Opinion
NO. 2012-CA-001453-MR
05-09-2014
MICHAEL WHITT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 10-CR-00702
OPINION
REVERSING AND REMANDING
BEFORE: JONES, LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Michael Whitt appeals from a Forfeiture Order of the Kenton Circuit Court directing that $520 in currency obtained during his arrest be forfeited and distributed to the Covington Police Department and the Kenton County Commonwealth's Attorney Office. Whitt argues that the currency was improperly seized in a separate criminal proceeding which was dismissed, and not the instant case which resulted in a guilty plea. Because the Commonwealth agrees with Whitt's assertion that the record does not support the trial court's Forfeiture Order, and as we are otherwise sufficiently persuaded by the record, we Reverse the Order on appeal and Remand the matter for additional Findings of Fact.
On March 2, 2010, Whitt sold a quantity of crack cocaine to a police informant in Kenton County, Kentucky, and on March 23, 2010, he sold a second quantity of crack cocaine to a police informant. Based on this information, Covington Police officers arrested Whitt on March 26, 2010. The two cocaine transactions resulted in separate case numbers in Kenton District Court. The March 2, 2010 sale resulted in case number 10-F-1253, and the March 23, 2010 sale was case number 10-F-1254.
On October 21, 2010, and based on the foregoing, the Kenton County Grand Jury indicted Whitt on two counts of trafficking in a controlled substance, first degree. The two District Court cases were consolidated into one action in Kenton Circuit Court designated 10-CR-702. On November 30, 2010, Whitt entered a guilty plea to both counts of the indictment in exchange for a recommended sentence of five years on each count to be served concurrently. The matter on appeal derives from this Kenton Circuit Court case.
In a wholly unrelated matter, Whitt was arrested on August 5, 2010, in the parking lot of a Frisch's restaurant in Kenton County, Kentucky, and charged with additional counts of trafficking. The record indicates that a "large amount" of cash was found on three different areas of Whitt's person at the time of arrest, but the amount of currency and its disposition were not recorded. The resultant charges gave rise to Kenton District Court case 10-F-1107. This case was later dismissed when the Kenton County Grand Jury returned a finding of "no true bill".
On June 25, 2012, Whitt filed a pro se motion seeking the return of $520 in cash allegedly confiscated by the police when he was arrested on August 5, 2010. The following month, he filed a second and similar motion. The general confusion in this case, which affected the Commonwealth, Whitt's appointed counsel and the Circuit Court, apparently arose because Whitt was seeking the return of cash allegedly confiscated in case number 10-F-1107 (the District Court proceeding that was dismissed on the finding of no true bill), but he filed the motion under action number 10-CR-702 (the unrelated and consolidated Circuit Court proceeding which result in Whitt's guilty plea, and which is now before this Court).
The matter proceeded under action number 10-CR-702, with the Commonwealth arguing in favor of forfeiture. A Forfeiture Order in case 10-CR-702 was rendered on July 31, 2012, and this appeal followed.
Whitt now argues that Forfeiture Order is erroneous, because the cash at issue was seized in 10-F-1107 (the dismissed District Court proceeding) rather than in 10-CR-702 (the Circuit Court proceeding in which he entered a guilty plea, and which is now before us). In its written argument, the Commonwealth acknowledges the error, and concedes that "the record does not support the trial court's forfeiture order". In so stating, it notes that 1) the records in both 10-F- 1107 and 10-CR-702 do not reveal whether any cash was confiscated nor, if so, how much, and 2) that Dawn M. Bayless of the Covington Police Department Crime Lab produced a receipt that the Department had received $520 on August 6, 2010 - the day after Whitt's arrest in District Court case 10-F-1107. It appears that because the $520 was received the day after Whitt's arrest in 10-F-1107, rather than resulting from 10-CR-702, the Forfeiture Order in 10-CR-702 is erroneous.
In sum, Whitt and the Commonwealth agree that the record in 10-CR-702 does not support the Forfeiture Order on appeal, and we are so persuaded. Accordingly, we Reverse the Forfeiture Order of the Kenton Circuit Court rendered on July 31, 2012, in case number 10-CR-702, and Remand the matter for additional Findings of Fact. We are without any basis for ordering the return of cash allegedly confiscated in District Court case 10-F-1107, and that matter will be addressed on Remand.
ALL CONCUR. BRIEF FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky