Com. v. Linton, L. ( 2018 )

J-S37005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEVICK LINTON, :
:
Appellant : No. 3962 EDA 2017
Appeal from the Order Entered November 17, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005209-2013
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JULY 31, 2018
Appellant, Levick Linton, appeals from the order issued November 17,
2017, denying his petition for return of property. We affirm.
Appellant was arrested on April 7, 2013, after he crashed his car into a
parked vehicle. A search incident to the arrest recovered five 325 mg
Oxycodone pills, two cell phones, and $2,041.00 in cash, all of which was
seized by the police. A subsequent blood test revealed that Appellant’s blood
alcohol content was 0.178%; the test also detected the presence of
Oxycodone in Appellant’s blood.
The Commonwealth charged Appellant with multiple crimes, including
possession of a controlled substance and various counts of driving under the
influence (“DUI”). On March 24, 2015, Appellant pleaded guilty to one count
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* Former Justice specially assigned to the Superior Court.
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of driving under the influence of a controlled substance1 and, that same day,
the trial court sentenced Appellant to serve a term of one to two years in
prison.
Over two years later – on May 17, 2017 – Appellant filed a petition for
return of property. Within the petition, Appellant demanded that the
Commonwealth return the $2,041.00 that it seized incident to his April 7, 2013
arrest. Appellant’s Petition, 5/17/17, at 2. Appellant claimed that the money
was not subject to forfeiture because he only pleaded guilty to DUI and, thus,
the money was not derivative of any illegal act or transaction. Id.
The trial court held a hearing on the petition, but ultimately denied the
petition on November 17, 2017. Trial Court Order, 11/17/17, at 1. This timely
appeal follows.
On appeal, Appellant presents the following issues for our review:
[1.] Did the trial court err in denying [Appellant’s] petition for
return of property in violation of the Controlled Substance
Forfeiture Act, specifically 42 Pa.C.S. 6802 . . . in that
[Appellant] was charged with and pled guilty to the charge of
[DUI] . . . ?
[2.] Did the trial court err in [denying Appellant’s petition]
when the Commonwealth failed to prove that the monies
taken from [Appellant were] contraband in that no evidence
or testimony was presented on the record by the
Commonwealth to establish a nexus between drug activity
and the monies seized from [Appellant?]
[3.] Did the trial court err in denying [Appellant’s petition] by
relying on evidence or testimony that was not in evidence
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1 75 Pa.C.S.A. § 3802(d)(1).
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including, but not limited to the testimony of Detective Darrell
Guy from the preliminary hearing which was not submitted
into evidence by [Appellant] or the Commonwealth to the
court and by improperly relying upon past and potential
future criminal acts by [Appellant?]
Appellant’s Brief at 4-5 (some internal capitalization omitted).
All of Appellant’s claims on appeal contend that the trial court erred
when it denied his petition for return of property. “The standard of review
applied in cases involving motions for the return of property is an abuse of
discretion.” Commonwealth v. Rodriguez, 172 A.3d 1162, 1165 (Pa.
Super. 2017) (citations omitted). However, as to questions of law, our
standard of review is de novo. Commonwealth v. Bradley, 834 A.3d 1127,
1131 n.2 (Pa. 2003). Further, we are not bound by the trial court’s reasoning
and may affirm its decision on any basis. Commonwealth v. Williams, 73
A.3d 609, 617 n. 4 (Pa. Super. 2013).
Appellant’s right to petition for the return of his seized property is
governed by Pennsylvania Rule of Criminal Procedure 588,2 which provides:
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2 Appellant filed his petition on May 17, 2017. Effective July 1, 2017, the
Pennsylvania legislature recodified and partially rewrote the Commonwealth’s
Forfeiture Act. See 42 Pa.C.S.A. §§ 5801-5808. Appellant has not cited to
the newly recodified Forfeiture Act in his brief to this Court. Indeed, Appellant
cites to the former version of the Act. See Appellant’s Brief at 4. Further,
Appellant does not claim that any of the rewritten provisions apply to his case.
Therefore, Appellant waived any potential claim that the newly recodified
Forfeiture Act applies to his case or that the new Act could have provided him
relief, even though the former version does not. Commonwealth v. Spotz,
716 A.2d 580, 585 n.5 (Pa. 1999) (“[the Pennsylvania Supreme Court] has
held that an issue will be deemed to be waived when an appellant fails to
properly explain or develop it in his brief”).
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(A) A person aggrieved by a search and seizure, whether or
not executed pursuant to a warrant, may move for the return
of the property on the ground that he or she is entitled to
lawful possession thereof. Such motion shall be filed in the
court of common pleas for the judicial district in which the
property was seized.
(B) The judge hearing such motion shall receive evidence on
any issue of fact necessary to the decision thereon. If the
motion is granted, the property shall be restored unless the
court determines that such property is contraband, in which
case the court may order the property to be forfeited.
(C) A motion to suppress evidence under Rule 581 may be
joined with a motion under this rule.
Pa.R.Crim.P. 588.
While Appellant argues his petition should have been granted on the
merits, the dispositive issue in this case is the petition’s untimeliness. Our
Supreme Court, in the case of Commonwealth v. Allen, construed the
language of Rule 588 and held that “a petition for the return of property is
timely when it is filed by the accused in the trial court while that court
retains jurisdiction, which is up to thirty days after disposition.”
Commonwealth v. Allen, 107 A.3d 709, 717 (Pa. 2014) (emphasis added);
see also Commonwealth v. Setzer, 392 A.2d 772 (Pa. Super. 1978).
In Allen, Mr. Allen filed a petition for the return of property almost eight
years after the charges which led to the seizure of his property were
dismissed. Allen, 107 A.3d at 711-712. The Pennsylvania Supreme Court
held that Mr. Allen was required to file his petition for the return of property
“during the pendency of the criminal proceedings, or while the trial court
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retained jurisdiction for thirty days following dismissal of the charges.” Id. at
717. The Supreme Court held that, since Mr. Allen failed to file his petition in
the criminal trial court while the court possessed jurisdiction over his criminal
case, he “waived any entitlement to the return of property under Rule 588.”
Id.
Allen is on all fours with the case at bar. In this case, the police arrested
Appellant on April 7, 2013 and, during the arrest, the police seized $2,041.00
in cash from Appellant’s person; Appellant then pleaded guilty to DUI on March
24, 2015. However, Appellant did not file a petition for the return of his
property while the trial court retained jurisdiction over his criminal case.
Instead, Appellant filed his petition on May 17, 2017 – more than two years
after the disposition of his criminal case. In accordance with Allen, Appellant
“had until [30] days following [his guilty plea], or [April 23, 2015], to move
for return of [his p]roperty. Having failed to do so, he has waived any
entitlement to the return of property under Rule 588.” Id. at 717.
Appellant’s claims on appeal thus all fail, as the trial court properly
denied Appellant’s petition for return of property.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/18
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