[Cite as State v. Burton, 2018-Ohio-95.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105470

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

JACQUELINE D. BURTON

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-15-600498-B and CR-15-601351-B 

BEFORE: Celebrezze, J., Keough, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: January 11, 2018 
ATTORNEY FOR APPELLANT

Kevin H. Cronin 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Glen Ramdhan 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., J.: 

{¶1} Appellant, Jacqueline D. Burton, appeals from her convictions and 

sentences related to drug trafficking conducted from her house, primarily by Demetrius 

Simpson. She claims that the trial court erred by imposing consecutive sentences for two 

gun specifications, and by failing to consider her due process rights in the court’s 

forfeiture decision. After a thorough review of the record and law, this court affirms. 

I. Factual and Procedural History

{¶2} Following up on neighbor complaints and observations of heavy traffic in and 

out of a house, Cleveland police officers conducted a series of controlled purchases of 

marijuana from a house occupied by appellant and Simpson. The confidential 

informants always purchased marijuana from Simpson. Twice, the police served search 

warrants on the address and both times found marijuana, cash, guns, and other items 

indicative of drug trafficking. 

{¶3} Appellant was arrested and charged in two criminal cases with various crimes 

related to drug trafficking. Simpson was also arrested and charged, but absconded 

during the pretrial phase, so appellant was tried alone. 

{¶4} A jury trial commenced in early February 2017. The forfeiture 

specifications, however, were tried to the bench. After several days, the jury trial closed, 

and the jury returned its verdicts on February 7, 2017. In CR-15-600498-B, the jury 

found appellant guilty of drug trafficking, a fourth-degree felony violation of R.C. 
2925.03(A)(2); possession of criminal tools, a fifth-degree felony violation of R.C. 

2923.24(A); permitting drug abuse, a fifth-degree felony violation of R.C. 2925.13(B); 

and six counts of endangering children, first-degree misdemeanor violations of R.C. 

2919.22(A). The drug trafficking count and the permitting drug abuse count included 

one-year firearm specifications. The drug trafficking count also included a juvenile 

specification. The jury found appellant not guilty of one count of drug trafficking and 

one count of drug possession. 

{¶5} In CR-15-601351-B, appellant was found guilty of drug trafficking, a 

fourth-degree felony violation of R.C. 2925.03(A)(2); possession of criminal tools, a 

fifth-degree felony violation of R.C. 2923.24(A); six counts of endangering children, 

first-degree misdemeanor violations of R.C. 2919.22(A). She was found not guilty of a 

charge of prohibition of conveyance of certain items under R.C. 2921.36(A)(2). She was 

also found guilty of one-year firearm and juvenile specifications that accompanied the 

drug trafficking charge. 

{¶6} Following the verdicts, the court conducted a bench trial on the forfeiture 

specifications that accompanied all charges except child endangerment. At issue was 

approximately $3,000 in currency,1 three handguns, a rifle, a laptop computer, a cell 

 1 The drug trafficking count in CR-15-600498-B also included a forfeiture 

specification for $7,955 that was seized during the first search, but the joint 

indictment indicated the money was the property of Simpson. The indictment 

separately listed currency seized from appellant in the amount of $2,388 in that 

case and roughly $850 in the other case. Therefore, the state did not seek the 

forfeiture of approximately $10,000 as appellant argues. 
phone, a backpack, a scale, a grinder, and ammunition. The court ordered the forfeiture 

of all the items except the laptop and cell phone. 

{¶7} The court then sentenced appellant to a 30-month prison sentence in 

CR-15-600498-B. This consisted of an 18-month sentence on the drug trafficking count, 

to be served consecutive to the one-year firearm specification. Appellant also received a 

30-month sentence in CR-15-601351-B, which again consisted of an 18-month sentence 

for drug trafficking served consecutive to the one-year firearm specification.2

 The court 

ordered that the firearm specifications in the two cases be served prior to and consecutive 

to each other. Therefore, the court imposed a total 42-month prison sentence. 

{¶8} Appellant then filed the instant appeal assigning two errors for review: 

1. The trial court erred, committing an abuse of discretion, in insisting it 

held no authority to consider defendant’s trial court argument that the 

mandatory one year sentences for the two firearm specifications could run 

concurrently, rather than consecutively, with each other. 

2. The trial court erred in failing to provide some framework for 

consideration of due process in the seizure of money and material from 

[her]. 

 2 The other sentences in the two cases were ordered to be served concurrent 

and so did not affect the total sentence. 
II. Law and Analysis 

A. Sentences for Firearm Specifications

{¶9} In her first assignment of error, appellant claims the court has discretion to 

run the sentences that result from two firearm specifications concurrent to each other 

between the two cases. Appellant argues, therefore, that the court erred in finding that it 

had no other option but to run the one-year sentences on the specifications consecutive to 

each other. 

{¶10} The sentence for a firearm specification is defined in former R.C. 

2929.14(B)(1)(a).3 Former R.C. 2929.14(B)(1)(b) indicated that a sentence for these 

specifications, except as provided for in R.C. 2929.14(B)(1)(g), should only arise once 

regarding crimes committed as a single act or transaction. 

{¶11} Former R.C. 2929.14(B)(1)(g), effective at the time of sentencing, provided, 

[i]f an offender is convicted of or pleads guilty to two or more felonies, if 

one or more of those felonies are aggravated murder, murder, attempted 

aggravated murder, attempted murder, aggravated robbery, felonious 

assault, or rape, and if the offender is convicted of or pleads guilty to a 

specification of the type described under division (B)(1)(a) of this section in 

connection with two or more of the felonies, the sentencing court shall 

impose on the offender the prison term specified under division (B)(1)(a) of 

this section for each of the two most serious specifications of which the 

 3 This statute was amended effective October 17, 2017. 
offender is convicted or to which the offender pleads guilty and, in its 

discretion, also may impose on the offender the prison term specified under 

that division for any or all of the remaining specifications. 

{¶12} This subsection does not apply here because appellant was not convicted of 

any of the crimes listed. However, R.C. 2929.14(C)(1)(a) specifies how sentences for 

firearm specifications must be served. Subject to exceptions not relevant here, 

if a mandatory prison term is imposed upon an offender pursuant to division 

(B)(1)(a) of this section for having a firearm on or about the offender’s 

person or under the offender’s control while committing a felony * * * the 

offender shall serve any mandatory prison term imposed under [this] 

division consecutively to any other mandatory prison term imposed under 

[this] division * * * consecutively to and prior to any prison term imposed 

for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this 

section or any other section of the Revised Code, and consecutively to any 

other prison term or mandatory prison term previously or subsequently 

imposed upon the offender. 

Id. Therefore, the trial court was required to impose two firearm specifications — one 

for each case. 

{¶13} This court has previously found reversible error when a sentencing court 

mistakenly believed it lacked discretion to impose a certain sentence when, in fact, the 

court had that discretion. State v. Black, 8th Dist. Cuyahoga No. 105197, 
2017-Ohio-8063, ¶ 60, citing State v. James, 2015-Ohio-4987, 53 N.E.3d 770 (8th Dist.). 

{¶14} However, Black dealt with a firearm specification on a merged count, and 

James dealt with more than two firearm specifications where the court believed it was 

required to run all specifications consecutive to each other when only the first two were 

required to be imposed and the court had discretion to impose additional terms of 

imprisonment for additional specifications. 

{¶15} After merger of the specifications in CR-15-600498-B, a one-year firearm 

specification remained. In CR-15-601351-B, a one-year firearm specification also 

remained. The court imposed the sentences for the two specifications consecutive to 

each other across the two cases, and the base offenses in each case concurrent to each 

other and to both cases. The court was required to run the two firearm specifications 

consecutive to each other according to the terms of R.C. 2929.14(C)(1)(a). 

{¶16} Appellant advances an argument that the firearm specifications arose as part 

of the same transaction or event. She points to the rule for joinder as evidence that the 

cases arose from the same act or transaction because the rule lists that as a reason for 

joinder. 

{¶17} Crim.R. 8 provides, 

[t]wo or more offenses may be charged in the same indictment, information 

or complaint in a separate count for each offense if the offenses charged, 

whether felonies or misdemeanors or both, are of the same or similar 

character, or are based on the same act or transaction, or are based on two 

or more acts or transactions connected together or constituting parts of a 

common scheme or plan, or are part of a course of criminal conduct. 

{¶18} The language for joinder is not the same as the language used in R.C. 
2929.14(B)(1)(b), which only mentions the same act or transaction. Therefore, the 

analysis is not the same. 

{¶19} Here, the charges stemmed from drugs found at appellant’s home during the 

execution of search warrants approximately one month apart from each other. 

Appellant’s argument is without merit. The sale of drugs separated by a month’s time 

does not constitute the same act or transaction. It does, however, constitute similar 

offenses, or two or more acts or transactions connected together, or constitute a common 

scheme, plan, or a course of criminal conduct under the joinder rule. The charges clearly 

stem from separate incidents and the firearm specifications do not merge as appellant 

contends. 

{¶20} Appellant also relies on a case from the Second District for support, State v. 

Douglas, 2d Dist. Greene No. 32-CA-35, 1983 Ohio App. LEXIS 13306 (Apr. 26, 1983). 

 However, Douglas deals with the trial court’s discretion in crafting a sentence under 

factors set forth in R.C. 2929.12. Id. at 3-5. The present appeal does not involve that 

issue. The present case deals with the statutory interpretation of the gun specification 

statute and whether the trial court must or may impose sentences on two gun 

specifications concurrent or consecutive to each other. The trial court properly answered 

the question when it determined that it did not have discretion to impose them 

concurrently. The analysis in Douglas about the factors a trial court should weigh 

according to R.C. 2929.12 when crafting a sentence is not applicable to this assignment of 

error. Therefore, appellant’s first assignment of error is overruled. 
B. Due Process in Forfeiture 

{¶21} In appellant’s second assignment of error, she claims the court’s jury 

instructions inadequately addressed her due process rights in the forfeiture of her 

property. 

{¶22} Appellant cites to two United States Supreme Court cases for the 

proposition that there are only two tracks for reviewing forfeiture: cases of a reversal or 

finding of not-guilty, and cases that have not yet reached a verdict. Nelson v. Colorado, 

__ U.S. __, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017); Medina v. California, 505 U.S. 

437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). Neither case is directly applicable to the 

present situation because appellant’s forfeiture specifications are supported by valid 

convictions. These cases are inapplicable here because appellant has not been acquitted 

of all the crimes that contain forfeiture specifications and appellant’s convictions have not 

been reversed on appeal. Appellant’s case reached a verdict where she was found guilty 

on the underlying charges that support the forfeiture specifications. Appellant has not 

challenged the validity of her convictions in this appeal. 

{¶23} R.C. 2981.04, which governs forfeiture specifications, requires that a 

specification be contained in the indictment that describes the property, the nature of the 

ownership interest of the accused, and if the property is alleged to be an instrumentality of 

criminal activity, its alleged use. This is designed to provide notice to the accused. The 

statute goes on to state, 

[i]f a person pleads guilty to or is convicted of * * * an offense * * * and 

the complaint, indictment, or information charging the offense or act 
contains a specification covering property subject to forfeiture under section 

2981.02 of the Revised Code, the trier of fact shall determine whether the 

person’s property shall be forfeited. If the state or political subdivision 

proves by clear and convincing evidence that the property is in whole or 

part subject to forfeiture under section 2981.02 of the Revised Code, after a 

proportionality review under section 2981.09 of the Revised Code when 

relevant, the trier of fact shall return a verdict of forfeiture that specifically 

describes the extent of the property subject to forfeiture. If the trier of fact 

is a jury, on the offender’s * * * motion, the court shall make the 

determination of whether the property shall be forfeited. 

R.C. 2981.04(B). This provides an opportunity for a meaningful hearing where the state 

is required to show by clear and convincing evidence that the property is subject to 

forfeiture. 

{¶24} Discussing the adequacy of predeprivation versus postdeprivation hearings 

regarding a property interest, the Twelfth District found, “the fundamental requirement is 

that the opportunity to be heard ‘must be granted at a meaningful time and in a 

meaningful manner.’” Peoples Rights Org. v. Montgomery, 142 Ohio App.3d 443, 498, 

756 N.E.2d 127 (12th Dist.2001), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 

S.Ct. 1187, 14 L.Ed.2d 62 (1965). Here, appellant had notice through the indictment, 

and a meaningful opportunity to be heard during the forfeiture hearing held before the 

trial court. Appellant waived trial of the forfeiture specifications to the jury. 

{¶25} After the jury returned verdicts finding appellant guilty of charges that 

carried various forfeiture specifications, the trial court held a hearing on the issue where 

the state presented evidence and appellant was allowed to testify and present evidence. 

Appellant and the state participated in the hearing, elicited testimony, and offered closing 

arguments. The court set forth the appropriate standard by which the state could show 
that forfeiture was appropriate. The trial court announced its decision on the record and 

in a journal entry filed after the hearing. 

{¶26} Appellant makes an incoherent argument about the inadequacy of the jury 

instructions regarding forfeiture, and how they fail to meet due process requirements. 

The court’s jury instructions, where the jury was not asked to pass on whether the state 

had adequately demonstrated the requirements for forfeiture, were not erroneous. 

Appellant tried those specifications to the bench. 

{¶27} Appellant also mistakenly argues that over $10,000 was forfeited in this 

case. The journal entry of forfeiture in CR-15-600498-B specifies that $2,388 was 

forfeited, and the entry in CR-15-601351-B indicates that $789 was forfeited. 

{¶28} Therefore, this assigned error is overruled. 

III. Conclusion

{¶29} The trial court did not have discretion to order two sentences for firearm 

specifications concurrent to each other across two cases. Further, appellant was not 

denied due process of law regarding the forfeiture of property seized at her home during 

the execution of search warrants. 

{¶30} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

LARRY A. JONES, SR., J., CONCUR