[Cite as State v. Deibel, 2011-Ohio-3520.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-10-70
v.
JASON DEIBEL, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2009 0401
Judgment Affirmed
Date of Decision: July 18, 2011
APPEARANCES:
F. Stephen Chamberlain for Appellant
Alissa M. Sterling for Appellee
Case No. 1-10-70
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jason Deibel (“Deibel”) brings this appeal from
the judgment of the Court of Common Pleas of Allen County finding him guilty of
having a weapon while under a disability, possession of methamphetamine, and
the illegal manufacturing of methamphetamine within the vicinity of a school.
The trial court also ordered that the real estate where the methamphetamine was
manufactured be forfeited. For the reasons set forth below, the judgment is
affirmed.
{¶2} On December 17, 2009, the Allen County Grand Jury indicted Deibel
on the following counts: (1) having a weapon while under a disability in violation
of R.C. 2923.13(A)(3), a third degree felony; (2) possession of methamphetamine
in excess of the bulk amount but not exceeding five times the bulk amount in
violation of R.C. 2925.11(A), (C)(1)(b), a third degree felony; (3) illegal
assembly/possession of chemicals for the manufacture of methamphetamine in
violation of R.C. 2925.11(A), (C), a third degree felony; (4) the illegal
manufacture of methamphetamine within the vicinity of a school in violation of
R.C. 2925.04(A), (C)(3)(b), a first degree felony with a forfeiture specification of
electronic equipment and real estate; and (5) engaging in a pattern of corrupt
activity in violation of R.C. 2923.32(A)(1), (B)(1), a felony of the first degree.
Deibel entered pleas of not guilty to all charges on December 22, 2009. On
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August 10, 2010, Deibel entered a negotiated plea agreement in which he pled
guilty to counts one, two, and three. The remaining counts were dismissed. On
September 24, 2010, a sentencing hearing and forfeiture hearing were conducted.
The trial court sentenced Deibel to a total prison term of twelve years. The trial
court also ordered that the electronic equipment and real estate be forfeited to the
State of Ohio. Deibel appeals from this judgment and raises the following
assignments of error.
First Assignment of Error
The trial court committed error prejudicial to [Deibel] by not
making the required findings that the real property ordered
forfeited was contraband, proceeds of the offense or an
instrumentality of the offense.
Second Assignment of Error
The trial court committed error prejudicial to [Deibel] in its
ruling that upon a proportionality review, the real property
should be forfeited to the State of Ohio.
Third Assignment of Error
The trial court committed error in forfeiting [Deibel’s] real
property in violation of the Eighth Amendment of the United
States Constitution and Article I, Section 9 of the Ohio
Constitution.
Fourth Assignment of Error
[Deibel] was denied effective assistance of counsel to such an
extent that the outcome of the case and guilty plea was entered
into in a prejudicial manner.
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Fifth Assignment of Error
[Deibel’s] plea was not made knowingly, voluntary or
intelligently all to the prejudiced (sic) of [Deibel].
The assignments of error will be addressed out of order.
{¶3} In the fourth and fifth assignments of error, Deibel alleges that his plea
was not knowingly, voluntarily, or intelligently made. He also claims that his trial
counsel was ineffective for allowing him to enter the plea. This argument is based
upon Deibel’s claim that all of the questions asked by the trial court suggested
affirmative answers.
Before accepting a guilty plea, Ohio Crim.R. 11 requires the trial
court to personally address a defendant to determine if the plea
is voluntary, and that the defendant understands both the plea
itself as well as the rights waived by pleading guilty. Crim.R.
11(C)(2). * * *
***
With regard to the constitutional rights enumerated in Crim.R.
11, “a guilty plea is constitutionally infirm when the defendant is
not informed in a reasonable manner at the time of entering his
guilty plea of his rights to a trial by jury and to confront his
accusers, and his privilege against self-incrimination, and his
right of compulsory process for obtaining witnesses in his
behalf.” [State v. Ballard, 66 Ohio St.2d473, 478, 423 N.E.2d
115]. This rule does not extend to require a court to use the
exact language of Crim.R. 11, but the court must advise the
defendant of each right waived by the guilty plea. [Id. at 480].
With regard to the non-constitutional requirements of Crim.R.
11, this Court looks at whether the trial court substantially
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complied with the requirements of Crim.R. 11 and will not
reverse unless prejudice occurred, if substantial compliance
exists. State v. Stewart (1977), 51 Ohio St.2d 86, 93, 364 N.E.2d
1163. “Substantial compliance means that under the totality of
the circumstances that the defendant subjectively understands
the implications of his plea and the rights he is waiving. State v.
Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474 citing State
v. Carter (1979), 60 Ohio St.2d 34, 396 N.E.2d 757.
State v. Moore, 3d Dist. Nos. 6-07-03, 6-07-04, 2007-Ohio-6018, ¶9-12.
{¶4} Deibel does not point to any failure by the trial court to discuss a
constitutional right with him. Instead, he claims that the trial court did not
substantially comply with Crim.R. 11. A review of the record indicates that the
trial court spoke directly to Deibel and informed him of all the constitutional rights
set forth in Crim.R. 11. After each element was discussed, the trial court asked
Deibel if he understood. He indicated that he did. The trial court fully informed
the defendant of the potential consequences of the plea agreement including post
release control and the possible forfeiture of property to the State. Before
accepting the guilty plea, the trial court asked Deibel if he had any questions.
Deibel indicated that he did not. The State then set forth the underlying facts
forming the basis for the charges. Only then did the trial court accept the guilty
plea. Thus, the trial court substantially complied with Crim.R. 11. The fifth
assignment of error is overruled.
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{¶5} The fourth assignment of error alleges that Deibel was denied
effective assistance of counsel because his plea was not voluntarily made.
“Reversal of convictions on ineffective assistance requires the defendant to show
‘first that counsel's performance was deficient and, second that the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial.’”
State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 105, 772 N.E.2d 81. The
defendant must show that there was a reasonable probability that but for counsel's
error, the result of the trial would have been different. Id. at ¶ 108. State v.
Baughman, 3d Dist. No. 1-10-34, 2010-Ohio-4951. Having already determined
that the plea was voluntarily entered, trial counsel was not ineffective. The fourth
assignment of error is overruled.
{¶6} Deibel alleges in the first assignment of error that the trial court erred
in granting forfeiture of the real property to the State.1
(A) The following property is subject to forfeiture to the state
or a political subdivision under either the criminal or
delinquency process in [R.C. 2981.04 or R.C. 2984.05]:
***
(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
1
Deibel is apparently not challenging the forfeiture of the electronic equipment.
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or intended use, consistent with division (B) of this section, is sufficient
to warrant forfeiture under this chapter:
(a) a felony
***
(B) In determining whether an alleged instrumentality was used in or
was intended to be used in the commission or facilitation of an offense
* * * in a manner sufficient to warrant its forfeiture, the trier of fact
shall consider the following factors the trial of fact determines are
relevant:
(1) Whether the offense could not have been committed or attempted
but for the presence of the instrumentality;
(2) Whether the primary purpose in using the instrumentality was to
commit or attempt to commit the offense;
(3) The extent to which the instrumentality furthered the commission
of, or attempt to commit, the offense.
R.C. 2981.02. However, plea agreements which specify the relinquishment of
property as one of the terms are a waiver of the statutory requirement that the trial
court conduct the above analysis. State v. Dickens, 4th Dist. No. 05CA14, 2006-
Ohio-4920, ¶11. By entering a guilty plea, one is admitting to all of the
allegations set forth in the indictment to which the plea is entered. Crim.R.
11(B)(1). Here, Deibel specifically entered a guilty plea to the forfeiture
specification that the real estate was an instrumentality of the offense of producing
methamphetamine in the vicinity of a school. Since he has admitted the fact, he
has waived the right to challenge on appeal the accuracy of the trial court’s finding
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that the real estate was an instrumentality of the offense. The first assignment of
error is overruled.
{¶7} In the second and third assignments of error, Deibel claims that the
trial court erred in determining that the forfeiture of the home was proportional to
the offense. This failure allegedly violates the Eighth Amendment of the U.S.
Constitution. The Eighth Amendment of the U.S. Constitution prohibits the
government from imposing an excessive fine upon an individual. The Supreme
Court of Ohio has determined that forfeiture of property as a form of punishment
for a specified offense is a fine for purposes of the Eighth Amendment. State v.
Hill (1994), 70 Ohio St.3d 25, 635 N.E.2d 1248. Before entering an order of
forfeiture, a trial court must first independently determine whether the forfeiture is
an excessive fine which is prohibited. Id.
Several federal circuits have adopted the proportionality test to
determine the excessiveness of a fine. * * * The proportionality
test derives from the United States Supreme Court’s ruling in
Solem v. Helm (1983), 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d
637. In Solem, the court held that a proportionality review of a
criminal sentence pursuant to the Cruel and Unusual
Punishment Clause should be guided by objective criteria
including the gravity of the offense and the harshness of the
penalty, the sentences imposed on other criminals in the same
jurisdiction, and sentences imposed for the commission of the
same crime in other jurisdictions. Id. at 291-292. * * *
Although Solem involved the Cruel and Unusual Punishment
Clause, the federal circuits have applied the same analytical
framework to the Excessive Fines Clause. According to the
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Sixth Circuit, the core of the proportionality review compares
the value of the property to a variety of factors. These factors
include the culpability of the defendant, the gravity of the
offense, the relationship of the property to the offense and the
harm to the community. * * * No one factor has greater value
than any other. The trial court is to examine all the factors as
they apply to the specific case before it. By conducting its
analysis in this way, the trial court ultimately must determine
whether the appropriate test as applied to the totality of the
circumstances renders the forfeiture an excessive fine.
State v. Harold (1996), 109 Ohio App.3d 87, 92, 671 N.E.2d 1078. This standard
of review was codified in 2007.
(A) Property may not be forfeited as an instrumentality under
this chapter to the extent that the amount or value of the
property is disproportionate to the severity of the offense. The
owner of the property shall have the burden of going forward
with the evidence and the burden to prove by a preponderance
of the evidence that the amount or value of the property subject
to forfeiture is disproportionate to the severity of the offense.
***
(C) In determining the severity of the offense for purposes of
forfeiture of an instrumentality, the court shall consider all
relevant factors including, but not limited to, the following:
(1) The seriousness of the offense and its impact on the
community, including the duration of the activity and the harm
caused or intended by the person whose property is subject to
forfeiture;
(2) The extent to which the person whose property is subject to
forfeiture participated in the offense;
(3) Whether the offense was completed or attempted.
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R.C. 2981.10. Unlike the error alleged in the first assignment of error, Deibel
specifically retained the right to challenge the proportionality of the forfeiture.
{¶8} The parties stipulated that the home was worth $61,800.00. At the
time of his arrest, Deibel owed around $39,000 to the bank for the mortgage.
Thus, the total equity in the home is approximately $23,000.00. Special Agent
Gary Miller (“Miller”) from the Bureau of Criminal Identification and
Investigation testified as follows concerning the search of the home.
Q: And what, if anything, did you find at that residence?
A: An operational meth lab, basically chemical glassware,
everything from condensing columns through round bottom
flasks to heating nails to solvents, acids, basis, blister packs.
There was an autoclave, stirring – basically it’s – I don’t know
what it’s called. It’s basically a – it stirs just by vibration.
Q: Okay.
A: In the house there was methamphetamine, pipes, .45 caliber
handgun, blister packs. On the computer just volumes, I mean
volumes and volumes, tens of thousands of pages of whether it’s
methamphetamine, manufacturing methamphetamine, other
drugs, secrets to methamphetamine by Uncle Fester, Disguise – I
was trying to remember all the stuff that’s on there. Just tens of
thousands of pages.
Q: Well, let me ask you this. You, fair to say that you found all
of the necessary ingredients to make methamphetamine?
A: I found methamphetamine base. I found methamphetamine
hydrochloride there. I found, well, methamphetamine base in a
fluid solvent or a fluid in a round bottom flask. I found all the
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ingredients that I – to make meth that I needed. Basically to
make meth that were needed there (sic).
Q: Okay.
A: In parts and pieces.
Q: Okay. And you found finished product methamphetamine;
correct?
A: Yes. Ba—methamphetamine base.
Q: Okay. And you found, correct me if I’m wrong, but
surveillance cameras there, correct?
A: Yeah, there was a surveillance – covert surveillance camera
light bulb. That’s what I remember.
Q: You found items all termed drug paraphernalia, specifically
I believe you mentioned a pipe. There were also digital scales,
were there not?
A: Scales, yes.
Q: Okay. There were also – you referenced the information on
the computer. The computer was located inside the residence;
correct?
A: There were a laptop and at least one (1) desktop style.
Q: There were also items related to step-by step instructions on
how to make methamphetamine actually contained out in the
garage where the lab itself was located; is that correct?
A: There were – there were documents on chemical glassware,
chemicals themselves. I remember a handwritten formula or
recipe, for lack of a better term, that might have been in the
house. Documentation in a file folder out in the garage for
anhydrous ammonia and (inaudible) and various other things.
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Some chemical software or chemical data sheets, I think there
were.
Q: Okay. You’re talking acids and bases and flasks and heat
sources and all kinds of stuff that –
A: Yes.
Q: That makes me think that meth labs could potentially be
dangerous; is that accurate?
A: Meth labs are very dangerous. They’re – every – almost
every step deals with a solvent or tough flammable based
material.
In one process you need an additional heat source. In the other
process the reaction is so violent and so dramatic that it
(inaudible) the methamphetamine over that way.
Methamphetamine is one of those things that everything –
everything we need to make it we can buy and purchase. And
we’re all familiar with it and very comfortable with it. But as
soon as you start mixing certain things together the chemical
itself morphs. It changes. And what it becomes, it becomes
unstable sometimes.
I’ve seen explosions, fires, toxic vapors that have killed people.
Both processes have toxic vapors. Of course you got neuro –
neuro solvent. The solvents are neuro reactors. The acids
themselves put off vapors. I mean there’s many different things.
Q: Correct me if I’m wrong but this particular residence at 860
S. Nixon was directly across the street from a daycare here in
our community; is that correct?
A: It was across from a daycare and within – well, the garage
set within twenty (20) feet of the bureau of motor vehicles.
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Sept. 24, 2010 Hearing, 21-25. Miller’s testimony showed that the house was
used to store the ingredients for making the methamphetamine and also was used
to process the chemicals into methamphetamine. Miller also testified to the
potential dangers to the community that arose from having a methamphetamine
lab in a residential neighborhood. Miller also testified that Deibel was using the
anhydrous ammonia method of producing methamphetamine. Id. at 33. From the
450 grams of pseudoephedrine found in the home, Deibel would be able to
produce approximately thirteen ounces of methamphetamine, which would have a
value of approximately $52,000.00. Id. at 34.
{¶9} After hearing the testimony, the trial court made the following
findings.
[T]his involves the illegal act of manufacturing
methamphetamine over an extended period in said residence;
that said duration was lengthy as indicated; that there was an
operational lab within the residence; there had been controlled
purchases of methamphetamine out of the residence; that there
were large purchases of pseudoephedrine by the defendant or
other co-defendants for the purposes and use in the manu—of
the aforesaid manufacturing; that the distribution of
methamphetamine is an illegal act and that the distribution of
the same in the community does cause serious harm to the
community and that the said residence was used in said
operation for an extended period of time.
***
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The court finds that the defendant in this particular instance
owns the residence in question along with his wife who lives in
the property. I don’t – is the deed in his name alone?
Ms. Sterling: It is in his name alone.
The Court: But she has a dower interest.
Ms. Sterling: Which she forfeited at her plea hearing, Judge.
The Court: Okay. Both – that they participated in the activities
as set forth above. That the defendant was the head of the
operation based upon the testimony of Mr. Miller. And that this
property was the prime instrumentality of the illegal activity in
this instance.
***
The court finds that the operation and manufacture process of
“meth” was completed and had been ongoing for at least 4-5
months, along with defendant’s prior conviction in this instance
establishes a pattern of engaging in corrupt activity.
The court further finds and has considered the value of the
property that is the instrumentality in the assistance, operation
and manufacturing of “meth” to be sixty-one eight and that the
value of the property to the defendant was sixty-one eight and a
mortgage of thirty-eight eight with a net equity of twenty-three
thousand dollars ($23,000.00).
The court further finds that the value of the illegal operation
and substances over the 4-5 month period to be far in excess of
the value, net value of the residence.
Id. at 44-46. The trial court clearly considered all of the statutory factors. A
review of the record indicates that the trial court’s findings were supported by the
evidence. Thus, the trial court did not abuse its discretion in finding that the
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forfeiture was not disproportionate to the crime. The second and third
assignments of error are overruled.
{¶10} Having found no error prejudicial to defendant, the judgment of the
Court of Common Pleas of Allen County is affirmed.
Judgment Affirmed
ROGERS, P.J., concurs in Judgment Only
SHAW, J., concurs.
/jlr
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