DocketNumber： 1657 C.D. 2008
Judges： Leadbetter, McGinley, Pellegrini, Jubelirer, Simpson, Leavitt, Butler
Filed Date： 2/17/2010
Status： Precedential
Modified Date： 10/26/2024
OPINION BY
In this appeal from an order for forfeiture of real estate, we face an unusual question: where an owner of property is acquitted of drug-related criminal charges, what standard, if any, should be used in assessing whether a subsequent civil forfeiture constitutes an impermissible excessive fíne?
In particular, Freddie Bias appeals from an order of the Court of Common Pleas of Northampton County (trial court) that granted a petition filed by the Commonwealth seeking forfeiture of certain real property he owned. We affirm.
I. Background
Bias was the owner of property located at 542 Ontario Street in Bethlehem, Northampton County, Pennsylvania. On September 23, 2005, the Bethlehem Police executed a search warrant during which they found Stephen Rodriguez, whom Bias purportedly did not know. During the search of the property, they also found controlled substances with a value of $180. The search warrant was premised on at least 10 drug-related complaint calls to the Bethlehem Police regarding the subject property, a past history of drugs at the property and an investigation which included controlled purchases by a confidential informant.
The application for the search warrant noted that a similar warrant was executed on December 2, 2004, following citizen complaints and a subsequent investigation which involved surveillance and four to five controlled purchases by confidential informants.
During execution of the 2004 warrant, officers recovered 16 sandwich baggies containing cocaine from an individual inside the property, as well as marijuana and a digital scale with cocaine residue in other parts of the property. Bias was not at the residence when the search was initiated. Bias was not charged with any criminal wrongdoing at that time because he alleged no knowledge of the drugs and paraphernalia, and because he indicated a willingness to cooperate with law enforcement efforts to eliminate the drug problem in the neighborhood.
Unlike the sequelae of the earlier search, however, after execution of the 2005 search warrant, the police arrested Bias. Significant for current purposes, he was charged with possession of a controlled substance (cocaine), possession with intent to deliver a controlled substance, conspiracy to possess cocaine with intent to deliver and possession of drug paraphernalia.
II. Forfeiture Petition
On December 23, 2005, the Commonwealth filed the present forfeiture action. The trial court issued a rule to show cause why the petition for forfeiture should not be granted. The Commonwealth served Bias with its forfeiture petition on October 17, 2006, just before the start of his criminal trial.
On October 18, 2006, a jury acquitted Bias of the drag-related criminal charges.
On November 9, 2006, Bias filed preliminary objections to the forfeiture action, based upon his assertion that the Commonwealth did not serve him with the appropriate notice of the forfeiture within the required time period. On February 22, 2007, the trial court overruled the ob-
The forfeiture petition was the subject of two procedures. First, a jury trial was held on March 24 and 25, 2008. At that time, the parties agreed that while the jury would decide the factual questions relating to whether the Commonwealth was entitled to forfeiture of the real property, the legal question of whether forfeiture of the house violated the Excessive Fines clause of the United States Constitution would be decided by the trial court after the jury rendered a verdict.
The jury found in favor of forfeiture, specifically finding (1) that a nexus existed between Bias and the unlawful drug activity at his house, (2) that Bias’ house was used or possessed by a person other than him for an unlawful purpose and, of particular import for our analysis, (3) that Bias knew of or consented to the use of his house by another for an unlawful use.
Second, the trial court held a hearing on April 11, 2008, concerning Bias’ defense that the forfeiture constituted an excessive fine proscribed by the Eighth Amendment to the United States Constitution. During that hearing, Bias orally moved for judgment notwithstanding the verdict, which the trial court denied.
III. Trial Court Decision
After hearing, the trial court issued an opinion concluding that forfeiture was appropriate. The trial court first noted that Article 1, Section 18 of the Pennsylvania Constitution is coextensive with the Eighth Amendment of the United States Constitution, Jackson v. Hendrick, 509 Pa. 456, 465, 503 A.2d 400, 404 (1986), and that the Eighth Amendment is applicable to the states by virtue of the 14th Amendment. Commonwealth v. Real Property and Improvements Commonly Known As 5444 Spruce Street, Phila., 574 Pa. 423, 832 A.2d 396 (2003). Also, the trial court noted that the Commonwealth recognizes the Excessive Fines clause as a defense to a forfeiture action. Brown v. Commonwealth, 940 A.2d 610 (Pa.Cmwlth.2008).
Because of the coextensive applicability of the United States and Pennsylvania Constitutions, the Pennsylvania Supreme Court in 5444 Spruce Street concluded that the holding of the United State’s Supreme Court in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), controlled the analysis such that the “principle of proportionality” applied and “[t]he amount of a forfeiture must bear some relationship to the gravity of the offense [the forfeiture] is designed to punish.” 524 U.S. at 334, 118 S.Ct. 2028. If forfeiture represents a grossly disproportional amount relative to the crime, then the forfeiture is unconstitutional.
The hearing on the excessive fine issue included a stipulation that the value of Bias’ house was $65,000. After noting this, the trial court recited the following factors relevant to the excessive fine analysis: (1) the defendant’s conduct; (2) the penalty imposed as compared to the maximum penalty available; (3) the character of the defendant’s conduct as isolated or repeated; and (4) the resulting harm from the crime charged. See 5444 Spruce Street.
The trial court rejected Bias’ reliance upon his acquittal on the drug charges. It noted holdings that the Commonwealth’s forfeiture actions do not need to be premised on a conviction. See, e.g., Commonwealth v. 502-504 Gordon Street, 147 Pa. Cmwlth. 330, 607 A.2d 839, 842 (1992), aff'd, 535 Pa. 515, 636 A.2d 626 (1994).
As to the comparison of the value of the property to the maximum penalty, the trial court noted that the maximum penalty for possession with intent to deliver a controlled substance, a charge for which Bias was ultimately acquitted, was 10 years’ imprisonment and/or a $100,000 fine, an amount higher than the $65,000 value of his property. The trial court rejected Bias’ argument that his acquittal meant that the maximum penalty that could be imposed was zero. The trial court reiterated the above authority for the proposition that an underlying conviction is not necessary in forfeiture proceedings.
IV. Current Appeal
In this appeal, Bias raises the following issues: (1) whether the trial court erred in overruling his preliminary objections relating to service; (2) whether the trial court erred in denying judgment notwithstanding the verdict; and (3) whether the forfeiture of his property violates the Excessive Fines clause.
A. Preliminary Objections
We first address Bias’ argument that the trial court erred in overruling his preliminary objections to the forfeiture action. Bias argues that the so-called Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa.C.S. §§ 6801-6802, directs that the Rules of Civil Procedure apply in forfeiture proceedings; therefore, the Commonwealth was required to comply with the provisions for service in these Rules. Bias asserts that the Commonwealth failed to properly serve him because the Commonwealth filed its forfeiture petition on December 23, 2005, but did not serve him until October 17, 2006. Bias asserts that such service was stale, and he notes that the Commonwealth never sought to have the Clerk of Courts reinstate the original process as a means to correct the allegedly untimely service. Further, Bias argues that the forfeiture petition failed to contain a caption with the name of the court, the number of the action and the name of the pleading, in violation of Pa. R.C.P. No. 1018.
In response, the Commonwealth contends that the trial court correctly overruled Bias’ preliminary objections regarding service and caption errors, pointing to provisions of the Forfeiture Act which address the form and service of forfeiture actions. Section 6802 of the Forfeiture Act provides as follows:
(a) General procedure. — The proceedings for the forfeiture or condemnation of property, the sale of which is provided for in this chapter, shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant.
*416 A petition shall be filed in the court of common pleas ... where the property is located, verified by oath or affirmation of an officer or citizen, containing the following:
(1) A description of the property seized.
(2) A statement of the time and place where seized.
(3) The owner, if known.
(4) The person or persons in possession, if known.
(5) An allegation that the property is subject to forfeiture pursuant to section 6801(a) or 6801.1(a) and an averment of material facts upon which the forfeiture action is based.
(6) A prayer for order of forfeiture that the property be adjudged forfeited to the Commonwealth and condemned and be ordered sold according to law, unless cause be shown to the contrary,
(b) Notice to property owners. — A copy of the petition required under subsection (a) shall be served personally or by certified mail on the owner or upon the person or persons in possession at the time of seizure. The copy shall have endorsed a notice, as follows:
To the Claimant of within Described Property: You are required to file an answer to this petition, setting forth your title in, and right to possession of, said property within 30 days from the service hereof, and you are also notified that, if you fail to file said answer, a decree of forfeiture and condemnation will be entered against said property.
42 Pa.C.S. § 6802. The Commonwealth points out that these provisions are adequate to inform the owner of property of a potential forfeiture. See Commonwealth v. $1,800 U.S. Currency, 679 A.2d 275 (Pa. Cmwlth.1996) (Forfeiture Act’s provisions for the initiation of a forfeiture action apply rather than those in the Rules of Civil Procedure); Commonwealth v. One 1991 Cadillac Seville, 853 A.2d 1093 (Pa. Cmwlth.2004) (notice provisions of the Forfeiture Act apply).
The quoted provisions of the Forfeiture Act and the cited case law support the Commonwealth’s position. While the Forfeiture Act sets forth the manner of service, there are no provisions relating to the timing of service. Because these provisions provide a framework that ensures sufficient notice to an owner, we discern no error on the part of the trial court in overruling Bias’ preliminary objections. This is especially true in the absence of allegations or proof of prejudice to Bias’ ability to defend against the forfeiture petition.
B. Judgment Notwithstanding Verdict/Excessive Fine
Bias next contends that various grounds exist to support reversal of the trial court’s decision. Bias asks this court to reconsider the factual basis for the trial court’s decision by taking “judicial notice of the rise of real estate prices in the Lehigh Valley between 2003 and 2008” in order to reevaluate the trial court’s conclusion that the forfeiture is not grossly disproportional to the gravity of the activity giving rise to the forfeiture. Bias offers no discussion in support of this argument, and, consequently, we reject this argument as waived. Ward v. Dep’t of Cmty. Affairs, 685 A.2d 1061 (Pa.Cmwlth.1996).
1. Contentions
With regard to the merits of the trial court’s conclusion that the forfeiture is not grossly disproportional, Bias relies upon the United States Supreme Court decision in Bajakajian. In that case, the Court held that a fine is excessive if it is grossly disproportional to the gravity of a de'fen-
Bias also relies upon Brown in asserting that there is no evidence connecting him to the underlying offense in this case. Citing 5444 Spruce Street, he stresses the difference between his situation (where he was acquitted of all criminal charges) and the owner of 5444 Spruce Street, who pled guilty to a crime and where the court looked to the upmost possible sentence in analyzing the forfeiture. In 5444 Spruce Street, the Supreme Court remanded to the trial court to determine the value of the property. Ultimately, this Court affirmed the trial court’s decision to approve forfeiture because the possible fine was $100,000. Hence, we concluded the forfeiture of the property was not disproportional to the gravity of the crime, because the upper-most fine that a court could impose was $100,000. Bias argues that, because he was acquitted, there is no potentially proportional penalty with which to compare the value of his property.
Relying upon 502-504 Gordon Street, the Commonwealth asserts that a conviction is not a necessity in seeking forfeiture. 502-504 Gordon Street involved the forfeiture of a bar in which a raid produced a number of patrons in possession of drugs and drug paraphernalia. In that case, this Court eventually reversed the forfeiture, but did so on the basis of the “innocent owner defense,” because the bar owner informed police of the problem on the property and warned patrons not to use drugs on the property. While the case supports the Commonwealth’s position that the owner of the property need not be personally charged with a crime in order to proceed with a forfeiture action, it does not address the issue in the context of the Excessive Fines clause.
2. Discussion
a.
Civil forfeitures are the in rem consequence for wrongdoing prescribed by statute. Commonwealth v. Perez, 941 A.2d 778 (Pa.Cmwlth.), appeal denied, 598 Pa. 751, 954 A.2d 578 (2008) (McGinley, J.). Property is forfeited not as a result of the criminal conviction, but through a separate proceeding, civil in form but quasi-criminal in nature, in which the agency seeking the property must show, by a preponderance of the evidence, a nexus between the property sought and the possessor’s illegal activity. Id.; Commonwealth v. $3,222.00 U.S. Currency, 856 A.2d 288 (Pa.Cmwlth. 2004) (Cohn, J.); Commonwealth v. $73,671.80 Cash, U.S. Currency and Assorted Firearms (Artello/Smith), 654 A.2d 93 (Pa.Cmwlth.1995) (Pellegrini, J.).
Of primary importance here, “[i]t is not necessary, therefore, that a forfeiture be supported by an underlying criminal conviction.” Perez, 941 A.2d at 780, quoting Commonwealth v. $259.00 Cash U.S. Currency, 860 A.2d 228, 232 n. 7 (Pa.Cmwlth. 2004) {en banc) (Leavitt, J.). Indeed, the recent case of Perez presents a useful example. In that case, a drug conviction was reversed on appeal and nolle prossed on remand. Despite the lack of an underlying conviction, the trial court declined to return forfeited property to the petitioner,
Our conclusion is further supported by the different burdens of proof involved. The criminal burden is proof beyond a reasonable doubt; however, proof in a forfeiture proceeding must satisfy only a preponderance of the evidence standard. Perez; $3,222.00 U.S. Currency; $73,671.30 Cash. Clearly, proof in a forfeiture proceeding may be sufficient to meet that lesser standard even though it may be insufficient to obtain a criminal conviction.
b.
Turning next to an analysis of Bias’ excessive fine argument, our Supreme Court in 5444 Spruce Street adopted the United States Supreme Court test for evaluating the issue and directed its use in forfeiture proceedings. A court must compare the amount of the forfeiture to the gravity of the defendant’s offense. If the amount of the forfeiture is grossly disproportionate to the gravity of the defendant’s offense, it is unconstitutional. 5444 Spruce Street, 574 Pa. at 433, 832 A.2d at 402. Further,
The [United States Supreme] Court enumerated factors by which a court may measure the gravity of the offense, each of which is limited to the conduct of the defendant: the penalty imposed as compared to the maximum penalty available; whether the violation was isolated or part of a pattern of misbehavior; and, the harm resulting from the crime charged.
Id. (emphasis added).
Our current challenge is to determine generally what offense and specifically what maximum penalty should be used in the analysis where, as here, an owner is acquitted and therefore not convicted of any offense and not subject to any criminal penalty.
The approved test focuses on the conduct of the defendant. It does not explicitly require a conviction. Considering this, and mindful of our earlier discussion regarding the differences between criminal prosecutions and civil forfeiture proceedings, especially the different burdens of proof, we conclude that Bias’ conduct as established by a preponderance of the evidence in the forfeiture proceedings may be evaluated. Further, the value of Bias’ house may be compared against the maximum penalty for conduct which was established by a preponderance of the evidence in the forfeiture proceedings.
Bias was charged with various felony drug offenses, including conspiracy to possess with intent to deliver cocaine, as a result of his facilitation of drug sales at his property. The maximum fine for possession with intent to deliver cocaine is $100,000. Section 13(f)(1.1) of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(f)(1.1).
A person is involved in a conspiracy to commit a crime if, with the intent of promoting or facilitating its commission, he: (1) agrees with such other person that one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) agrees to aid such other person in the planning or commission of such crime or of
The evil against which a conspiracy is aimed is the agreement of two or more persons to act in concert for a criminal purpose. Commonwealth v. Timer, 415 Pa.Super. 376, 609 A.2d 572 (1992). Since an explicit or formal agreement to commit a crime can seldom be proved, and need not be, proof of a criminal partnership or conspiracy can be extracted from the circumstances that attend its activities. Commonwealth v. Davalos, 779 A.2d 1190 (Pa.Super.2001).
In this case, the civil jury found that Bias’ house was used by or possessed by a person other than him for an unlawful purpose, and, significantly, Bias knew of or consented to the use of his house by another for an unlawful use. These findings, together with the circumstances set forth in the affidavits of probable cause and police reports setting forth the results of the 2005 search, are sufficient to support a preponderance-of-the-evidence determination Bias conspired with the occupant of his property to possess with intent to deliver. As a result, it is appropriate to consider the gravity of that conduct and the maximum penalty available for the conspiracy.
First, we compare the penalty imposed by the forfeiture against the maximum penalty available for conspiracy to possess cocaine with intent to deliver. We discern no error in the trial court’s determination that the value of the house, $65,000, is not grossly disproportionate to the maximum penalty for the conspiracy, $100,000.
We next consider whether Bias’ violation was isolated or part of a pattern of misbehavior. The trial court accepted as credible evidence adduced at the criminal trial indicating the Bethlehem Police employed multiple resources and various countermeasures to combat illegal activity at Bias’ property. These included numerous controlled purchases at the property. As Bias does not dispute that these findings are supported by substantial evidence, we perceive no error in the trial court’s conclusion that Bias’ violation was part of a pattern of misbehavior.
Finally, we evaluate the harm resulting from Bias’ conduct. The trial court, quoting this Court, acknowledged that the harm caused to society by drug trafficking is self-evident. Also, the trial court found that Bias’ property exacted a heavy toll from government resources, including the countermeasures employed by the Bethlehem Police over a one year period. Further, relying on the civil jury’s findings, the trial court found the harm resulting from Bias’ property was widespread.
This determination is supported by the record. In addition, it is in harmony with settled law, as stated by our Supreme Court:
[Collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.
In sum, we discern no error in the determination that the forfeiture did not violate the prohibition against excessive fines. Considering all of the foregoing, we see no reason to disturb the trial court’s thoughtful and patient disposition of the forfeiture petition.
ORDER
AND NOW, this 17th day of February, 2010, the orders of the Court of Common Pleas of Northampton County which overruled preliminary objections, denied a motion for judgment notwithstanding the verdict and granted the forfeiture petition are AFFIRMED.
. The trial court indicated that Bias filed a brief in support of the motion for judgment notwithstanding the verdict in which he raised a challenge that the court had already addressed at the April 11 hearing. Also, the trial court noted that Bias again raised the service issue addressed in the preliminary objections. In its opinion, the trial court expressly denied any additional issues raised in the brief and indicated that the only issue before the court was the excessive fines issue.
. In a forfeiture case, this Court’s scope of review is limited to determining whether the trial court abused its discretion or committed an error of law. Commonwealth v. 1997 Mitsubishi Diamante, 950 A.2d 1114 (Pa.Cmwlth. 2008).
. There are a number of cases involving the defense of "innocent owner,” but Bias does not raise that issue.
. Act of April 14, 1972, P.L. 233, as amended.