Opinion
21-P-621
04-01-2022
COMMONWEALTH v. Ernest HUGHEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from a judge's allowance of the defendant's motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), to vacate a forfeiture order. This is the second time we are considering the motion. The underlying facts are set out in our earlier unpublished memorandum and order, see Commonwealth v. Hughley, 95 Mass. App. Ct. 1115, rev. denied, 482 Mass. 1107 (2019), and we provide only a brief summary here.
In 2011 the defendant pleaded guilty to distribution of a class D substance and possession with intent to distribute a class D substance. Before the plea hearing, the Commonwealth filed a motion under G. L. c. 94C, § 47 (b ), for forfeiture of $328. The plea judge allowed the motion with no objection from the defendant.
In 2016 the defendant moved to vacate his pleas based on the misconduct of the certifying chemist, Sonja Farak. The Commonwealth assented to the motion, which a judge (first judge) allowed. After the Commonwealth then entered nolle prosequis on the original charges, the defendant filed his motion under rule 60 (b) to vacate the forfeiture order, which the first judge also allowed. The Commonwealth appealed, and, while the appeal was pending, the Supreme Judicial Court issued its decision in Commonwealth v. Martinez, 480 Mass. 777 (2018). Martinez holds in relevant part that, because a forfeiture proceeding is civil in nature, "[a] defendant is not entitled to [relief from an order of forfeiture] solely because the criminal convictions that were related to the forfeiture were invalidated." Id. at 792.
In light of Martinez, another panel of this court vacated the first judge's order allowing the defendant's rule 60 (b) motion and remanded for further proceedings. The panel noted that the first judge "did not specify the subsection [of rule 60 (b) ] he relied upon to allow the motion." The panel also found it apparent from the hearing transcript that the first judge "may have allowed the rule 60 (b) motion on the premise that the invalidation of the criminal convictions mandated the vacatur of the forfeiture order." Because the panel could not discern whether the order "was based solely on invalidation of the criminal convictions," it remanded with the instruction that "the judge hearing the case on remand has discretion to hold whatever proceedings he or she deems necessary to consider the motion and the parties’ arguments in light of Martinez."
On remand, a different judge (second judge) heard arguments from the parties on two days in September and October 2019. In February 2021 the second judge issued an order allowing the rule 60 (b) motion on the rationale that "[t]he forfeiture of the $328.00 was a part of the criminal proceedings and not conducted through civil forfeiture procedures." Based on that premise, the second judge concluded that "the involvement of Ms. Farak, whose action has caused so much havoc for the courts and defendants, requires that any action taken pursuant to the plea ... be vacated.")
A rule 60 (b) motion "is addressed to the discretion of the judge," whose ruling " ‘will not be reversed on appeal save for abuse’ of that discretion." Owens v. Mukendi, 448 Mass. 66, 72 (2006), quoting Parrell v. Keenan, 389 Mass. 809, 815 (1983). While our review is deferential, an "[e]rror of law apparent on the record, such as the failure of a judge's findings to support the judge's action ..., constitute[s] an abuse of discretion." Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000). We conclude here that the second judge's ruling rested on an error of law -- namely, that the forfeiture order was part of the criminal proceeding and thus had to be vacated upon invalidation of the convictions. This directly contravenes Martinez’s holding that a "motion for forfeiture of ... money under [G. L. c. 94C,] § 47 (b ), as a matter of law, initiate[s] a separate civil proceeding." Martinez, 480 Mass. at 791. As Martinez further explains, while the forfeiture proceeding may be "adjudicated at the same time as the criminal proceeding," it remains civil in nature, and the resulting judgment "need not be vacated because of [the] invalidation" of the convictions. Id.
Despite the error, the defendant argues that the second judge still acted within his discretion in allowing the motion because vacatur of the forfeiture order was warranted under subsections (4), (5), and (6) of rule 60 (b). It is evident, however, that the second judge did not consider or apply rule 60 (b) because he erroneously concluded that the forfeiture was part of the criminal proceeding. In these circumstances we agree with the Commonwealth that the matter must be remanded a second time for further proceedings.
The Commonwealth's brief does not discuss whether relief would be appropriate under rule 60 (b) (4), (5), or (6), and we express no view on those issues.
The judge hearing the matter on remand may again exercise discretion to hold whatever proceedings he or she deems necessary to decide the motion. We reiterate that "[t]he finding of probable cause of nexus that sufficed to order forfeiture in the civil proceeding did not depend on the finding in the criminal proceeding of sufficient evidence to warrant a finding of guilt on the plea[s]," and that the invalidation of the defendant's convictions does not mandate vacatur of the forfeiture order. Martinez, 480 Mass. at 791. Although "the reasons for invalidating [the] conviction[s] potentially may warrant relief from the civil judgment of forfeiture," the defendant must show entitlement to relief under the standards of rule 60 (b). Id.
The order allowing the defendant's rule 60 (b) motion to vacate the forfeiture order is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded