State v. Ballard

[Cite as State v. Ballard, 2016-Ohio-4783.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
CHAD D. BALLARD : Case No. CT2015-0056
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2014-0361

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 30, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GERALD V. ANDERSON II DAVID A. SAMS
27 North Fifth Street Box 40
P.O. Box 189 West Jefferson, OH 43162
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2015-0056 2

Farmer, P.J.

{¶1} On November 19, 2014, the Muskingum County Grand Jury indicted

appellant, Chad Ballard, on one count of trafficking in drugs (methamphetamine) in

violation of R.C. 2925.03, one count of aggravated possession of drugs

(methamphetamine) in violation of R.C. 2925.11, eight counts of possession of drugs

(cocaine, heroin, marijuana, Oxycodone Hydrocholoride, Oxycontin,

Acetaminophen/Hydrocodone, Alprazolam, Clonazepam, and Hydromorphone) in

violation of R.C. 2925.11, and two counts of having weapons while under disability in

violation of R.C. 2923.13. Three of the counts carried forfeiture specifications pursuant

to R.C. 2941.1417, listing $31,262.00 of U.S. Currency, a 2006 Chevy HHR, a 1988

Harley Davidson motorcycle, and a 1975 Pontiac Grand Am.

{¶2} On September 3, 2015, appellant pled guilty to all counts and the forfeiture

specifications, except for the trafficking count which was subsequently dismissed. By

entry filed October 7, 2015, the trial court sentenced appellant to an aggregate term of

twelve years in prison, and ordered the money and vehicles forfeited.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE GUILTY PLEA TO THE FORFEITURE SPECIFICATION WAS

UNKNOWING, UNINTELLIGENT AND INVOLUNTARY."

II

{¶5} "CONSECUTIVE TERMS WERE CONTRARY TO R.C. 2929.14(C)(4)."
Muskingum County, Case No. CT2015-0056 3

III

{¶6} "CONSECUTIVE TERMS WERE CONTRARY TO R.C. 2941.25."

I

{¶7} Appellant claims his guilty pleas to the forfeiture specifications were not

knowingly, intelligently, or voluntarily given as his pleas to the specifications were not

adequately explained to him during the Crim.R.11 plea colloquy. We disagree.

{¶8} Appellant argues the trial court specifically failed to explain to him the state's

burden to establish a nexus between the property sought to be forfeited and the criminality

of the offense and the issues of proportionately and value.

{¶9} R.C. 2981.09 governs value of property subject to forfeiture and states the

following:

(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.

(B) Contraband and any proceeds obtained from the offense are not

subject to proportionality review under this section.
Muskingum County, Case No. CT2015-0056 4

(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.

(D) In determining the value of the property that is an instrumentality

and that is subject to forfeiture, the court shall consider relevant factors

including, but not limited to, the following:

(1) The fair market value of the property;

(2) The value of the property to the person whose property is subject

to forfeiture, including hardship to the person or to innocent persons if the

property were forfeited.

{¶10} In State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 18, the Supreme

Court of Ohio reinforced the rule of strict compliance with constitutional guarantees in a

Crim.R. 11 colloquy, but also acknowledged a substantial compliance review on

nonconstitutional rights e.g., forfeiture:
Muskingum County, Case No. CT2015-0056 5

Despite the evolution of substantial compliance as a standard for the

court's nonconstitutional notifications and determinations required by

Crim.R. 11(C)(2)(a) and (b), the same is not true for the constitutional rights

within Crim.R. 11(C)(2)(c). In Ballard, we reaffirmed Caudill's holding that

strict, or literal, compliance was required when constitutional rights are

involved. 66 Ohio St.2d at 479, 20 O.O.3d 397, 423 N.E.2d 115. Noting

that the preferred procedure is for the trial court to use the language in

Crim.R. 11(C), we also stated, "However, failure to [literally comply] will not

necessarily invalidate a plea. The underlying purpose, from the defendant's

perspective, of Crim.R. 11(C) is to convey to the defendant certain

information so that he can make a voluntary and intelligent decision whether

to plead guilty." Id. at 479-480, 20 O.O.3d 397, 423 N.E.2d 115.

{¶11} Appellant pled guilty to Counts 2, 3, and 4, each of which included the

following identical forfeiture specification, save for the corresponding drug

(methamphetamine, cocaine, or heroin):

THE JURORS OF THE GRAND JURY of the State of Ohio, within

and for the body of the County aforesaid, on their oaths, in the name and

by the authority of the State of Ohio, do find and present that Chad Dale

Ballard committed a violation of the Ohio Revised Code Section

2925.11(A), Possession of Drugs (Methaphetamine) (sic), a felony drug

abuse offense, while in possession of Thirty One Thousand Two Hundred
Muskingum County, Case No. CT2015-0056 6

Sixty Two and 00/100 Dollars ($31,262.00) in lawful U.S. Currency, a 2006

Chevy HHR bearing Ohio Registration FEX7574 VIN

#3GNDA23P06S515401, a 1988 Harley Davidson motorcycle bearing Ohio

Registration 3K8982, VIN #1HD1BKL17JY014347, and a 1975 Pontiac

Grand Am VIN #2h3755p228258, and that said property constitutes, or is

derived directly or indirectly from any proceeds that Chad Dale Ballard

obtained directly, or indirectly from the commission of a felony drug abuse

offense, or that said property was used or intended to be used in any

manner to commit or to facilitate the commission of a felony drug abuse

offense and that said property is therefore subject to forfeiture to the State

of Ohio pursuant to Ohio Revised Code Section 2941.1417 et seq.; in

violation of the Ohio Revised Code; Title 29, Section 2941.1417 et. seq.,

and against the peace and dignity of the State of Ohio.

{¶12} During the plea hearing held on September 3, 2015, the prosecutor listed

the counts along with the forfeiture specifications and the possible penalties. September

3, 2015 T. at 5-8. The trial court asked appellant if he understood he was "offering to

plead guilty to 12 counts" and appellant responded in the affirmative. Id. at 8. The trial

court then went through each count and informed appellant of the forfeiture specification

to Count 2, and appellant acknowledged he understood. Id. at 9. Appellant then pled

guilty to each forfeiture specification. Id. at 16-17. In his plea form filed September 3,

2015, appellant acknowledged that he understood he was pleading guilty to the forfeiture

specifications.
Muskingum County, Case No. CT2015-0056 7

{¶13} During the plea hearing, the prosecutor made the following statement

relative to the facts and specifications (Id. at 18-20):

Your Honor, on November 12th of 2014, the Central Ohio Drug

Enforcement Task Force conducted a controlled buy of methamphetamine

from Mr. Ballard. That purchase occurred inside of a Chevrolet HHR

vehicle.***

***Mr. Ballard did admit that he was dealing those drugs, that - -

these drugs included, at the end of the search, the amount of

methamphetamine exceeding 100 - - or exceeding 50 times the bulk

amount, located outside in the Pontiac vehicle; cocaine, greater than 20

grams but less than 27 grams; heroin, exceeding 10 grams; marijuana,

more than 10 grams, less than 200 grams; there was Oxycodone

Hydrochloride, 10mg pills, less than bulk; OxyContin, 40mgs pills, less than

bulk; Acetaminophen/Hydrocodone pills, 325, 725, in an amount exceeding

bulk amount; Alprazolam, half milligram, a Schedule IV, less than bulk.

Although, Mr. Ballard does have prior offenses, which I won't get into.

Clonazepam, 2mgs, less than bulk; Hydromorphone, 8mgs, less than bulk.

There was also a Cobra model CA-38 - - 380 caliber semiautomatic

handgun, Serial No. CP076561, located in the residence.

Mr. Ballard has prior convictions. Those include two felony

convictions for possession of drugs, in Muskingum County Common Pleas

Court, Case No. CR2004-0118 and CR2005-0024; as well as a prior
Muskingum County, Case No. CT2015-0056 8

conviction for burglary, in Muskingum County Common Pleas Court, Case

No. CR2001-0170.

All of this occurred here in Muskingum County, Ohio.

Also, located at the residence was $31,262 in U.S. currency, located

in several different locations; one in the kitchen, where there was a large

number of drugs, as well as over $29,000 in the trunk of a 1975 Pontiac

Grand Am, along with the bulk of the methamphetamine that was

discovered.

There was also a 2006 Chevy HHR, a 1988 Harley Davidson

motorcycle, and that 1975 Pontiac Grand Am. Those are subject to

forfeiture specifications.

{¶14} Defense counsel took "[n]o exceptions to the facts." Id. at 20.

{¶15} During the sentencing hearing, appellant argued the vehicles should not be

forfeited (October 5, 2015 T. at 11-12):

THE DEFENDANT: Your Honor, I'd like to appeal this. And I - - my

lawyer isn't present right now. We were supposed to argue the fact that my

vehicle got forfeited. It didn't come from the drug trade. It come from my

lucrative business. And a lot of the money - -

THE COURT: You pled guilty to the forfeiture specification.

THE DEFENDANT: But I wasn't under the impression that - - my

lawyer made it under the impression that we were supposed to argue the
Muskingum County, Case No. CT2015-0056 9

fact of everything on the forfeitures when I pled guilty. I wasn't under the

impression at the time that I was giving up all my vehicles.

THE COURT: Mr. Little?

MR. LITTLE: I - - I am not sure. He pled guilty to the forfeiture

specifications, Your Honor. So, I mean - -

THE COURT: And the Court imposed it.

MR. LITTLE: And the drugs were actually found in the vehicle, so it's

not something tangential.

THE COURT: You do have a right to file an appeal, and if you don't

have an attorney the Court can appoint one for you.

THE DEFENDANT: Thank you, sir.

{¶16} As cited above, during the plea hearing, the prosecutor clearly established

a "discernible nexus between the crime and the property subject to forfeiture" (Appellant's

Brief at 6) by stating a controlled drug buy "occurred inside of a Chevrolet HHR vehicle,"

drugs were "located outside in the Pontiac vehicle," "as well as over $29,000 in the trunk

of a 1975 Pontiac Grand Am." September 3, 2015 T. at 18-20.

{¶17} Appellant now argues the trial court was deficient in not explaining the

forfeiture plea. However, appellant does not say he did not understand that the vehicle

acquired from his lucrative legitimate business would be seized. The argument appellant

now advances was in fact addressed to the trial court. Both seized vehicles either

contained drugs or the fruits of the drug trade e.g., currency.

{¶18} Upon review, we find substantial compliance and no Crim.R.11 violations.
Muskingum County, Case No. CT2015-0056 10

{¶19} Assignment of Error I is denied.

II, III

{¶20} Appellant claims the trial court erred in sentencing him to consecutive terms

as the sentence was contrary to R.C. 2929.14(C)(4) and 2941.25. We disagree.

{¶21} R.C. 2929.14 governs prison terms. Subsection (C)(4) states the following:

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.
Muskingum County, Case No. CT2015-0056 11

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶22} R.C. 2941.25 governs multiple counts and states the following:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶23} In its entry filed October 7, 2015, the trial court sentenced appellant to eight

years on the aggravated possession count (methamphetamine), four years each on the

possession of drug counts (cocaine and heroin), thirty days on the possession of drugs

count (marijuana), and twelve months each on the remaining counts. The trial court

ordered everything to be served concurrently, but consecutively to the aggravated

possession count for a total aggregate term of twelve years in prison. In ordering the

sentences to be served consecutively, the trial court stated the following:
Muskingum County, Case No. CT2015-0056 12

The Court further found that consecutive sentences are necessary

to protect the public from future crime or to punish the Defendant, and that

consecutive sentences are not disproportionate to the seriousness of the

Defendant's conduct and to the danger the Defendant poses to the public;

that at least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses committed was so great or unusual that no single prison

term for any of the offenses committed as part of any of the courses of

conduct adequately reflects the seriousness of Defendant's conduct; and

that the Defendant's criminal history demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

Defendant.

{¶24} The trial court noted "that Defendant has five (5) prior felony convictions,

and the amount of drugs and items seized in regard to this matter was substantial."

{¶25} During the sentencing hearing held on October 5, 2015, the trial court stated

the following (T. at 11):

Court would indicate the Court finds that consecutive sentences are

necessary to protect the public and to punish you. The sentences - -

sentences are not disproportionate to the seriousness of the conduct and

to the danger you pose to the public - - to the public.
Muskingum County, Case No. CT2015-0056 13

Court also finds that your history of criminal conduct demonstrates

consecutive sentences are necessary to protect the public from future

crimes.

And that the Court finds that the multiple offenses were committed

as part of more - - two or more of the offenses were committed as part of

one or more courses of conduct and the harm caused by two or more

multiple offenses so committed was so great or unusual that no single

prison term of the offenses committed as part of the course of conduct

adequately reflects the seriousness of your conduct.

{¶26} The trial court stated it had read the presentence investigative report and

noted appellant had five prior felonies and emphasized "the amount of drugs involved and

amount of stuff that was seized." Id. at 9.

{¶27} Clearly the trial court met the requirements of R.C. 2929.14(C)(4) and the

mandate of State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus ("[i]n order

to impose consecutive terms of imprisonment, a trial court is required to make the findings

mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings

into its sentencing entry, but it has no obligation to state reasons to support its findings).

{¶28} As for a violation of R.C. 2941.25, each count involved a different and

separate drug or controlled substance. During the plea hearing, the trial court specifically

asked appellant if he understood that "there are multiple offenses that don't merge" and

the trial court "could order those sentences to be served consecutively," and appellant

answered in the affirmative. September 3, 2015 T. at 11.
Muskingum County, Case No. CT2015-0056 14

{¶29} Upon review, we find the trial court did not err in sentencing appellant.

{¶30} Assignments of Error II and III are denied.

{¶31} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.

SGF/sg 602