State v. Poirier

[Cite as State v. Poirier, 2021-Ohio-1743.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28849
:
v. : Trial Court Case No. 2020-CR-1243
:
BRIAN POIRIER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 21st day of May, 2021.

...........

MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 West Second Street, Suite
830, Dayton, Ohio 45402
Attorney for Defendant-Appellant

.............

EPLEY, J.
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{¶ 1} Defendant-Appellant Brian Poirier pled guilty in the Montgomery County

Court of Common Pleas to resisting arrest, a misdemeanor of the second degree. The

trial court imposed up to five years of community control. As part of his community

control sanctions, the trial court ordered that Poirier’s three handguns be forfeited to the

Miamisburg Police Department for disposal. Poirier appeals from his conviction,

claiming that the trial court erred in ordering the forfeiture of his handguns. For the

following reasons, the trial court’s community control sanction regarding his handguns will

be vacated, and the matter will be remanded for reconsideration of his request for the

return of his property. In all other respects, the trial court’s judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} According to the presentence investigation report (PSI), around midnight on

April 28, 2020, Poirier and his girlfriend argued, and Poirier grabbed his girlfriend by the

throat, dragged her through the apartment, and slammed her against a couch. Poirier

then released her, and she was able to leave the apartment. When she returned a short

time later to get her phone, Poirier pointed a gun at her and again grabbed her by the

throat, dragged her through the apartment, and slammed her against a wall. He then

choked her until she was unable to breath. The girlfriend was able to escape and obtain

help from a neighbor. At 12:22 a.m., Miamisburg police officers responded to Poirier’s

residence on a report of domestic violence.

{¶ 3} Poirier was on his porch when officers attempted to arrest him. As an officer

grabbed him, Poirier “began to violently pull back into his residence.” Two officers took

him to the ground, but Poirier resisted their attempts to handcuff him. An officer
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employed a Taser, with no effect. Poirier continued to resist, but officers finally

succeeded in handcuffing him. Three officers sustained cuts to their forearms during the

scuffle.

{¶ 4} A Sig Sauer M17 handgun was identified as the weapon Poirier had pointed

at his girlfriend’s head. Officers located two additional handguns and a shotgun. The

officers seized all of the weapons and took them to a Miamisburg police station.

{¶ 5} The PSI suggests that Poirier initially was charged by complaint in municipal

court with two counts of abduction, felonies of the third degree, and one count of domestic

violence, a misdemeanor of the first degree. (The municipal court’s transcript of

proceedings is not part of the record.) Those charges were not presented to the grand

jury.

{¶ 6} Instead, on May 13, 2020, the State filed a bill of information in the common

pleas court, charging Poirier with resisting arrest, in violation of R.C. 2921.33(A), a

misdemeanor of the second degree. Nine days later, Poirier waived an indictment,

waived one-day service of the bill of information, and entered a guilty plea to resisting

arrest. After accepting Poirier’s plea, the trial court ordered a presentence investigation

and, at the request of Poirier’s girlfriend (as conveyed by the prosecutor), lifted the order

prohibiting contact between the girlfriend and Poirier.

{¶ 7} At that juncture, defense counsel notified the trial court that some firearms

had been confiscated and that Poirier would like to request the return of those weapons.

The court responded, “[L]et me address it at sentencing.” The court continued:

THE COURT: Generally speaking – I’ve had some exceptions. I’ve been

on the bench now long enough to have exceptions to everything that I’ve
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generally done. There are instances where I permit people in disposition

to keep weapons that have been taken. Most of the time, 90-plus percent

of the time, I forfeit those weapons. So if this is something that’s of

significance to you, have [defense counsel] file a sentencing memoranda

[sic] which details the reason that I should deviate from my standard

practice. Even then, I’m looking you in the eye and I’m telling you, it may

well be that I say, no, I don’t agree with that; I’m still going to forfeit the

weapons to the police department that was involved in the interaction with

you.

THE DEFENDANT: Understood.

THE COURT: But it may be that I see something in [defense counsel’s]

memo that is significant to me and that I deviate from that practice. But

we’ll wait, as [defense counsel] said just a moment ago, until disposition to

deal with that issue.

{¶ 8} On June 25, 2020, prior to sentencing, Poirier filed a “sentencing

memorandum regarding return of property,” requesting the return of his four firearms.

Poirier argued: “Defendant plead [sic] guilty to, and is being sentenced for, a single charge

of Resisting Arrest as a Misdemeanor of the Second Degree pursuant to ORC

2921.33(A). It is not alleged that Defendant in any way used a firearm as an

instrumentality in furtherance of resisting arrest. Furthermore, it is not alleged that any

firearms were contraband involved in that offense, nor were any firearms proceeds

derived from or acquired through the commission of that offense. Thus, per ORC

2981.02, forfeiture of any firearm would not be an appropriate order at sentencing in this
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case.”

{¶ 9} At sentencing, the trial court first heard from defense counsel. After noting

that Poirier was a veteran and was receiving treatment from the Veterans Administration,

defense counsel addressed Poirier’s desire for the return of his firearms. Defense

counsel argued that Poirier’s firearms were not subject to forfeiture under R.C. 2981.02

and, therefore, the firearms should be returned to him. Defense counsel further noted

that, when the firearms were taken, officers told him that the Sig Sauer was being seized

as evidence, but all the other firearms were being taken “for safekeeping.” Counsel

stated that the officers told Poirier that he would have those firearms returned to him once

the case was resolved.

{¶ 10} The prosecutor objected to the return of Poirier’s weapons, citing the

underlying domestic violence and Poirier’s conduct when the police tried to arrest him.

Both Poirier and the prosecutor declined to make additional statements before the court

imposed sentence.

{¶ 11} The trial court sentenced Poirier to up to five years of community control.

As part of his community control sanctions, the trial court ordered that Poirier’s three

handguns be “remanded” to the Miamisburg Police Department for disposal, but that his

shotgun be returned to him.

{¶ 12} Poirier appeals from his conviction, raising two assignments of error.

II. Forfeiture of Poirier’s Firearms

{¶ 13} Poirier’s assignments of error state:

1. The Trial Court committed Plain Error when it subjected Mr. Poirier’s

firearms to forfeiture when the state failed [to] seek the forfeiture under any
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indictment, information, or give prompt notice that the property was subject

to forfeiture under Crim. R. 7.

2. The Trial Court erred when it subjected Mr. Poirier’s firearms to forfeiture

as it was an abuse of discretion.

Both of Poirier’s assignments of error challenge the trial court’s order that his three

handguns be forfeited to the Miamisburg Police Department and claim that, in the

absence of a forfeiture specification in the charging document or notice under Crim.R. 7,

the trial court lacked the authority to order the handguns’ forfeiture. Where the

assignments of error primarily differ is in the standard of review.

{¶ 14} Poirier appears to argue in his first assignment of error that, although there

was no objection to the lack of a forfeiture specification, we can review this “defect” for

plain error. The State responded to this argument. In his reply brief, Poirier clarifies

that he is arguing that the trial court committed plain error when it ordered his firearms

forfeited when the charging document did not contain the required language to do so.

He states that he is not arguing a defect in the bill of information.

{¶ 15} R.C. 2941.1417, the forfeiture specification statute, provides, in part:

Property is not subject to forfeiture in a criminal case unless the indictment,

count in the indictment, or information charging the offense specifies, to the

extent it is reasonably known at the time of filing, the nature and extent of

the alleged offender’s interest in the property, a description of the property,

and, if the property is alleged to be an instrumentality, the alleged use or

intended use of the property in the commission or facilitation of the offense.

R.C. 2941.1417(A). The statute further specifies where the specification should be
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placed in the charging document and the form the specification should take. Id.

{¶ 16} In our view, the complete absence of a forfeiture specification – as opposed

to errors in the pleading of a forfeiture specification -- is not a “defect” that requires a

timely objection. Rather, as provided in R.C. 2941.1417(A), the absence of a forfeiture

specification simply precludes the State from seeking forfeiture of certain property. See

also R.C. 2981.04(A)(1) (certain property may be forfeited if the defendant is convicted or

receives intervention in lieu of conviction for an offense and the charging document

includes a forfeiture specification).

{¶ 17} In this case, the bill of information charged Poirier with resisting arrest. No

specifications were included, and Poirier was not required to object to the absence of a

forfeiture specification in the bill of information. There is no indication in the record that

the State provided any notice to Poirier that it intended to seek the forfeiture of his

weapons.

{¶ 18} Poirier’s counsel informed the trial court at the plea hearing that Poirier

wished to request the return of his firearms. The court responded that the matter would

be addressed at sentencing and encouraged defense counsel to raise any specific

arguments in a sentencing memorandum, which defense counsel filed. At sentencing,

defense counsel again raised Poirier’s desire to have his firearms returned. Poirier thus

adequately preserved his objection to the forfeiture of his handguns. Accordingly, the

plain error standard does not apply.

{¶ 19} The appropriate question, as raised in Poirier’s second assignment of error,

is whether the trial court abused its discretion in ordering that Poirier’s three handguns be

forfeited as part of his community control sanctions. See State v. Bennett, 2019-Ohio-
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2996, 140 N.E.3d 1145, ¶ 4 (2d Dist.) (“An appellate court reviews a misdemeanor

sentence for an abuse of discretion.”); State v. Bakhshi, 2d Dist. Montgomery No. 25585,

2014-Ohio-1268, ¶ 49 (“We review misdemeanor sentences for an abuse of discretion.”).

{¶ 20} In general, a trial court abuses its discretion “when it makes a decision that

is unreasonable, unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 34. However, if the trial court committed a legal error

in its ruling, “that ruling necessarily constitutes an abuse of discretion, since the trial court

had no discretion to commit a legal error.” State v. Pierce, 2011-Ohio-4873, 968 N.E.2d

1019, ¶ 72 (2d Dist.).

{¶ 21} To resolve the question of whether the trial court abused its discretion, we

must consider the interplay between the court’s authority to order the forfeiture of property

and the scope of its ability to impose conditions on community control.

{¶ 22} At the outset, the State suggests that the trial court did not order the

forfeiture of the handguns and that it, instead, simply ordered their “confiscation.” The

State notes that the judgment entry “remanded” the weapons to the arresting agency.

However, the judgment did not merely remand the weapons to the agency’s custody – it

ordered the seized weapons to be “remanded to the arresting agency for disposal as it

sees fit (Miamisburg Police Department).” (Emphasis added.) Regardless of the trial

court’s use of the word “remand,” the effect of the order was to permanently deprive

Poirier of his handguns, which constitutes forfeiture.

{¶ 23} R.C. 2981.02 allows the forfeiture of contraband, proceeds, and certain

instrumentalities. A law enforcement officer may seize property that the officer has

probable cause to believe is property subject to forfeiture, R.C. 2981.03(A)(2), and the
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State or political subdivision acquires “provisional title” of the property upon the person’s

commission of an offense giving rise to the forfeiture. R.C. 2981.03(A)(1).

{¶ 24} A prosecuting attorney may then pursue forfeiture of seized property in a

criminal proceeding under R.C. 2981.04, a civil proceeding under R.C. 2981.05, or both.

R.C. 2981.03(F). Criminal forfeiture is initiated by including in the charging instrument a

specification consistent with R.C. 2941.1417 or by providing the defendant with “prompt

notice” that the property is subject to forfeiture, in conformity with Crim.R. 7(E) (bill of

particulars). R.C. 2981.04(A)(1) and (A)(2). Civil forfeiture is commenced by filing “a

complaint requesting an order that forfeits the property to the state or a political

subdivision.” R.C. 2981.05(A).

{¶ 25} In general, forfeiture of property is disfavored. E.g., State v. Christian,

2016-Ohio-516, 56 N.E.3d 391, ¶ 31 (2d Dist.); Dayton Police Dept. v. Byrd, 289 Ohio

App.3d 461, 2010-Ohio-4529, 938 N.E.2d 1110, ¶ 28 (2d Dist.); see also Ohio Dept. of

Liquor Control v. Sons of Italy Lodge 0917, 65 Ohio St.3d 532, 534, 605 N.E.2d 368

(1992) (“The law requires that we favor individual property rights when interpreting

forfeiture statutes.”). The State’s ability to seek forfeiture of property is created by statute

and, whenever possible, forfeiture statutes must be construed to avoid forfeiture. Id.

Other Ohio appellate courts have held that where criminal complaints did not contain the

specification required under R.C. 2981.04, the trial court had no authority to order the

defendant’s property be forfeited. E.g., State v. McMeen, 2014-Ohio-5482, 25 N.E.3d

422, ¶ 18 (3d Dist.); State v. Patrick, 4th Dist. Lawrence No. 12CA16, 2013-Ohio-3821,

¶ 15; State v. Haymond, 5th Dist. Stark No. 2009-CA-00078, 2009-Ohio-6817, ¶ 35.

{¶ 26} In State v. Bolton, 2017-Ohio-7263, 97 N.E.3d 37 (2d Dist.), we addressed
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whether the trial court erred in failing to grant Bolton’s motion for return of his property,

which consisted of several non-firearm weapons. Bolton had been charged with and

convicted of inducing panic, a fifth-degree felony, and the indictment did not include a

forfeiture specification. The State also did not pursue either criminal or civil forfeiture,

and the judgment entry did not address the disposition of the property. After Bolton

completed his community control sentence, he sought the return of his seized property.

The trial court denied the motion. On review, we reversed, holding that “where the

statutory requirements for forfeiture have not been met, we have no choice but to reverse

the decision of the trial court and remand for further proceedings.” Id. at ¶ 17.

{¶ 27} Bolton had a second encounter with police, during which the police seized

several firearms and ammunition, and he was charged with aggravated menacing, a

misdemeanor of the first degree. See State v. Bolton, 2017-Ohio-8903, 100 N.E.3d 1275

(2d Dist.). The charge did not include a forfeiture specification. Bolton requested the

return of his firearms, and on the day of his sentencing, the court ordered the police

department to return the firearms and ammunition to him on December 22, 2016 (two

years from the date of the offense) on the condition that Bolton complied with the terms

of his probation.

{¶ 28} When the probation department recommended the early termination of

Bolton’s community control, the deputy police chief asked the municipal court to

reconsider its decision granting the return of Bolton’s firearms and ammunition, stating

that Bolton was under a weapons disability as a result of his felony inducing panic

conviction. The court granted the motion and ordered the police department to dispose

of the seized firearms and ammunition “in accordance with the applicable statute.” On
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appeal, we found that, given Bolton’s legal disability, the trial court did not abuse its

discretion in failing to release the property back to Bolton. Id. at ¶ 17. However, as to

the disposition of the property, we noted that the court was “treating the property as if it

had been forfeited when no forfeiture proceeding had ever been initiated. In other words,

Bolton’s property was not forfeited under Chapter 2981 of the Revised Code and cannot

be treated as such.” Id. at ¶ 26. We ordered that the weapons remain with the police

department for safekeeping while the disposition of the property was addressed on

remand. Id. at ¶ 27.

{¶ 29} On the record before us, we find no statutory authority for the trial court’s

order that Poirier’s handguns be “remanded” to the Miamisburg Police Department for

disposal. The State did not initiate either criminal or civil forfeiture proceedings. No

forfeiture provision was included in the bill of information, and the prosecutor did not file

a bill of particulars under Crim.R. 7(E). Thus, the trial court’s forfeiture order was

contrary to the procedures established in R.C. Chapter 2981.

{¶ 30} The State nevertheless contends that the trial court had discretion to

structure community control sanctions that protected the offender, those who lived with

the offender, and the public from future violence by the offender. The State argues that

the trial court reasonably concluded that that “confiscation” of Poirier’s handguns was

necessary to protect others from future crime.

{¶ 31} Misdemeanor community control sanctions are governed by R.C. 2929.25.

That statute authorizes the trial court to impose a jail term (R.C. 2929.24), community

residential sanctions (R.C. 2929.26), nonresidential sanctions (R.C. 2929.27), financial

sanctions (R.C. 2929.28) and “any other conditions of release under a community control
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sanction that the court considers appropriate.” R.C. 2929.25(A)(1)(a) and (b).

{¶ 32} Trial courts enjoy broad discretion to fashion a sentence that is appropriate

to each case. State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714,

¶ 12 (2d Dist.), citing R.C. 2929.22(A). Pursuant to R.C. 2929.21(A), the court should

be guided by the two overriding purposes of misdemeanor sentencing – protecting the

public from future crime by the offender and others and punishing the offender. “To

achieve those purposes, the sentencing court [must] consider the impact of the offense

upon the victim and the need for changing the offender’s behavior, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or the victim and

the public.” R.C. 2929.21(A). “From these purposes and principles, it follows that

‘[p]robationary conditions are to be related to the circumstances of the offense.’ ”

Bowser at ¶ 13, quoting In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d 921,

¶ 16, citing State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990).

{¶ 33} In determining an appropriate sentence, the trial court may consider

information beyond that strictly related to the conviction offense, including the

circumstances underlying the offense. Id. at ¶ 15. This is because the court is no longer

concerned with the narrow issue of guilt. Bowser at ¶ 14; State v. Wiles, 2d Dist. Clark

No. 2017-CA-69, 2018-Ohio-3077, ¶ 19. “Among other things, a court may consider

hearsay evidence, prior arrests, facts supporting a charge that resulted in an acquittal,

and facts related to a charge that was dismissed under a plea agreement.” State v.

Bodkins, 2d Dist. Clark No. 2010-CA-38, 2011-Ohio-1274, ¶ 43; Wiles at ¶ 19.

{¶ 34} “Generally, a court will not be found to have abused its discretion in

fashioning a community-control sanction as long as the condition is reasonably related to
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the probationary goals of doing justice, rehabilitating the offender, and insuring good

behavior.” State v. Chapman, Ohio Slip Opinion No. 2020-Ohio-6730, __ N.E.3d __,

¶ 8 (addressing felony community control), citing State v. Talty, 103 Ohio St.3d 177, 2004-

Ohio-4888, 814 N.E.2d 1201, ¶ 12. However, the trial court’s discretion is not unlimited.

State v. McCaleb, 2d Dist. Greene No. 05CA155, 2006-Ohio-4652, ¶ 47, citing Jones at

52. The condition cannot be unduly restrictive, unlawful, or unconstitutional. Id.

Moreover, the length of community control sanctions cannot exceed five years. R.C.

2929.25(A)(2); see State v. Snell, 2d Dist. Clark No. 2018-CA-99, 2019-Ohio-2251, ¶ 10,

¶ 12 (indefinite nature of no-contact order violated R.C. 2929.25(A)(2)).

{¶ 35} We have found no authority permitting a trial court to order the forfeiture of

firearms in the absence of statutory authority, and the parties have not directed us to any.

To the contrary, as stated above, we have recognized that “the State’s ability to seek

forfeiture of property is created by statute.” Christian, 2016-Ohio-516, 56 N.E.3d 391, at

¶ 31.

{¶ 36} Considering the information before the trial court at sentencing, including

the underlying facts as stated in the presentence investigation report, we agree with the

State that the trial court could have reasonably concluded that Poirier’s possession of

handguns should be restricted during the period of his community control. Poirier

reportedly pointed a handgun at his girlfriend’s head during the incident that led to his

arrest, which he then resisted.

{¶ 37} However, a community control condition that precludes an offender from

possessing or having access to handguns during the period of community control is

different from a condition requiring the forfeiture of the handguns to the police department
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for disposal. In the first instance, the offender could seek the return of the handguns

upon successful completion of community control; in the second instance, the offender is

permanently deprived of his or her property.

{¶ 38} The trial court’s condition of community control that Poirier’s handguns be

remanded to the police department for disposal was contrary to R.C. Chapter 2981, and

we conclude that the trial court’s broad discretion to impose community control conditions

did not constitute independent authority to order the forfeiture of Poirier’s handguns.

Accordingly, the trial court abused its discretion when it ordered Poirier’s handguns to be

remanded to the Miamisburg Police Department for disposal, and that condition must be

vacated.

{¶ 39} Poirier’s second assignment of error is sustained.

{¶ 40} We note that the trial court’s online docket reflects that on February 2, 2021,

the trial court found that Poirier had “abided by all the sanctions of community control

previously imposed, and is rehabilitated to the extent that the community control period

should be terminated.” (By separate entry, the court waived two conditions of community

control.) The trial court thus ordered the termination of Poirier’s community control.

Given that Poirier has completed his community control sentence, we conclude that it is

no longer appropriate to remand for resentencing regarding Poirier’s handguns. Rather,

the matter must be remanded for reconsideration of Poirier’s request for the return of his

property.

III. Conclusion

{¶ 41} The trial court’s community control sanction requiring that Poirier’s three

handguns “be remanded to the arresting agency for disposal as it sees fit” will be vacated,
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and the matter will be remanded for reconsideration of Poirier’s request for the return of

his property. In all other respects, the trial court’s judgment will be affirmed.

.............

DONOVAN, J., concurs.

HALL, J., concurs:

{¶ 42} I agree with the majority’s opinion. I specifically agree that the trial court

could issue and enforce a community control sanction that Poirier not be in possession

of any firearms while he was under supervision. Furthermore, perhaps the State or the

court could have made forfeiture of the handguns a condition of the plea agreement, but

they did not. Poirier’s community control was terminated by the court on February 2, 2021

without restriction.

{¶ 43} It appears inconsistent, and perhaps even dangerous to the victim, to return

handguns to an individual who was accused of pointing a gun at her head during a violent

encounter. Neither the State nor the Court took action to prevent eventual return of the

handguns from happening.

Copies sent to:

Mathias H. Heck, Jr.
Elizabeth A. Ellis
Christopher C. Green
Hon. Michael W. Krumholtz