nt, Mr. O’Malley bore the “‘responsibility to ensure that the record on appeal contains a ll matters necessary to allow this Court to resolve the issues on appeal.’” State v. Boatright , 9th Dist. Summit No. 28101, 2017-9

Ohio-5794, ¶ 46, quoting State v. Farnsworth , 9th Dist. Medina No. 15CA0038-M, 2016-Ohio7919, ¶ 16, citing App.R. 9. {¶22} A review of the transcript of the forfeiture hearing shows that counsel for Mr. O’Malley orally asserted that the forfeiture statute violates t he equal protection clauses of the Ohio

Constitution and the United States Constitution. At the hearin g, Mr. O’Malley argued that, if the vehicle he was driving at the time of his third OVI offense in ten years had not been registered in his name, the vehicle would not be subject to forfeiture. He a rgued that any individual who owned the vehicle he was driving under such circumstances would be su bject to forfeiture, while an individual committing the same offense in a vehicle not registe red in his name would avoid the penalty altogether. Mr. O’Malley argued that punishing an offe nder more severely merely because he owns the vehicle “is a plain protection violation[.]” Addit ionally, Mr. O’Malley argued that it was unfair that offenders with vehicles subject to forfeiture f ace different penalties depending on the value of the vehicle they will lose through the forfeiture. {¶23} In response, the trial court acknowledged the hardship that for feiture would cause, but implied that there was a rational basis for imposing forfei ture on an individual committing an OVI in his vehicle. The trial court did not make an explicit d ecision regarding this equal protection argument during the hearing and did not address it at all in th e written decision. However, the trial court impliedly rejected the arg ument by ordering forfeiture of the vehicle. {¶24} The arguments Mr. O’Malley raises in his merit brief on appeal go beyond the limited argument he raised in the trial court. “Arguments that were not raised in the trial court

cannot be raised for the f irst time on appeal.” JPMorgan Chase Bank, Natl. Assn. v. Burden , 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12. Accordingly, thi s analysis is confined to the limited equal protection argument Mr. O’Malley made to the tria l court. This Court reviews a10

constitutional challenge de novo. State v. Honey , 9th Dist. Medina No. 08CA0018-M, 2008-Ohio4943, ¶ 4. {¶25} The relevant portion of the Four teenth Amendment to the United States Constitution provides that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” O hio’s Equal Protection Clause states that “[a]ll political power is inherent in the people. Government is instituted for their equ al protection and benefit * * *.” Article I, Section 2, Ohio Cons titution. These equal-protectio n provisions are “functionally equivalent” and are generally c onstrued and analyzed in essenti ally the same manner. (Internal citations omitted.) Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray , 127 Ohio St.3d 104, 2010- Ohio-4908, ¶ 17; but see State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 21 (The Ohio Constitution, can and will be interpreted so as to afford great er rights to our citizens when “such an interpretation is both prude nt and not inconsistent with the intent of the framers.”) {¶26} “[T]he Equal Protection Clauses require that individuals be tre ated in a manner

similar to others in like circumstances.” Burnett v. Motorists Mut. Ins. Co ., 118 Ohio St.3d 493, 2008-Ohio-2751, ¶ 30, quoting McCrone v. Bank One Corp. , 107 Ohio St.3d 272, 2005-Ohio6505, ¶ 6. “An equal-protection analysis of any law centers up on the law’s classification of persons and whether the classification relates to a legitimate governme nt interest.” State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 24, citing State ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115, 119-120 (1989). Equal protecti on “does not prohibit a leg islature from creating laws that treat a group of people different ly from others outside the gro up. But it does prohibit different treatment based on criteria that are unrelated to the purpose o f the law.” Id . citing Johnson v.

Robison , 415 U.S. 361, 374 (1974); Doersam at 119-120.11

{¶27} “The preliminary step in conducting an equal protection analysi s regarding a particular statute is to examine the classifications created by the statute in question.” Burnett at ¶ 31, citing McCrone a t ¶ 11; Conley v. Shearer , 64 Ohio St.3d 284, 290 (1992). Mr. O’Malley argued that R.C. 4511.19(G)(1)(c) creates a separate class of O VI offenders who committed a third offense in ten years while operating a vehicle register ed in the offender’s name . Pursuant to R.C. 4511.19(G)(1)(c), “an offender who, within ten years of [his] o ffense, previously has been convicted of or pleaded guilty to two violations of [R.C. 4511. 19(A) or (B)] or other equivalent offense is guilty of a misdemea nor. A court is required to imp ose a sentence on such an offender that includes, “if the vehicle i s registered in the offender’s name, criminal forfeiture of the vehicle involved in the offense in accordance with [R.C. 4503.234].” R .C. 4511.19(G)(1)(c)(v). Thus, among the offenders having committed a third OVI offense in ten years, R.C. 4511.19(G)(1)(c)(v)

creates a classification of offe nders—subject to the additional forfeiture punishment—who committed the offense while driving a vehicle registered in the offender’s own name. This class is distinguished from those offenders who committed the same of fense while driving a vehicle that

was not registered in the offender’s name and are, therefore, not subject to the additional punishment of forfeiture. {¶28} “Courts apply varying levels of scrutiny to equal-protection ch allenges depending on the rights at issue and the purportedly discriminatory class ifications created by the law.” Cordray , 2010-Ohio-4908 at ¶ 18. “[A] statute that does not implicate a fundamental right or a suspect classification does not v iolate equal-protection princi ples if it is rationally related to a legitimate government interest.” Id ., citing State v. Williams , 126 Ohio St.3d 65, 2010-Ohio-2453, ¶ 39. Mr. O’Malley does not contend that a fundamental right o r suspect classification is implicated, therefore, a rational-basis revi ew applies. “The r ational-basis test i nvolves a two-step12

analysis[:]” (1) we must “identify a valid state interest[,]” a nd (2) “we must determine whether the method or means by which the sta te has chosen to advance that i nterest is rational.” Cordray at ¶ 19, quoting McCrone , 2005-Ohio-6505 at ¶ 9. {¶29} Regarding the first prong of the analysis, Mr. O’Malley acknowl edges that the state has a legitimate interest i n deterring impaired driving. See Akron v. Kirby , 113 Ohio App.3d 452, 460 (9th Dist.1996). He does not challenge the notion that the forfeiture penalty of R.C. 4511.19(G)(1)(c)(v) is aimed at the legitimate state interest i n deterring impaired driving. Therefore, the first prong of the equal protection analysis is satisfied. See Cordray at ¶ 29. {¶30} We turn next to the second prong of the analysis to consider wh ether the forfeiture penalty applicable to an OVI offender who commits a third OVI o ffense in ten years—while driving a vehicle registered in the offender’s name—is rational ly related to the state’s interest in deterring impaired driving. “‘ [E]qual protection requires * * * that reasonable grounds exist for making a distinction between those within and those without a d esignated class.’” Mole , 2016- Ohio-5124 at ¶ 61 quoting State v. Buckley , 16 Ohio St.2d 128, 134 (1968). However, “‘[u]nder the rational-basis standard, a state has no obligation to produ ce evidence to sustain the rationality of a statutory classification.’” Id . at ¶ 27, quoting Columbia Gas Transm. Corp. v. Levin , 117 Ohio St.3d 122, 2008-Ohio-511, ¶ 91. “‘[S]tatutes are presumed to b e constitutional and * * * courts have a duty to liberally construe statutes in order to save the m from constitutional infirmities.’”

Id. quoting Eppley v. Tri-Valley Local School Dist. Bd. of Edn ., 122 Ohio St.3d 56, 2009-Ohio1970, ¶ 12. “The party challenging the constitutionality of a statute ‘bears the burden to negate every conceivable basis that might support the legislation.’” Id . quoting Columbia Gas at ¶ 91. {¶31} Mr. O’Malley argued that the classification was unfair because, if the vehicle he was driving at the time of his third OVI offense in ten years h ad not been registered in his name,13

the vehicle would not be subject to forfeiture. In essence, th e sole reason he was subjected to the additional penalty of forfeiture was because he happened to com mit the offense while driving a vehicle registered in his own name. By contrast, he argued, an y individual committing the same offense in a vehicle not registered in his name would avoid the penalty altogether. Mr. O’Malley argued that punishing an offender more severely merely because he owns the vehicle “is a plain protection violation[.]” He also argued that it is unfair that offenders within the identified class face different penalties depending on the value of the vehicle they stand to lose through the

forfeiture. {¶32} We acknowledge that Mr. O’Malley has highlighted a disparity in outcomes that may result as a consequence of the same conduct: committing a t hird OVI offense in ten years. Nonetheless, “courts are compe lled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between mea ns and ends. A classification does

not fail rational-basis review because it is not made with math ematical nicety or because in practice it results in some inequality.” (Internal citations and quotat ions omitted.). Cordray , 2010-Ohio4908 at ¶ 32. Mr. O’Malley has pr esented very limited argument in light of this highly deferential standard. Mr. O’Malley has faile d to “‘negate every conceivabl e basis that might support the legislation[,]’” and, consequent ly, failed to demonstrate that the means chosen to advance the state’s interest in deterring impaired driving is not rational. Id . at ¶ 20, quoting Columbia Gas at ¶ 91. Therefore, we cannot agree with Mr. O’Malley’s contentio n that the forfeiture provision of R.C. 4511.19(G)(1)(c)(v) violates the Equal Protection Clauses of the United States Constitution

or Ohio Constitution. {¶33} Mr. O’Malley’s second assign ment of error is overruled.14

III. {¶34} Mr. O’Malley’s first and second assignments of error are overru led. The judgment of the Medina Municipa l Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Medina Municipal Court, County of Medina, 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 consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

HENSAL, J. CONCURRING IN JUDGMENT ONLY. {¶35} I agree with the lead opinion that Mr. O’Malley’s first assignm ent of error should be overruled. Regarding the decisions of the United States Sup reme Court that Mr. O’Malley15

argues the trial court should have applied, I conclude that, al though the trial court may not have

referred to Timbs or Bajakajian in its decision, the proportionality factors it applied from t his Court’s precedent are more thorough than the ones suggested in those cases. Accordingly, any error by the trial court in fa iling to reference the most recen t United States Supreme Court decisions on excessive fines was harmless. Regarding whether the trial c ourt adequately considered Mr. O’Malley’s financial situation, I agree with the lead opinion t hat the trial court did not fail to consider any required p roportionality factor. {¶36} I do not agree with the lead opinion that Mr. O’Malley failed t o properly develop an argument that the forfeiture constitutes an unconstitutional ly excessive fine. I believe this Court must reach the merits of the pr oportionality issu e and determin e whether the forfeiture of Mr. O’Malley’s vehicle constitutes an excessive fine. I would conc lude, however, that, under the precedent of this Court, it does not. In State v. Harold , 109 Ohio App.3d 87 (9th Dist.1996), this

Court examined whether the forfe iture of the defendant’s home w as an excessive fine. The defendant had sold $40 worth of c rack cocaine to a confidential informant and his interest in the house was, at best, $7,500 plus a ppreciation. This Court noted that the Second Circuit had upheld the forfeiture of a condominium in which the defendant had $68, 000 in equity after he sold $250

worth of crack cocaine. Id . at 94. Considering the Second Circuit’s decision, this Court determined that the forfeiture of the defendant’s approximately $7,500 interest in his home was not an unconstitutionally excessive fine. Id

. {¶37} Although Mr. O’Malley’s vehicle may have been worth $31,000, th e trial court

found that his investment in it was only $5,000, which is less than three times the maximum fine for his offense. Upon review of all the factors outlined in Harold and McShepard , I conclude that the forfeiture of Mr. O’Malley’s vehicle was not an unconstitut ionally excessive fine. See State v.16

Scheibelhoffer , 11th Dist. Lake No. 98-L-039, 1999 WL 476106, *5 (June 30, 19 99) (concluding that forfeiture of property worth $31,470 for sale of $250 of d rugs, a felony of the fifth degree with a maximum fine of $2,500, did not viol ate excessive fines claus e). {¶38} I also agree with the lead opinion that Mr. O’Malley’s second a ssignment of error should be overruled. Mr. O’Malley’s equal protection argument focuses on the differences

between “owners” and “non-owne rs” of vehicles. Section 4511.19 (G)(1)(c)(v), however, does not use such language. Whether the vehicle an offender was operati ng during the commission of an offense is subject to forfeiture depends on whether the vehicle was “registered in the offender’s name[.]” R.C. 4511.19(G)(1)(c)(v). The General Assembly has c oupled forfeiture of a vehicle to its registration not ownership. Thus, a leased vehicle, which is commonly registered in the lessee’s name, can be subject to forfe iture under Section 4511.19(G)(1)( c)(v) even though the lessee is not

the titled “owner” of the vehicle. 1 In addition, as Mr. O’Malley points out in his brief, Section 4503.234(D) provides that a deputy registrar may not accept an application for registration of a motor vehicle if a vehicle that was registered in the person’s name was criminally forfeited within the previous five years. Accordingly, it is not accurate to fo cus on the differences between “owners” and “non-owners.” To the extent that Mr. O’Malley arg ues that Section 4511.19(G)(1)(c)(v) unfairly punishes vehicle owners while all others are not subject to forfeiture, I conclude that his argument i s not supported by the language o f the statute. {¶39} Mr. O’Malley also argues that treating those who own their vehi cles different from those who do not is not rationally related to a legitimate stat e interest. I disagree. When an offender owns or has a long-term lease of a vehicle, the offend er has ready access to the dangerous

1 Section 4503.234(B)(2) provides an opportunity for the lienhol der to avoid forfeiture of the vehicle.17

instrument that the offender used to create a risk to the publi c. The State has an interest in reducing a repeat offender’s opportunity to re-offend. Forfeiture also serves as an additional deterrent to repeat offenders who own or lease their vehicles not to commit another offense. See City of Akron v. Kirby , 113 Ohio App.3d 452, 460 (9th Dist. 1996) (“The state has a l egitimate interest in deterring impaired driving, and the seizure of an * * * offende r’s vehicle serves this interest.”). It would not make sense for the State to apply Section 4511.19(G)( 1)(c)(v) to repeat offenders who do not own or have a long-term lease of a vehicle because the S tate cannot threaten to take away something that a person does not have. In addition, a statute that allowed the forfeiture of any

vehicle that an offender was dr iving could unfairly punish inno cent third parties. {¶40} For the foregoing reasons, I conclude that the trial court did not violate Mr. O’Malley’s constitutional rights when it ordered the forfeiture of his vehicle. I, therefore, concur in the judgment of the lead opinion.

CARR, P. J. DISSENTING. {¶41} I respectfully dissent in regard to the lead opinion’s resoluti on of the first assignment of error as I am greatly troubled that the trial cou rt’s constitutional proportionality analysis did not account for the drastic impact that forfeiture of O’Malley’s truck would have on his personal financial condition. {¶42} O’Malley raises a number of arguments in support of his first a ssignment of error. Irrespective of whether the recent United States Supreme Court decisions created a new requirement for a constitutional forfeiture analysis, it is wel l settled law that a proportionality review requires the trial court to weigh the harshness of the f orfeiture against, among other factors,

“the fair market value of the property, the intangible and subj ective value of the property, and the18

hardship to the defendant, including the effect of forfeiture o n the defendant’s family and financial

condition.” State v. Kish , 9th Dist. Lorain No. 02CA008146, 2003-Ohio-2426, ¶ 54. Each factor must be evaluated on a case-by-case basis with no single factor carrying more weight than another.

Id

. {¶43} Here, I would conclude that th e trial court’s proportionality a nalysis failed to account for the subjective and inta ngible value of O’Malley’s v ehicle, as well as the grave financial hardship that would befall O’Ma lley as a result of forfeiture. {¶44} At the time of the hearing, O’Malley was an unemployed 31-year- old who lived with his grandmother. In setting forth its factual findings, t he trial court deter mined that O’Malley had paid his grandparents only $5,000 for the vehicle, which th ey had purchased new at an estimated price of $39,987. The vehicle remained in very good condition and had an estimated

current value of $31,000 . While the t rial court set forth the standard in Kish , its analysis stressed that forfeiture would serve to protect the public given that th is was O’Malley’s third OVI conviction in ten years. Although noting that the maximum fine in this case was $2,750, the trial

court observed that the monetar y values at issue here did not s upport the conclusion that forfeiture would be an excessive penalty. Instead of grounding that concl usion in the totality of the circumstances in regard to this particular defendant, however, the trial court cited cases such as State v. Ziepfel , 107 Ohio App.3d 646 (1st Dist.1995), in support of its conclu sion that forfeiture of an asset with a value approximately 11 times that of the max imum fine was not unconstitutionally excessive. {¶45} The trial court opined that the financial hardship to O’Malley “seem[ed] comparatively low” given that he continued to live with his gra ndmother and did not have a family to support. While acknowledging that transportation issues imp acted O’Malley’s employment19

prospects, the trial court did not directly assess the extent t o which forfeiture of his truck would harm O’Malley’s personal financial condition. O’Malley’s truck , which he believed he could sell for between $36,000 and $38,000, remained a significant financi al asset. Losing control of that asset dramatically decreased O’Malley’s financial flexibility a s he attempted to navigate unemployment and move his life in a positive direction. Moreover, O’Malley’s ab ility to acquire his truck would not have been po ssible but for the benevolence of his grandparents, meaning the truck had significant subjective and intangible value, in addit ion to its practical value as a financial asset. Under these circumstances, I would reverse and remand f or the trial court to undertake a constitutional proportionality analysis that accounted for the drastic impact that forfeiture of O’Malley’s truck would have on his personal financial condition

.

APPEARANCES: RONALD ANNOTICO, Attorney at law, for Appellant. J. MATTHEW LANIER, Prosecuting Attorney, for Appellee.