RICHARD CLELAND FARRIS APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

RICHARD CLELAND FARRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001395–MR

Decided: March 23, 2012

BEFORE:  TAYLor, CHIEF JUDGE;  CAPERTON AND CLAYTON, JUDGES. BRIEF FOR APPELLANT:  Erin Hoffman Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General J. Hays Lawson Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Richard Cleland Farris appeals from an order of the Lincoln Circuit Court granting the Commonwealth's motion for forfeiture.   Appellant pled guilty to one count of theft by unlawful taking over $300 and one count of criminal trespass in exchange for a total sentence of five years of imprisonment.   He was subsequently ordered to forfeit a truck that had been used in the subject crime.   Appellant contends that forfeiture of the truck was an unconstitutionally excessive fine in violation of the Eighth Amendment to the United States Constitution and Section 17 of the Kentucky Constitution.   After our review, we affirm.

Facts and Procedural History

On January 26, 2009, Appellant drove a 2004 Dodge 1500 pickup truck to Pat's Garden Center in Stanford, Kentucky, where he unlawfully took a car trailer valued at $2,850.   Appellant did not own this truck at the time he committed the crime, but he purchased it the following month for $15,508.50.   Appellant was later arrested and charged with theft by unlawful taking over $300,Double second-degree criminal trespass, and being a first-degree persistent felony offender.

Appellant ultimately pled guilty to the theft and criminal trespass charges and received the maximum sentence for each charge:  five years of imprisonment on the conviction for theft by unlawful taking and twelve months of imprisonment on the conviction for criminal trespass. Double The Commonwealth subsequently moved for forfeiture of the truck used in the subject crime pursuant to Kentucky Revised Statutes (KRS) 514.130.   In moving for forfeiture, the Commonwealth asserted that the truck had a taxable value of $13,375 when purchased Double but had subsequently sustained damage in the amount of $2,864.22, thereby reducing its value. Double The Commonwealth further noted that the county had kept the truck in storage for 254 days at a cost of $25 per day, resulting in a fee of $6,350.

Appellant objected to the proposed forfeiture on the grounds that it would constitute an unconstitutionally excessive fine in violation of the “excessive fines” clauses of the Eighth Amendment to the United States Constitution Double and Section 17 of the Kentucky Constitution. Double However, the trial court found that the truck was sufficiently tainted by the criminal act to be subject to forfeiture and that the forfeiture passed constitutional muster.   Thus, it granted the Commonwealth's motion.   This appeal followed.

Analysis

On appeal, Appellant again contends that forfeiture of the truck amounted to an unconstitutionally excessive fine.   In reviewing this case, we must accept the factual findings made by the trial court in conducting the excessiveness inquiry unless they are clearly erroneous.  U.S. v. Bajakajian, 524 U.S. 321, 336 n.10, 118 S.Ct. 2028, 2037 n.10, 141 L.Ed.2d 314 (1998);  see also Commonwealth v. Fint, 940 S.W.2d 896, 898 (Ky.1997).   However, we review the ultimate question of whether a fine is constitutionally excessive de novo since this question requires application of a constitutional standard to the facts of a particular case.  Bajakajian, 524 U.S. at 336 n.10, 118 S.Ct. at 2037 n.10.

KRS 514.130 provides for the mandatory forfeiture of property used in the commission of certain offenses.   The statute provides, in relevant part, as follows:

(1) Upon the conviction of any person for the violation of any offense in this chapter all property held in violation of this chapter, and any personal property, including but not limited to vehicles or aircraft, used in the commission or furtherance of an offense under this chapter or in the transportation of stolen property shall be forfeited as provided in KRS 500.090 by court order and sold, destroyed or otherwise disposed of in accordance with KRS 500.090.

KRS 514.130(1).   However, courts may not order the forfeiture of property if such would result in an unconstitutionally excessive fine under the “excessive fines” clauses of the Eighth Amendment to the United States Constitution and Section 17 of the Kentucky Constitution.   Fint, 940 S.W.2d at 897–898.   It is well-established that punitive forfeitures such as the one at issue implicate these provisions.   See Harbin v. Commonwealth, 121 S.W.3d 191, 197 (Ky.2003);  Fint, 940 S.W.2d at 897–898.

In determining whether a proposed KRS 514.130(1) forfeiture is unconstitutionally excessive, the trial court must first determine “whether the property in question was used in the commission of the offense or in the transportation of stolen goods[,]” i.e., whether it is “sufficiently tainted by the criminal act to be subject to forfeiture[.]”  Fint, 940 S.W.2d at 898;  Hinkle v. Commonwealth, 104 S.W.3d 778, 782 (Ky.App.2002).   In this case, the truck in question was used in the subject theft to haul away the car trailer, and it was owned by Appellant at the time of his arrest.   Therefore, it was clearly subject to forfeiture.   Appellant does not contest this point.

The question then becomes whether the particular forfeiture in this case is “grossly disproportionate” to the particular offense committed by Appellant.   Harbin, 121 S.W.3d at 197;  Hinkle, 104 S.W.3d at 782.  “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality:  The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.”  Bajakajian, 524 U.S. at 334, 118 S.Ct. at 2036.   Accordingly, “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.”  Id. Importantly, this standard does not require “strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense[.]”  Id., 524 U.S. at 336, 118 S.Ct. at 2037.  “Among the factors relevant to this determination are the gravity of the offense, the potential penalties, the actual sentence, sentences imposed for similar crimes in this and other jurisdictions, and the effect of the forfeiture on innocent third parties.”  Hinkle, 104 S.W.3d at 782.

Applying these standards, we agree with the trial court that forfeiture of the truck does not constitute an unconstitutionally excessive fine.   The forfeiture would have no effect on innocent third parties since Appellant owned the truck in question.   Moreover, in terms of the gravity of the offense, Appellant pled guilty to theft by unlawful taking over $300, which was a Class D felony at the time of his conviction.   While this is not the worst offense imaginable, neither is it insubstantial.

Indeed, at the time of Appellant's conviction, such felony theft was punishable by imprisonment up to five years and “a fine in an amount not less than one thousand dollars ($1,000) and not greater than ten thousand dollars ($10,000) or double his gain from commission of the offense, whichever is the greater.”  KRS 532.020(1)(a);  KRS 534.030(1).   Appellant received the maximum five-year sentence but was not fined.   Given that Appellant could have been ordered to pay a monetary fine of $10,000 in addition to being imprisoned, we do not believe that forfeiture of a truck worth $13,375 was a “grossly disproportionate” penalty.   As noted above, “strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense” is not required.  Bajakajian, 524 U.S. at 336, 118 S.Ct. at 2037.   Moreover, potential fines can be considered in this type of analysis, and even if a proposed forfeiture is greater than the maximum fine, the forfeiture is not automatically deemed excessive.   See Smith v. Commonwealth, 205 S.W.3d 217, 224 (Ky.App.2006);  see also, e.g., One 1995 Toyota Pick–Up Truck v. District of Columbia, 718 A.2d 558, 565–566 (D.C.1998);  State v. Boyd, 618 N.W.2d 251, 256 (Wis.Ct.App.2000) (“[W]hether a forfeiture would be far in excess of the maximum fine is a factor appropriately considered under the Bajakajian test.”).

We further note that when compared to other Kentucky decisions that involved the forfeiture of a vehicle, the forfeiture discussed herein cannot be deemed disproportionately punitive.   For example, in Osborne v. Commonwealth, 839 S.W.2d 281 (Ky.1992), a 1978 Chevrolet Blazer motor vehicle was ordered forfeited under KRS 218A.410(1)(h) because it was found to contain one marijuana plant and a set of sophisticated scales of the type often used to weigh drugs.   See also Fint, 940 S.W.2d at 898.   Likewise, in Smith v. Commonwealth, supra, a vehicle worth $6,500 was ordered forfeited even though the drugs involved were only worth half that amount.  Smith, 205 S.W.3d at 217, 224.

We further note that Appellant has directed us to no cases from other jurisdictions that would compel us to reach a different result.   In fact, we have found a number of decisions that support the trial court's decision.   See, e.g., Alexander v. State, 925 So.2d 214, 215–216 (Ala.Civ.App.2005) (allowing forfeiture of a vehicle worth $12,000 when the maximum fine for the subject offense was $10,000);  State v. Black 1999 Lexus ES300, 173, 244 P.3d 1274, 1280 (Kan.Ct.App.2011) (allowing forfeiture of a vehicle valued at $8,000 used in a $250 drug sale);  State v. Hammad, 569 N.W.2d 68, 73 (Wis.Ct.App.1997) (allowing forfeiture of a vehicle valued at twice the value of the property stolen in the subject crime).

Consequently, we are compelled to conclude that the forfeiture at issue does not constitute an unconstitutionally excessive forfeiture under the “excessive fines” clauses of the Eighth Amendment to the United States Constitution and Section 17 of the Kentucky Constitution.   Therefore, the trial court did not err in granting the Commonwealth's motion for forfeiture.

Conclusion

For the foregoing reasons, the decision of the Lincoln Circuit Court is affirmed.

ALL CONCUR.

CLAYTON, JUDGE: