State v. One 2011 White Toy Hauler ( 2014 )


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  • #26922-a-JKK
    
    2014 S.D. 92
    IN THE SUPREME COURT
    OF THE
    STATE OF SOUTH DAKOTA
    ****
    STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,
    v.
    ONE 2011 WHITE FOREST
    RIVER XLR TOY HAULER,
    VIN #4X4FXLP26B5154288,                      Defendant and Appellant.
    ****
    APPEAL FROM THE CIRCUIT COURT OF
    THE SECOND JUDICIAL CIRCUIT
    MINNEHAHA COUNTY, SOUTH DAKOTA
    ****
    THE HONORABLE PATRICIA C. RIEPEL
    Judge
    ****
    MARTY J. JACKLEY
    Attorney General
    PAT ARCHER
    Assistant Attorney General
    Pierre, South Dakota                         Attorneys for plaintiff
    and appellee.
    RICHARD L. JOHNSON
    Sioux Falls, South Dakota                    Attorney for defendant
    and appellant.
    ****
    CONSIDERED ON BRIEFS
    ON NOVEMBER 17, 2014
    OPINION FILED 12/17/14
    #26922
    KONENKAMP, Justice
    [¶1.]        The State initiated a civil forfeiture action against a recreational
    vehicle (RV) belonging to Paul Alan Lockenour. He had transported and stored
    methamphetamine in this RV, some of which he later sold to a confidential
    informant for $300. All the illicit drugs found in his possession were valued
    between $1,600 and $2,000. Thus, he asserted that the forfeiture of his RV, valued
    at $54,000, was grossly disproportionate to his crime. The State moved for
    summary judgment, and, after a hearing, the circuit court granted the State’s
    motion, ruling that the forfeiture was not grossly disproportionate or
    unconstitutionally excessive.
    Background
    [¶2.]        Lockenour’s RV, a 2011 Forest River XLR Toy Hauler, was purchased
    with money he inherited from his parents. Although his permanent residence was
    in Cambridge, Nebraska, he intended to use the RV as his residence. He had
    planned to travel to Daytona for “Bike Week.” But he changed his plans at the
    request of his friend, “Lo.” She asked him to come to Sioux Falls and bring
    methamphetamine (meth) with him. He later explained that he considered Lo a
    good friend, and he was willing to bring her meth to use or sell. But Lo, as
    Lockenour was later to learn, was a confidential informant. During their recorded
    telephone conversation, he told Lo he “got a lot” of meth, and she should sell it for “3
    for an 8.”
    [¶3.]        On March 10, 2011, law enforcement officers fitted Lo with a recording
    device and gave her purchase money. Lo met with Lockenour, who had driven his
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    #26922
    RV to Sioux Falls to meet her. Through the audio recording, Lo and Lockenour can
    be heard talking about making money and the price of the meth. Lo gave
    Lockenour $300 for one baggie of meth, and he gave her an additional baggie
    without charge. After the purchase, Lo turned over the baggies to law enforcement
    officers. Each baggie bore a picture of a dolphin. One weighed 3.4 grams, the other
    4.1 grams, and both tested positive for meth.
    [¶4.]        Later that same day, Lockenour was arrested. After a search warrant
    was obtained, officers found 3.3 grams of meth on Lockenour’s person. In the RV,
    they found six more baggies of meth with the same dolphin symbol, two glass pipes
    commonly used for smoking meth (with residue that tested positive for meth), a
    digital scale with meth residue on it, $300 cash (the law enforcement purchase
    money), and a white substance, not meth. The six additional baggies of meth
    weighed 3.3 grams, 3.4 grams, 3.7 grams, 1.6 grams, and 3.6 grams. The “street
    value” was approximately $1,600 to $2,000. During his interview with law
    enforcement officers, Lockenour explained that he had purchased ten, one-eighth
    ounce quantities of meth from a motorcycle gang in Nebraska for $2,500. He
    admitted to having purchased meth from this gang on previous occasions, possibly
    five or six times during the prior eighteen months.
    [¶5.]        Lockenour was charged with distribution of a controlled substance,
    possession of a controlled substance, and possession or use of drug paraphernalia.
    He pleaded guilty to distribution of a controlled substance and was sentenced to
    seven years in prison with two years suspended on certain conditions. The
    remaining criminal charges were dismissed.
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    #26922
    [¶6.]        The State brought a civil forfeiture action against Lockenour’s RV. He
    answered and asserted, as an affirmative defense, that the forfeiture of his RV
    violated his right against excessive fines under the Eighth Amendment of the
    United States Constitution and Article VI, § 23 of the South Dakota Constitution.
    Lockenour argued that the value of the RV “far exceeds the quantity or value of any
    controlled drugs or substances or marijuana found in the [RV],” and its forfeiture
    “would be unconstitutionally disproportionate” to the value of the controlled
    substances. It was undisputed the value of the RV was $54,000 and the
    approximate street value of the meth was $1,600 to $2,000.
    [¶7.]        The State moved for summary judgment asserting that no material
    issue of fact was in dispute and that the circuit court need only determine whether
    the forfeiture of the RV was disproportionate to Lockenour’s crime. At the hearing,
    Lockenour conceded that his RV was subject to forfeiture under SDCL 34-20B-70(4).
    But he maintained that the forfeiture of a $54,000 RV for a crime involving
    approximately $2,000 worth of drugs was grossly disproportionate.
    [¶8.]        The circuit court recognized that “[t]he amount of the forfeiture must
    bear some relationship to the gravity of the offense it is designed to punish.” See
    United States v. Bajakajian, 
    524 U.S. 321
    , 334, 
    118 S. Ct. 2028
    , 2036, 
    141 L. Ed. 2d 314
     (1998). The court looked beyond the crime Lockenour pleaded guilty to and
    considered all the circumstances surrounding the offense. Although Lockenour
    pleaded guilty to distribution of a controlled substance, he was originally charged
    with two additional class 4 felonies. Therefore, he had faced a potential of $40,000
    in total fines, which the court found proportionate to $54,000, the value of the RV.
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    #26922
    The court further considered that Lockenour could have been charged with two
    additional class 4 felonies, which would have increased his potential fines to over
    $100,000. Finally, the court found that the RV was “entirely associated with the
    criminal activity,” and the “entire transaction occurred within” the RV. Based on
    all these circumstances, the court ruled that Lockenour failed to make a prima facie
    showing of gross disproportionality. Alternatively, the court ruled that even if
    Lockenour had made a prima facie showing, it was not excessive because “the value
    of the property forfeited is within or near the permissible range of fines.” See State
    v. One 1995 Silver Jeep Grand Cherokee (Silver Jeep), 
    2006 S.D. 29
    , ¶ 8, 
    712 N.W.2d 646
    , 651 (quoting United States v. Dodge Caravan Grand SE, 
    387 F.3d 758
    , 763 (8th
    Cir. 2004)). The circuit court granted the State summary judgment and ordered
    forfeiture.
    Analysis and Decision
    [¶9.]         On appeal, Lockenour maintains that the forfeiture of his RV is grossly
    disproportionate to his crime. He contends that he made a prima facie showing of
    gross disproportionality because his RV was valued at $54,000, and the value of the
    meth he had was between $1,600 and $2,000. There was no evidence that he
    distributed meth to anyone other than Lo or that he sold meth out of the RV at any
    other time. He claims he “had no predisposition to come to Sioux Falls and sell
    methamphetamine” until Lo, “working as a confidential informant, induced him to
    come to Sioux Falls.” Moreover, he believes that there was “no harm caused” by his
    conduct “because the distribution of methamphetamine was a ‘controlled buy.’”
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    [¶10.]       In Silver Jeep, we acknowledged that “[t]he amount of the forfeiture
    must bear some relationship to the gravity of the offense that it is designed to
    punish.” Id. ¶ 7 (quoting Bajakajian, 
    524 U.S. at 334
    , 
    118 S. Ct. at 2036
    ) (internal
    quotation mark omitted). A forfeiture is unconstitutionally excessive when it is
    grossly disproportionate to the offense. Following the Eighth Circuit Court of
    Appeals, we employ a two-step approach to assess gross disproportionality in a
    forfeiture action. 
    Id.
     (citing Dodge Caravan Grand SE, 
    387 F.3d at 763
    ). “First, the
    claimant must ‘make a prima facie showing of gross disproportionality;’ and, second,
    if the claimant can make such a showing, ‘the court considers whether the
    disproportionality reaches such a level of excessiveness that in justice the
    punishment is more criminal than the crime.’” 
    Id.
     “To determine whether the facts
    indicate gross disproportionality, the [trial] court must consider multiple factors,
    including the extent and duration of the criminal conduct, the gravity of the offense
    weighed against the severity of the criminal sanction, and the value of the property
    forfeited.” United States v. Bieri, 
    68 F.3d 232
    , 236 (8th Cir. 1995) (citation omitted);
    Silver Jeep, 
    2006 S.D. 29
    , ¶ 8, 712 N.W.2d at 650-51.
    [¶11.]       Here, the duration of the criminal conduct was eighteen months. By
    his own admission, Lockenour began buying meth from a motorcycle gang eighteen
    months before he sold it to Lo, and though he claimed he purchased the meth only
    for his personal use, using and possessing meth is a crime. Moreover, despite his
    claim that he had no intent to distribute meth, it is undisputed that he drove to
    Sioux Falls specifically to distribute meth to Lo. He also gave Lo meth for her to
    sell. And he had a digital scale with meth residue and additional baggies bearing a
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    dolphin picture. Thus, the extent of his criminal conduct cannot be isolated to a
    single incident. As to his claim that “no harm was caused” by his conduct, he
    sought to put an injurious substance in the Sioux Falls community. Meth is toxic
    and highly addictive. Societal detriments associated with meth are substantial, not
    the least of which is its ruin of human health and wellbeing, and the costs for law
    enforcement, addiction treatment, and imprisonment. The Legislature has deemed
    distribution of meth punishable as a class 4 felony, thereby identifying it as a
    serious criminal offense. See SDCL 22-42-2.
    [¶12.]       “A court must consider the entire circumstances surrounding the
    offense that led to the forfeiture when assessing gross disproportionality.” Silver
    Jeep, 
    2006 S.D. 29
    , ¶ 11, 712 N.W.2d at 652 (citation omitted). As one court
    remarked, “Translating the gravity of a crime into monetary terms — such that it
    can be proportioned to the value of forfeited property — is not a simple task.”
    United States v. 817 N.E. 29th Drive, Wilton Manors, Fla., 
    175 F.3d 1304
    , 1309
    (11th Cir. 1999). Nonetheless, we are guided by our statutes setting forth the range
    of permissible fines for certain offenses. “Criminal fines are particularly relevant as
    they reflect judgments made by the [L]egislature about the appropriate punishment
    for an offense.” Silver Jeep, 
    2006 S.D. 29
    , ¶ 8, 712 N.W.2d at 651 (citation omitted);
    817 N.E. 29th Drive, Wilton Manors, Fla., 
    175 F.3d at 1309-10
    ; see also Bajakajian,
    
    524 U.S. at 337
    , 
    118 S. Ct. at 2037
    . Courts have consistently held that “‘if the value
    of the property forfeited is within or near the permissible range of fines . . . the
    forfeiture is almost certainly not excessive.’” Silver Jeep, 
    2006 S.D. 29
    , ¶ 8, 712
    N.W.2d at 651 (quoting Dodge Caravan Grand SE, 
    387 F.3d at 763
    ); Bajakajian,
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    #26922
    
    524 U.S. at 336
    , 
    118 S. Ct. at 2037
    . Based on our assessment of all the
    circumstances, the forfeiture of Lockenour’s RV, valued at $54,000, was not grossly
    disproportionate to the gravity of his offense. Therefore, the circuit court did not err
    when it granted summary judgment and ruled that the forfeiture did not violate the
    Eighth Amendment of the United States Constitution or Article VI, § 23 of the
    South Dakota Constitution.
    [¶13.]       Affirmed.
    [¶14.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
    WILBUR, Justices, concur.
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Document Info

Docket Number: 26922

Judges: Konenkamp, Gilbertson, Zinter, Severson, Wilbur

Filed Date: 12/17/2014

Precedential Status: Precedential

Modified Date: 11/12/2024