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Commonwealth v. 2002 Subaru Impreza

Commonwealth Court of Pennsylvania

August 19, 2015

Commonwealth of Pennsylvania
v.
2002 Subaru Impreza VIN# JF1GG68552G821124 and Nokia Tracphone seized from Andrew Glushko. Appeal of: Andrew Glushko

Submitted April 17, 2015.

Appealed from No. 7183 CV 2009. Common Pleas Court of the County of Monroe. Mark, J.

Andrew Glushko, Pro se.

Michael Rakaczewski, Assistant District Attorney, Stroudsburg, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE BROBSON.

OPINION

Page 1197

P. KEVIN BROBSON, JUDGE.

Andrew Glushko (Glushko), pro se, petitions for review of an order of the Court of Common Pleas of Monroe County (trial court), dated June 29, 2012, which denied Glushko's motion to vacate a judgment of forfeiture entered on May 18, 2010. For the reasons set forth below, we affirm.

In 2009, Glushko was convicted by a jury of multiple criminal offenses under Chapter 31 of the Crimes Code, 18 Pa. C.S. § § 3101-3144 (relating to sexual offenses). Following conviction, the Commonwealth, acting through the Office of the District Attorney of Monroe County, filed a petition of forfeiture pursuant to Subchapter C of Chapter 31 of the Crimes Code, 18 Pa. C.S. § § 3141-3144. Section 3141 of the Crimes Code provides, inter alia, that a person convicted of certain offenses under Chapter 31 " may be required to forfeit property rights in any property or assets used to implement or facilitate commission of the crime or crimes of which the person has been convicted." On May 18, 2010, the trial court granted the Commonwealth's petition for forfeiture directed toward property (a vehicle and a cellular telephone) that Glushko used to perpetrate his crimes. In an unreported memorandum opinion dated May 24, 2012, we affirmed a trial court order that denied Glushko's effort to appeal the forfeiture order nunc pro tunc.[1]

Undeterred, on June 28, 2012, Glushko filed with the trial court a motion to vacate the May 18, 2010, forfeiture order. The trial court denied that motion the next day, on June 29, 2012. On or about November 1, 2012, Glushko filed a petition for leave to appeal the order denying his motion to vacate nunc pro tunc, which the trial court denied. In an unreported memorandum opinion and order dated December 18, 2013, we vacated that order and remanded the matter to the trial court for further consideration.[2] On remand, the trial court conducted a hearing and granted Glushko leave to file his appeal, nunc pro tunc, of the trial court's order denying his motion to vacate, nunc pro tunc. That appeal is now before the Court for disposition.

Glushko raises one issue on appeal, that being whether the trial court lacked subject matter jurisdiction to grant the Commonwealth's forfeiture petition in this matter. Glushko argues that the trial court lacked subject matter jurisdiction because forfeiture under Subchapter C, Chapter 31 of the Crimes Code, or sex offense property forfeiture, is an additional punishment foisted upon a person convicted of certain crimes under this subchapter. It is, therefore, a proceeding in personam that must be decided in the context of the property owner's criminal proceeding or, at least, within the criminal division of the trial court. Here, however, the Commonwealth

Page 1198

pursued forfeiture within the trial court's civil division, which Glushko argues was without jurisdiction to decide the matter.

This is a statutory civil forfeiture matter. " Statutory civil forfeiture, as the name suggests, arises by acts of legislatures, state or federal, which ascribe certain criminal character to property, not persons, and provide for their forfeiture to the government." Commonwealth v. 2010 Buick Enclave VIN #GALRBED8J122029, 99 A.3d 163, 165-66 (Pa.Cmwlth. 2014), appeal denied, 110 A.3d 999 (Pa. 2015). The mere fact that a procedure is described by a rule of criminal procedure (or found in the Crimes Code, 18 Pa. C.S. § § 101-9101) " does not determine jurisdiction and does not transform the essential character of the in rem action of a ...


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