Opinion
C.A. No. 06M-12-019.
Date Submitted: May 25, 2007.
July 20, 2007.
Eric G. Mooney, Esquire, Eric G. Mooney, P.A., Georgetown, DE.
John W. Donahue, Esquire, Department of Justice, Georgetown, DE.
Dear Counsel:
Pending before the Court is the motion of the State of Delaware ("the State") to dismiss a petition seeking the return of property which Derek L. Ponder ("Ponder") has filed pursuant to 16 Del. C. § 4784(j) and Superior Court Civil Rule 71.3(c). This is my decision granting the motion to dismiss.
In 16 Del. C. § 4784(j), it is provided as follows:
Property seized pursuant to this section that is not summarily forfeited pursuant to subsection (f) of this section shall be automatically forfeited to the State upon application to the Superior Court if, within 45 days of notification of seizure to all known parties having possessory interest in the seized property by registered or certified mail to the last known post-office address of the parties in interest and by publication in a newspaper of general circulation in this State, the person or persons claiming title to the seized property do not institute proceedings in the Superior Court to establish:
(1) That they have the lawful possessory interest in the seized property; and
(2) The property was unlawfully seized or not subject to forfeiture pursuant to this section. [Emphasis added.].
In Superior Court Civil Rule 71.3(c), it is provided in pertinent part as follows:
Petition for the return of property. An owner or interest holder may seek the return of property seized by the State pursuant to 16 Del. C., § 4784 by filing, costs prepaid, a civil petition, with the Superior Court sitting in the County in which the property was seized no later than 45 days after the date of the notice required by 16 Del. C., § 4784(j) measured from the date of mailing or the date of publication whichever shall be later. Such petition which must be signed by the owner or interest holder, under oath, and which must be served on the Attorney General, shall set forth the following:
*** [Emphasis added.].
FACTS
On or about September 13, 2006, Ponder, Charlotte Cannon and Tamara Gaines were arrested on drug-related charges. The arrests took place at Ponder's residence, which was 527 3rd Street, Seaford, Delaware. In connection with those arrests, the authorities seized a 1989 Mercedes Benz, VIN # WDBEA50D6KB037398 ("the Mercedes").
Some of the information set forth in this decision is found in the files of State v. Ponder, Def. ID# 0609008680, which contains the criminal charges arising from Ponder's September 13, 2006 arrest, andState v. Ponder, Def. ID# 0510014295, which contains sentenced charges on which he was violated as a result of that arrest. The Court may take judicial notice of the record in these criminal proceedings. Delaware Uniform Rules of Evidence, Rule 201.
When bond was set for Ponder, there was no provision imposed prohibiting him from having contact with his co-defendants ("no contact order"). Ponder posted bond in the case of State v. Ponder, Def. ID# 0609008680 on September 27, 2006. On his bond paperwork, he provided his home address as 527 3rd Street, Seaford, DE 19973.
Ponder was on probation at the time of this arrest and the arrest resulted in a violation of that probation. State v, Ponder, Def. ID# 0510014295. Ponder's address of record for his probation was 527 3rd Street, Seaford, DE 19973. That was the address where this Court sent a letter dated November 8, 2006, scheduling Ponder's contested violation of probation hearing in the case of State v, Ponder, Def. ID# 0510014295, and his final case review in the case ofState v. Ponder, Def. ID# 0609008680.
All information which Ponder supplied to the Court and the Probation Office was that his address during the applicable time frame was 527 3rd Street, Seaford, DE 19973.
On November 12, 2006, Ponder was arrested again and became incarcerated at that time. He was held on the new charges as well as on another bond for another violation of probation in the case ofState v. Ponder, Def. ID# 0510014295. However, during the pertinent time frame (October 16, 2006), he was not incarcerated and his address of record was 527 3rd Street, Seaford, DE 19973.
By letter dated October 16, 2006, the State sent Ponder notice of forfeiture to both Sussex Correctional Institution ("SCI") and to 527 3rd Street, Seaford, DE 19973. Also on that date, the State published notice of forfeiture in the News Journal. The letter sent to SCI showed that delivery was attempted, but Ponder was not known. That is logical since Ponder had posted bond at that time and thus, was not incarcerated. The letter sent to Ponder's address of record, 527 3rd Street, Seaford, DE 19973, was unclaimed.
On December 26, 2006, Ponder filed his petition seeking the return of the Mercedes. This petition is not verified.
The State moved to dismiss the petition on the ground that it was not timely filed nor was it verified. The parties have submitted argument in connection with the motion.
DISCUSSION
Ponder's arguments have evolved as the facts have developed.Ponder's initial argument was as follows. There was a no contact order entered between him and Charlotte Cannon when he was arrested on September 13, 2006. Because of that no contact order, the State sent the notice to an address where it knew Ponder was not permitted to reside or have contact. In so doing, the State did not meet the good faith requirement that in sending the notice to the last known address, the State believed Ponder would receive the notice.
Ponder has not submitted an affidavit in connection with this motion affirming he actually was not living at that address and/or providing his new address.
The record, however, establishes that there was not any no contact order during the pertinent time period. Ponder's argument then evolves as follows. Ponder thought there was a no contact order. Since there usually is a no contact provision in place in such a case, the State should have thought there would be a no contact order, should have thought that Ponder would have thought there was a no contact order, and should have found out what Ponder's new address was. Thus, notice was invalid.
When Ponder was sentenced on November 17, 2006, a no contact order with Charlotte Cannon was entered at that time. State v. Ponder, Def. ID# 0609008680. That, of course, was after the pertinent time period.
Ponder's alternative argument is that the State had actual notice that Ponder had not received the notice, that Ponder was contesting the forfeiture, and that such is sufficient to defeat this pending motion. Ponder's attorney represents that during the first week of November, his office talked with Lisa Schofield of the Department of Justice to inform that office that Ponder would be contesting the matter but he had not yet received the notification. Interestingly, it is not stated that the law office provided the State with any address other than the 3rd Street address. Ponder's attorney represents that Ms. Schofield did not mention the notification had been sent on October 16, 2006; she said she would check into the matter and return the call. Eventually, Ms. Schofield got back to his office and at that time, she stated that the Notice for the Mercedes had been sent and that the 45-day period had expired.
Again, no affidavit has been supplied.
Pursuant to 16 Del. C. § 4784(j), notification of forfeiture must be sent "by registered or certified mail to the last known post-office address of the parties in interest and by publication in a newspaper of general circulation in this State. . . ." Actual or personal notice is not required. In re: $1,366.00 and $467.00 in United States Currency, 725 A.2d 443 (Del. 1999); In the Matter of: $7726 in United States Currency (Burnie Majeed), Del. Super., C.A. No. 98M-07-025, Cooch, J. (October 9, 1998); State v. Tucker, Del. Super., Def. ID # 9504016408, Gebelein, J. (August 12, 1997). However, as explained inIn the Matter of: $7726 in United States Currency Burnie Majeed),supra at 2:
[I]f the State has "actual knowledge of an interested party's whereabouts at the time forfeiture is commenced, failure to direct the statutorily required personal notice to that address cannot be considered compliance with either the statute or minimum due process standards." [Footnote and citation omitted.]
The only address of record for Ponder as of October 16, 2006 was the 527 3rd Street address, which is where the State sent notice. Ponder's argument fails on the facts. Even if a no contact order had been issued and Ponder established he actually had moved from the address given, the State would not have been required to send notice to the new address unless it had actual knowledge of Ponder's new address or unless it had ignored information in its possession regarding Ponder's change of address.Id. at 3. Ponder's argument the State did not send notice to the "last known address" is meritless in actuality and in theory. In conclusion, the notice was sent in accordance with the statute.
Since notice was provided correctly, petitioner had forty-five (45) days from the date of notice or the publication date, whichever is later, to file his petition. 16 Del. C. § 4784(j); Super. Ct. Civ. R. 71.3(c); Ragland v. State, Del. Supr., No. 499, 2006, Berger, J. (March 26, 2007). The statute, 16 Del. C. § 4784(j), requiresautomatic forfeiture to the State when the owner fails to file a petition within the forty-five (45) day period after appropriate notice is given. 16 Del. C. § 4784(j); In re: $1,366.00 and $467.00 in United States Currency, 725 A.2d. Since both the letter and publication dates are October 16, 2006, that date is the controlling one. Consequently, Ponder had to file his petition on or before November 30, 2006. He failed to do so.
Ponder's argues that his attorney's office's conversation with a member of the Attorney General's office excused him from complying with the statute. He argues that the State was aware, from the telephone conversation, that Ponder did not have actual notice of the forfeiture. He also argues that since the State was aware he contested the forfeiture, it is irrelevant that he did not timely file his petition. The statute mandates the filing of the petition on time where notice is properly given. It is irrelevant that the State is aware that the owner of the property is disputing the forfeiture. Cannon v. State, 854 A.2d 1158 (Del. 2004). "[T]he petitioner has no grounds to object." In re: $18,000.00 and $2,500.00 United States Currency, and One 1988 Cadillac, Del. Super., C.A. No. 96M-08-001, Carpenter, J. (December 20, 1996) at 6, app. dism., Del. Supr., No. 12, 1997, Walsh, J. (July 29, 1997). Because Ponder failed to file his petition on time after proper notice was given, the Court must dismiss that petition. Ragland v. State, supra.
Petitioner's petition also must be dismissed on an alternative ground: it was not verified as Superior Court Civil Rule 71.3 requires.Collick v. State, Del. Super., C.A. No. 03M-10-008, Graves, J. (April 20, 2004). In light of my decision on the timeliness issue, I need not consider whether Ponder should be provided the opportunity to present an amended petition under oath.
For the foregoing reasons, the State's motion to dismiss the petition seeking the return of the 1989 Mercedes Benz, VIN # WDBEA50D6KB037398 is granted. The Mercedes is to be forfeited. The State is to submit a form of order regarding its forfeiture within ten (10) business days.
IT IS SO ORDERED.