Opinion
No. 11–P–875.
2012-06-20
COMMONWEALTH v. FIFTEEN THOUSAND TWO HUNDRED FORTY–FIVE DOLLARS & others.
By the Court (GRAHAM, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After successive, unsuccessful attacks on a civil forfeiture judgment, from which he did not appeal, and after the affirmance of the denial of a motion for clarification in the criminal case, in which this court noted that the civil forfeiture proceeding was independent of the criminal case, Commonwealth v. Whitaker, 76 Mass.App.Ct. 1123 (2010), the claimant, Larry Whitaker, appeals from a Superior Court judge's denial of his motion for relief from the forfeiture judgment under Mass.R.Civ.P. 60(b)(4), 365 Mass. 829 (1979). We affirm.
Background. On June 16, 2004, the claimant was charged with trafficking in cocaine with a net weight of 200 grams or more, trafficking in cocaine with a net weight between fourteen and twenty-eight grams, committing a drug violation near a school, possessing a firearm without having a proper identification card, committing assault and battery by means of a dangerous weapon, failing to stop for police, and resisting arrest. On July 19, 2004, the Commonwealth filed a civil complaint under G.L. c. 94C, § 47( d ), seeking the forfeiture of two motor vehicles and $15,245 seized from the claimant. An entry in the civil docket on November 2, 2004, indicates that “per C. Dolen [the prosecutor], he has conferenced this case with D. Bergin—they are discussing settlement .” (Attorney Bergin was Whitaker's counsel in the criminal matter.) On February 27, 2006, the claimant pleaded guilty in Superior Court to a lesser offense of trafficking in cocaine with a net weight of one hundred grams or more but less than 200 grams, trafficking in cocaine with a net weight between fourteen and twenty-eight grams, unlawful possession of a firearm, and resisting arrest. The other charges were not pursued by the Commonwealth. During the proceedings, the prosecutor stated, “Your Honor, I would ask you to adopt the recommendation.... There is a concurrent civil action which would resolve—will resolve the disposition of the assets of two motor vehicles that were involved in this investigation, as well as the U.S. currency that I indicated to the court was recovered. That will be resolved as of today.”
The “Agreement for Judgment” in the Commonwealth's favor in the civil forfeiture case was filed on February 28, 2006. The document bore the signatures of the prosecutor and Attorney Bergin.
On August 2, 2006, Whitaker filed a motion to vacate the judgment in the civil case pursuant to Mass.R.Civ.P. 60(b). The grounds asserted were that Attorney Bergin committed fraud and misrepresented that he was representing Whitaker in the civil matter. That motion was denied. The claimant did not appeal from this denial.
On November 18, 2008, the claimant filed a motion for clarification in the criminal case. The memorandum and order pursuant to Rule 1:28 deciding the appeal from the denial of that motion stated that in the motion the claimant requested clarification of “the alleged order that allegedly granted the forfeiture of the defendant's property as part of the agreed upon recommendation at the plea hearing.” This court observed that a determination that the agreement for judgment in the forfeiture case was not part of the plea agreement “would have no effect on any judgment entered in the civil action and would not enable the [claimant] to challenge any judgment in that case.... A determination that the plea agreement did not include the agreement for forfeiture would just confirm that the civil case was a separate independent action.” Commonwealth v. Whitaker, 76 Mass.App.Ct. 1123 (2010).
On December 28, 2010, the claimant filed a motion to vacate the judgment pursuant to Mass.R.Civ.P. 60(b)(4). The motion was denied. The claimant now appeals.
Discussion. On appeal, the claimant argues that the judge erred in denying his motion for relief from judgment because the agreement for judgment in the forfeiture case was not part of the criminal plea agreement and was, thus, void. He contends that the plea agreement concerned prison time only and that there was no agreement as to property.
In reviewing a motion for relief from judgment under rule 60(b)(4), the court must determine “whether the record shows that the judgment from which relief is sought is void.” Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass.App.Ct. 527, 529 (1997). The reviewing court “look[s] to the pleadings, affidavits, and exhibits to determine whether they show that the judgment in the underlying action is void and whether the judge erred in denying [the appellant's] request for relief.” Id. at 529–530. A judgment is void if “the court from which it issues lacked jurisdiction over the parties, jurisdiction over the subject matter, or failed to provide due process of law.” Bowers v. Board of Appeals of Marshfield, 16 Mass.App.Ct. 29, 32 (1983). If the judgment is void, the court must vacate it because “[n]o discretion is granted by the rule.” Field v. Massachusetts Gen. Hosp., 393 Mass. 117, 118 (1984).
Here, the claimant contends that the judgment is void because the agreement for judgment was not part of the plea agreement entered in the criminal case. We do not agree. Although the transcript of the colloquy in the criminal proceeding and the record do not clearly indicate that the agreement for judgment was part of the agreement reached by the Commonwealth and the claimant, the judgment is not void. First, the forfeiture case is a proceeding in rem that is civil in nature. See Commonwealth v. One 1972 Chevrolet Van, 385 Mass. 198, 198–199 (1982).
Furthermore, the proceeding is independent of the criminal proceeding. See Commonwealth v. Brown, 426 Mass. 475, 480 (1998) (Even a “forfeiture proceeding initiated by motion filed in a related criminal proceeding is outside the scope of the criminal matter and constitutes a civil proceeding”). See also Commonwealth v. Ortiz–Peguero, 51 Mass.App.Ct. 90, 94 (2001). Thus, as we indicated in a predecessor decision, see note 1, supra, whether or not the agreement for judgment in the forfeiture case was part of the plea agreement does not affect the validity of the judgment in the civil case. The claimant, therefore, has not presented grounds for vacating it. The judge correctly determined that the agreement for judgment in the forfeiture case was not void.
The forfeiture statute, G.L. c. 94C, § 47, “contemplates two methods by which forfeiture proceedings may be initiated by the Commonwealth: either by petition in the nature of a proceeding in rem filed in the Superior Court, G.L. c. 94C, § 47( d ), or ... by motion filed in a related criminal proceeding, G.L. c. 94C, § 47( b ). Commonwealth v. Ortiz–Peguero, 51 Mass.App.Ct. 90, 93–94 (2001), quoting from Commonwealth v. Brown, 426 Mass. 475, 480 (1998).
Order denying motion for relief from judgment under Mass.R.Civ.P 60(b)(4) affirmed.