GARRY GROVES v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 5, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000380-MR
GARRY GROVES
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN JAEGER, JUDGE
ACTION NO. 96-CR-00122
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON AND MILLER, JUDGES.
BARBER, JUDGE:
This is an appeal from a denial of relief
pursuant to RCr 11.42 and/or CR 60.02 by the Kenton Circuit
Court.
The appellant, Garry R. Groves, contends that he was
subjected to double jeopardy when he was both sentenced to ten
years imprisonment for drug related offenses, and also subjected
to civil forfeiture for those same offenses.
Groves further
contends the he received ineffective assistance because trial
counsel failed to adequately inform him regarding his double
jeopardy rights.
On March 22, 1996, Groves was indicted for trafficking
in marijuana, five pounds or more (KRS 218A.1421(4); receiving
stolen property value $300 or more (KRS 514.110); and firstdegree trafficking in a controlled substance, cocaine(KRS
218A.1412).
While out on bail for the charges, Groves committed
additional drug offenses, and on June 28, 1996, Groves was
indicted for three additional counts of first-degree trafficking
in a controlled substance, cocaine, and trafficking in marijuana,
eight ounces or more (KRS 218A.1421(3)).
On December 19, 1996, in conjunction with an offer by
the Commonwealth on a plea of guilty, Groves filed a motion to
enter a guilty plea.
Under the terms of the agreement, Groves
pled guilty to six of the seven pending counts.
trafficking in cocaine was dismissed.
One count of
On the remaining six
counts, Groves was to receive sentences ranging from one to five
years to five to ten years, all sentences to run concurrent for a
total of ten years to serve.
Most important to the present
proceedings, the agreement provided that “[a]ll seized items and
currency (app. $72,430.00) is agreed to be forfeited.
Only item
to be returned is loose change for amounts under $1.00 per coin.”
On February 5, 1997, the trial court entered judgment and
sentence consistent with the agreement.
On February 3, 1997, an
agreed forfeiture order was entered.
The order was signed as
agreed to by Groves’ trial counsel.
Forfeited items included
$74,184.00 in currency, a 1985 Honda model automobile, and a 1985
Audi model automobile.
On February 5, 1999, Groves filed a “motion to correct
judgment pursuant to RCr 11.42 and/or CR 60.02.”
The motion
contended that Groves had been improperly subjected to double
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jeopardy, and that he received ineffective assistance of counsel
because trial counsel did not adequately explain his double
jeopardy rights to him.
On February 10, 1999, the trial court
entered an order denying the motion.
This appeal followed.
The issue as to whether a double jeopardy violation
occurred as a result of Groves’ sentence and forfeiture is not an
appropriate issue to raise in a post-conviction motion following
a guilty plea.
“[T]he effect of entering a voluntary guilty plea
is to waive all defenses other than that the indictment charges
no offense.”
55 (1990).
Centers v. Commonwealth, Ky. App., 799 S.W.2d 51,
While Groves contends that his plea was not voluntary
because he was not informed of his double jeopardy rights, as
explained below, this contention is based upon an incorrect
understanding as to what those rights were under the facts of
this case.
Groves also contends that he received ineffective
assistance because trial counsel failed to inform him of a
defendant’s double jeopardy rights when both a criminal sentence
is imposed and forfeiture occurs.
Groves contends that he received ineffective assistance
of counsel in the trial proceedings because trial counsel “failed
to advise Appellant that if a forfeiture proceedings [sic] is
punitive, then same is in violation of the double jeopardy
statute.”
Groves further contends that trial counsel failed to
advise him regarding his possible alternatives regarding
forfeiture, and that if trial counsel had properly informed him
then he would not have entered into the forfeiture proceedings.
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“A showing that counsel's assistance was ineffective in
enabling a defendant to intelligently weigh his legal
alternatives in deciding to plead guilty has two components:
(1)
that counsel made errors so serious that counsel's performance
fell outside the wide range of professionally competent
assistance;
and (2) that the deficient performance so seriously
affected the outcome of the plea process that, but for the errors
of counsel, there is a reasonable probability that the defendant
would not have pleaded guilty, but would have insisted on going
to trial.”
Sparks v. Commonwealth, Ky. App., 721 S.W.2d 726,
727-721 S.W.2d 728 (1986).
Groves’ argument relies primarily on United States v.
Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L.Ed.2d 487 (1989).
While the relevant provisions of Halper have since been overruled
by Hudson v. United States, 522 U.S. 93, 118, S.Ct. 488, 139,
L.Ed.2d 450 (1997), those provisions were in effect at the time
of Groves’ trial proceedings.
Groves’ situation.
Halper, however, did not apply to
Halper involved a civil fine for Medicare
overcharges, not forfeiture.
As the U.S. Supreme Court explained
in its opinion in Halper, the rule announced in Halper was “a
rule for the rare case . . . where a fixed-penalty provision
subjects a prolific but small-gauge offender to a sanction
overwhelmingly disproportionate to the damages he has caused.”
Halper, 490 U.S. at 449, 109 S.Ct. at 1902.
The narrow focus of
Halper followed from the distinction that has historically been
drawn between civil forfeiture and civil penalties.
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United
States v. Ursery, 518 U.S. 267, 283, 116 S.Ct. 2135, 2144, 135
L.Ed.2d 549 (1996).
Ursery, supra, clarified, once again, that, generally,
“in rem civil forfeitures are, neither “punishment” nor criminal
for purposes of the Double Jeopardy Clause.”
116 S. Ct. at 2149.
518 U.S. at 292,
However, the Double Jeopardy Clause may
apply to forfeiture proceedings in certain circumstances.
part test is used to determine this.
A two-
The first inquiry is
whether the forfeiture statute is intended to be criminal or
civil.
The second inquiry is whether the proceedings are so
punitive in fact so as to persuade that the forfeiture
proceedings may not legitimately be viewed as civil in nature.
518 U.S. at 288, 116 S. Ct. at 2147.
The forfeiture proceedings of KRS 218A.410, et. seq.,
those at issue here, were clearly intended to be, and clearly
are, in rem proceedings.
KRS 418.215(1) confers judicial
jurisdiction based upon the jurisdiction in which the property is
located.
“If jurisdiction is based on the court's power over
property within its territory, the action is called "in rem " or
‘quasi in rem.’”
Citizens Bank and Trust Co. of Paducah v.
Collins, Ky., 762 S.W.2d 411, 412 (1988) (quoting Pennoyer v.
Neff, 95 U.S. 714, 24 L.Ed. 565 (1878)).
The proceedings are not
in personam proceedings requiring jurisdiction over the person,
but rather are in rem proceedings requiring jurisdiction over the
property.
The first inquiry of the Ursory test is met.
As to the second inquiry, here, the proceedings were
not so punitive that the forfeiture proceedings may not
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legitimately be viewed as civil in nature.
As the trial court
stated in its order of January 11, 1999, denying Groves’ motion
of pre-release probation:
“A review of the facts herein reveals
that [Groves] possessed at least two ounces of cocaine, more than
fifty pounds of marijuana, and a huge sum of cash when arrested.
All evidence indicated him to be a significant seller of
controlled substance in this community.”
In view of the scale of
Groves’ drug operations, as disclosed by the record, the
forfeiture was not so punitive such that it may not be
legitimately viewed as civil.
The forfeiture included as a part of Groves’ plea
agreement was not criminal punishment and, therefore, it follows
that trial counsel did not, in failing to discuss double jeopardy
issues with Groves, make errors so serious that his performance
fell outside the wide range of professionally competent
assistance.
For the foregoing reasons, the order of the Kenton
Circuit Court denying the appellant’s motion to correct judgment
pursuant to RCr 11.42 and/or CR 60.02 is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Garry R. Groves, Pro Se
Beattyville, Kentucky
Albert B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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