Comwlth of PA v. $6683.00 Cash, et al. ~ Appeal of: L. Hernandez, Jr. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania : : v. : : $6683.00 Cash Five (5) Cell Phones : Luis Hernandez, Jr. : : Appeal of: Luis Hernandez, Jr. : BEFORE: No. 1158 C.D. 2007 Submitted: January 4, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: February 12, 2008 Luis Hernandez, Jr., appeals an order of the Court of Common Pleas of York County (trial court) granting the Commonwealth s motion for judgment of forfeiture of $6,683 in cash and five cell phones seized from Hernandez when he was arrested on drug-related charges. In this case we consider whether Hernandez was deprived of procedural due process. Because we conclude that Hernandez was not afforded an opportunity to prove lawful ownership of the seized property, we will vacate and remand for further proceedings. On March 31, 2006, Pennsylvania state troopers executed a search warrant at Hernandez s residence in the City of York. The officers seized marijuana, cocaine, $6,683 in cash and five cell phones. Hernandez was arrested for possession with intent to deliver controlled substances and criminal conspiracy. On July 24, 2006, the York County District Attorney filed a petition for forfeiture alleging that the cash and cell phones were subject to forfeiture to the Commonwealth as derivative contraband pursuant to Sections 6801-6802 of the Judicial Code, 42 Pa. C.S. §§6801-6802 (referred to herein as the Forfeiture Act). The Commonwealth also filed a notice advising Hernandez that he was required to file an answer within 30 days setting forth his title in and right to possession of the property. The forfeiture petition and notice to answer were served on Hernandez by certified mail at the York County Prison. Hernandez filed a motion for return of property on August 25, 2006. In his motion, Hernandez alleged that the cash and cell phones were his exclusive property and neither contraband nor the fruits of any crime. Thereafter, on September 11, 2006, the Commonwealth filed a motion for judgment seeking forfeiture of the subject property because, inter alia, no answer to the forfeiture petition had been filed. The Commonwealth s motion for judgment was served upon Hernandez at the York County Prison by first class mail. On September 20, 2006, the trial court entered an order granting the Commonwealth s motion and forfeiting the cash and cell phones. In a letter to the trial court dated September 24, 2006, and filed September 27, 2006, Hernandez argued that he did in fact file a timely answer to the Commonwealth s forfeiture petition on August 24, 2006. The court treated the letter as a petition to open judgment and scheduled a hearing for November 27, 2006. At the hearing, Hernandez again claimed that he had filed a timely answer to the Commonwealth s July 24, 2006, forfeiture petition. The following exchange occurred: [COMMONWEALTH S ATTORNEY]: Mr. Hernandez, did in his motion for return of property that he filed himself also attached a docket. It appears on August 25th, according to that, he answered - - the answer was filed. 2 THE COURT: The [Clerk s] Office does have an answer docketed. What I ll do, again we ll treat Mr. Hernandez s motion for return of property as a motion to open judgment. We ll open judgment and direct that the District Attorney s Office could proceed with forfeiture proceedings against Mr. Hernandez. Mr. Hernandez, of course, has the right to oppose the forfeiture proceedings. Maybe the [Clerk] of Courts Office can find the answer that he filed [on the] 24th. I have a motion for return of property with a date stamp as August 25th. Is that what you re claiming is an answer? Can you show that to him? Is that what you claim as an answer? THE DEFENDANT: No, that s for the - - this is for another motion for return of property. Yes, that s it right there. THE COURT: So that s what you claim is an answer? THE DEFENDANT: Uh-huh. THE COURT: Okay. Well, I can treat that as an answer. If you want that to be your answer, we ll let you use that as your answer. Okay? You ll have to proceed with a forfeiture hearing. [COMMONWEALTH S ATTORNEY]: Yes, sir. Notes of Testimony, November 27, 2006, at 2-3. Following the hearing, the trial court entered an order on December 7, 2006, opening judgment and directing that the District Attorney s Office could proceed with forfeiture proceedings against Mr. Hernandez. Order, December 7, 2006. There was no further activity on the docket until May 29, 2007, when the Commonwealth filed a second motion for judgment seeking forfeiture of the seized items because no answer had been filed to the forfeiture petition. The trial court entered judgment in favor of the Commonwealth on June 1, 2007. 3 Hernandez filed a notice of appeal from the June 1, 2007, order on June 15, 2007. In his notice of appeal, Hernandez alleged a violation of his right to due process because he never received a forfeiture hearing in accordance with the trial court s oral and written orders following the November 27, 2006, hearing. In its Rule 1925(a) opinion, the trial court reexamined the procedural history in this case and noted as follows: Upon close review of the docket, we find that it indicates [Hernandez] filed an Answer on August 25, 2006. The file contains a Motion for Return of Property, dated August 25, 2006, but a Motion for Return of Property does not qualify as an Answer. Assuming [Hernandez] filed an Answer of merit, [Hernandez] could have filed a Motion to Strike Judgment and would have been entitled to relief. Instead, [Hernandez] filed a Notice of Appeal on June 15, 2007. The Pennsylvania Rules of Appellate Procedure provide that after an appeal is taken, the trial court may no longer proceed in the matter. Pa. R.A.P. 1701(a). Therefore, we are without jurisdiction to grant [Hernandez] relief in this matter. Trial Court Opinion at 2. On appeal,1 Hernandez argues that his property was forfeited without due process of law. In support of this claim, Hernandez observes that at the conclusion of the November 27, 2006, hearing the trial court opened judgment and directed the Commonwealth to schedule a forfeiture hearing. Because the Commonwealth did not schedule this hearing, Hernandez contends that he was 1 Our scope of review is limited to examining whether the findings of fact made by the trial court are supported by competent evidence, and whether the trial court abused its discretion or committed an error of law. In re One 1988 Toyota Corolla (Blue Two-Door Sedan) Pa. License TPV 291, 675 A.2d 1290, 1296 n.13 (Pa. Cmwlth. 1996). 4 deprived of his right under the Forfeiture Act to establish ownership of the cash and cell phones.2 We agree. The Forfeiture Act details the procedures that must be followed in any forfeiture case. For example, the Commonwealth s forfeiture petition must aver material facts upon which the forfeiture action is based and advise the forfeiting party that he is required to file an answer to [the] petition, setting forth your title in, and right to possession of, said property within 30 days. 42 Pa. C.S. §6802(a)(5), (b). The Act also provides for a hearing in which the forfeiting party can respond to the Commonwealth s evidence. 42 Pa. C.S. §6802(i), (j). Thus, it is axiomatic that notice and opportunity to be heard are integral to forfeiture proceedings. Commonwealth v. Mosley, 549 Pa. 627, 633, 702 A.2d 857, 860 (1997). See also Commonwealth v. Smith, 562 Pa. 609, 617, 757 A.2d 354, 358 (2000) ( the appropriate inquiry in reviewing any forfeiture proceeding is directed at whether due process was afforded to the forfeiting party. ). We have reviewed the unique procedural history of this case and conclude that due process was not afforded to Hernandez. Although Hernandez never technically filed an answer to the Commonwealth s forfeiture petition, the trial court informed him, on the record, that it would treat his motion for return of property as the answer.3 The court also directed the Commonwealth s attorney to schedule a forfeiture hearing, which would be the typical procedure in a forfeiture case once an answer is filed. Accordingly, we cannot fault Hernandez for waiting for the Commonwealth to schedule a hearing and provide him with the opportunity to be 2 The Commonwealth did not file a brief in this appeal. A motion for return of property is filed under Pa. R.Crim.P. 588. Although a proceeding for return of property is distinct from a forfeiture proceeding, it is not uncommon for these two types of actions to proceed simultaneously and be heard together. Mosley, 549 Pa. at 632, 702 A.2d at 859. 3 5 heard guaranteed by the Forfeiture Act. The Commonwealth s second motion for judgment of forfeiture was premature, and the trial court erred by granting the motion. For the foregoing reasons, we vacate the order of the trial court and remand this matter for a hearing on the Commonwealth s forfeiture petition. ______________________________ MARY HANNAH LEAVITT, Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania : : v. : : $6683.00 Cash Five (5) Cell Phones : Luis Hernandez, Jr. : : Appeal of: Luis Hernandez, Jr. : No. 1158 C.D. 2007 ORDER AND NOW, this 12th day of February, 2008, the order of the Court of Common Pleas of York County in the above-captioned matter, dated June 1, 2007, is hereby VACATED and this matter is REMANDED for a hearing on the Commonwealth s Petition for Forfeiture of $6,683.00 Cash and Five Cell Phones. Jurisdiction is relinquished. ______________________________ MARY HANNAH LEAVITT, Judge

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