COMMONWEALTH v. HUGHEY (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2011, the defendant, Ernest Hughey, pleaded guilty to distribution of a class D substance and possession with intent to distribute a class D substance. As part of the plea, the Commonwealth filed a motion pursuant to G. L. c. 94C, § 47 (b), to forfeit $ 328 that had been seized from the defendant. The defendant did not object to the motion, and the plea judge ordered the $ 328 forfeited to the Commonwealth. Thereafter, as a consequence of the misconduct of the certifying chemist in the defendant's case, Sonja Farak, see Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700 (2018), the defendant's convictions were invalidated. The defendant then filed a motion to vacate the forfeiture order pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). This case concerns the Commonwealth's appeal from a motion judge's allowance of the defendant's rule 60 (b) motion. The primary issue is whether, given the guidance provided in Commonwealth v. Martinez, 480 Mass. 777, 790-792 (2018), the motion judge abused his discretion by allowing the defendant's motion and ordering the Commonwealth to return the forfeited property. In light of the Martinez decision, we vacate and remand.²

Background. In 2010, a criminal complaint issued against the defendant for offenses stemming from an alleged drug transaction.³ During the defendant's plea hearing on the matter in 2011, the prosecutor recited the following facts, which the defendant agreed were true during the plea colloquy. In October 2010, police officers were conducting surveillance on an area in Springfield. The officers observed the defendant and his brother carrying out an alleged drug deal with two separate individuals. The officers stopped one of the individuals, who was found to have marijuana on her person and who admitted to having just purchased the marijuana. The officers returned to the area two days later and approached the defendant, after observing him “loitering” in front of a building. When the officers approached the defendant, he “dropped a glassine bag containing several individual bags of marijuana[⁴ ] to the ground,” which the officers believed “were packaged for street level sale.”

The defendant pleaded guilty to distribution of a class D substance, and possession with intent to distribute a class D substance.⁵ During the plea hearing, the Commonwealth filed a motion pursuant to G. L. c. 94C, § 47 (b), to forfeit $ 328 that was seized from the defendant. The defendant signed the tender of plea form (the “green sheet”), which referenced the Commonwealth's recommendation of forfeiture of the $ 328, and acknowledged the waiver of his rights throughout the plea colloquy given by the judge.⁶ The judge allowed the forfeiture motion and ordered the $ 328 forfeited to the Commonwealth.⁷ The defendant did not object to the allowance of the forfeiture motion.

In 2016, upon learning that Farak was the certifying chemist in his case, the defendant filed a motion to vacate his plea pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). The Commonwealth agreed to this motion, and a judge allowed it. The Commonwealth then entered nolle prosequis on the original charges.

The defendant thereafter filed a motion to vacate the order for forfeiture pursuant to Mass. R. Civ. P. 60 (b) (4), (5), (6).⁸ The motion judge allowed the defendant's motion but did not specify which subsection of rule 60 (b) he relied on. The judge also ordered the Commonwealth to return the forfeited $ 328 to the defendant. The Commonwealth appeals therefrom.

Discussion. The Commonwealth argues that, although the criminal charges were vacated, there remains a basis for the forfeiture order, and thus the judge abused his discretion in allowing the defendant's motion. For the reasons that follow, we vacate and remand.

In a recent decision addressing collateral effects of the drug laboratory scandals, the Supreme Judicial Court (SJC) clarified that a forfeiture order is “not solely a consequence of [an] invalidated drug conviction[ ]” and does not need to be vacated because of the invalidation of the drug convictions. Martinez, 480 Mass. at 791. Instead, the SJC provided that the proper procedure to seek return of the forfeited property is for the defendant to file a motion for relief from judgment under Mass. R. Civ. P. 60 (b). Id. at 791-792.

Under G. L. c. 94C, § 47 (b), the Commonwealth may file a motion for forfeiture of property in a related criminal proceeding. See Martinez, 480 Mass. at 790; Commonwealth v. Brown, 426 Mass. 475, 480 (1998) (“forfeiture proceeding initiated by motion filed in a related criminal proceeding is outside the scope of the criminal matter and constitutes a civil proceeding”). The Commonwealth satisfies its burden of proving probable cause to institute the forfeiture action “by showing that ‘the Commonwealth had reliable information in its possession that established probable cause’ to believe that ‘the property at issue derived from illegal narcotics or facilitated a violation of the controlled substances laws.’ ” Martinez, supra at 791, quoting Commonwealth v. One 2004 Audi Sedan Auto., 456 Mass. 34, 38-39 (2010). The Commonwealth can make this showing of nexus even where it “later dismisses or nol prosses the criminal complaint or indictment.” Id.

A rule 60 (b) motion is necessary because a § 47 (b) motion initiates a separate civil proceeding and “[t]he finding of probable cause of nexus that sufficed to order forfeiture in the civil proceeding did not depend on the finding in the criminal proceeding of sufficient evidence to warrant a finding of guilt on the plea.” Martinez, 480 Mass. at 791. A rule 60 (b) motion for relief from judgment is addressed to the discretion of the motion judge. Ulin v. Polansky, 83 Mass. App. Ct. 303, 308 (2013). We will not reverse the judge's decision on appeal except for an abuse of that discretion. Id.

The defendant here followed the procedure later outlined in Martinez.⁹ In 2017, when the motion judge allowed the defendant's rule 60 (b) motion, the judge did not have the guidance provided in Martinez. In addition, while the defendant filed his motion under Mass. R. Civ. P. 60 (b) (4), (5), and (6), the judge did not specify the subsection he relied upon to allow the motion. That notwithstanding, we can glean from the hearing transcript that the judge was surprised at the Commonwealth's contention that forfeiture could stand even in the absence of the vacated convictions.¹⁰ It appears that the judge may have allowed the rule 60 (b) motion on the premise that the invalidation of the criminal convictions mandated the vacatur of the forfeiture order. See note 9, supra. As discussed above, subsequent to the judge's decision, the SJC clarified that invalidation of the criminal conviction does not necessarily invalidate the forfeiture order. Martinez, 480 Mass. at 791-792. Where we cannot discern on the present record whether vacatur of the forfeiture order was based solely on invalidation of the criminal convictions, a remand is appropriate.¹¹

Insofar as the judge did not have the guidance provided in Martinez, the judge hearing the case on remand has discretion to hold whatever proceedings he or she deems necessary to consider the motion and the parties' arguments in light of Martinez.¹² Accordingly, the order allowing the defendant's motion to vacate the forfeiture order is vacated. The case is remanded for further proceedings in accordance with this memorandum and order.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   As discussed infra, the judge did not have the benefit of the Martinez decision, which issued after he allowed the motion in the present case.

3.   The defendant was charged with distribution of a class D substance, possession with intent to distribute a class D substance, trespass, and drug violations near a school or park.

4.   The drug certifications confirmed that the bags contained marijuana.

5.   As part of the plea, the trespass charge was filed and the Commonwealth entered nolle prosequis on the school zone counts.

6.   At the outset of the plea colloquy, the clerk stated that the Commonwealth filed a forfeiture motion for the $ 328. The judge asked the defendant, “[D]id you sign the back of this form?” to which the defendant answered in the affirmative.

7.   The defendant was sentenced to time served.

8.   The motion judge initially allowed the motion in July 2017, but the Commonwealth did not receive notice of the motion and was not present at the hearing. In September 2017, the judge held a hearing, attended by both parties, on the Commonwealth's motion for reconsideration.

9.   The Commonwealth argues that the defendant's rule 60 (b) motion was time barred because it should have been brought under subsections (2) or (3). We disagree. The defendant moved under subsections (4), (5), and (6), which require the motion to be filed “within a reasonable time.” Mass. R. Civ. P. 60 (b). He was not restrained by the time limit in subsections (2) and (3), which require the defendant to show newly discovered evidence or fraud, respectively. See Martinez, 480 Mass. at 791-792 (providing rule 60 [b] as mechanism for attacking forfeiture order after invalidated drug convictions from drug laboratory scandals).

10.   The following exchange occurred between the judge and the prosecutor at the motion hearing:Judge: “Commonwealth, let me just ask you this. If he was found not guilty, do you think you could keep the money?”Prosecutor: “I do, your Honor.”Judge: “You do?”Prosecutor: “Yes, I do.”Judge: “Amazing. Really?”Prosecutor: “I do, because the standard --”Judge: “And if you decide not to prosecute a case, you still think you can keep the money?”Prosecutor: “We can move civilly for forfeiture.”Judge: “All right. I'll allow [the defendant's] motion.”

11.   We note that during the motion hearing the defendant asked the judge to allow the motion under rule 60 (b), “or alternately order a new hearing on forfeiture.”

12.   We discern no issue regarding notice to the defendant of the forfeiture motion. In Brown, the SJC held that the defendant “should have received not less than seven days' notice of the [§ 47 (b)] forfeiture hearing.” Brown, 426 Mass. at 480. However, where the “defendant's attorney never objected to a lack of notice, and the record supports the inference that the forfeiture of the defendant's property was part of his plea agreement on the drug charges ․ the defendant waived his right to contest the forfeiture proceedings.” Commonwealth v. Ortiz-Peguero, 51 Mass. App. Ct. 90, 94-95 (2001). As discussed above, the defendant did not object to the lack of seven days' notice, signed the plea agreement, which included the forfeiture amount, and agreed orally to the plea agreement. See note 4, supra.