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State v. Walker10/21/2005
claims that the forfeiture of the seven bears was not a fine but was restitution for tax dollars spent to care for the bears. In this context, the State argues that "Walker's failure to properly confine his seven bears while on probation for two similar offenses * * * constitutes the offense in this case."
{ } The State is incorrect. As we mentioned, the second assignment of error is not based on forfeiture of the bears. Furthermore, Walker was never charged with, nor was he ever convicted of an offense related to the bears. The issue in the second assignment of error is simply whether the $32,127 restitution order was an improper in personam forfeiture.
{ } "In personam forfeitures are 'assessments, whether monetary or in kind, to punish the property owner's criminal conduct.' * * * They are actions against the person, not the property, a form of punishment no different from a fine." State v. Ziepfel (1995),107 Ohio App.3d 646, 651, 669 N.E.2d 299. In Bybee, the First District Court of Appeals concluded that the order of restitution of $117, 625 for the care of the defendant's animals had "all the badges of a criminal in personam forfeiture subject to the Excessive Fines Clause of the Eighth Amendment." 134 Ohio App.3d at 400. Therefore, the First District concluded that even if it found restitution valid as a condition of probation, it would have remanded the case to the trial court for assessment of the proportionality of the forfeiture. Id. The court did not remand the case, however, because restitution was improper.
{ } In State v. Hill, 70 Ohio St.3d 25, 34, 1994-Ohio-12, 635 N.E.2d 1248, the Ohio Supreme Court discussed forfeiture under R.C. 2925.42, which provides for forfeiture of property involved in felony drug offenses. The Ohio Supreme Court held that before a trial court may enter an order of forfeiture, the court "must make an independent determination whether forfeiture of that property is an 'excessive fine' prohibited by the Excessive Fine Clauses of the Ohio and United States Constitutions." Id. at syllabus. The court did not establish a particular test in Hill, but later cases have applied a "proportionality test" to decide if forfeitures of property are constitutionally valid. See, e.g., State v. Harold (1996), 109 Ohio App.3d 87, 93-94, 671 N.E.2d 1078.
{ } We have already concluded that the trial court could not impose restitution for the upkeep and care of the bears. However, even if restitution of this sort could have been ordered, the trial court clearly failed to comply with appropriate procedures. This error was harmless in view of the disposition of the first assignment of error. Accordingly, we will overrule the second assignment of error.
III.
{ } In the third assignment of error, Walker contends that "the trial court erred by imposing a restitution order upon the Appellant that exceeded the amount he is able to pay as an indigent person in violation of O.R.C. ยง2929.22(F)." This assignment of error is moot, based on our resolution of the first assignment of error.
IV.
{ } The fourth, fifth, and sixth assignments of error deal with the taking of the bears and will be considered together. In the fourth assignment of error, Walker claims that the trial court's actions were an "in rem forfeiture amounting to an excessive fine under the Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution." The fifth assignment of error challenges the confiscation of the bears because they were not subject to forfeiture under R.C. 955.22, R.C. 951.03, or R.C. 2933.41-43. And finally, Walker contends in the sixth assignment of error that the trial court erre
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