Opinion
No. 1403 C.D. 2011
05-21-2012
Commonwealth of Pennsylvania, Appellant v. $519.00 US Currency/Coin
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
The Commonwealth of Pennsylvania (Commonwealth) appeals from the order of the Court of Common Pleas of Lebanon County (trial court) which set aside a judgment of forfeiture and ordered the Commonwealth to return $519.00 to Christopher Barrett (Barrett).
The same trial judge presided over and entered all orders and judgments in both the civil forfeiture and criminal suppression proceedings.
Criminal Arrest and Seizure
On August 20, 2010, two Lebanon County Drug Task Force Officers approached Barrett who was the subject of an outstanding bench warrant. When Barrett saw the officers he dropped a black vinyl bag and fled. Barrett was apprehended a short distance away. He was in possession of a Samsung cellular telephone and $519.00. Barrett asked to return to where he dropped the black bag. Immediately upon arrival Barrett sat down on the black vinyl bag. The officers handcuffed Barrett and transported him and the bag to Lebanon County Central Booking. A search of the black bag revealed a Nintendo GameCube containing individual packets of crack cocaine. Barrett was charged with multiple violations of the Controlled Substance, Drug, Device and Cosmetic Act, including possession with intent to deliver crack cocaine.
Act of April 14, 1972, P.L., as amended, 35 P.S. §780-113(A)(30).
Civil Forfeiture Proceedings - Civil Docket No. 2010-02376
On October 1, 2010, the Commonwealth Petitioned for Forfeiture of $519.00 pursuant to the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa.C.S. §6801-6802 at Civil Docket No. 2010-02376. The Commonwealth alleged that the $519.00 "was used or intended to be used in or to facilitate a violation of the Controlled Substance, Drug, Device and Cosmetic Act or were the proceeds obtained through such violation." Petition for Forfeiture, ¶5 at 1-2; Reproduced Record (R.R.) at 7-8.
The Lebanon County District Attorney's Office served Barrett with the Rule to Show Cause, Notice and the Petition for Forfeiture of $519.00. As required by Section 6802(b) of the Forfeiture Act, the Notice to Barrett stated:
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.
Barrett received these documents and signed the return mail receipt. Barrett did not file an Answer within 30 days. On November 12, 2010, the Rule was made "absolute" and the $519.00 was forfeited to the Commonwealth. Trial Court Order, November 12, 2010, at 1; R.R. at 74. The final order was sent to Barrett on November 15, 2010. He did not appeal.
Criminal Proceedings - Motion to Suppress Granted
On December 2, 2010, Barrett, through his court-appointed Assistant Public Defender, filed an omnibus pretrial motion to suppress the evidence obtained as a result of the search of the black bag and its contents under the Fourth Amendment of the Federal Constitution and Article I, §8 of the Pennsylvanian Constitution. A hearing was held on January 12, 2011.
On April 12, 2011, the trial court concluded that Barrett had a "reasonable" expectation of privacy in the black vinyl bag because upon returning to the location Barrett "regained possession of it and physically sat down on it." Trial Court Order, April 12, 2011, at 6. Because the bag was seized from him after he regained possession the trial court found the seizure was illegal and granted the motion to suppress all evidence seized.
The Commonwealth did not appeal to the Superior Court.
Barrett's Motion for Return of Property Pursuant to Pa. R.Crim.P. 588
On May 16, 2011, Barrett, through the Assistant Public Defender, filed a Motion to Dismiss Charges and Return Property pursuant to Rule 588 of the Pennsylvania Rules of Criminal Procedure (Pa.R.Crim.P.). On May 17, 2011, the charges against Barrett were dismissed, and the trial court ordered the Commonwealth to return all "property seized as a result of this incident." Trial Court Order, May 17, 2011, at 1; R.R. at 39.
Motions for Return of Property are governed by Pa.R.Crim.P. No. 588 which provides:
(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.A motion filed by an individual under Rule 588 is essentially the "mirror image" of a forfeiture action commenced by the Commonwealth under the Forfeiture Act. In Re One 1988 Toyota Corolla, 675 A.2d 1290, 1295 (Pa. Cmwlth. 1996).
(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
Barrett's Motion to "Set Aside" the Forfeiture of $519.00
At Civil Docket No. 2010-02376
Soon after that order was entered, the Assistant Public Defender learned of the November 12, 2010, Civil Forfeiture of $519.00 pursuant to the Forfeiture Act. On May 23, 2011, the Assistant Public Defender filed a "Motion to Set Aside Forfeiture (Commonwealth v. $519.00 US Currency) and Return Property." A hearing was scheduled for June 29, 2011.
The Commonwealth filed a Motion to Disqualify the Assistant Public Defender in connection with the forfeiture proceedings. The Commonwealth argued that after the criminal charges were dismissed, there was no longer a personal liberty interest at stake which entitled Barrett to appointed counsel.
The trial court denied the Motion to Disqualify and permitted the Assistant Public Defender to represent Barrett in connection with his Motion to Set Aside the Forfeiture at Civil Docket No. 2010-02376 because "failure to permit her to continue to represent his interests in this matter would have subjected [Barrett] to further victimization." Trial Court Opinion, September 26, 2011, at 4.
Without holding a hearing, the trial court granted the Motion to Set Aside the Forfeiture on July 1, 2011, and directed the Commonwealth to return Barrett's property within fourteen days. The trial court found a hearing unnecessary because it "was well aware of the facts and circumstances surrounding this case" and because "Pennsylvania Rule of Criminal Procedure Rule 588 does not require the holding of a hearing." Trial Court Opinion, September 26, 2011, at 4.
On appeal, the Commonwealth argues that the trial court erred when it: (1) permitted the Assistant Public Defender to represent Barrett in the civil forfeiture proceedings; (2) granted the Motion to Set Aside the Forfeiture; and (3) failed to hold a hearing pursuant to the Forfeiture Act.
In a forfeiture proceeding, the trial court's decision is reviewed for abuse of discretion. An abuse of discretion occurs when the trial court departs from or misapplies the law or where the trial court's judgment is manifestly unreasonable as shown by the evidence of record. Commonwealth v. $8,006.00 U.S. Currency, 646 A.2d 621 (Pa. Cmwlth. 1994).
I.
Assistant Public Defender's Representation
Of Barrett During the Forfeiture Proceedings
The Commonwealth contends that the trial court erred when it denied the Commonwealth's Motion to Disqualify the Assistant Public Defender. The Commonwealth argues that it was improper for the Assistant Public Defender to represent Barrett in the civil forfeiture proceedings after criminal charges were dismissed and he was no longer in danger of losing his personal liberty.
The law is clear. An indigent defendant has a constitutional right to appointed counsel only when, if he loses, he may be deprived of his physical liberty, e.g., when a jail sentence would be likely in the event of a finding of guilt. Commonwealth v. $9,847.00 U.S. Currency, 550 Pa. 192, 704 A.2d 612 (1997). In forfeiture proceedings and proceedings to return property a defendant is not in danger of a losing his personal liberty. Accordingly, the defendant is not constitutionally entitled to the appointment of counsel. Bonilla v. Commonwealth, 958 A.2d 1069 (Pa. Cmwlth. 2008).
In re: $9,847.00 U.S. Currency and Bonilla involved situations where indigent defendants asserted a constitutional "right" to appointed counsel. These cases held that a court is not compelled to appoint counsel in forfeiture proceedings because the only rights involved were property rights. This Court does not interpret these cases, however, to "prohibit" or "forbid" a trial court from ever permitting, in appropriate circumstances, a requested extension of the appointment of counsel to a related forfeiture or return of property proceeding.
Pa.R.Crim.P. No. 122, which governs appointments of counsel, provides that the trial court may appoint counsel to represent a defendant "where there is a likelihood that imprisonment may be imposed" and also " when the interests of justice require it ." According to the official Comments, a trial court may appoint counsel "regardless of indigency or other factors when, in the judge's opinion, the interests of justice require it."
Here, Barrett moved to allow the Assistant Public Defender to continue representation because the issues underlying the return of his property were directly related to the issues presented in the pretrial motion to suppress. He argued that the representation was just "an extension" of the representation on the underlying criminal charges that counsel successfully had dismissed. Motion to Allow Public Defendant to Continue Representation, ¶¶5,7 at 1; R.R. at 90.
After considering argument, the trial court believed that the "interests of justice" would best be served if counsel's appointment remained in effect through the duration of the forfeiture/return of property proceedings. This Court discerns no error, particularly not a reversible one. The Commonwealth does not allege harm or prejudice. No fathomable purpose would be served by vacating the order simply for Barrett to challenge the forfeiture and/or request the return of his property, pro se, without the benefit or advantage of counsel.
This Court, therefore, finds this issue is without merit.
II.
Motion to "Set Aside" the Judgment of Forfeiture
In its next issue, the Commonwealth argues that the trial court erred when it granted Barrett's Motion to Set Aside the Judgment of Forfeiture and ordered the Commonwealth to return the $519.00. The Commonwealth argues that Barrett did not meet the necessary factors to "open" the default judgment and that the trial court engaged in an inappropriate analysis when it granted Barrett's Motion to Set Aside.
At the outset, this Court notes that it is not entirely clear from the trial court's opinion what criteria or standard it applied when it "set aside" the default judgment. The trial court stated that despite the label, Barrett's "intent" in filing the Motion to Set Aside was to "open or strike" the judgment. Trial Court Opinion, September 26, 2011, at 4. However, petitions to strike and open are generally not interchangeable. Cintas Corp. v. Lee's Cleaning Services, Inc., 549 Pa. 84, 700 A.2d 915 (1997). A petition to strike and a petition to open judgment involve two different forms of relief with separate elements and remedies. Manor Building Corp. v. Manor Complex Associates, Ltd., 645 A.2d 843 (Pa. Super. 1994).
A petition to "strike" a judgment is an attack upon the judgment's validity. To strike a judgment, there must be an irregularity or fatal defect of record which renders the order or judgment invalid. City of Philadelphia Water Revenue Bureau v. Towanda Properties, Inc., 976 A.2d 1244 (Pa. Cmwlth. 2009). When considering a petition to strike, the court may only look to the facts of record at the time the judgment was entered to decide if the record supported the judgment. Id. Fatal defects may include, for example, a judgment entered without authority or jurisdiction, or a judgment entered in violation of the applicable rules of civil procedure. 7 Standard Pennsylvania Practice, Ch. 30, Sec. 168, p. 197-202. This Court has found no case which involved a petition to strike off a judgment of forfeiture under the Forfeiture Act based on a fatal defect of record.
A petition to "open" a judgment, on the other hand, is used when a defendant alleges a viable defense. In re McCauley's Estate, 478 Pa. 83, 385 A.2d 1324 (1978). A judgment entered by default may be "opened" if the moving party has: (1) promptly filed a petition to open the default judgment; (2) provided a reasonable excuse or justifiable explanation for failing to file a responsive pleading; and (3) pleaded a meritorious defense to the allegations contained in the complaint. McFarland v. Whitham, 518 Pa. 496, 544 A.2d 929 (1988); Seeger v. First Union National Bank, 836 A.2d 163 (Pa. Super. 2003).
Notwithstanding the label, it is appropriate to look to the grounds set forth in the Motion to Set Aside the Judgment of Forfeiture to determine its true "intent." Comyn v. Southeastern Pennsylvania Transportation Authority, 594 A.2d 857 (Pa. Cmwlth. 1991). Here, the Motion to Set Aside the Judgment of Forfeiture stated, in its entirety:
1. On or about August 20, 2010 Defendant was charged with various offenses under the Controlled Substance Drug Device and Cosmetic Act.Motion to Set Aside Forfeiture (Commonwealth v. $519.00 U.S. Currency) and Return of Property, ¶¶1-6 at 1-2; R.R. at 41-42.
2. Defendant filed a timely Omnibus Pre-Trial Motion on December 2, 2010, seeking to suppress all evidence due to an illegal search and seizure of Defendant's person and property under the Fourth Amendment of the Federal Constitution and Article 1 §8 of the Pennsylvania Constitution.
3. Defendant's motion was granted on April 12, 2011.
4. Defendant filed a motion seeking the return on (sic) his property on May 16, 2011.
5. Counsel for Defendant learned that all property seized from this incident was subject to forfeiture on November 12, 2010.
6. Pursuant to Pa.R.Crim.P. 588 Defendant is seeking a hearing to have all property seized on or about August 20, 2010, returned to him.
Notably, the Motion to Set Aside the Forfeiture did not allege any fatal defects of record which rendered the judgment void at the time it was entered. Rather, it appears from the Motion and the grounds stated therein, that Barrett sought to have the judgment "opened" so that he could present a meritorious defense to the forfeiture; suppression of the seized evidence and dismissal of the underlying criminal charges.
To prevail upon a motion to open a default judgment in a civil forfeiture case, three factors must be present: (1) the party must act promptly; (2) the party must allege a meritorious defense; and (3) the party must provide a reasonable excuse for his failure to file a responsive pleading. Commonwealth v. 1997 Mitsubishi Diamante, 950 A.2d 1114 (Pa. Cmwlth. 2008)
In 1997 Mitsubishi Diamante, Santos Ramos-Rodriguez sought to rescind a default judgment of forfeiture entered against him and alleged the Notice was sent to the wrong prisoner. There, the Commonwealth filed a petition for forfeiture of Rodriguez's property on May 11, 2006, pursuant to the Forfeiture Act. Rodriguez did not file an answer. On June 22, 2006, the Commonwealth filed a motion for judgment. The trial court granted the motion on July 1, 2006.
Almost a year later, on June 13, 2007, Rodriguez filed a petition to "strike and/or open" the default judgment because he did not receive proper notice of the forfeiture proceeding. The petition alleged that the certified Notice of the Forfeiture was sent to the York County Prison and erroneously addressed to and signed for by "Candelario Sanchez." In re: 1997 Mitsubishi Diamante, 950 A.2d at 1116. At the trial court hearing, the judge asked Rodriguez why he waited so long to file the petition. Rodriguez responded that he did not know that judgment had been entered against him until he read about it in a transcript and that he did not recall when he received the transcript. The judge denied his petition. On appeal, this Court reversed. Based on the allegations of the petition that the forfeiture petition was not sent to Rodriguez, there was a question as to whether the Commonwealth complied with the notice and service provisions of the Forfeiture Act.
Although the petition in In Re: 1997 Mitsubishi Diamante was entitled a petition "to open and/or strike," a review of the grounds asserted in the petition reveal that it was actually in the nature of a petition to open. Rodriquez did not allege a "fatal defect" in the record at the time the judgment was entered. Rather, the petition focused on lack of notice and the allegation that the Commonwealth inadvertently sent his forfeiture documents to another prisoner. --------
In Commonwealth v. One 1991 Cadillac Seville, 853 A.2d 1093 (Pa. Cmwlth. 2004), Linda Fisher (Fisher) filed a motion to vacate a default judgment of forfeiture of her vehicle, claiming that she did not receive proper notice of the forfeiture proceeding. At the hearing, the Commonwealth introduced evidence that the notice of forfeiture was sent to the residence from which the vehicle was seized and that Fisher shared that residence with her brother. The Commonwealth further showed that Fisher's brother, who had apparent authority to accept mail on Fisher's behalf, received and signed for the forfeiture petition. The trial court concluded that such constituted proper notice under the Forfeiture Act. This Court affirmed.
Here, Barrett did not meet any of the three factors necessary to open the default judgment. Barrett merely alleged that his appointed counsel learned, at some unspecified date, that all property seized in this incident was subject to forfeiture on November 12, 2010. Barrett did not assert that he did not receive proper notice of the forfeiture proceeding. He gave no justification for his failure to answer the petition or any explanation of why he waited six months to file his Motion to Set Aside. Moreover, the mere fact that evidence was suppressed and the criminal charges were dismissed did not constitute a meritorious defense to the forfeiture.
To the contrary, the illegal seizure of property does not automatically mean that property is immune from forfeiture, particularly when the government can sustain the forfeiture claim with independent evidence. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (noting that, just as an unlawful arrest does not result in the suppression of the "body" of the defendant in a criminal proceeding, the unlawful seizure of property does not result in the suppression of that property in a forfeiture proceeding). See also Commonwealth v. $26,556.00 Seized From Polidoro, 672 A.2d 389 (Pa. Cmwlth. 1996) (where there has been an unconstitutional seizure, the property seized is admissible only for the purpose of establishing its existence and the jurisdiction of the court over it, and the Commonwealth must have independent, unsuppressed evidence that the res is contraband in order to proceed on the merits in a forfeiture case).
Because the trial court erroneously opened the judgment of forfeiture for the sole reason, without even considering the other requisite factors, that the motion to suppress was granted and the underlying criminal charges were dismissed, this Court must reverse. The suppression of evidence and dismissal of criminal charges did not provide Barrett with an automatic defense to the forfeiture claim. Despite the suppression of evidence and dismissal of the underlying charges, the Commonwealth was entitled to present independent evidence to show that the $519.00 was derivative contraband.
In any event, Barrett failed to establish the other two factors because he failed to establish a reasonable excuse for failing to answer the forfeiture petition, and he failed to explain his delay in moving to open.
The Motion to Set Aside, i.e., to Open, the Judgment of Forfeiture should have been denied.
The order of the trial court is reversed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 21st day of May, 2012, the order of the Court of Common Pleas of Lebanon County in the above-captioned matter is hereby reversed.
/s/_________
BERNARD L. McGINLEY, Judge