Com. v. Smith

• Decision Date: 21 August 2000
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Keala Demetrius SMITH, Appellant.
• Court: Pennsylvania Supreme Court

757 A.2d 354

562 Pa. 609

COMMONWEALTH of Pennsylvania, Appellee, v. Keala Demetrius SMITH, Appellant.

Supreme Court of Pennsylvania.

Argued March 8, 2000.

Decided August 21, 2000.

Kevin G. Sasinoski, Kirk J. Henderson, Pittsburgh, for appellant, Keala Smith.

James R. Gilmore, Pittsburgh, for appellee, Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

We granted allocatur in this matter to determine whether the trial court erred in rejecting a consent asset forfeiture order on the basis that the Commonwealth did not file a written petition for forfeiture. For the reasons that follow, we find that the trial court abused its discretion in rejecting the consent forfeiture order. Accordingly, we affirm the Superior Court's order reversing the trial court.

The underlying proceedings can be briefly summarized as follows. On February 1, 1996, the police received information from a confidential informant that appellant, Keala Demetrius Smith, was inside the Chez Lounge with a quantity of crack cocaine. The informant reported that appellant was selling the crack cocaine for $20.00 per piece. Based upon this information, the police proceeded to the Chez Lounge where they approached appellant and patted him down. The police recovered a pill vial containing crack cocaine, $565 in U.S. currency, and a pager from appellant.

On July 29, 1996, appellant pled guilty to one count each of possession with intent to deliver and possession of a controlled substance. That same day appellant proceeded to sentencing on a negotiated plea agreement. The prosecutor stated that the terms of the plea agreement included a mandatory term of imprisonment of one to three years and a mandatory $5,000 fine pursuant to 18 Pa.C.S. § 7508. Additionally, appellant had agreed to forfeit half of the seized currency. Consistent with this agreement, the prosecutor presented the court with a consent asset forfeiture order. The trial court imposed the mandatory term of imprisonment in accordance with the plea agreement. However, the trial court refused to impose either the mandatory fine or enforce the consent forfeiture order. Rather, the trial court reduced the $5,000 fine to a $565 fine and directed that all of the seized funds, in the amount of $565, be returned to appellant for the purpose of satisfying the $565 fine. The Commonwealth appealed the order of the trial court.

In its opinion pursuant to Rule 1925, the trial court explained that it was clearly within its province to order that the "seized" funds be used to satisfy the fine, since the consent forfeiture order was invalid. According to the court, the Controlled Substances Forfeiture provision, 42 Pa.C.S. § 6801 et seq., (hereafter "Forfeiture Act") clearly requires that the Commonwealth institute forfeiture proceedings "forthwith" and the Commonwealth's oral motion for forfeiture at the plea agreement, nearly six months after appellant's arrest, failed to satisfy the "forthwith" requirement. Thus, the court concluded that the Commonwealth attempted to seize the funds without due process in clear violation "of the intent and purpose of the Forfeiture Act." Trial court opinion at 7. Moreover, the trial court determined that it did not err in refusing to accept the consent forfeiture order, since it was nothing more than a proposal—analogous to a plea agreement—which the court is always free to either accept or reject.

On appeal, the Superior Court reversed.¹ The Superior Court concluded that the trial court could consider an oral application for forfeiture. Moreover, the formal requirements of the Forfeiture Act were met by signing the consent forfeiture order, since under the terms of the order appellant agreed that half of the money involved was derivative contraband and admitted the nexus between the money and illegal drug activity. Additionally, the Commonwealth instituted proceedings "forthwith" as that term commonly connotes "compliance within a reasonable period of time" and a claimed violation requires a showing of prejudice. Based upon this, the court concluded that appellant was given sufficient process pursuant to the Forfeiture Act and that the trial court abused its discretion by denying the Commonwealth's oral application for the consent forfeiture order. The court also held that the trial court erred in failing to impose the mandatory minimum fine of $5,000 since the trial court does not have the authority to impose a lesser fine where the Commonwealth seeks to impose the mandatory minimum pursuant to 18 Pa.C.S. § 7508.

This court granted appellant's petition for allowance of appeal primarily to address whether the trial court erred in rejecting a consent asset forfeiture order on the basis that the Commonwealth did not file a written petition for forfeiture. We now conclude that the trial court abused its discretion in rejecting the consent forfeiture order and ordering that the seized assets be used to satisfy the fines and affirm the Superior Court's order reversing the trial court.

Appellant asserts that the trial court acted within its discretion in denying the consent forfeiture order. According to appellant, forfeiture provisions are to be strictly construed and the Forfeiture Act requires that the Commonwealth file a petition for forfeiture in order to bring the forfeiture proceedings within the jurisdiction of the court and satisfy due process. Additionally, appellant argues that the trial court did not need to follow the mandatory sentencing provisions, since the court correctly determined that the assets were not forfeited.

The Commonwealth responds that the use of a consent forfeiture order satisfies the procedural safeguards set forth in the Forfeiture Act. Thus, the oral motion for forfeiture satisfied due process and the trial court abused its discretion in refusing to accept the consent order. Moreover, the Commonwealth asserts that the trial court imposed an illegal sentence, in violation of the mandatory sentencing provisions, when it failed to impose the $5,000 fine on appellant.

Before addressing the primary issue presented in this case, we must address the Commonwealth's threshold argument that the trial court was without authority to raise a sua sponte objection to the consent forfeiture order. According to the Commonwealth, the trial court could not review the instant forfeiture matter, since it was consented to by the parties.

Contrary to the Commonwealth's argument, we find the instant situation to be analogous to a matter involving a plea agreement. A trial court may refuse to accept a plea of guilty or nolo contendere. Pa.R.Crim.P. 319. Similarly, we find that the trial court has discretion to reject or accept a consent forfeiture agreement. This conclusion is consistent with other forfeiture matters, where the Commonwealth Court has held that the trial court should review the petitions and may exercise its discretion to grant or deny the petition for forfeiture. See, e.g., Brown v. Commonwealth, 140 Pa.Cmwlth. 579, 594 A.2d 806, 808 (1991)

and In re Commonwealth v. One 1976 Chevrolet Sedan, 75 Pa.Cmwlth. 231, 461 A.2d 656 (1983)(both cases discuss forfeiture under the Liquor Code). Accordingly, it was within the trial court's discretion to review the petition for forfeiture and determine whether to accept or reject that petition.

However, the trial court's discretion in reviewing a petition for forfeiture is not unlimited and we may review that determination for an abuse of discretion. When reviewing for an abuse of discretion, we may review the record in its entirety to determine whether the record supports the reasons set forth by the trial court in making its decision. See Commonwealth of Pennsylvania v. Widmer, 560 Pa. 308, 744 A.2d 745, 750 (2000)

; Morrison v. Dept. of Public Welfare, 538 Pa. 122, 646 A.2d 565, 571 (1994).

The primary issue raised in the instant appeal is whether the trial court abused its discretion in concluding that the Commonwealth did not provide sufficient process to effect the forfeiture of the seized funds. Statutes authorizing forfeiture are to be strictly construed. Commonwealth v. $2,523.48 U.S. Currency, 538 Pa. 551, 649 A.2d 658, 660-61 (1994). The Forfeiture Act details the proceedings that must be followed in order for the forfeiture to comport with due process. The Forfeiture Act requires that where there is a seizure of property without process, "proceedings for the issuance thereof shall be instituted forthwith." 42 Pa.C.S. § 6801(c). Moreover, both the Forfeiture Act and case law make clear that it is improper to award forfeiture unless a request for such forfeiture has been "duly made." 42 Pa.C.S. § 6802(a)²; see also Com. v. Mosley, 549 Pa. 627, 702 A.2d 857, 859 (1997)

.

This court has not had a prior opportunity to consider the "forthwith" requirement pursuant to § 6801(c). In the instant case, the Superior Court cogently reasoned that "forthwith" has been defined in other settings to include a reasonable period of time. See Dept. of Transportation, Bureau of Traffic Safety v. Passerella, 42 Pa.Cmwlth. 352, 401 A.2d 1, 2 (1979); Dept. of Transportation, Bureau of Traffic Safety v. Lea, 34 Pa.Cmwlth. 310, 384 A.2d 269, 270-1 (1978). This definition is consistent with case law from this court, which has used "forthwith" and "within a reasonable time" interchangeably. East & West Coast Service Corp. v. Papahagis, 344 Pa. 188, 25 A.2d 341 (1942). In addition, the Superior Court concluded that the party challenging the forthwith requirement must allege that he was prejudiced by the Commonwealth's failure to act "forthwith." Superior Court slip opinion at 8; see also Alston, supra note 1; Lea, supra.

We find this definition to be apt for purposes of the Forfeiture Act. Thus, we conclude that where the forfeiture occurs without process, in order to satisfy the "forthwith" requirement pursuant to § 6801(c), the proceedings must...