Opinion
No. 113 C.D. 2014
01-06-2015
Commonwealth of Pennsylvania v. $404.00 US Currency Appeal of: Kenneth P. Rhoad, Jr.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Kenneth Rhoad (Rhoad) appeals an order of the Court of Common Pleas of Lebanon County (trial court) that granted the Commonwealth of Pennsylvania's petition to forfeit $404 in U.S. currency seized from Rhoad pursuant to what is commonly referred to as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§6801-6802. Finding no error by the trial court in granting the forfeiture petition without a hearing, we affirm.
The Pennsylvania State Police arrested Rhoad on February 2, 2012, for selling marijuana to a confidential informant in the parking lot of the Farmer's Wife Restaurant in Ono, Pennsylvania. The Commonwealth filed a petition for forfeiture on February 21, 2013, which recited the following events that culminated in Rhoad's arrest:
a. On February 2, 2012, under the direction of Trooper Michael Lane, a confidential informant made arrangements with
Christopher Rhoad to purchase marijuana. The delivery was to take place at the Farmer's Wife Restaurant in the Jonestown area. Prior to the delivery, [Christopher] Rhoad contacted the confidential informant and stated he was running late and would possibly send his father, Kenneth Rhoad.Petition for Forfeiture, February 21, 2013, at 2-3.
b. Surveillance observed a black Ford Mustang pull into the parking lot. Kenneth Rhoad exited the Mustang and entered the front passenger seat of the confidential informant's vehicle. Surveillance observed the pre-arranged signal that the delivery was complete[,] and Kenneth Rhoad was taken into custody. Trooper Lane recovered the marijuana from the confidential informant's vehicle and official funds that were handed to Kenneth Rhoad. Kenneth Rhoad was arrested and taken into custody. A search of Kenneth Rhoad yielded $404.00 U.S. currency.
c. Kenneth Rhoad was transported to Lebanon County Booking where he was arraigned and charged with one (1) count of delivery, one (1) count of possession with intent to deliver and one (1) count of driving while suspended.
The trial court issued a rule to show cause why the forfeiture petition should not be granted. According to an order entered by the trial court on September 17, 2013, it received a letter from Rhoad on September 16, 2013, stating that Rhoad received the forfeiture petition on August 27, 2013. According to the trial court, Rhoad's letter stated that "I would like to request a hearing on the Petition." Trial Court order, September 17, 2013, at 1.
Rhoad's letter is not in the certified record.
The trial court's September 17, 2013, order further stated that it informed Rhoad that his letter did not constitute an answer to the forfeiture petition because it did not respond to the Commonwealth's factual allegations and did not assert Rhoad's right to possess the seized cash. The trial court granted Rhoad 30 days to file a formal answer. The trial court warned Rhoad that his answer
must set forth factual allegations in response to the Commonwealth's Forfeiture Petition. A simple letter stating "I oppose what the Commonwealth requests" is not sufficient.Id. at 2. On October 17, 2013, Rhoad requested a 30-day extension to file an answer because he was waiting on paperwork from the Attorney General's Office. The trial court granted Rhoad an extension and informed him it would be his last.
Rhoad did not submit an answer by the deadline of November 10, 2013. The trial court concluded that Rhoad had waived his right to challenge the forfeiture and issued an order on November 15, 2013, granting the Commonwealth's forfeiture petition. The trial court amended its order on December 19, 2013, at the request of the Attorney General, to include a paragraph regarding disposition of the forfeited property.
Rhoad appealed, pro se, to the Superior Court. On January 2, 2014, the trial court docketed Rhoad's appeal and ordered him to file a Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b); the trial court provided Rhoad with a copy of Pa. R.A.P. 1925.
The Superior Court transferred the case to this Court on January 23, 2014.
Rhoad sent a letter to the trial court purporting to be his Statement of Errors Complained of on Appeal. That letter, which was docketed on January 16, 2014, stated as follows:
To the Honorable Judge Charles
My name is Kenneth Rhoad. I am wrighting [sic] this letter as my formal Statement of Error.
Being in the County Prison [I] had no resorse [sic] or access to file the proper paper work for the Motion of Return of Property and now being at S.C.I. Camphill [I] have access to the law library and to these forms. The $404.00 in question was honestly earned money and not drug money and all [I] ask is to be able to file the motion to prove what [I] say is true. I was not able to do this in the timely manner do [sic] to the facts [I]'ve stated above.Letter from Kenneth Rhoad to Honorable Bradford Charles, filed January 16, 2014. On March 25, 2014, the trial court entered an order stating that Rhoad had not filed a Statement of Errors Complained of on Appeal that complied with Pa. R.A.P. 1925(b) and, because he had missed numerous deadlines, "waived his right to object to said forfeiture." Trial Court order, March 25, 2014, at 2 ¶F.
With Respect
/s/Kenneth Rhoad
On review, this Court entered an order on April 7, 2014, stating that "it appears that the trial court dismissed this action for failure to file a [Statement of Errors Complained of on Appeal]" pursuant to Pa. R.A.P. 1925(b). Commonwealth v. $404.00 U.S. Currency (Pa. Cmwlth., No. 113 C.D. 2014, order filed April 7, 2014). This Court noted that Rhoad had, in fact, timely filed a Rule 1925(b) Statement on January 16, 2014. Accordingly, this Court remanded the matter to the trial court to issue an opinion pursuant to Pa. R.A.P. 1925(a).
The trial court filed its Rule 1925(a) opinion on April 15, 2014. The trial court reiterated its belief that Rhoad never filed a Statement of Errors Complained of on Appeal that complied with Pa. R.A.P. 1925(b). Nevertheless, in an effort to comply with this Court's directive and Pa. R.A.P. 1925(a), the trial court assumed, correctly, that Rhoad's issue on appeal would be that his property could not be forfeited without a hearing. The trial court recited the procedural history of the case, emphasizing that it properly granted the Commonwealth's forfeiture petition without a hearing because Rhoad never filed an answer to the petition.
As noted, Rhoad argues on appeal that the trial court erred by not conducting a hearing on the Commonwealth's forfeiture petition. The Commonwealth counters, inter alia, that the trial court properly granted the forfeiture petition without a hearing because Rhoad never answered the forfeiture petition. We agree with the Commonwealth.
Our scope of review in an appeal from a forfeiture proceeding pursuant to the Forfeiture Act is limited to examining whether the trial court's findings of fact are supported by substantial evidence and whether the trial court abused its discretion or committed an error of law. Commonwealth v. McJett, 811 A.2d 104, 109, n.7 (Pa. Cmwlth. 2002). An abuse of discretion occurs when the trial court departs from or misapplies the law or where its judgment is manifestly unreasonable as shown by the evidence of record. Commonwealth v. $8,006.00 U.S. Currency, 646 A.2d 621, 625 (Pa. Cmwlth. 1994).
The Forfeiture Act imposes specific requirements on the Commonwealth for providing notice to the owner of seized property subject to forfeiture. Specifically, Section 6802(b) of the Forfeiture Act states that a copy of the forfeiture petition must be served personally or by certified mail and contain the following notice:
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.42 Pa. C.S. §6802(b). Citing this provision in a recent decision addressing procedure in forfeiture cases, our Supreme Court noted that "it is only when the property owner files a claim for the property setting forth a right of possession that a hearing is contemplated[.]" Commonwealth v. All That Certain Lot or Parcel of Land Located at 605 University Drive, ___ A.3d ___, ___ (Pa., No. 46 MAP 2013, filed November 19, 2014).
In this case, the Commonwealth's forfeiture petition recited verbatim the above-quoted notice language from Section 6802(b) of the Forfeiture Act. Rhoad received and responded to the petition, but his response was not an adequate answer under Section 6802(b) because it did not respond to the Commonwealth's factual allegations or assert Rhoad's right to possess the seized cash. The trial court granted Rhoad 30 days to file an answer and advised him that it must contain factual allegations in response to the forfeiture petition. The trial court granted Rhoad an additional 30-day extension to file the answer at his request. Rhoad never filed an answer. Thus, because Rhoad did not assert a right of possession of the cash, the trial court did not err in entering a decree of forfeiture without conducting a hearing.
The trial court's order advised Rhoad that "an Answer must respond to all of the allegations set forth in the Forfeiture Petition and must assert that the funds subject to forfeiture were in fact innocently possessed by Kenneth Rhoad and were not in fact proceeds from unlawful activity." Trial Court order, September 17, 2013, at 2. --------
For all of the foregoing reasons, we affirm the trial court's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 6th day of January, 2015, the order of the Court of Common Pleas of Lebanon County in the above-captioned matter dated November 15, 2013, as amended December 19, 2013, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge