State v. Poirier, Appellate Case No. 28849

• Decision Date: 21 May 2021
• Docket Number: Appellate Case No. 28849
• Citation: 2021 Ohio 1743
• Parties: STATE OF OHIO Plaintiff-Appellee v. BRIAN POIRIER Defendant-Appellant
• Court: Ohio Court of Appeals

2021 Ohio 1743

STATE OF OHIO Plaintiff-Appellee v. BRIAN POIRIER Defendant-Appellant

Appellate Case No. 28849

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

May 21, 2021

Trial Court Case No. 2020-CR-1243

(Criminal Appeal from Common Pleas Court)

OPINION

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.

{¶ 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 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 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 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 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 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,...