Eric Butler, $236.00 in U.S. Currency, and One 2004 Pontiac Grand Prix v. State of Indiana, Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Law Enforcement Agency ( 2019 )


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  •                                                                          FILED
    Dec 27 2019, 8:37 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    ERIC BUTLER                                                THE STATE OF INDIANA
    Stephen Gerald Gray                                        Curtis T. Hill, Jr.
    Indianapolis, Indiana                                      Attorney General of Indiana
    Ellen H. Meilaender
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Eric Butler, $236.00 in U.S.                               December 27, 2019
    Currency, and One 2004 Pontiac                             Court of Appeals Case No.
    Grand Prix,                                                19A-MI-5
    Appellants-Defendants,                                     Appeal from the Marion Superior
    Court
    v.                                                 The Hon. James Joven, Judge
    Trial Court Cause No.
    State of Indiana, the                                      49D13-1702-MI-7676
    Consolidated City of
    Indianapolis/Marion County,
    and the Indianapolis
    Metropolitan Law Enforcement
    Agency,
    Appellees-Plaintiffs.
    Bradford, Judge.
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019                           Page 1 of 12
    Case Summary
    [1]   In December of 2016, Eric Butler was pulled over while driving his 2004
    Pontiac Grand Prix (“the Car”), and a search revealed thirty-four grams of
    marijuana, approximately forty-six grams of heroin, and $236 in cash. The
    State, the Consolidated City of Indianapolis/Marion County, and the
    Indianapolis Metropolitan Law Enforcement Agency (collectively,
    “Appellees”), filed a civil forfeiture action against Butler, $236.00 in U.S.
    Currency, and one 2004 Pontiac Grand Prix (collectively, “Appellants”).
    [2]   While the civil forfeiture action was pending, the United States District Court
    for the Southern District of Indiana found Indiana’s civil-forfeiture scheme to
    be unconstitutional in several respects. Effective July 1, 2018, several
    amendments took effect which were intended to cure the constitutional
    infirmities in Indiana’s civil forfeiture laws (“the 2018 Amendments”). When
    the trial court entered judgment in favor of Appellants based on the old statutes,
    Appellees refiled pursuant to the amended statutes. In December of 2018, the
    trial court entered summary judgment in favor of Appellees. Appellants argue
    that the trial court erroneously entered summary judgment in favor of Appellees
    and abused its discretion in failing to award Appellants attorney’s fees. Because
    Appellants have failed to establish that the trial court erred in concluding that
    the 2018 Amendments cured the constitutional defects in Indiana’s civil-
    forfeiture statutes and have waived any claim regarding attorney’s fees in the
    trial court, we affirm. Moreover, we decline Appellants’ request for an award
    of appellate attorney’s fees.
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019         Page 2 of 12
    Facts and Procedural History
    [3]   On December 8, 2016, Indianapolis Metropolitan Police Officers conducted a
    traffic stop of the Car, which was driven and owned by Butler. During the stop,
    police discovered approximately thirty-four grams of marijuana in the vehicle,
    approximately forty-six grams of heroin in a baggy in Butler’s pocket, and $236
    in cash. The State charged Butler with Level 2 felony dealing a narcotic drug
    and Level 3 felony possession of a narcotic drug, and the Car and the cash were
    seized by law enforcement and held for forfeiture. On February 23, 2017,
    Appellees filed a civil complaint seeking forfeiture of the Car and the $236. In
    April of 2017, Appellees moved for default judgment, which the trial court
    granted on April 28, 2017.
    [4]   On August 18, 2017, the United States District Court for the Southern District
    of Indiana ruled Indiana’s statutory forfeiture scheme unconstitutional. See
    Washington v. Marion Cty. Prosecutor, et al., 
    264 F. Supp. 3d 957
    , 961, 975–80
    (S.D. Ind. 2017). The district court concluded that “Indiana Code Section 34-
    24-1-1(a)(1), read in conjunction with the Indiana Code provisions of the same
    chapter, violates the Due Process Clause” and permanently enjoined the
    Marion County Prosecutor from “enforcing Indiana Code Section 34-24-1-
    1(a)(1), as read in conjunction with Indiana Code provisions of the same
    chapter.” 
    Id. at 980.
    In September of 2017, the Marion County Prosecutor
    appealed from the district court’s determination. Appellants moved for relief
    from the default judgment on December 12, 2017. Appellees filed an objection
    to the motion, and the trial court held a hearing on the motion on February 26,
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019       Page 3 of 12
    2018. While that motion was pending, Butler pled guilty to Level 4 felony
    dealing in a narcotic drug in his criminal case.
    [5]   Effective July 1, 2018, the 2018 Amendments took effect, which were an
    apparent attempt to address the due-process problems identified by the district
    court in Washington. See Ind. P.L. 47-2018, §§ 1-2. On July 11, 2018, the trial
    court granted Appellants’ motion for relief from judgment, vacating the default
    judgment. Appellees filed a probable-cause affidavit, and, on July 16, 2018, the
    trial court found probable cause for the seizure of the Car. The parties cross-
    moved for summary judgment. In Butler’s memorandum submitted in support
    of his summary-judgment motion, he did not acknowledge the 2018
    Amendments, much less argue that they failed to cure Indiana Code chapter 34-
    24-1’s constitutional deficiencies. On December 4, 2018, without a hearing, the
    trial court granted Appellees’ motion for summary judgment, ordering
    forfeiture of both the $236 and the Car. On January 2, 2019, Appellants
    appealed from the trial court’s grant of summary judgment in favor of
    Appellees.
    [6]   Meanwhile, on February 19, 2019, the United States Court of Appeals for the
    Seventh Circuit issued its disposition of the Marion County Prosecutor’s appeal
    in Washington. See Washington v. Marion Cty. Prosecutor, 
    916 F.3d 676
    (7th Cir.
    2019). While the Seventh Circuit Court of Appeals acknowledged the parties’
    arguments regarding whether the 2018 Amendments cured Indiana Code
    chapter 34-24-1’s constitutional infirmities, it declined to address them:
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019           Page 4 of 12
    The district court did not have a chance to address the
    amendments. Given that the record and arguments regarding the
    amendments are under-developed, we remand this case to the
    district court for further proceedings. See Restoration Risk Retention
    Grp. v. Gutierrez, 
    880 F.3d 339
    , 349 (7th Cir. 2018) (remanding to
    district court “to determine the operation and effect of the
    amended statute” and to “determine whether the case is moot”);
    Hager v. Nat’l Union Elec. Co., 
    854 F.2d 259
    , 262–63 (7th Cir. 1988)
    (“We believe that the district court ought to have the opportunity
    to reconsider its decision in light of this most significant
    pronouncement from the Supreme Court of Indiana.”); United
    States v. Elrod, 
    627 F.2d 813
    , 819–20 (7th Cir. 1980) (remanding to
    district court given enactment of statute during pendency of
    appeal).
    On remand, the district court should address the parties’
    contentions regarding the amendments. Do the amendments
    ameliorate the constitutional problems the district court identified?
    The district court should resolve these contentions to the extent
    necessary and proper.
    If appropriate, the district court should also revisit the class to
    determine whether it should be decertified or redefined in light of
    the amendments.
    At present, we express no opinion regarding the constitutionality
    of the old or new versions of the statute, regarding mootness, or
    regarding the class. Also, our argument summaries do not limit
    the arguments the parties may raise on remand. We leave latitude
    to the district court to conduct further proceedings it deems
    necessary and proper given the amendments and the parties’
    positions. Any review we are subsequently called upon to make
    will benefit from these proceedings and the reasoning of the
    district court.
    
    Id. at 679–80.
    On December 13, 2019, however, the parties issued a joint
    stipulation of dismissal in Washington, having agreed to a settlement. In other
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019          Page 5 of 12
    words, the district court never had the opportunity to determine the effect of the
    2018 Amendments in Washington.
    Discussion and Decision
    [7]   Appellants challenge the forfeiture of the Car pursuant to Indiana Code chapter
    34-24-1. While Appellants acknowledge the 2018 Amendments, they argue, at
    most, that the amended statutes do not apply to the seizure of the Car because it
    was originally seized in December of 2016. Appellants make no claim or
    argument whatsoever that the 2018 Amendments failed to cure the
    constitutional defects of Indiana Code chapter 34-24-1. Appellees argue that
    the 2018 Amendments do apply to the 2016 seizure and that they cured
    whatever constitutional infirmities existed in the previous statutes, rendering
    the second forfeiture proper.
    I. Whether the Amended Statutes
    Apply to the Seizure of the Car
    [8]   Appellants contend that the 2018 Amendments do not apply to this case
    because the initial seizure of the Car occurred in December of 2016. We
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019       Page 6 of 12
    interpret this as a challenge on the ground that use of the amended chapter 34-
    24-1 to seize the Car would amount to an impermissible ex post facto law.1
    We have previously stated that the constitutional prohibitions
    against ex post facto criminal sanctions require that criminal
    proceedings be governed by the statutory provision in effect at the
    time of the offense.[2] Settle v. State, 
    709 N.E.2d 34
    , 35 (Ind. Ct.
    App. 1999). […] However, we have noted that the ex post facto
    clause “‘does not give a criminal a right to be tried, in all respects,
    by the law in force when the crime charged was committed.’”
    Hayden v. State, 
    771 N.E.2d 100
    , 102 (Ind. Ct. App. 2002) (quoting
    Dobbert v. Florida, 
    432 U.S. 282
    , 293, 
    97 S. Ct. 2290
    , 
    53 L. Ed. 2d 344
    (1977)), trans. denied. The clause is not designed “to limit
    legislative control of remedies and modes of procedure which do
    not affect matters of substance.” 
    Id. “Even though
    it may work to
    the disadvantage of a defendant, a procedural change is not ex post
    facto.” 
    Id. Our first
    task then is to determine whether [the changes are]
    procedural or substantive for purposes of the ex post facto provisions
    of both the Indiana and United States Constitutions. We have
    previously noted that “‘[p]rocedural, adjective or remedial law is
    that portion of the law which prescribes the method of enforcing a
    1
    We acknowledge that Butler, in his Brief of Appellant, fails to support this claim with any authority.
    Although Butler does use the term ex post facto and support this argument with authority in his Reply Brief, it
    is generally true that “[a]n issue not raised in an appellant’s brief may not be raised for the first time in a reply
    brief.” Chupp v. State, 
    830 N.E.2d 119
    , 126 (Ind. Ct. App. 2005). That said, our preference for addressing
    claims on the merits is well-established, see, e.g., Rexroad v. Greenwood Motor Lines, Inc., 
    36 N.E.3d 1181
    , 1183
    (Ind. Ct. App. 2015) (“[W]here possible, we prefer to address cases on their merits.”), and we choose to
    directly address his claim nonetheless.
    2
    The United States Supreme Court recently rejected the State of Indiana’s argument that Indiana Code
    chapter 34-24-1 is not covered by the Excessive Fines Clause of the Eighth Amendment to the United States
    Constitution. See Timbs v. Indiana, --- U.S. ---, 
    139 S. Ct. 682
    , 689–91 (2019). Because the civil forfeiture of
    property related to the commission of crimes—including an in rem action against the property—is at least
    partially punitive, it is subject to the coverage of the Excessive Fines Clause. 
    Id. at 689,
    see also State v. Timbs,
    
    2019 WL 5540987
    at *4 (Ind. Oct. 28, 2019) (“[F]orfeitures under Section [34-24-1-]1(a)(1)(A) are fines to
    which the Excessive Fines Clause applies.”).
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019                                      Page 7 of 12
    right or obtaining a redress for the invasion of that right.
    Substantive law, on the other hand, is that portion of the law
    which creates, defines and regulates rights.’” 
    Id. (quoting State
    v.
    Fletcher, 
    149 Ariz. 187
    , 
    717 P.2d 866
    , 870 (1986)). “An
    amendment is ‘procedural in nature for purposes of the ex post facto
    doctrine, and may be applied to crimes committed before the
    effective date’ if it ‘neither changes the elements of the crime nor
    enlarges its punishment.’” Weaver v. State, 
    845 N.E.2d 1066
    , 1070
    (Ind. Ct. App. 2006) (quoting Ritchie v. State, 
    809 N.E.2d 258
    , 264
    (Ind. 2004), reh’g denied, cert. denied 
    546 U.S. 828
    , 
    126 S. Ct. 42
    ,
    
    163 L. Ed. 2d 76
    (2005)), trans. denied.
    Abernathy v. Gulden, 
    46 N.E.3d 489
    , 495 (Ind. Ct. App. 2015). Without
    addressing the question of whether the 2018 Amendments cured the
    constitutional infirmities identified by the Washington court, we have little
    hesitation in at least concluding that the 2018 Amendments were all procedural
    in nature. To summarize, the amended statutes (1) now require a prosecutor to
    file a probable-cause affidavit within seven days of the seizure and the trial
    court to make a probable-cause determination, (2) now allow owners who were
    not in possession of the property when it was seized to file a petition for
    provisional release of their property, and (3) significantly shorten the amount of
    time permitted between the seizure of the vehicle and the filing of the forfeiture
    complaint. See Ind. Code § 34-24-1-2(b), -2(d), -3(a). The 2018 Amendments
    do nothing to create, define, or regulate the State’s inherent power to seize
    property from citizens under certain circumstances; they affect only the
    procedures for enforcing that right and/or obtaining redress. Because the 2018
    Amendments are procedural in nature, we conclude that applying them to the
    seizure of the Car does not constitute an ex post facto law.
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019         Page 8 of 12
    II. Whether the 2018 Amendments Cured the
    Defects in Indiana’s Civil Forfeiture Law
    [9]    The next question is whether the 2018 Amendments cured the constitutional
    infirmities of chapter 34-24-1 as identified by the Washington court. As
    Appellees point out, however, Appellants do not even claim, much less develop
    an argument, that the 2018 Amendments failed to adequately address the
    defects identified by the district court. For a question of this importance, i.e.,
    the constitutionality of Indiana’s civil forfeiture statutes, we are not inclined to
    supply one side with its argument. See, e.g., Thomas v. State, 
    965 N.E.2d 70
    , 77
    n.2 (Ind. Ct. App. 2012) (stating that this court should not “‘make up its own
    arguments’” when a “‘party has not adequately presented them’” because this
    causes the court to become “‘an advocate rather than an adjudicator’”) (quoting
    Young v. Butts, 
    685 N.E.2d 147
    , 151 (Ind. Ct. App. 1997)); Shepherd v. Truex, 
    819 N.E.2d 457
    , 463 (Ind. Ct. App. 2004) (stating that we will not “become an
    advocate for one of the parties” by developing a cogent argument on a party’s
    behalf).
    [10]   Moreover, again because Appellants did not advance this claim in the trial
    court either, the record is inadequately developed. In Washington, the Seventh
    Circuit Court of Appeals declined to address the question of whether the 2018
    Amendments repaired Indiana Code chapter 34-24-1 because the district court
    had not yet had an opportunity to address the question or develop a record.
    Because we are faced with similar circumstances, we will follow the same path
    and decline to address a constitutional question that was not raised or argued to
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019          Page 9 of 12
    the trial court or addressed by it, much less with an adequately-developed
    record. We will diverge from the Seventh Circuit Court of Appeals, however,
    in that we will not remand for further proceedings on the effect of the 2018
    Amendments; Butler, unlike Washington, had the opportunity to raise the issue
    but did not. It is well-settled that “[f]ailure to raise an issue before the trial
    court will result in waiver of that issue.” Heaphy v. Ogle, 
    896 N.E.2d 551
    , 555
    (Ind. Ct. App. 2008). Because the argument has been waived, we express no
    opinion whatsoever on the question of whether the 2018 Amendments cured
    the constitutional defects of Indiana Code chapter 34-24-1. Butler has failed to
    carry his burden to establish that the seizure of the Car was in any way
    improper.
    III. Attorney’s Fees
    [11]   Appellants are seemingly requesting an award of both trial attorney’s fees and
    appellate attorney’s fees. To the extent Appellants rely on Indiana Code section
    34-52-1-1, this claim is waived because it is raised for the first time on appeal.
    See, e.g., Washington v. State, 
    808 N.E.2d 617
    , 625 (Ind. 2004); Evans v. Tuttle,
    
    645 N.E.2d 1119
    , 1121 (Ind. Ct. App. 1995) (applying this rule specifically to a
    challenge regarding attorney’s fees). Second, a trial court in a civil action may
    award attorney’s fees “to the prevailing party[,]” see Ind. Code § 34-52-1-1(b),
    and Appellants did not prevail below.
    [12]   To the extent Appellants seek attorney’s fees under Indiana Appellate Rule
    66(E), that rule provides that “the Court may assess damages if an appeal,
    petition, or motion, or response, is frivolous or in bad faith. Damages shall be
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019           Page 10 of 12
    in the Court’s discretion and may include attorney’s fees.” The discretion to
    award attorney’s fees is limited to instances “when an appeal is permeated with
    meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of
    delay.” In the Matter of Guardianship of Lamey, 
    87 N.E.3d 512
    , 527 (Ind. Ct.
    App. 2017). We use “extreme restraint” when exercising this power because of
    the “potential chilling effect on the exercise of the right to appeal.” 
    Id. The sanction
    is not imposed to punish “mere lack of merit, but something more
    egregious.” 
    Id. To prevail
    on a substantive bad faith claim, such as
    Appellants’, “the party must show that the appellant’s contentions and
    arguments are utterly devoid of all plausibility.” Id.; see also Landmark Legacy,
    LP v. Runkle, 
    81 N.E.3d 1107
    , 1119 (Ind. Ct. App. 2017).
    [13]   We conclude that this is not a case where an award of appellate attorney’s fees
    is warranted. Appellees presented a legal argument explaining why Washington
    did not prohibit the forfeiture of the Car, which forfeiture was proceeding under
    the newly-amended statutes that had been passed in response to Washington.
    The amended statutes have not been declared unconstitutional, nor has the
    State been enjoined from enforcing or proceeding under the amended statutes.
    This is an entirely legitimate legal argument for Appellees to pursue.
    Appellants have fallen short of establishing that Appellees’ arguments on appeal
    are frivolous or made in bad faith.
    [14]   We affirm the judgment of the trial court and decline Appellants’ request for
    appellate attorney’s fees.
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019       Page 11 of 12
    Crone, J., and Tavitas, J., concur.
    Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019   Page 12 of 12