Opinion
No. 229, 1998.
January 20, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. Nos. 98M-04-044 and 98M-04-020.
AFFIRMED.
Unpublished Opinion is below.
KELLY T. HENRY, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. IN RE: $1,366.00 and $467.00 IN UNITED STATES CURRENCY. No. 229, 1998. In the Supreme Court of the State of Delaware. Submitted: December 1, 1998. Decided: January 20, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. Nos. 98M-04-044 and 98M-04-020.
Before VEASEY, Chief Justice, WALSH and HARTNETT, Justices.
ORDER
This 20th day of January 1999, upon consideration of the briefs of the parties, it appears to the Court that:
The New Castle County Police arrested defendant below-appellant Kelly T. Henry on two different occasions for drug-related offenses. The two arrests resulted in a total seizure from Henry of $1,833.00. On October 21, 1997, Henry pleaded guilty to Trafficking in Cocaine and Possession of a Firearm during the Commission of a Felony, as well as two additional felonies relating to incidents of domestic violence.
After his first arrest on February 21, 1997, the State seized $1,366.00 from Henry. On March 17, 1997, the State sent to Henry by certified mail two letters of notice of forfeiture. The State addressed the first letter to Henry's Wilmington address listed in the police report. It was returned "unclaimed." The State sent the second letter to Gander Hill Prison. Henry did not receive the second letter because he had posted bail and had been released from prison. Additionally, on March 28, 1997, the State published a forfeiture notification in The Post, a weekly newspaper printed in Newark, Delaware. On May 22, 1997, the Superior Court ordered that the $1,366.00 be forfeited to the State of Delaware.
See In the Matter of $12,510.00 in U.S. Currency, Del. Super., C.A. No. 97M-05-030, Gebelein, J. (May 22, 1997) (Order).
After his second arrest on June 14, 1997, the police seized from Henry $467.00. Again, Henry posted bail and was released from custody. On July 11, 1997, the State sent a notice of forfeiture to Henry by certified mail to his last known residence in Wilmington. On September 12, 1997, the State published in The Post a forfeiture notification listing the $467.00 seized from Henry. On November 7, 1997, the Superior Court ordered the $467.00 to be forfeited to the State of Delaware.
See In the Matter of $9,948.58 in U.S. Currency, Del. Super., C.A. No. 97M-11-003, Goldstein, J. (Nov. 7, 1997) (Order).
On March 18, 1998, Henry petitioned the Superior Court for the return of the $1,366.00. On April 7, 1998, Henry petitioned the Superior Court for the return of $576.00. The Superior Court dismissed both of Henry's Petitions for Return of Property as being untimely filed, and found that the State complied with 16 Del. C. § 4784 and Super. Ct. Civ. R. 71.3(c).
The parties have resolved the difference between the $576.00, the amount for which Henry petitioned, and the $476.00 the State originally seized. Henry now appeals for $476.00.
A petitioner has 45 days from the date of mailing notice or the date of publication, whichever occurs later, to file a Petition for Return of Property. Henry did not petition for the return of the $1,366.00 until almost one year after the March 28, 1997 publication of notice. He did not petition for the return of the $476.00 until nearly eight months after the September 12, 1997 publication of notice. Thus, Henry filed his Petition for Return of Property well outside of the 45 days allowed by Super. Ct. Civ. R. 71.3(c).
See Super. Ct. Civ. R. 71.3(c).
As an excuse for his delay, Henry contends that the State failed to serve him with proper notice of forfeiture. He also argues that the published notice, in both forfeitures, was insufficient. Notification of seizure pursuant to 16 Del. C. § 4784(j) must be made within 60 days of the date of seizure. 16 Del. C. § 4784(j) provides that the State must send notice to all known parties having a possessory interest in the seized property by registered or certified mail to the last known address of the parties and by publication in a newspaper of general circulation. If the State knows that a party is incarcerated, notice shall be sent by first class mail to the facility in which the party is confined. If the party fails to institute proceedings in Superior Court within 45 days of receiving such notification, the property is automatically forfeited.
See Super. Ct. Civ. R. 71.3(a).
See 16 Del. C. § 4784(j).
See Super. Ct. Civ. R. 71.3(a); State v. Tucker, Del. Super., C. A. No. IN95-05-1433, 1434, 9504016408, Gebelein, J. (Aug. 12, 1997) (holding State does not need to establish direct notice to petitioner).
See 16 Del. C. § 4784(j).
The State complied with the requirements set forth by 16 Del. C. § 4784(j) and Super. Ct. Civ. R. 71.3(a). The State sent notification to Henry's home, and when it had reason to believe Henry was incarcerated, to Gander Hill Prison. The State also published notice in a newspaper of general circulation, The Post. Therefore, Henry's claim that he did not receive actual notice is without merit and the decision to dismiss pursuant to 16 Del. C. § 4784(j) was correct.
Henry also challenges the legality of the seizures in the first place. Henry argues that the seizures were not based upon a finding of probable cause by the Secretary of Health and Human Services, as required by 16 Del. C. § 4784(c)(3). He claims that neither the Office of the Attorney General nor the New Castle County Police, who made the seizures, were authorized to seize the money on behalf of the Secretary. This claim is equally without merit. First, Henry failed to raise previously the issue of the legality of the seizures although Super. Ct. Civ. R. 71.3(c)(5) requires a petitioner to identify in the petition "[t]he specific provisions of 16 Del. C. § 4784 relied on in asserting that [property] is not subject to forfeiture. . . ." Thus, Supr. Ct. R. 8 bars Henry's appeal because he failed to raise the issue below. Second, Henry's substantive claim is without merit because, although the Secretary has the power to administer and enforce Chapter 47 of Title 16, no provision in Chapter 47 can be read to limit the authority of the Attorney General to enforce the laws of the State. Therefore, because Henry's reading of the statute is at odds with the statutory scheme and constitutional authority of the Attorney General, it must be rejected.
See Super. Ct. Civ. R. 71.3(c)(5).
See Supr. Ct. R. 8.
See 16 Del. C. § 4796.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is,
AFFIRMED.
BY THE COURT:
/s/ E. NORMAN VEASEY, Chief Justice