People v Finney

People v Finney
Unpublished Decision of the Michigan Court of Appeals Docket No 188392
Decided August 1, 1997
Michigan Court of Appeals
 

OPINION

PER CURIAM.

Defendant appeals by right from a plea of guilty to a charge of possession with the intent to deliver between 50 and 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). After his arraignment and before he entered his plea, some of defendant's property, including two parcels of real property, was forfeited in a civil procedure pursuant to MCL 333.7521 et seq.; MSA 14.15(7521) et seq. Defendant was later sentenced in this criminal matter to eight to twenty years' imprisonment. We affirm.

Defendant contends that he was subjected to double jeopardy when he was sentenced to eight to twenty years' imprisonment for drug trafficking after a parcel of real property that was unrelated to defendant's drug trafficking was forfeited. There is no merit to this issue. The constitutional protections against double jeopardy that are afforded by the United States and Michigan Constitutions guarantee against separate prosecutions for the same offense and against multiple punishments for the same offense. People v Sturgis, 427 Mich 392, 398; 397 NW2d 783 (1986). In rem forfeiture is not punishment for double jeopardy purposes. United States v Ursery, 518 U.S. ; 116 S Ct 2135, 2149; 135 L. Ed. 2d 549 (1996)People v Acoff, 220 Mich App 396; NW2d (1996). It is instead a separate civil sanction that is remedial in nature and was "designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct." Id. at 2142, 2145. Here, the forfeiture was part of a civil proceeding and was not so punitive or excessive that it cannot be legitimately viewed as civil.

Michigan's civil forfeiture provision provides that a defendant's property, used as a container for or to facilitate drug trafficking or obtained from drug trafficking proceeds, is subject to forfeiture. MCL 333.7521; MSA 14.15(7521). Defendant raises several claims that his property was forfeited improperly. However, defendant failed to challenge the civil judgment. Except as it applies to double jeopardy issues or the question of excessive fines, defendant's challenge to the civil forfeiture is not properly raised in this criminal appeal

Affirmed.

/s/ Michael R. Smolenski

/s/ Roman S. Gribbs


MICHAEL J. KELLY, J. (dissenting).

Because I find it necessary to remand this matter to the trial court to determine whether, in light of the civil forfeiture, defendant's criminal conviction was actually a second punishment for double jeopardy purposes, I respectfully dissent.

I acknowledge that in rem civil forfeiture is not considered punishment for double jeopardy purposes. United States v Usery, 518 U.S. ; 116 S Ct 2135, 2149; 135 L. Ed. 2d 549 (1996)People v Acoff, 220 Mich App 396, 559 NW2d 103 (1996). However, the mere label given to a confiscation that appears to be an in rem disgorgement of the fruits of criminal activity does not answer the question whether the forfeiture is actually an in rem civil matter, or an in personam punishment. Rather, that question is answered by applying a two-prong analysis to the facts of the case, which asks (1) whether the Legislature intended proceedings under the civil forfeiture statutory scheme to be criminal or civil, and (2) whether the civil forfeiture proceedings are so punitive in fact as to persuade this Court that the forfeiture proceedings may not legitimately be viewed as civil in nature. Ursery, supra at 116 S Ct 2147.

The majority states that the instant forfeiture was not so excessive or punitive that it cannot be legitimately viewed as civil. Defendant submitted an affidavit to this Court in which he avers:

   The State forfeited [sic] a piece of property that is not contiguous to my homestead at 1820 Currie Parkway [the property from which defendant sold drugs]. This second parcel is noted in the Default Judgment . . . as Tax ID No[.] 14-18-40-262, with a legal description distinct from Tax ID No[.] and description associated with my homestead. I bought this separate parcel on a land contract with Mark and Renda Edmonds and I paid the $ 4,000 plus interest entirely from my lawful earnings as a union laborer from 1978 to 1987. I never used this parcel or improvements thereon to conduct any drug sales or purchases, to store drugs, or to facilitate in any other way any drug transaction. I am prepared to so testify at my hearing.

If, as he states in his affidavit, defendant were able to establish that the State confiscated property that was entirely unrelated to his drug activities, I believe this Court should be persuaded that the civil forfeiture was so punitive in fact that it constituted an in personam punishment. Thus, the instant conviction would constitute the second punishment for defendant's drug offense, and therefore be untenable under the Double Jeopardy Clauses of the federal and state constitutions. U.S. Const, Am 5; Const 1963, art 1, § 15People v Duranseau, 221 Mich App 204, 206; 561 NW2d 111 (1997). In the absence of a factual record, I cannot agree with the majority's conclusion that the instant civil forfeiture was indeed civil.

I would retain jurisdiction and remand for an evidentiary hearing to determine the true nature of the civil forfeiture.

/s/ Michael J. Kelly