KELVIN COLLIER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 16, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001684-MR
KELVIN COLLIER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 98-CR-000321
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Kelvin Lamont Collier has appealed from an order
entered on April 3, 2000, by the Jefferson Circuit Court which
“overruled” his “motion for release of property” concerning
$2,380 in cash that was seized from him when he was arrested on
drug charges following a search of his residence.
Having
concluded that the Commonwealth has failed to take the
appropriate action to obtain the forfeiture of the cash under
KRS1 218A.410(j) and that the trial court has failed to make the
required findings of fact, we vacate and remand.
On November 18, 1997, the Louisville Police Department
executed a search warrant at an apartment in Louisville,
Kentucky, where Collier lived with his girlfriend.
During the
search the police officers seized 114.53 grams of cocaine, 22.4
grams of marijuana and $2,380 in cash -- $2,000 was found in a
pair of boots that belonged to Collier and $380 was found on his
person.
On February 4, 1998, Collier was indicted by the
Jefferson County grand jury for trafficking in a controlled
substance in the first degree (cocaine),2 for possession of
marijuana,3 and for being a persistent felony offender in the
second degree (PFO II).4
On September 30, 1998, Collier accepted
the Commonwealth’s offer and pled guilty to the amended charge of
illegal possession of a controlled substance in the first degree
(cocaine),5 possession of marijuana and PFO II.
He was sentenced
to prison for a term of five years on the possession of cocaine
conviction and that sentence was “enhanced to five years by
reason of PFO II.”
He was also sentenced to jail for 12 months
1
Kentucky Revised Statutes.
2
KRS 218A.1412.
3
KRS 218A.1422.
4
KRS 532.080.
5
KRS 218A.1415.
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on the possession of marijuana conviction, with that sentence to
run concurrently with the five-year sentence.6
No further action was taken in Collier’s case until he
filed a pro se “motion for release of property.”
The record is
in poor order and it is not clear when this motion was filed.
The certificate of service indicates that it was served on the
trial judge on March 27, 2000.
An order, which was apparently
tendered with the motion, has written on it “overruled T. J.
Knopf Judge 3/31/00.”
This order was entered on April 3, 2000.
The record’s index indicates that the motion was also filed on
April 3, 2000.
Another “motion for release of property” was
filed on June 7, 2000.
This “motion” was actually a letter to
the circuit court clerk seeking information on the status of the
first motion.
On June 13, 2000, Judge Knopf wrote Collier a
letter which stated in part: “This motion was overruled and a
copy of said order should have been sent to you.
not, I enclose a copy for your information.”
Collier filed a “motion for reconsideration.”
In case it was
On June 26, 2000,
On June 27, 2000,
Judge Knopf summarily denied this motion by writing “overruled T.
J. Knopf Judge 6/26/00” on the first page of the motion.
This
appeal followed.
Collier argues that he pled guilty to possession of a
controlled substance, not trafficking, and that forfeiture of his
money that was seized was not part of any plea bargain agreement.
6
These sentences were to run consecutively with Collier’s
five-year sentence for possession of cocaine in case number 97CR-00988, which had been probated.
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Collier claims that for the money to be subject to forfeiture,
the Commonwealth must produce some evidence that the seized money
was used or was intended to be used in drug trafficking.
He
argues that for the seized money to be subject to forfeiture
under Kentucky law, he must be convicted of trafficking and not
merely possession.
In Osborne v. Commonwealth,7 the Supreme Court of
Kentucky directly addressed the issue of forfeiture of currency
in a drug case and stated:
At the outset, it should be observed
that nothing in the forfeiture statute
requires criminal conviction of the person
whose property is sought to be forfeited. It
is sufficient under KRS 218A.410(h) and (j)
to show a nexus between the property sought
to be forfeited and its use to facilitate
violation of the Controlled Substances Act,
KRS 218A. Smith v. Commonwealth, Ky., 707
S.W.2d 342 (1986). Thus, appellant can take
little comfort here in the fact of the
dismissal of charges against her. The
inquiry is whether the evidence and law,
including statutory presumptions, permit a
finding that the subject property was used to
facilitate violation of the Act.
. . .
A more difficult question is encountered
with respect to forfeiture of the currency.
The controlling statute is KRS 418A.410(j)
[sic] which permits forfeiture of
“Everything of value furnished .
. . in exchange for a controlled
substance in violation of this
chapter, all proceeds . . .
traceable to the exchange, and
all moneys . . . used, or
7
Ky., 839 S.W.2d 281 (1992).
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intended to be used to facilitate
any violation of this chapter.”
Subsection (j) further provides that
“It shall be a rebuttable
presumption that all moneys,
coin, and currency found in close
proximity to controlled substances,
to drug manufacturing or
distributing paraphernalia, or to
records of the importation,
manufacture, or distribution of
controlled substances, are presumed
to be forfeitable under this
paragraph. The burden of proof
shall be upon claimants of personal
property to rebut this presumption
by clear and convincing evidence.”
On examination of the foregoing statute,
it is apparent that any property subject to
forfeiture under (j) must be traceable to the
exchange or intended violation. This
requirement exists without regard to the
presumption which appears later in the
statute. Without such a requirement, the
statute would mandate forfeiture of property
which was without any relationship to the
criminal act and would be of dubious
constitutional validity under Sections 2, 11,
13, 26 and possibly other sections of the
Constitution of Kentucky. With such a
requirement, however, the General Assembly is
entitled to great latitude to create
presumptions.
Recognizing the difficulty of proof with
respect to showing a connection between
currency and drug transactions, the General
Assembly created a presumption whereby
currency found in close proximity to
controlled substances was presumed to be
forfeitable subject to the right of the owner
to rebut the presumption. While the
presumption would, at first blush, appear to
dispense with the requirement of
traceability, we believe the two must be
construed harmoniously so as to give effect
to the intention of the General Assembly.
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The Commonwealth may meet its initial
burden by producing slight evidence of
traceability. Production of such evidence
plus proof of close proximity, the weight of
which is enhanced by virtue of the
presumption, is sufficient to sustain the
forfeiture in the absence of clear and
convincing evidence to the contrary. In
practical application, the Commonwealth must
first produce some evidence that the currency
or some portion of it had been used or was
intended to be used in a drug transaction.
Additional proof by the Commonwealth that the
currency sought to forfeited was found in
close proximity is sufficient to make a prima
facie case. Thereafter, the burden is on the
claimant to convince the trier of fact that
the currency was not being used in the drug
trade. Our view in this regard is consistent
with Smith v. Commonwealth, supra, wherein
the Court held that despite possession of
$2,000 cash, the defendant’s acquittal of the
trafficking charge and failure of the
Commonwealth to prove a connection between
the currency and the drug transaction was
sufficient to require denial of forfeiture.
The difference between Smith and this case is
that in the former, the trafficking charge
was the only link between the money and the
drug transaction and on acquittal, the link
was broken. Here, the money was found in
close proximity, indeed in the dwelling, of
Donald Kimberly, one who was convicted of
trafficking.8
In Smith v. Commonwealth,9 the Supreme Court of
Kentucky reversed the trial court’s order that forfeited Smith’s
money that had been seized during his arrest.
Smith was found
innocent of trafficking in a controlled substance, but he was
found guilty of the lesser charge of possession.
After the
conviction for possession, the trial court entered an order of
8
Id. at 283-84.
9
Ky., 707 S.W.2d 342, 343 (1986).
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forfeiture of the cash found on Smith when he was arrested.
Reversing this order, the Court stated:
If he had been convicted of trafficking
in a controlled substance, K.R.S. 218A.410(j)
would have created a rebuttable presumption
that money found on his person was
forfeitable. The acquittal on the charge of
trafficking is ample rebuttal of the
presumption that the money was used or
intended to be used in exchange for a
controlled substance. There was no testimony
that the money found on appellant’s
possession had been received by him in
exchange for a controlled substance. The
only direct testimony on this point was that
he won the money gambling.
In the case sub judice, the Commonwealth’s brief does
not address the merits of Collier’s arguments.
Instead, the
Commonwealth argues that Collier’s motion for release of property
was untimely.
Although not specifically cited by the
Commonwealth, it appears to be relying upon CR10 59.05, which
states:
A motion to alter or amend a judgment,
or to vacate a judgment and enter a new one,
shall be served not later than 10 days after
entry of the final judgment.
The Commonwealth relies on Commonwealth v. Gross,11 for
its argument that Collier failed to timely file his motion for
release of property.
In Gross, the trial court amended Gross’
sentence more than two years after the original sentence was
imposed.
The trial court reasoned that it retained “continuing
jurisdiction” to alter or amend Gross’ sentence until the time
10
Kentucky Rules of Civil Procedure.
11
Ky., 936 S.W.2d 85 (1996).
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had run to preclude shock probation.
Relying on CR 59.05 and
60.02, the Supreme Court of Kentucky held that the trial court
lost jurisdiction to alter, amend or vacate defendant’s judgment
of conviction after expiration of ten days of its entry.
We believe the present case can be distinguished from
Gross and other cases that have applied the ten-day rule.
CR
59.05 deals with amending or vacating judgments, and in the
present case Collier did not ask the trial court to amend or
vacate his sentence.
Nor did Collier ask the trial court to
amend or vacate his guilty plea.
Nowhere in the guilty plea or
in the trial court’s sentencing order is there any reference to a
forfeiture of Collier’s seized property.12
We have reviewed the
video record in the present case and note that during Collier’s
12
The trial court’s judgment of conviction stated:
This matter having come before the Court
on September 30, 1998. The defendant, by
counsel, withdrew his not guilty plea and
entered a plea of guilty to Illegal
Possession of Controlled Substance (amended
from TICS I); Possession of Marijuana; and
PFO II.
The Court having accepted the plea; the
defendant expressed a desire to waive a PreSentence Investigation Report; and the Court
being otherwise sufficiently advised;
IT IS HEREBY ORDERED that defendant is
sentenced as follows:
IPCS - five years, enhanced to five
years by reason of PFO II; POM - 12 months;
concurrent for five years. This sentence to
run consecutively with sentence under 97 CR
0988. Court costs and PD fee waived.
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sentencing hearing the trial court did not address forfeiture.
Moreover, the trial court never made any reference to the fact
that money was seized at the time Collier was arrested.
Furthermore, the Commonwealth failed to take any affirmative step
to have Collier’s property forfeited.
The first affirmative step was taken by Collier, when
on or about March 27, 2000, he filed a motion to have his
personal property released.
opinion.
This motion was “overruled” without
On June 27, 2000, Collier filed a motion for
reconsideration and findings of fact that was also “overruled”
without opinion.
We hold that Collier’s appeal is not barred by CR
59.05.
The Commonwealth has simply failed to take the proper
affirmative steps to have Collier’s money forfeited.
Pursuant to
Osborne and Smith, supra, the fact that money was seized when
Collier was arrested did not create an automatic forfeiture of
the cash.
According to Osborne and Smith, Collier would had to
have been convicted of or pled guilty to the trafficking charge
for the Commonwealth to have acquired the rebuttable presumption
that the seized money was forfeitable pursuant to KRS
418A.410(j).
Osborne makes it clear that the Commonwealth has the
initial burden of providing “slight evidence” of the traceability
of the money seized to drug trafficking.
In the case sub judice,
the Commonwealth has failed to take the necessary steps to have
Collier’s money forfeited.
As in Osborne, “the trial court
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failed to make findings with respect to traceability and failed
to determine whether appellant’s evidence as to the source of the
currency was credible.”
Of course, unlike Osborne, there was no
evidence taken in the case sub judice.
For these reasons, we vacate the order of the Jefferson
Circuit Court and remand this matter for further proceedings
including an evidentiary hearing on the claimed forfeiture of the
$2,380 in cash.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kelvin Collier, pro se
Burgin, Kentucky
Albert B. Chandler, III
Attorney General
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
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