Opinion
No. 303 C.D. 2012
10-05-2012
Commonwealth of Pennsylvania v. Wilberto Cintron-Colon, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Wilberto Cintron-Colon appeals, pro se, from the orders of the Berks County Court of Common Pleas (trial court) granting the Petition for Forfeiture of Property of the Berks County District Attorney (Commonwealth) and denying Cintron-Colon's Motion for Return of Property. On appeal, Cintron-Colon argues, inter alia, that he never received notice of the Commonwealth's Petition for Forfeiture and, as a result, the trial court erred by granting the Petition for Forfeiture due to his failure to timely respond thereto and by subsequently denying his Motion for Return of Property because it had already granted forfeiture. Accordingly, the dispositive issue before the Court is whether the trial court's finding that Cintron-Colon received notice of the Petition for Forfeiture is supported by competent evidence. Because we find that it is not, we vacate and remand.
Our review on this appeal is limited to examining whether the trial court's factual determinations were supported by competent evidence and whether the trial court abused its discretion or committed an error of law. Boniella v. Commonwealth, 958 A.2d 1069, 1072 n.6 (Pa. Cmwlth. 2008); Commonwealth v. Johnson, 931 A.2d 781, 783 n.2 (Pa. Cmwlth. 2007).
On August 2, 2011, Cintron-Colon entered a guilty plea to two counts of possession with intent to deliver a controlled substance under Section 13 of the Controlled Substance, Drug, Device and Cosmetic Act (the Controlled Substance Act). The trial court sentenced Cintron-Colon to serve an aggregate term of 12 to 24 months incarceration at a state correctional facility. The guilty plea and sentence were entered on the criminal docket at 188-CR-11, under the caption Commonwealth v. Cintron-Colon.
Act of April 14, 1972, P.L. 233, §13, as amended, 35 P.S. §780-113.
On August 31, 2011, the Commonwealth filed the Petition for Forfeiture of Property under the act commonly known as the Controlled Substances Forfeiture Act (the Forfeiture Act). The Petition for Forfeiture was entered on the miscellaneous docket at 1384-MD-2011, under the caption Commonwealth v. 2003 Mazda Protégé, et al. The Petition for Forfeiture and the attached inventory avers that on December 17, 2010, members of the Berks County Drug Task Force executed a search warrant at 540 Tulpehocken Street, City of Reading, Berks County. Cintron-Colon and his then girlfriend, Anaida Feliciano-Ruiz, were present in the house at the time. The officers executing the warrant found and seized, among other items, the following: bags of marijuana; packets of cocaine and marijuana; a bong; items containing suspected drug residue, including a digital scale, razor blades, plates, and bowls; plastic bags and other items commonly used in the packaging and distribution of drugs; and surveillance cameras. The officers also found and seized the items that became the subject of the Petition for Forfeiture: a 2003 Mazda Protégé; $109 cash; a surveillance monitor; two large, flat-screen televisions; an X-Box video game system; and a large sword. The Petition averred that all of the items "were seized in close proximity to the illegally possessed controlled substances."
On October 13, 2011, the trial court entered a Rule to Show Cause why the Petition should not be granted. There is no record evidence indicating that the Rule or the Petition were served on Cintron-Colon.
On December 28, 2011, Cintron-Colon filed a Motion for Return of Property, seeking the return of the seized Mazda Protégé and other items. Cintron-Colon filed the Motion in the criminal matter, at docket number 188-CR-11. The certified record before the Court does not contain a copy of that Motion.
Unfortunately, the certified record from the trial court contains only those record items from the miscellaneous docket number, 1384-MD-2011, which was created for the Commonwealth's Petition for Forfeiture of Property. The record contains no items from the criminal docket, 188-CR-11, including the search warrant and Cintron-Colon's Motion for Return of Property. Thus, even if it were appropriate to reach the merits of the Petition for Forfeiture or the denial of the Motion for Return of Property, we would be unable to do so.
On January 12, 2011, the trial court granted the Commonwealth's Petition for Forfeiture due to Cintron-Colon's failure to file a timely response to the Rule to Show Cause. And on January 17, 2011, the trial court denied the Motion for Return of Property, concluding that Cintron-Colon "was clearly given an opportunity to respond to the forfeiture, but failed to do so." (March 5, 2012, Section 1925(a) Opinion at 3.) Cintron-Colon appealed to the Superior Court on January 23, 2012, which transferred the appeal to this Court pursuant to Pennsylvania Rule of Appellate Procedure 751.
On appeal, Cintron-Colon argues, inter alia, that he received no notice of the Commonwealth's Petition for Forfeiture until after it was granted. In the trial court's January 12, 2012 Order granting the Petition, the trial court found that Cintron-Colon was served on October 24, 2011, at his "last known address as evidenced by the copies of the certified mail return receipts" attached to the Order as Exhibit A. (Jan. 12, 2012 Order at ¶2.) In the Section 1925(a) Opinion, the trial court again states that notice of the Petition was sent to Cintron-Colon via certified mail on October 24, 2011.
Our examination of the record indicates that the trial court's findings regarding service are not supported by record evidence. The record contains a certified mail receipt from the United States Postal Service showing that an item addressed to Cintron-Colon was delivered to the State Correctional Institution (SCI) at Camp Hill on October 24, 2011, and was signed for as received by "Jerry Rector." However, the certified record indicates that at all times since August 8, 2011, Cintron-Colon was incarcerated at SCI Graterford, not SCI Camp Hill. (Berks County Court of Common Pleas Docket, 1384-MD-2011, printed Jan. 30, 2012.) Neither the Petition for Forfeiture nor the Rule to Show Cause contains a certificate of service indicating when, where, or if they were served on Cintron-Colon. The record contains no information regarding the identity of "Jerry Rector," whether he may have forwarded the item delivered to SCI Camp Hill on to SCI Graterford, or whether there is a prison policy regarding the forwarding of mail between facilities. Finally, all other documents served on Cintron-Colon since January 12, 2012, including the trial court's Order of the same date, were mailed to SCI Graterford; and on all of Cintron-Colon's filings present in the record, he lists SCI Graterford as his mailing address.
The Forfeiture Act requires the following:
(b) Notice to property owners.--A copy of the petition required under subsection (a) shall be served personally or by certified mail on the owner or upon the person or persons in possession at the time of the seizure. The copy shall have endorsed a notice, as follows:42 Pa. C.S. § 6802(b).
To the Claimant of within Described Property: You are required to file an answer to this petition, setting forth your title in, and right to possession of, said property within 30 days from the service hereof, and you are also notified that, if you fail to file said answer, a decree of forfeiture and condemnation will be entered against said property.
The notice shall be signed by the Attorney General, Deputy Attorney General, district attorney, deputy district attorney or assistant district attorney.
The Pennsylvania Supreme Court has held that notice and opportunity to be heard are integral to forfeiture proceedings. Commonwealth v. Mosley, 549 Pa. 627, 633, 702 A.2d 857, 860 (1997). Statutes authorizing forfeiture must be strictly construed, Commonwealth v. Smith, 562 Pa. 609, 757 A.2d 354 (2000), and the Forfeiture Act sets forth specific, exclusive, and mandatory procedures for providing notice of a forfeiture. Mosley, 549 Pa. at 632, 702 A.2d at 859. Applying these principles in Commonwealth v. 1997 Mitsubishi Diamante, we vacated an order granting the Commonwealth's forfeiture petition and remanded the matter to the trial court, where notification of the petition was made by certified mail to the correct correctional facility, but was addressed to the wrong individual. 950 A.2d 1114, 1116 (Pa. Cmwlth. 2008); see also Commonwealth v. Jackson, No. 744 C.D. 2012, ___ A.3d ___, 2012 WL 3491330 (Pa. Cmwlth. Aug. 12, 2012) (vacating forfeiture judgment and remanding due to failure to provide adequate notice of hearing).
The Unites States Supreme Court has addressed constitutional due process requirements under the Fifth and Fourteenth Amendments of the United States Constitution. "An elementary and fundamental requirement of due process . . . is notice reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (holding that notice by publication is insufficient with respect to an individual whose name and address are known or easily attainable); In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 333, 479 A.2d 940, 943 (1984) ("The Due Process Clause of the Fourteenth Amendment to the Federal Constitution requires at a minimum that the deprivation of life, liberty or property by adjudication must be preceded by notice and opportunity for hearing appropriate to the nature of the case." (citing Mullane)); Commonwealth v. One 1988 Ford Coupe, 574 A.2d 631, 637 (Pa. Super. 1990) (noting that Article I, Section 9, of the Pennsylvania Constitution contains similar due process guarantees). In the forfeiture context, where the person interested in the property to be forfeited is incarcerated, constitutional due process may be satisfied when notice of the forfeiture proceeding is sent by certified mail to the prison where the claimant is incarcerated. Dusenbery v. United States, 534 U.S. 161, 173 (2002); see also Robinson v. Hanrahan, 409 U.S. 38, 39-40 (1972) (per curiam) (holding that state's notice of forfeiture proceeding sent to individual's home is insufficient where he was incarcerated in that state); Mosley, 549 Pa. at 630, 702 A.2d at 860. Accordingly, when an individual is incarcerated at a location of the government's choosing, it is inherently reasonable to charge the government with the duty of serving that individual where it knows or should know he is located.
Under the circumstances, we must vacate the Orders dated January 12 and January 17, 2012, and remand to the trial court, because the Commonwealth failed to take steps reasonably calculated to inform Cintron-Colon of the forfeiture proceedings. Cintron-Colon was incarcerated at SCI Graterford and notice was mailed to SCI Camp Hill. As such, Cintron-Colon was denied procedural due process and his right to notice under the Forfeiture Act. Upon remand, the trial court shall serve Cintron-Colon with a copy of the Rule to Show Cause and the Petition for Forfeiture and afford him the opportunity to respond and be heard. If, after receiving notice, he chooses to contest the Petition and a hearing is scheduled, notice of the hearing must be provided consistent with the procedures set forth in Commonwealth v. $1,800 U.S. Currency, 679 A.2d 275, 277 (Pa. Cmwlth. 1996), where we instructed that "notice of the hearing must contain additional information regarding steps which could be taken in order to secure the [incarcerated party]'s attendance at the hearing."
The Commonwealth argues that Cintron-Colon waived his argument regarding notice of the forfeiture proceedings because he failed to raise the issue before the trial court, even after receipt of the January 12, 2011, final order, thus depriving the lower court of the ability to properly rule upon his contention. This argument is frivolous. As explained above, there is no record evidence that Cintron-Colon had any notice whatsoever of the Commonwealth's forfeiture petition until after it was granted. The Commonwealth may not use that fact against him to argue that he waived his right to notice and due process by not responding to a petition he did not know was filed. --------
/s/_________
JAMES GARDNER COLINS, Senior Judge Judge Brobson Concurs in the Result only. ORDER
AND NOW, this 5th day of October, 2012, the orders of January 12 and January 17, 2012, of the Berks County Court of Common Pleas granting the Commonwealth's Petition for Forfeiture of Property and denying Defendant Wilberto Cintron-Colon's Motion for Return of Property are VACATED. The matter is REMANDED for proceedings not inconsistent with the attached memorandum opinion.
Jurisdiction relinquished.
/s/_________
JAMES GARDNER COLINS, Senior Judge