Demarcus Coomer v. Commonwealth of Kentucky ( 2021 )

RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0473-MR
DEMARCUS COOMER APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCY ANNE VANMETER, JUDGE
ACTION NO. 18-CR-01345
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: GOODWINE, LAMBERT, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Demarcus Coomer appeals from the portion of the
Fayette Circuit Court’s final judgment and sentencing ordering forfeiture of $665
seized by police after drugs were found in Coomer’s vehicle. We reverse and
remand because Coomer had a due process right to an evidentiary hearing during
which the Commonwealth would have to establish a prima facie case for forfeiture
which Coomer failed to rebut before he could be permanently deprived of his
property.
On September 25, 2018, a traffic stop was made on Coomer after his
vehicle license plate was run by police, and it was discovered that his registration
was cancelled due to failure to maintain insurance. Officer Ryan Nichols, who had
originally run Coomer’s plates because of an earlier briefing indicating there were
trafficking complaints about Coomer and identifying his vehicle, immediately
called for a K-9 unit. After Officer Nichols approached Coomer and explained
about his lack of valid registration, Coomer admitted to Officer Nichols (as
memorialized on the officer’s body camera footage) that Coomer knew his
registration was invalid for lack of insurance and he was on his way to obtain
insurance and reinstate his registration. While Officer Nichols was completing the
citations, the K-9 unit arrived and alerted.
According to the citation issued, the search revealed 1.8 grams of
suspected heroin in packaging, 1.1 grams of suspected powder cocaine, 3.1 grams
of marijuana total weight, a full package of “stamp baggies” commonly used to sell
small quantities of narcotics, and $665. Coomer was charged with six counts,
including two counts of trafficking for the suspected cocaine and heroin.
On November 26, 2018, Coomer was indicted as follows: (1)
possession of a controlled substance first degree for the heroin; (2) possession of
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drug paraphernalia; (3) failure of owner to maintain required insurance; (4)
possession of marijuana; and (5) no/expired registration plates.
Coomer filed a motion to suppress on the basis that the K-9 sniff
extended the duration of the traffic stop. Officer Nichols testified at the hearing,
and his body camera footage was played during the hearing. The circuit court
denied the motion, finding the stop was not extended.
On February 8, 2019, Coomer entered an Alford1 plea, with the
Commonwealth recommending a one-year sentence on count one, twelve months
on count two, dismissal on count three, forty-five days on count four, and dismissal
on count five. The circuit court accepted Coomer’s plea.
Coomer waived his right to a presentence investigation and consented
to immediate sentencing. The circuit court orally sentenced Coomer in accordance
with the Commonwealth’s recommendation to concurrent sentences totaling one
year of incarceration.
Coomer then requested that the circuit court consider returning the
$665 seized. The Commonwealth objected, arguing forfeiture is appropriate
because the cash was found in close proximity to the drugs and there was a nexus
between the money and the charges to which Coomer pled guilty.
1
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.162 (1970).
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The circuit court observed that typically there was a forfeiture of all
items seized and inquired as to whether Coomer and the Commonwealth Attorney
had discussed this issue. The Commonwealth Attorney explained they did discuss
this issue and Coomer’s counsel was aware that he would object.
Coomer argued he had the money with him because he was on his
way to pay his vehicle registration and insurance when he was stopped. The circuit
court stated, “registration doesn’t cost $665.” The circuit court orally denied
Coomer’s motion and ordered forfeiture of all items seized. The entire exchange
between the parties and the circuit court on this issue only took one and one-half
minutes.
The final judgment and sentence on the guilty plea was entered on
February 20, 2019. The circuit court sentenced Coomer consistently with its oral
pronouncements, noting the Commonwealth recommended forfeiture of all items
seized. As to the forfeiture, the circuit court failed to make any written factual
findings, simply stating, “Defendant’s oral motion to recover $665.00 seized is
OVERRULED.”
On appeal from forfeiture, we review the circuit court’s factual
findings for clear error and its rulings of law de novo. Gritton v. Commonwealth,
477 S.W.3d 603, 605-06 (Ky.App. 2015).
Property subject to forfeiture under KRS 218A.410(1)(j) includes:
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Everything of value furnished, or intended to be
furnished, in exchange for a controlled substance in
violation of this chapter, all proceeds, including real and
personal property, traceable to the exchange, and all
moneys, negotiable instruments, and securities used, or
intended to be used, to facilitate any violation of this
chapter; except that no property shall be forfeited under
this paragraph, to the extent of the interest of an owner,
by reason of any act or omission established by him or
her to have been committed or omitted without his or her
knowledge or consent. It shall be a rebuttable
presumption that all moneys, coin, and currency found in
close proximity to controlled substances, to drug
manufacturing or distributing paraphernalia, or to records
of the importation, manufacture, or distribution of
controlled substances, are presumed to be forfeitable
under this paragraph. The burden of proof shall be upon
claimants of personal property to rebut this presumption
by clear and convincing evidence. The burden of proof
shall be upon the law enforcement agency to prove by
clear and convincing evidence that real property is
forfeitable under this paragraph[.]
As interpreted in Osborne v. Commonwealth, 839 S.W.2d 281, 284
(Ky. 1992), the statute imposes the following burdens on the Commonwealth and
the defendant:
The Commonwealth may meet its initial burden by
producing slight evidence of traceability. Production of
such evidence plus proof of close proximity, the weight
of which is enhanced by virtue of the presumption, is
sufficient to sustain the forfeiture in the absence of clear
and convincing evidence to the contrary. In practical
application, the Commonwealth must first produce some
evidence that the currency or some portion of it had been
used or was intended to be used in a drug transaction.
Additional proof by the Commonwealth that the currency
sought to be forfeited was found in close proximity is
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sufficient to make a prima facie case. Thereafter, the
burden is on the claimant to convince the trier of fact that
the currency was not being used in the drug trade.
Coomer argues that his due process rights were violated because the
circuit court did not hold a separate proceeding on the forfeiture issue. He explains
that the brief discussion of the issue at sentencing was inadequate and asks that we
vacate the forfeiture and remand for a proper forfeiture hearing. He admits that
this issue is unpreserved because he did not request a forfeiture hearing, and he
requests palpable error review pursuant to Kentucky Rules of Criminal Procedure
(RCr) 10.26.
We disagree that this error was unpreserved or that it was Coomer’s
duty to request a hearing to establish that forfeiture should not take place. Coomer
misunderstands what the parties’ relative burdens are.
In Harbin v. Commonwealth, 121 S.W.3d 191, 194 (Ky. 2003), the
Kentucky Supreme Court held that the Due Process Clause2 prohibits forfeiture
without prior notice and an opportunity to be heard. It made this ruling despite
language in KRS 218A.460 only requiring a hearing if requested by a third party,
explaining:
[I]t is clear from the language contained in KRS
218A.410, that the Legislature intended for an individual
to be afforded the basic constitutional protections of due
process prior to forfeiture of otherwise legal property.
2
See Fourteenth Amendment to the United States Consitution.
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We fail to discern any other reason why KRS
218A.410(1)(j) would place the burden on a claimant to
rebut by clear and convincing evidence the presumption
that the property, in this case money, is forfeitable.
Further, KRS 218A.460 expressly provides that the
claimant to other personal property has the burden to
prove by a preponderance of the evidence that it is not
subject to forfeiture. Holding that notice and an
opportunity to contest the forfeiture of one’s property are
not required essentially eviscerates these burdens of
proof.
Harbin, 121 S.W.3d at 195-96. While noting that a separate forfeiture hearing
took place in Osborne, the Court did not specify that a separate forfeiture hearing
was required. Harbin, 121 S.W.3d at 197. However, the Court did determine that
the brief hearing in Harbin, which took place without notice to the defendant, was
insufficient and did not constitute an evidentiary hearing. Id.
Due process requires that before forfeiture can be ordered, the
Commonwealth must present evidence sufficient to establish its prima facie case
for forfeiture, the defendant must be given the opportunity to provide evidence to
counter it, and the circuit court must make appropriate findings. See Osborne, 839
S.W.2d at 284; Martin v. Commonwealth, 586 S.W.3d 252, 254-55 (Ky.App.
2019). Coomer’s act of pleading guilty to the charges did not make forfeiture
automatic or shift the initial burden to Coomer to prove that forfeiture should not
take place. When Coomer asked that the money be returned, it was the
Commonwealth’s responsibility to establish that the money seized should be
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forfeited. Whether or not forfeiture normally occurs in similar circumstances does
not provide a basis for ordering forfeiture here without appropriate process and
proof.
Under the circumstances, we have no difficulty concluding that the
circuit court clearly erred in ordering forfeiture of Coomer’s money without an
appropriate evidentiary hearing. Therefore, we reverse and remand for an
appropriate hearing at which Coomer and the Commonwealth may present
evidence. While this could end our inquiry, we briefly address the related issues
that Coomer raises.
Coomer argues that the Commonwealth failed to establish that the
money was traceable to the drug dealing. Coomer also argues that this is
especially important where he was not convicted of trafficking but of possession.
We agree with Coomer that the Commonwealth failed to establish that
the money seized was traceable to drug dealing but disagree that the crime of
which he was convicted makes any difference to this analysis. A criminal
conviction for trafficking rather than possession is not required to support a
forfeiture. Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky. 2011). Indeed,
“nothing in the forfeiture statute requires criminal conviction of the person whose
property is sought to be forfeited.” Osborne, 839 S.W.2d at 283.
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Although the standard the Commonwealth must meet to establish its
prima facie case is “extraordinarily low” pursuant to Osborne as explained in
Gritton, 477 S.W.3d at 606, the Commonwealth cannot meet its burden through
argument alone. The Commonwealth implicitly accepts that it did not meet its
burden by now raising new arguments on appeal as to how evidence in the record
could establish traceability.
It is not appropriate for us to consider new arguments on appeal, and
we also note the record evidence the Commonwealth references is problematic
because it is based upon hearsay. We will not assume that the circuit court both
relied on such evidence and it was sufficient to establish traceability where neither
the Commonwealth nor the circuit court made any reference to such evidence
below. While the Commonwealth did not meet its burden below, it shall have an
opportunity to do so on remand.
Although Coomer does not raise this issue, it is also evident that the
circuit court erred by failing to make the requisite findings required to justify
forfeiture. While written findings are the best practice, oral findings can be
sufficient. Martin, 586 S.W.3d at 255. However, findings cannot be implied. For
example, in Martin, oral factual findings that some tools in a truck were acquired
through the proceeds of the drug trade did not justify the forfeiture of all of the
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tools; specific findings on traceability regarding individual tools was needed for
their forfeiture. Id.
The circuit court failed to make any findings as to whether the
Commonwealth established proximity and traceability. If the circuit court’s
pronouncement is interpreted as a credibility determination against Coomer, it was
premature for the circuit court to even consider whether Coomer’s alternative
explanation for having the money was credible prior to the Commonwealth
meeting its burden and Coomer having the opportunity to present his own
evidence. Indeed, it would be difficult if not impossible to make the required
findings in this case without an evidentiary hearing.
While perhaps the circuit court’s oral pronouncement that registration
did not cost $665 could be interpreted as a finding of traceability, a finding without
any evidentiary basis is not entitled to any deference. Furthermore, similar to the
situation in Martin, there was no specific finding that the entire amount of cash
present was traceable to drug trafficking.
Finally, Coomer argues that the forfeiture was a punitive fine that
violated the Eighth Amendment of the United States Constitution and Section 17
of the Kentucky Constitution. In Timbs v. Indiana, ___ U.S. ___, 139 S.Ct. 682,
686-87, 689, 203 L.Ed.2d 11 (2019), the United States Supreme Court held that the
Eighth Amendment’s excessive fines clause is a fundamental liberty and is
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therefore incorporated by the Due Process Clause of the Fourteenth Amendment
and enforceable against states. Prior to this decision, Kentucky Courts had already
concluded that an excessive fine could both violate the Eighth Amendment and
Section 17 of the Kentucky Constitution, with such determination hinging upon
whether the property was “sufficiently tainted by the criminal act to be subject to
forfeiture” and whether the forfeiture itself was grossly disproportionate to the
particular offense considering “the gravity of the offense, the potential penalties,
the actual sentence, sentences imposed for similar crimes in this and other
jurisdictions, and the effect of the forfeiture on innocent third parties.” Hill v.
Commonwealth, 308 S.W.3d 227, 230 (Ky.App. 2010) (quoting Smith v.
Commonwealth, 205 S.W.3d 217, 223 (Ky.App. 2006)).
We need not resolve this issue now. “[S]ince the trial court did not
conduct any forfeiture proceedings an analysis of the excessiveness of the
forfeiture is premature.” Harbin, 121 S.W.3d at 197.
Accordingly, we reverse the judgment of the Fayette Circuit Court as
to the forfeiture and remand for an evidentiary hearing on this issue.
GOODWINE, JUDGE, CONCURS.
LAMBERT, JUDGE, DISSENTS AND DOES NOT FILE
SEPARATE OPINION.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven Nathan Goens Andy Beshear
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy
Frankfort, Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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