$47,940.00 U.S. Currency and Dustin Sorhaindo v. State of Indiana and Indiana State Police

FILED
May 31 2017, 8:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Bradley Keffer Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart, LLP Andrea E. Rahman
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
$47,940.00 U.S. Currency and May 31, 2017
Dustin Sorhaindo, Court of Appeals Case No.
Appellant-Defendant, 49A05-1608-MI-1814
Appeal from the Marion Superior
v. Court
The Honorable Patrick J. Dietrick,
State of Indiana and Indiana Judge
State Police, Trial Court Cause No.
Appellees-Plaintiffs. 49D12-1512-MI-42103
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Dustin Sorhaindo (Sorhaindo), appeals the trial court’s
order granting transfer of $47,940.00 to the United States under Indiana Code
section 35-33-5-5(j). 1
[2] We reverse and remand.
ISSUE
[3] Sorhaindo presents two issues on appeal, which we consolidate and restate as
the following single issue: Whether the trial court properly granted the State’s
notice to transfer the seized funds when there was similar action pending in
another court.
FACTS AND PROCEDURAL HISTORY
[4] On June 30, 2015, Detective Brian Thorla (Detective Thorla) and other officers
from the Indianapolis Metropolitan Police Department were given verbal
consent to enter and visually inspect suspicious parcels at a local shipping
company in Indianapolis, Indiana. During the inspection, a parcel addressed to
Sorhaindo was singled out for further investigation. Detective Thorla, a
certified K9 handler, used a certified K9 to conduct a narcotic examination of
Sorhaindo’s suspicious parcel and a few others. The K9 gave a positive
1
We heard oral argument in this case on April 26, 2017, at Wabash College in Crawfordsville, Indiana. We
commend counsel for their excellent presentations and thank Wabash College for its hospitality in hosting
this oral argument.
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indication of a controlled substance in Sorhaindo’s package. On the same day,
the State opened a miscellaneous criminal case in Marion Superior Court,
Criminal Division, Courtroom 6, under Cause number 49G06-1506-MC-
022791 (MC-22791), and applied for a search warrant. Sorhaindo’s name was
not included in the caption of the search warrant application. In the probable
cause affidavit supporting the search warrant application, Detective Thorla
described the parcel as a “Brown Box with black duct tape . . . ADDRESSED
TO: Dustin Sorhaindo, FedEx Office and Print Cent[er], 935 W Huntington
Dr., Monrovia, CA 91016[,] (404) 840-6835 and Dustin Sorhaindo 125 W.
Olive Monrovin, CA 91016,” and with “TRACKING # 8077 8940 5551.”
(Appellant’s App. Vol. II, p. 16). Detective Thorla further averred that the
suspicious package was being shipped to California, “a State known by [the
officers] to be a source state for the importation/exportation of controlled
substances.” (Appellant’s App. Vol. II, p. 16). Detective Thorla added that he
had probable cause to believe that the parcel contained controlled substances
based on the narcotic search conducted by his certified K9. The trial court
granted the warrant and limited the “search for controlled substances, records
of drug trafficking, and proceeds of drug trafficking.” (Appellant’s App. Vol. II,
p. 19). When the officers opened the package, they found socks stuffed around
another heavily taped box. The search of the second box yielded several folders
with various papers, and underneath the folder, there was United States
currency in the amount of $47,940.00. No controlled substances were found in
the package.
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[5] On July 2, 2015, under cause number MC-22791, the State filed a Notice and
Motion to Transfer Seized Property to the United States. 2 In the motion, the
State referenced the search conducted on June 30, 2015, pursuant to the search
warrant in which IMPD officers searched Sorhaindo’s package and seized
$47,940 of United States currency. The motion to transfer further stated that
the money was “confiscated as proceeds of narcotics trafficking . . . and money
laundering.” (Appellant’s App. Vol. II, p. 74). In paragraph 8, the State
indicated that a “copy of this Motion has been sent by certified mail, prior filing
with the court, to both the sender and receipt at the addresses listed on the
parcel in order to provide notice to the parties of the State’s intention to
transfer.” (Appellant’s App. Vol. II, p. 74). The record shows that the State’s
notice on the motion to transfer seized property could not be delivered to the
different addresses listed on Sorhaindo’s package and was subsequently
returned on July 9, 2015.
[6] On September 2, 2015, Sorhaindo’s attorney wrote an email to the Marion
County Prosecutor’s Office stating, “[We] have been retained as local counsel
to handle the Turnover re: [] Sorhaindo’s seizure. We’ll be getting our
appearance and objection to the turnover on file shortly.” (Appellant’s App.
Vol. II, p. 49). The Prosecutor’s Office responded back stating, “Status update:
After [] shuffling around from person to person, we have located the correct
2
Sorhaindo presents a copy of this Notice and Motion to Transfer Seized Property in his appendix; however,
it is not filed-stamped. In addition, Sorhaindo does not present us with a certified copy of the Chronological
Case Summary for cause number MC-22791 to confirm the filing.
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person willing to fix this issue as it involves JTAC, ISA and Odyssey. She is
hopeful that this will be resolved by the end of the week. I will give you
instructions on how to proceed when I get them.” (Appellant’s App. Vol. II, p.
49). In reply, Sorhaindo’s counsel wrote, “Great! I want to get my objection
on file, but should I continue to hold off until you give me the high sign?”
(Appellant’s App. Vol. II, p. 49). The Prosecutor’s Office confirmed, “[T]hat is
accurate because at this moment it will be rejected by the court no matter where
you file it.” (Appellant’s App. Vol. II, p. 74). There was no further
communication between the parties on this issue.
[7] On December 22, 2015, the State filed a Complaint for Forfeiture against
Sorhaindo in Marion Superior Court, Civil Division, Courtroom 12, under
cause number 49D12-1512-MI-042103 (MI-42103). The complaint referenced
the search conducted on June 30, 2015, where the IMPD officers seized
$47,940.00 in United States currency while conducting a criminal investigation.
The following day, under MI-42103, the State filed a Notice and Motion to
Transfer Seized Property to the United States. On January 5, 2016, the trial
court granted the State’s transfer motion.
[8] On January 13, 2016, Sorhaindo filed an answer to the State’s complaint for
forfeiture, a consolidated motion to correct error and objection to the transfer of
seized funds, and a motion to dismiss under Indiana Trial Rule 12(B)(8). In his
consolidated motion to correct error and objection to the transfer of seized
funds, Sorhaindo requested the trial court to set aside the January 5th transfer
order. In addition, quoting Adams v. State, 967 N.E.2d, 568 (Ind. Ct. App.
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2012) (holding that a property owner is entitled to challenge the legality of the
search underlying the transfer request), Sorhaindo challenged the lawfulness of
the search, the subsequent seizure, and requested a hearing for a determination
of the same. In his motion to dismiss, Sorhaindo claimed that there were two
similar motions to transfer seized property in two different courtrooms, i.e., the
miscellaneous criminal case filed in Courtroom 6 under MC-22791, and the
civil forfeiture case filed in Courtroom 12 under MI-42103. Sorhaindo argued
that pursuant to Trial Rule 12(B)(8), the tranfer actions filed in cause numbers
MC-22791 and MI-42103, involved the same parties, search, seized property,
and requested remedies. As such, Sorhaindo argued that MI-42103, which was
subsequently filed Courtroom 12, should be dismissed. On January 19, 2016,
the trial court stayed the transfer order granted on January 5, 2016.
[9] On February 3, 2016, an attorney’s conference was held by the trial court and
Sorhaindo’s motion to dismiss hearing was set for March 30, 2016. Sorhaindo
was also permitted to challenge the validity of the search and seizure at the
motion to dismiss hearing. The record shows that the motion to dismiss
hearing was cancelled. On February 25, 2016, the parties filed an Agreed Entry
and Stipulation of Partial Dismissal under cause number MI-42103, in which
the State dismissed its complaint for forfeiture, leaving only its motion to
transfer filed on December 23, 2015, under cause number MI-42103.
Additionally, the parties agreed that the matter would continue for the limited
purpose of determining the transfer motion action filed in MI-42103 and
Sorhaindo’s multiple challenges to the same.
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[10] On May 4, 2016, the State filed its response to Sorhaindo’s objection on its
motion to transfer seized funds under cause MI-42103. The State initially noted
that cause MC-22791 was a “dummy” cause number, and added that:
In Marion County, MC cause numbers [XXXXX-XXXX-MC-
XXXXXX] are used as a way to track certain types of
documents. While they appear in the form of a regular cause
number, they are not an active case, are not visible through
online court resources, and requests for hearings will not result in
a calendared hearing in front of a judicial officer. For all intents
and purposes it is merely a tracking number.
(Appellant’s App. Vol. II, p. 63). In explicating its reasons for subsequently
filing cause number MI-42103, the State specified that the filing of the
successive turnover action was the only way it could obtain Sorhaindo’s
objection on file. In a footnote, the State noted:
If [Sorhaindo] were to file his written objection under the original
dummy cause number, [] MC-022791, [Courtroom 6] would not
have set the matter for hearing because “MC” does not designate
a true active case.
(Appellant’s App. Vol. II, p. 64). The State also claimed that the Agreed Entry
and Stipulation of Partial Dismissal under cause number MI-42103 filed in
February 2016, disposed of Sorhaindo’s motion to dismiss. Finally, the State
posited that if the seizure was determined to be lawful under Article 1 section
11 of the Indiana Constitution, the seized funds should be transferred to the
relevant federal authorities pursuant to Indiana Code section 35-33-5-5(j).
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[11] On July 11, 2016, under cause number MI-42103, Sorhaindo responded to the
State’s motion filed on May 4, 2016. Sorhaindo first refuted the State’s position
that its motion to dismiss was disposed of by the parties’ agreed entry filed in
February 2016. In the discussion section, Sorhaindo raised two issues: (1)
whether the State could bring a transfer motion under MI-42103 after having
filed a similar transfer motion in MC-22791; and (2) in the event the trial court
determined that the State was not barred from pursuing the turnover motion
filled in MI-42103, the trial court should afford him a meaningful hearing
pursuant to Adams v. State, 967 N.E.2d, 568 (Ind. Ct. App. 2012), to challenge
the validity on the search.
[12] On July 19, 2016, without an evidentiary hearing, the trial court issued findings
of fact and order, granting the State’s motion to transfer the seized property to
the United States under MI-42103.
[13] Sorhaindo now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Competing Cause Numbers
[14] Sorhaindo argues that the trial court erred in granting the State’s motion to
transfer his seized funds, and in essence, erred in denying his motion to dismiss.
In characterizing both causes as competing causes because they are based on
the same parties, search, seizure, and remedy, Sorhaindo alleges that under
Trial Rule 12(B)(8), MI-42103 should be dismissed, with cause MC-22791 to
proceed.
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[15] As we consider Sorhaindo’s argument, we observe that we apply a de novo
standard of review to the grant or denial of a motion to dismiss because the
same action is pending in another court, in asmuch as it is a question of law.
Ind. & Mich. Elec. Co. v. Terre Haute Indus., Inc., 467 N.E.2d 37, 42 n. 2 (Ind. Ct.
App. 1984). In Indiana, when two courts have concurrent jurisdiction over a
case, the court first acquiring jurisdiction is considered to have exclusive
jurisdiction over that case. Pivarnik v. N. Ind. Pub. Serv. Co., 636 N.E.2d 131,
135 (Ind. 1994). “Once a court has acquired exclusive jurisdiction over a case,
the case is pending in that court within the meaning of Trial Rule 12(B)(8).” Id.
The court in which a case is first instituted has exclusive jurisdiction over the
case. Id.
[16] The State contends that MC-22791 could not be “utilized for a motion to
transfer or an evidentiary hearing. If Sorhaindo were to file his written
objection under the original dummy cause number, [Courtroom 6] would not
have set the matter for a hearing because MC does not designate a true active
case.” (Appellees’ Br. p. 15) (internal quotation marks omitted). Despite the
apparent existence of the motion to transfer seized funds in MC-22791, the
State also claims that it “appears that on July 2, 2015, [it] attempted to file a
notice and motion to transfer seized property to the United States pursuant to
Indiana Code section 35-33-5-5(j) under . . . cause number . . . [MC-22791] but
it was not accepted for filing.” (Appellees’ Br. p. 9). In support of its claim, the
State references the certified copy of the Chronological Case Summary in MC-
22791 which only notes three entries on June 30, 2015—i.e., a new criminal
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miscellaneous filing, a request for search warrant, and an order granting the
request for a search warrant. The State postulates that since the motion to
transfer was never filed in MC-22791, there was no pending action in
Courtroom 6.
[17] In advancing his claim that MC-22791 was an active case in Courtroom 6,
Sorhaindo relies on Membres v. State, 889 N.E.2d 265 (Ind. 2008), a criminal
miscellaneous case with an MC designation filed in Marion Superior Court
where evidence relating to a transfer of seized property pursuant to Indiana
Code § 35-33-5-5(j) was heard. Sorhaindo additionally contends in his appellate
brief that to assert that MC cases are not active cases, “would result in [an]
absurd situation where the employees of the Marion County Clerk’s Office . . . .
would have the power to make certain types of cases essentially disappear
simply by assigning them an” MC designation. (Appellant’s Br. p. 16).
[18] Notwithstanding the State’s assertion that MC cases are not active or existing
cases, Marion County Local Rule 49-CR2.3-101(g) recognizes that existing
pending cases include cases with an “MC” designation. Aside from the
apparent filing defect on the motion to transfer (i.e., that it lacked a court file
stamp to confirm its filing), the record shows that it was filed under MC-22791.
Shortly after the search of Sorhaindo’s package and seizure of his funds, the
State filed the transfer motion and indicated in paragraph 8 that it had mailed a
copy of that motion to Sorhaindo’s addresses as listed on the package. The
record demonstrates that the motion could not be delivered and was instead
returned to the State. Notwithstanding the lack of notice on the filing of the
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State’s motion to transfer, Sorhaindo became aware of the State’s filing and
retained counsel in Indiana. In September 2015, Sorhaindo’s counsel contacted
the Prosecutor’s office to discuss the motion to transfer filed under MC-22791,
and he questioned the office on how to proceed in the filing of Sorhaindo’s
objection on the same. At no point did the State refute the existence of the
motion to transfer under MC-22791. Sorhaindo was named as a defendant in
the State’s original transfer motion and he ostensibly knew of that pending case
when it was filed. In light of Marion County Local Rule 49-CR2.3-101(g), and
the State’s admission on the filing of the transfer motion in MC-22791, we
conclude that MC-22791 was a pending active case in Courtroom 6. To that
end, we now turn our focus on whether Courtroom 12 erred by denying
Sorhaindo’s motion to dismiss.
[19] When an action is pending before an Indiana court, other Indiana courts must
defer to that court’s authority over that case. Crawfordsville Apartment Co. v. Key
Trust Co. of Flo., 692 N.E.2d 478, 479 (Ind. Ct. App. 1998). Trial Rule 12(B)(8)
implements this principle by allowing dismissal of one action on the grounds
that the same action is pending in another Indiana court. Id. at 479-80. Two
actions are the “same” for purposes of the Rule if the parties, subject matter,
and remedies sought are the same or substantially the same. Id. at 480. The
determination of whether two actions being tried in different state courts
constitute the same action depends upon whether the outcome of one action
will affect the adjudication of the other. Ind. & Mich. Elec. Co., 467 N.E.2d at
40. An “unseemly conflict of jurisdiction” exists between two courts of
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concurrent jurisdiction where both exert authority over the same case, so the
jurisdiction of the court first acquiring jurisdiction is deemed exclusive. See
State ex rel. Int’l Harvester Co. v. Allen Circuit Court, 265 Ind. 175, 352 N.E.2d 487,
489 (1976). “As a matter of policy and practicality in the operation of our
judicial system, only one court should be able to exercise jurisdiction over a
cause of action at any particular time. To hold otherwise would create
confusion and chaos in our trial and appellate courts.” State ex rel. Coleman v.
Hendricks Superior Court II, 272 Ind. 40, 396 N.E.2d 111, 112 (1979).
[20] Here, the parties in the transfer actions filed in MC-22791 and MI-42103 were
the State and Sorhaindo. In addition, the subject matter in both causes was
substantially similar. Both causes involved the transfer of the $47, 940.00
seized from Sorhaindo’s parcel to the relevant federal authorities. Finally, the
remedy sought in both actions was a turnover order, which would allow the
commencement of forfeiture proceedings in federal court. Here, we hold that
the actions pending in Courtroom 6 and Courtroom 12 were substantially the
same action. Courtroom 12, therefore, erred by denying Sorhaindo’s motion to
dismiss because Courtroom 6 retained exclusive jurisdiction over the original
turnover action.
[21] As we concluded that Courtroom 12, in which cause MI-42103 was filed did
not have jurisdiction, the transfer order issued in that court was improper. The
appropriate remedy in this case is to set aside the turnover order issued in MI-
42103 and to remand this cause to MC-22791 for the commencement of
turnover proceedings. Because we are remanding for new turnover proceedings
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under MC-22791, we need not address Sorhaindo’s other pertinent challenge
concerning the scope of the search warrant, i.e., whether the seizure exceeded
the warrant’s language. However, should Sorhaindo again choose to challenge
the lawfulness of the search warrant leading to the seizure of his funds,
Sorhaindo should be afforded a hearing on whether the seizure complied with
the warrant’s language.
CONCLUSION
[22] Based on the foregoing, we set aside the transfer order issued in MI-42103 on
July 19, 2016, and remand this cause to MC-22791 for the commencement of
turnover proceedings.
[23] Reversed and remanded.
[24] Robb, J. and Altice, J. concur
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