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08/12/97 COMMONWEALTH PENNSYLVANIA v. 5043 ANDERSON

August 12, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
5043 ANDERSON ROAD, BUCKINGHAM TOWNSHIP, BUCKS COUNTY, PENNSYLVANIA, ALSO KNOWN AS TAX MAP PARCEL 6-14-99, AS RECORDED IN DEED BK 2605, PAGE 228 OF THE BUCKS COUNTY RECORDER OF DEEDS; COMMONWEALTH OF PENNSYLVANIA V. 5043 ANDERSON ROAD, BUCKINGHAM TOWNSHIP, BUCKS COUNTY, PENNSYLVANIA, ALSO KNOWN AS TAX MAP PARCEL 6-14-99, AS RECORDED IN DEED BK 2605, PAGE 228 OF THE BUCKS COUNTY RECORDER OF DEEDS; CYRUS T. KINNEY, APPELLANT



Appealed From No. 903 Misc. 1994. Common Pleas Court of the County of Bucks. Judge CLARK.

Before: Honorable Doris A. Smith, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.

The opinion of the court was delivered by: Mirarchi

OPINION BY SENIOR JUDGE MIRARCHI

FILED: August 12, 1997

The Commonwealth of Pennsylvania and Cyrus T. Kinney (Kinney) appeal from an order of the Court of Common Pleas of Bucks County (trial court) which ordered the forfeiture of Kinney's residence, detached garage and two-acre curtilage.

On November 21, 1994, Kinney was arrested and charged with possession of a controlled substance with the intent to deliver. *fn1 Kinney pled guilty to the charge and was sentenced to one to two year imprisonment. The Commonwealth thereafter filed a petition for forfeiture of the property owned by Kinney, pursuant to Section 6801-6802 of the Judicial Code, 42 Pa. C.S. §§ 6801-6802, commonly referred to as the Controlled Substances Forfeiture Act (Forfeiture Act), which requires forfeiture of real property used or intended to be used to facilitate violations of The Controlled Substance, Drug, Device and Cosmetic Act.

Kinney filed motions to dismiss the petition, alleging that forfeiture of the property would violate the Double Jeopardy Clause of the Constitution and would be disproportionate and excessive, and that there was a lack of a significant relationship between the offenses and the property sought to be forfeited. The parties submitted a stipulation of facts substituting for testimony and exhibits. The trial court held that forfeiture of the property does not violate the Double Jeopardy Clause, relying on this Court's decision in Commonwealth v. Wingait Farms, 659 A.2d 584 (Pa. Commw. 1995), which held that the forfeiture of a 130-acre horse farm, twenty-seven horses and personal property was remedial, rather than punitive in nature. The trial court then found that only the house and the two-acre curtilage were used to facilitate the violation of the Drug Act and were therefore subject to a forfeiture. As to the remaining 22 acres, the trial court held, relying on Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), that forfeiture of that portion of the property would constitute an excessive fine under the Eighth Amendment to the United States Constitution. The trial court accordingly ordered that only the house, garage and surrounding two-acre curtilage be forfeited to the Commonwealth. Both the Commonwealth and Kinney appealed the trial court's decision to this Court.

On appeal, the Commonwealth argues that (1) the trial court erred in dividing up the property contained in a single deed for the purpose of forfeiture and (2) that the issue of the division of the property was waived by Kinney's failure to raise it before the trial court. Kinney argues that (1) the forfeiture violates the Double Jeopardy Clause; (2) the forfeiture was disproportionate to the underlying criminal acts and (3) the trial court erred in finding that the forfeited property had a significant relationship to the underlying criminal offenses.

We first consider the Commonwealth's argument that the trial court erred in ordering a forfeiture of a portion of the property where the statute specifies that the property shall be forfeited in the whole. *fn2 In United States v. Sarbello, 985 F.2d 716 (3rd Cir. 1993), the Court of Appeals held that courts may reduce an otherwise mandatory statutory 100% penalty on the basis of the Excessive Fines Clause of the Eighth Amendment. In the case before us, the trial court cited the Excessive Fines Clause as its reason for ordering the forfeiture of only a portion of the property. Under the holding of Sarbello, the trial court could properly order only a partial forfeiture of the property. *fn3

We next consider the issues raised by Kinney. Kinney first argues that the forfeiture of his property violated the Double Jeopardy Clause of the Pennsylvania Constitution, Article I, Section 10. Kinney contends that having been convicted and sentenced for selling drugs, he could not be punished by way of forfeiture for the same crime which underlies his criminal conviction.

In Commonwealth v. Wingait Farms, 547 Pa. 332, 690 A.2d 222 (1997), our Supreme Court considered the identical issue. In that case, George Reitz, the landowner, was convicted of several drug-related crimes. The Commonwealth filed a forfeiture petition seeking forfeiture of Reitz' farm and twenty-seven horses. After a jury trial, the farm and the horses were forfeited to the Commonwealth. On appeal, Reitz argued, inter alia, that the forfeiture violated both the federal and state Double Jeopardy Clauses and that the forfeiture was an excessive fine.

As to the double jeopardy argument, the Court applied the two-part test set forth in United States v. One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984), which requires a court to first determine whether the forfeiture was civil or criminal in nature and then to determine whether the forfeiture was so punitive that it may not be viewed as civil in nature. Applying that test to the case at hand, the Court first concluded that the legislature intended forfeitures brought pursuant to Section 6801 of the Forfeiture Act to be civil in nature. The Court also concluded that Reitz did not meet his burden to show by the clearest proof that the forfeiture proceedings were either so punitive in effect or in purpose as to negate the legislature's intent that the proceedings be civil.

The Court in Wingait Farms thus rejected the argument that a forfeiture of property under Section 6802 of the Forfeiture Act was an additional criminal penalty for purposes of the Double Jeopardy Clause.

Kinney also argues that the forfeiture of his house, garage and 2-acre curtilage constitutes an excessive and disproportionate fine. *fn4 In Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), the United States Supreme Court held that the excessive fines provision of the Eighth Amendment applies to drug-related forfeiture of property to the United States under 21 U.S.C. ยง 881(a)(4) and 881(a)(7) because such a forfeiture constitutes a payment to the government as a punishment. The Court held that it was immaterial whether the forfeiture was civil or criminal. The Court declined to establish a multifactor test to determine whether a forfeiture is constitutionally excessive. The Court left it to the lower courts to consider that question in the first instance. In In Re King Properties, ...


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