Abbott v. State

Decision Date29 March 2022
Docket NumberSupreme Court Case No. 21S-PL-347
Parties Terry L. ABBOTT, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

ATTORNEYS FOR APPELLANT: Marie L. Miller, Samuel B. Gedge, Institute for Justice, Arlington, Virginia

ATTORNEYS FOR APPELLEE: Theodore E. Rokita, Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 19A-PL-1635

David, Justice.

In Indiana, civil forfeiture actions typically proceed under one of two statutes: the general forfeiture statute or the racketeering forfeiture statute. Today, we consider whether the racketeering forfeiture statute permits a court to release, to the defendant, funds seized in a forfeiture action so the defendant can hire counsel in that same action. We hold that it does not. However, we also find that Abbott's designated evidence regarding the origins of much of the seized cash was sufficient to overcome the State's motion for summary judgment in this forfeiture action. Finally, we review Abbott's request for appointed counsel and find, although exceptional circumstances may exist that would otherwise justify appointment of counsel, the trial court did not abuse its discretion by denying Abbott's request given its finding that Abbott was unlikely to succeed in defense of the forfeiture.

We therefore affirm in part, reverse in part, and remand this case for further proceedings consistent with this opinion.

Facts and Procedural History

In April 2015, following two controlled buys where Terry Abbott sold drugs to a confidential informant, police executed a search warrant of Abbott's home. There they seized marijuana, methamphetamine, hundreds of pills containing amphetamine and alprazolam (Xanax), drug paraphernalia, several firearms, and $9,185 in cash – including $6,760 that was found in Abbott's pants pocket and $2,414 that was found in a safe. Abbott was arrested and eventually convicted of several offenses, including one count of Level 2 felony dealing methamphetamine and one count of Level 2 felony dealing in a schedule II controlled substance.

While Abbott's criminal case was pending, the State filed an in rem civil forfeiture action against Abbott under Indiana's general forfeiture statute in Indiana Code chapter 34-24-1, and Indiana's racketeering forfeiture statute in Indiana Code chapter 34-24-2 ("Racketeering Forfeiture Statute"), seeking the forfeiture of the cash and firearms seized during the search.

Abbott initially was represented by counsel in the forfeiture action, but his counsel withdrew in October 2015. Incarcerated and without counsel, Abbott moved to have counsel appointed to defend him in the forfeiture action. The trial court denied Abbott's motion to appoint counsel to contest the forfeiture, finding he was the most qualified person to investigate and present evidence in opposing summary judgment; he "has in the past hired private counsel to represent him in this matter;" and his likelihood of prevailing on the merits in the forfeiture action was "slim." Appellant's App. Vol. II at 14; see Ind. Code § 34-10-1-2(d)(2) ("The court shall deny an application ... if the court determines ... (2) [t]he applicant is unlikely to prevail on the applicant's claim or defense."). Therefore, Abbott proceeded pro se in defense of the forfeiture action.

After Abbott was convicted in his criminal case, the State filed a motion for summary judgment in the forfeiture action in July 2018, alleging there was no genuine issue of material fact that the seized property was subject to forfeiture under I.C. § 34-24-2-2 based on Abbott's pattern of racketeering activity. In response, Abbott designated copies of tax forms from 2015 showing that he lawfully earned over $20,000 in income, along with an affidavit stating that the seized cash was obtained legally—and that $6,760 of the seized cash was supposed to go to the purchase of a motorcycle later that day, but the sale fell through.

Following an evidentiary hearing, the trial court granted the State's motion for summary judgment, finding "the evidence presented is undisputed and clearly establishes that [Abbott] did engage in racketeering activity." Appellant's App. Vol. II at 25. It found that Abbott's designated evidence did not create a genuine issue of material fact, given the State's "overwhelming designated evidence" that the cash was used for or was derived from Abbott's criminal conduct. Id. at 27. Abbott appealed, pro se , challenging the trial court's denial of his request for appointed counsel and seeking a reversal of the entry of summary judgment.

The Court of Appeals reversed summary judgment for $8,923 of the seized currency, finding that Abbott's designations sufficiently created a genuine issue of material fact under our summary judgment standard.1 Abbott v. State , 164 N.E.3d 736, 742–43 (Ind. Ct. App. 2021), vacated. The Court of Appeals also sua sponte found as a matter of equity that trial courts may allow forfeiture defendants to access seized cash that is the subject of the forfeiture action "to retain counsel, purchase a transcript if needed, and pay for other reasonable expenses associated with preparing a defense." Id. at 747–48. In reaching this conclusion, the Court of Appeals relied on language in the Racketeering Forfeiture Statute that property seized under the statute "is considered to be in the custody of the law enforcement officer making the seizure, subject only to order of the court ." See I.C. § 34-24-2-4(c) (emphasis added). Based on this finding, the Court of Appeals affirmed the trial court's denial of Abbott's request for appointed counsel on grounds that Abbott could, upon the court's order, use the seized money to pay his defense costs. The majority remanded to the trial court to "adopt reasonable procedures to supervise [Abbott's] expenditures of the res. " Abbott , 164 N.E.3d at 749.

Judge Vaidik concurred in reversing the grant of summary judgment but dissented as to whether Abbott could use the seized cash to pay for his defense in the forfeiture action. Id. at 749–50 (Vaidik, J., dissenting). She explained that once the trial court determined Abbott was unlikely to be successful in defending the forfeiture claim, the majority should not have sua sponte addressed the "equity" of allowing Abbott the limited use of the funds to support his defense. Id. at 750–51. Judge Vaidik would have affirmed the denial of appointed counsel based on the finding that Abbott was unlikely to prevail in the forfeiture action.

The State sought transfer, which we granted, vacating the Court of Appeals’ opinion. See Ind. App. R. 58(A).

Discussion and Decision

In Indiana, civil forfeiture actions typically proceed under either the general forfeiture statute in Indiana Code chapter 34-24-1, or the Racketeering Forfeiture Statute in Indiana Code chapter 34-24-2. This case primarily involves the Racketeering Forfeiture Statute, under which the State sought summary judgment. As an initial matter, we analyze the trial court's grant of summary judgment in the State's favor on whether the funds at issue were used in the course of, intended for, or derived or realized through Abbott's alleged criminal conduct. We then explore whether the Racketeering Forfeiture Statute permits a court to release the res subject to the forfeiture action to the defendant to hire defense counsel. Lastly, we review the trial court's denial of Abbott's request for appointed counsel.

I. Genuine issues of material fact exist as to whether the seized funds were a part of Abbott's alleged racketeering activity.

We first review the trial court's grant of summary judgment in the State's favor.2 Summary judgment is proper "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. T. R. 56(C). "A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014) (citations omitted). The party moving for summary judgment bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Sargent v. State , 27 N.E.3d 729, 731 (Ind. 2015). Upon this showing, the burden shifts to the non-movant to come forward with contrary evidence showing an issue for the trier of fact. Hughley , 15 N.E.3d at 1003.

This Court views the designated evidence in a light most favorable to the non-movant. Murray v. Indianapolis Pub. Schs. , 128 N.E.3d 450, 452 (Ind. 2019). Under our standard, summary judgment may be precluded "by as little as a non-movant's mere designation of a self-serving affidavit" because we prefer "letting marginal cases proceed to trial on the merits." Hughley , 15 N.E.3d at 1003–04.

"Civil forfeiture is a device, a legal fiction, authorizing legal action against inanimate objects for participation in alleged criminal activity, regardless of whether the property owner is proven guilty of a crime—or even charged with a crime." Serrano v. State , 946 N.E.2d 1139, 1140 (Ind. 2011). Under the Racketeering Forfeiture Statute, the State had the burden to show by a preponderance of the evidence that the seized property was "used in the course of, intended for use in the course of, derived from, or realized through" criminal conduct constituting corrupt business influence. I.C. § 34-24-2-2(d).

In support of summary judgment, the State designated the pleadings in the forfeiture action, an affidavit of the Chief Investigator of the Elkhart County Prosecutor's Office, and the record from Abbott's criminal case. Opposing...

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