[Cite as State v. Housley, 2018-Ohio-4140.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MIAMI COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

TIMOTHY H. HOUSLEY 

Defendant-Appellant 

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Appellate Case No. 2018-CA-4 

Trial Court Case No. 2016-CR-348 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 12th day of October, 2018. 

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PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, 

Appellate Division, 201 W. Main Street, Troy, Ohio 45373 

 Attorney for Plaintiff-Appellee 

 

TIMOTHY H. HOUSLEY, #730-882, P.O. Box 209, Orient, Ohio 43146 

 Defendant-Appellant, Pro Se 

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HALL, J. 

{¶ 1} Timothy H. Housley appeals pro se from the trial court’s decision and entry 

overruling his motion for return of property. 

{¶ 2} In his sole assignment of error, Housley contends the trial court erred in 

overruling the motion.1

{¶ 3} The record reflects that Housley pled guilty to drug-trafficking and drugpossession charges pursuant to a negotiated plea agreement. The trial court filed a 

November 2016 judgment entry imposing an aggregate five-year prison sentence. (Doc. 

#29.) In December 2017, the State applied for forfeiture and destruction of evidence 

seized in connection with Housley’s case. The application mentioned two cell phones, 

two computers, currency, and a handgun. (Doc. #33.) The trial court granted the 

application. (Doc. #34.) The trial court subsequently filed an amended order on December 

22, 2017 that specifically referenced the items mentioned in the State’s application. (Doc. 

#39.) On January 8, 2018, Housley filed a motion for the return of property. The motion 

contained no analysis and cited no authority. It simply requested the return of a cell phone, 

$3.00 cash, a safe, and a computer. (Doc. #40.) 

{¶ 4} In a March 2, 2018 decision and entry, the trial court overruled Housley’s 

motion for return of property. (Doc. #42.) The trial court reasoned that all items mentioned 

by Housley, except the safe, already had been ordered destroyed pursuant to R.C. 

2981.11 et seq., which authorizes the disposal of contraband seized under a search 

warrant. The trial court noted that the State’s application and its order did not mention the 

 

1 We note that the substantive portion of Housley’s appellate brief has been attached to 

his March 15, 2018 criminal docket statement. 
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safe. Having found that all other items already had been ordered destroyed, the trial court 

reasoned: 

* * * Therefore, the Court finds that Defendant’s Motion is moot 

regarding the items ordered destroyed in the Order filed December 22, 

2017. The statute requires that other property be kept safely by the City of 

Troy. However, the City of Troy is not before the Court. The statute does 

not provide post-conviction jurisdiction to this Court to join other parties. The 

Court finds that R.C. 2981.01 et seq. does not provide jurisdiction to grant 

the relief Defendant requests. Therefore, the Motion is hereby denied. 

(Id. at 2.) 

{¶ 5} On appeal, Housley challenges the trial court’s denial of his motion. Although 

portions of his argument are unclear, he appears to assert that his indictment did not 

contain a forfeiture provision and that the trial court did not comply with the statutory 

forfeiture process when it ordered the property at issue destroyed. Based on these 

assertions, Housley seems to suggest that the trial court lacked jurisdiction to order 

forfeiture and, therefore, that mootness does not apply. 

{¶ 6} Upon review, we are unpersuaded by Housley’s arguments. Revised Code 

Chapter 2981 provides a procedure for civil forfeiture in the context of a criminal case.2

See, e.g., R.C. 2981.05(C). It also authorizes a trial court to issue a forfeiture order. See

R.C. 2981.05(H). In the present case, we question whether the State and the trial court 

followed the procedure set forth in R.C. Chapter 2981. But any error in that regard, if it 

 

2 We note that R.C. Chapter 2981 was amended effective April 2017. 

 
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exists, would be an error in the exercise of jurisdiction rather than an act taken in the 

absence of subject-matter jurisdiction. Therefore, we disagree with Housley’s assertion 

that the trial court lacked jurisdiction to order forfeiture. 

{¶ 7} The trial court’s forfeiture order was a final order. State v. Court, 11th Dist. 

Trumbull No. 2013-T-0122, 2014-Ohio-2712, ¶ 2-3 (recognizing that a civil forfeiture order 

in a criminal case is a final, appealable order separate from the judgment of conviction 

and sentence). That being so, we agree with the trial court that Housley’s January 8, 2018 

motion for return of property was moot insofar as the motion addressed items that the trial 

court already had ordered forfeited and destroyed. A motion for return of property is not 

the proper vehicle to challenge the forfeiture process after forfeiture has been ordered.3

As an apparent civil judgment, the trial court’s forfeiture order could have been appealed 

or potentially challenged under Civ.R. 60(B).4 But Housley cannot use a motion for return 

 

3 Some question exists as to whether a motion for return of property in a criminal case 

ever is proper. The Ohio Supreme Court recently held that “ ‘[t]he proper action to reclaim 

possession of property based on unlawful seizure or detention is an action for replevin.’ ” 

State ex rel. Johnson v. Kral, 153 Ohio St.3d 231, 2018-Ohio-2382, 103 N.E.3d 814, ¶ 5, 

quoting State ex rel. Jividen v. Toledo Police Dept., 112 Ohio App.3d 458, 459, 679 

N.E.2d 34 (6th Dist.1996); see also State v. Bolton, 2017-Ohio-7263, 97 N.E.3d 37 (2d 

Dist.) (Hall, J., dissenting). In Kral, however, the Ohio Supreme Court was considering a 

request for a writ of mandamus. It concluded that the writ would not issue in part because 

the relator had an adequate remedy at law for return of his property through a replevin 

action. The Ohio Supreme Court was not asked to decide whether a replevin action was 

the exclusive remedy for obtaining the return of property. In another recent case, this 

court determined that a replevin action was not an exclusive remedy and that a motion 

for return of property “was a viable means” for a defendant to obtain seized property in a 

criminal case. See State v. White, 2018-Ohio-2573, __ N.E.3d __, ¶ 23 (2d Dist.). 

4 The record reflects that the State filed its application for forfeiture on December 11, 

2017. (Doc. #33.) The application was served on Housley’s public defender even though 

the criminal proceedings had terminated one year earlier. Just two days later, the trial 

court granted the application but did not specifically mention the items to be forfeited and 

destroyed. (Doc. #34.) The trial court’s order also was served on Housley’s public 

defender. Thereafter, on December 22, 2017, the trial court filed an amended forfeiture 
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of property to obtain items that are the subject of an existing forfeiture order. Compare

State v. Pringle, 6th Dist. Lucas No. L-98-1327, 1999 WL 110673, *2 (March 5, 1999) 

(considering a prior statute and holding that a motion for return of property “cannot be 

used after a judgment of forfeiture is entered to raise issues regarding the correctness of 

that judgment and the forfeiture proceeding”). 

{¶ 8} We note, however, that one specific request in Housley’s motion for return of 

property was not rendered moot by the trial court’s forfeiture order. That request 

concerned the return of a safe that allegedly belonged to Housley. The State’s application 

for forfeiture did not mention the safe, and the trial court therefore did not order its 

forfeiture and destruction. The trial court recognized this fact but nevertheless concluded 

that it could not grant Housley’s request because it lacked authority over the City of Troy, 

which had custody of the safe but was not a party to the proceedings below.

{¶ 9} Upon review, we conclude that the trial court erred in finding that it lacked 

authority to order the City of Troy to return the safe. We very recently addressed this issue 

in State v. White, 2018-Ohio-2573, __ N.E.3d __ (2d Dist.). There this court determined 

that the trial court did have authority to order police to return requested property to the 

defendant. Id. at ¶ 23. Based on the rationale set forth in White, we hold that the trial court 

 

order specifically identifying the items to be forfeited and destroyed and again serving 

Housley’s public defender. (Doc. #39.) Based on these filings, it appears that Housley 

was not given time to respond to the State’s forfeiture application and, in fact, may have 

been unaware of the application or the trial court’s ruling thereon. Housley does not claim 

in his present appeal that he was unaware of the trial court’s ruling on the State’s forfeiture 

application. But if he did not receive notice of the State’s application or the trial court’s 

forfeiture judgment, the proper remedy appears to be a Civ.R. 60(B) motion, given that 

the trial court appears to have ordered civil forfeiture. In any event, regardless of what 

remedies might be available to Housley to undo the forfeiture order, the fact remains that 

the trial court already had entered a judgment of forfeiture when Housley filed his motion 

for return of property. 
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had authority to order return of the safe, which was no longer needed in the completed 

criminal case and which was not the subject of the State’s forfeiture application. 

{¶ 10} For the reasons set forth above, Housley’s assignment of error is overruled 

in part and sustained in part. The assignment of error is overruled as moot insofar as it 

challenges the trial court’s judgment denying Housley’s motion for return of property, 

because the motion addressed property that already had been ordered forfeited and 

destroyed. The assignment of error is sustained to the extent that it challenges the trial 

court’s finding of a lack of authority to order return of a safe allegedly belonging to 

Housley. 

{¶ 11} The trial court’s judgment denying Housley’s motion for return of property is 

affirmed in part and reversed in part. The judgment is reversed as to the trial court’s 

finding about its authority to order return of the safe, and the cause is remanded for further 

proceedings on that issue. In all other respects, the trial court’s judgment is affirmed.

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WELBAUM, P. J. and DONOVAN, J., concur. 

Copies sent to: 

Paul M. Watkins 

Timothy H. Housley 

Hon. Jeannine N. Pratt