Lozoya v. State

Decision Date05 November 1996
Docket NumberNo. C-95-861,C-95-861
Citation1996 OK CR 55,932 P.2d 22
PartiesBenjamin LOZOYA, Petitioner, v. The STATE of Oklahoma, Respondent.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Roger McCoin, Oklahoma City, for Petitioner at trial.

Mac Oyler, Oklahoma City, for Petitioner on appeal.

Lisa Hammond, Asst. District Attorney, Oklahoma City, for the State at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma and Jennifer B. Miller, Assistant Attorney General, Oklahoma City, for the State on appeal.

OPINION DENYING PETITION FOR WRIT OF CERTIORARI

LUMPKIN, Judge:

Petitioner, Benjamin Lozoya, entered guilty pleas to the following charges and received the following sentences in Oklahoma County Case No. CF-92-5284: Count I, Trafficking in Illegal Drugs (63 O.S.1991, § 2-415) (30 years); Count II, Maintaining a Vehicle Where a Controlled Dangerous Substance is Kept (63 O.S.1991, § 2-404) (5 years); Count III, Possession of Controlled Dangerous Substance without a Tax Stamp (68 O.S.1991, § 450.3) (5 years). The Hon. Virgil C. Black, District Judge, ordered the sentences to be served concurrently. We affirm the convictions, but remand to allow the trial court to consider all sentencing options.

Petitioner entered a plea of guilty to the above charges on April 29, 1993. His original attorney did not properly perfect his appeal or file an application to withdraw his plea of guilty. His present attorney, Mac Oyler, filed an application for post-conviction relief in March 1995. The district court recommended this Court allow an appeal out of time in May 1995. We granted the appeal out of time on June 19, 1995. From that, Petitioner filed his application to withdraw his guilty plea, and the case is properly before this Court.

Based on certain allegations in Petitioner's brief, we called for a response from the State, which was timely filed. Petitioner filed a reply brief based on the State's response brief. We publish based on two issues of first impression: one dealing with the question of civil forfeiture, its impact on a double jeopardy claim and whether it has been waived; the other to resolve a potential conflict between provisions in the Delayed Sentencing Program for Young Adults (Sections 996 through 996.3 of Title 22) and the Trafficking in Illegal Drugs Act (Sections 2-414 through 2-420 of Title 63).

I.

On September 2, 1992, Petitioner was en route to Texas from Iowa when he was stopped on Interstate 44 near Kelley Avenue in Oklahoma City by an Oklahoma Highway Patrol trooper for failure to dim lights. As the trooper approached the van, he noticed a strong smell of marijuana. A drug dog was called to the scene, and authorities discovered in the van approximately 350 pounds of marijuana, with a value of up to $1,200 per pound. Petitioner was paid $2,000 to drive the van to Texas from Iowa.

II.

For his first proposition, Petitioner contends his criminal convictions are barred by the double jeopardy provisions of the United States Constitution because the State previously punished him by pursuing and completing a civil forfeiture of his vehicle and monies in a prior separate proceeding. On September 9, 1992, Petitioner was charged with the above mentioned crimes. He also alleges that on October 29, 1992, the State filed a Notice of Seizure and Forfeiture, CJ-92-8984, seeking both the van Petitioner was driving (which he admitted he owned, although he said it was bought in Iowa for him to drive back to Texas) and $231.14 Petitioner possessed when he was arrested. He further alleges the Order of Forfeiture was issued December 21, 1992, forfeiting both the van and the money. He entered his pleas of guilty to the criminal charges on April 29, 1993, and was sentenced October 1, 1993. He claims his criminal conviction should be reversed because it amounted to a second punishment for his crimes.

A.

Petitioner cites United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and Montana Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), as authority a civil in rem forfeiture action constitutes double jeopardy. We need not deal with this extensively, as a more recent case, United States v. Ursery, 518 U.S. ----, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) disposes of Petitioner's argument. In that case, the United States Supreme Court held that a civil in rem forfeiture does not constitute "punishment" for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. In doing so, it relied on a long line of previous cases, Id. at ----, 116 S.Ct. at 2147, 135 L.Ed.2d at 568, and limited the holdings of the cases cited above.

The Court distinguished Halper by observing it dealt not with a civil forfeiture, but a civil penalty. Id. at ----, 116 S.Ct. at 2144, 135 L.Ed.2d at 564. The Halper Court had used a case-by-case analysis to determine whether a penalty constituted punishment. The Ursery Court specifically rejected that analysis for a civil forfeiture; instead, it noted that the case-by-case balancing approach used in Halper "had been supplanted in Austin by a categorical approach that found a civil sanction to be punitive if it could not 'fairly be said solely to serve a remedial purpose.' " Id. at ----, 116 S.Ct. at 2145, 135 L.Ed.2d at 567. Austin itself dealt not with the Fifth Amendment protections against double jeopardy, but rather with the excessive punishment provisions of the Eighth Amendment. Id. at ----, 116 S.Ct. at 2143, 135 L.Ed.2d at 563. 1 The Supreme Court distinguished Kurth Ranch as a case dealing with a tax. Id. at ----, 116 S.Ct. at 2144, 135 L.Ed.2d at 564.

B.

As we read Ursery, this Court must first make a determination whether our Legislature intended the forfeiture proceedings to be civil or criminal. Id. at ----, 116 S.Ct. at 2147, 135 L.Ed.2d at 568. Once we make that categorical determination, we must then determine whether the proceedings in general "are so punitive in fact as to 'persuade us that the forfeiture proceeding may not legitimately be viewed as civil in nature,' despite [the Legislature's] intent." Id. at ----, 116 S.Ct. at 2147, 135 L.Ed.2d at 568. In light of the earlier repudiation the Court's prior caselaw intended a case-by-case determination, we find both prongs of this analysis must be gleaned from the Legislative intent itself, and not done on a case-by-case basis, absent an argument the forfeiture constitutes an excessive fine under the Eighth Amendment. 2

In making our determination, we find a well reasoned opinion by our own Court of Civil Appeals, while not binding on us, is persuasive. In State ex rel. McGehee v. 1989 Ford F-150 Pickup, 1993 Texas License No. DYI-252, VIN. No. 1FTHF36L7EKA09102, 888 P.2d 1036 (Okl.App.1994), the State appealed from an adverse order of the district court denying relief. In reversing the district court's order, Chief Judge Reif, writing for the court, noted federal cases cited by the defendant dealt with federal forfeiture statutes which those Courts concluded were primarily penal in nature. However,

In contrast, the provisions of the Oklahoma controlled substance forfeiture statutes applicable to the case at hand, 63 O.S.Supp.1993 Secs. 2-503 and 2-506, are primarily remedial in nature. Their purpose is to abate past offending uses of property and to prevent future offending uses of the property. Other than the forfeiture of controlled substances themselves, all property mentioned in section 2-503 is subject to forfeiture by virtue of an offending use generally in relation to illegal manufacturing or distribution of controlled substances. As concerns the conveyance or vehicle forfeiture provision, this court has expressly held that a conveyance or vehicle is forfeitable only when it is an "instrumentality" for transportation, concealment, and cultivation of controlled substances for distribution. State ex rel. McGehee v. 1983 Toyota Corolla, 879 P.2d 830 (Okla.Ct.App.1994). (sic)

Id., 888 P.2d at 1037.

The conclusion of the Court of Civil Appeals is supported by comments to the Uniform Controlled Substances Act, Sec. 505, of the Uniform Laws Annotated, after which our Section 2-503 was modeled (there are some changes in the act which are of no concern to the question before us). The comment reads:

This Section is designed to provide forfeiture provisions for those States which do not already have them and to revise those State forfeiture laws which have become obsolete and unenforceable over the years. Effective law enforcement demands that there be a means of confiscating the vehicles and instrumentalities used by drug traffickers in committing violations under this Act. The reasoning is to prevent their use in the commission of subsequent offenses involving transportation or concealment of controlled substances and to deprive the drug trafficker of needed mobility ... With comprehensive and effective forfeiture provisions, States may be less reluctant to implement them and begin confiscating the tools of the drug trafficker.

9 Uniform Laws Annotated, Master Edition, Sec. 505 Comment, pp. 835-36.

We hold the provisions of Section 2-503 of Title 63 are not punitive in nature, but rather are civil and remedial in nature. That being the case, there is no Fifth Amendment double jeopardy violation, and this proposition is without merit.

III.

The other issue of first impression deals with an alleged error by the trial court in considering its sentencing options. Petitioner pled guilty on April 29, 1993. Sentencing was delayed, and his attorney filed a motion on May 14, 1993, seeking sentencing under the Delayed Sentencing Program for Young Adults, 22 O.S.1991, §§ 996-996.3. The motion was granted on May 26, 1993, and Petitioner was sent to the RID 3 program. Sentencing was delayed until October 1, 1993. By all accounts, Petitioner did well...

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