[Cite as State v. Thomas , 2021-Ohio-151.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1108 Appellee Trial Court No. CI0201801393

v. Delano Thomas, et al.

Defendants DECISION AND JUDGMENT [Taron Banks—Appellant] Decided: January 22, 2021

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee. Jerome Phillips and Michael H. Stahl, for appellant.

* * * * * OSOWIK, J. {¶ 1} This is an appeal from the judgment of the Lucas County Court o f Common Pleas which denied the motion to intervene by non-party appella nt, Taron Banks. For the reasons set forth below, this court affirms the judgment of the trial court.2. {¶ 2} 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. Ba nks used or derived certain personal property, identified as $152,553 in U.S. curre ncy 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 pu blished the complaint in the Toledo Blade newspaper on February 13 and 20, 2018. Santan der Consumer admitted in its answer to financing Mr. Thomas’ purchase of the automobile. Mr. Thomas and Ms. Banks generally denied the allegations and asser ted various affirmative defenses, and Ms. Banks answered that Mr. Thomas owned the auto mobile. {¶ 3} On May 2, 2018, a Lucas County Grand Jury indicted Mr. Thomas o n Count 1, trafficking in cocaine, a third-degree felony violatio n of R.C. 2925.02(A)(2) and (C)(4)(c); Count 2, possession of cocaine, a fourth-degree felo ny violation of R.C. 2925.11(A) and (C)(4)(b); Count 3, having weapons while under d isability, a third-degree felony violation of R.C. 2923.13(A)(3) and (B); and Count 4, po ssessing 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 a buse, a fifth-degree felony violation of R.C. 2925.13(B), (C)(1) and (C)(3). Appell ee alleged that Mr. Thomas and Ms. Banks lived together with their children in Tole do, and pursuant to the execution of a search warrant on January 31, 2018, Toledo polic e found and seized3. cocaine, drug paraphernalia, the automobile used in drug traffi cking 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). Appelle e 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 t o and consolidated with the

criminal case. The trial court on its own initiative then dism issed the civil case without prejudice. 1 {¶ 5} On October 1, the trial court held a change of plea hearing, an d 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 a nd 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 discla imed 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 cri minal proceedings with the civil forfeiture proceedings, this dismissal ended the forfeitu re 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 for feiture 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, o nce 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 ju dgment entry for the forfeiture proceedings. Ms. Banks also disclaimed her interestin the forfeiture consent judgment entry, and on the record by her attorney. The trial c ourt accepted the plea agreement and found Mr. Thomas guilty of Count 1, as amended, a nd Count 4. {¶ 6} At the October 1 hearing Ms. Banks’ attorney stated the followi ng to the trial court prior to the court’s acceptance of the plea agreeme nt: “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 underst anding 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 w as 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 take n 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 s igned by5. 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 wa s at Mr. Thomas’ November 28 sentencing hearing, for which the trial cou rt’s sentencing entry was journalized on December 4. Court: Also the order of forfeiture as agreed to on the back o f the plea form is ordered enforced. Has there been a forfeiture con sent 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 forfeitu re action so that he can establish his rightful claim for the property involved.” Mr. B anks 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 t he claim of Mr. Banks.” After the parties briefed the motion to the court, the trial co urt denied Mr. Banks’ motion

to intervene.6. {¶ 10} In response, Mr. Banks filed this appeal setting forth two assi gnments of

error: I. The trial court erred when it denied Taron Banks the opport unity to intervene in an ongoing criminal forfeiture action on proced ural 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 th e 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 interventi on 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, citi ng 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 o f 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 int ervene is for an abuse of discretion, regardless of whether the Civ.R. 24 int ervention sought was as of right or by permission. State ex rel. Merrill v. Ohio Dept. of Nat. Resources , 130 Ohio7. St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41. Abuse of discr etion “‘connotes more than an error of law or judgment; it implies that the court’s a ttitude 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 relatin g to the property or transaction that is the subject of the action and t he applicant is so situated that the disposition of the action may as a practic al matter impair or impede the applicant’s ability to protect that intere st, unless the applicant’s interest is adequately represented by existing part ies. {¶ 15} This court has determined a successful applicant for interventi on 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 in tervenor’s interest relates to the subject of the action, (3) the disposit ion 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 t hat 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 h e 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 a ny judgment of forfeiture issued by the court.” Mr. Banks argues appellee “improperly” c ombined the civil forfeiture case with the criminal case and failed to comply wit h the procedural requirements of R.C. 2981.05(D)(2) and 2981.04(A)(2). Mr. Bank s 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 clai m to the property subject to the action. He did so in a criminal pr oceeding, 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 2 901.04 applies. The trial court’s ruling that Mr. Banks is procedural ly barred from9. intervening in the action to forfeit property he claims to own is not supported by the letter or spirit of the forfeiture statutes an d is inconsistent with a just disposition of the property. {¶ 17} We review a trial court’s decision on the timeliness of a motio n 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 i s 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 purpos e for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reason ably should have known of his interest in the case; (4) the prejudic e 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 app ly promptly for intervention; and (5) the existence of unusual circumstance s 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 n early four months after the forfeiture agreement was signed by the parties to Mr. Thomas’ plea agreement. The plea agreement was journalized on October 1. M r. 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 c laims in this matter.” Rather, he merely recites that appellee rejected his claim as being unt imely. {¶ 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 29 81.05, 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 wi th R.C. 2981.05(G).” We find Mr. Banks’ motion was untimely, but for reasons separat e 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 enforc ement 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 adjudi cation 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 throu gh 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 agre ement accepted by the trial court at the October 1, 2018 hearing clea rly states, “Defendant has11. agreed to forfeit $152,553.00 that was seized at the time of th e 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 reque sts a nolle prosequi as to

* * * Count 5 as to Ms. Tamika Banks.” Also at the October 1 h earing, the attorneys for Mr. Thomas, Ms. Banks, and appellee signed a consent judgment e ntry 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 t he 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 Janua ry 31, 2018 may be disposed of as if contraband and forfeited by desig nated percentage to the entities listed below: Toledo, Ohio Departmen t Police Operations Law Enforcement Trust Fund 70%; Lucas County, Ohio

Prosecutor Law Enforcement Trust Fund 30%. It is further ORDER ED that the funds ($152,553.00) shall be placed on deposit with the Luc as County Clerk of Courts, who shall distribute the funds as indicated ab ove. {¶ 22} The consent judgment entry was journalized on June 13, 2019. B etween October 1, 2018, and June 13, 2019, we find Mr. Banks did littl e to support his claim of intervention even though the forfeiture of the seized cash was agreed by all parties on12. 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 c laiming 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’ mo tion alleges he sent correspondence to appellee after the October 1 hearing along wi th 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 expira tion of the thirty days [of the filing of a complaint, an indictment, or information in the for feiture action or, if no complaint, indictment or information is filed, within thirty da ys of the seizure of the property].” The trial court further evaluated the factors in C iv.R. 24 as well as “the delay between the time of the seizure and the filing of the motion, t he 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 p rocess in this matter’s plea agreement, the basic concepts of notice and reaso nableness reveal that Mr. Banks unreasonably waited nearly four months to intervene into the pending litigation13. after he knew on October 1, 2018, that the forfeiture to appell ee 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 owne rship 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 unconsciona ble, 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 s tates: 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 i ts discretion the court shall consider whether the intervention will unduly d elay or prejudice the adjudication of the rights of the original partie s. {¶ 28} Although unclear, to the extent that Mr. Banks seeks permissive intervention in support of his first assignment of error, he al so fails. The trial court14. considered the foregoing factors and found that Mr. Banks’ moti on to intervene “was not timely filed, a requirement under Civ.R. 24 pertaining to inter vention of right and permissive intervention.” {¶ 29} “In exercising its discretion, the court ‘shall consider whethe r 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 consid ered under rightful intervention the factors of undue delay and prejudice to the ri ghts of the original parties, we find those factors are still present when considering permis sive intervention. In support of his motion to intervene, Mr. Banks simply argues, “A llowing [him] to intervene will not prejudice the State in putting forth its pro cedural claims in this matter.” Mr. Banks does not provide any evidence upon which this court c an determine trial court

abuse of discretion. {¶ 30} We reviewed the record and find the trial court did not abuse i ts 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. {¶ 32} On consideration whereof, the judgment of the Lucas County Cour t of Common Pleas is affirmed. Mr. Banks is ordered to pay the cost s of this appeal pursuant to App.R. 24. Judgment affirmed.15. State v. Thomas C .A. No. L-19-1108

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.