Butler v. State

140 N.E.3d 870

Eric BUTLER, $236.00 in U.S. Currency, and One 2004 Pontiac Grand Prix, Appellants-Defendants,

v.STATE of Indiana, the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Law Enforcement Agency, Appellees-Plaintiffs.

Court of Appeals Case No. 19A-MI-5

Court of Appeals of Indiana.

Filed December 27, 2019

Attorney for Appellant, Eric Butler: Stephen Gerald Gray, Indianapolis, Indiana

Attorneys for Appellee, the State of Indiana: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana

Bradford, Judge.

Case Summary

[1] In December of 2016, Eric Butler was pulled over while driving his 2004 Pontiac Grand Prix ("the Car"), and a search revealed thirty-four grams of marijuana, approximately forty-six grams of heroin, and $236 in cash. The State, the Consolidated City of Indianapolis/Marion County, and the Indianapolis Metropolitan Law Enforcement Agency (collectively, "Appellees"), filed a civil forfeiture action against Butler, $236.00 in U.S. Currency, and one 2004 Pontiac Grand Prix (collectively, "Appellants").

[2] While the civil forfeiture action was pending, the United States District Court for the Southern District of Indiana found Indiana's civil-forfeiture scheme to be unconstitutional in several respects. Effective July 1, 2018, several amendments took effect which were intended to cure the constitutional infirmities in Indiana's civil forfeiture laws ("the 2018 Amendments"). When the trial court entered judgment in favor of Appellants based on the old statutes, Appellees refiled pursuant to the amended statutes. In December of 2018, the trial court entered summary judgment in favor of Appellees. Appellants argue that the trial court erroneously entered summary judgment in favor of Appellees and abused its discretion in failing to award Appellants attorney's fees. Because Appellants have failed to establish that the trial court erred in concluding that the 2018 Amendments cured the constitutional defects in Indiana's civil-forfeiture statutes and have waived any claim regarding attorney's fees in the trial court, we affirm. Moreover, we decline Appellants' request for an award of appellate attorney's fees.

Facts and Procedural History

[3] On December 8, 2016, Indianapolis Metropolitan Police Officers conducted a traffic stop of the Car, which was driven and owned by Butler. During the stop, police discovered approximately thirty-four grams of marijuana in the vehicle, approximately forty-six grams of heroin in a baggy in Butler's pocket, and $236 in cash. The State charged Butler with Level 2 felony dealing a narcotic drug and Level 3 felony possession of a narcotic drug, and the Car and the cash were seized by law enforcement and held for forfeiture. On February 23, 2017, Appellees filed a civil complaint seeking forfeiture of the Car and the $236. In April of 2017, Appellees moved for default judgment, which the trial court granted on April 28, 2017.

[4] On August 18, 2017, the United States District Court for the Southern District of Indiana ruled Indiana's statutory forfeiture scheme unconstitutional. See Washington v. Marion Cty. Prosecutor, et al. , 264 F. Supp. 3d 957, 961, 975–80 (S.D. Ind. 2017). The district court concluded that " Indiana Code Section 34-24-1-1(a)(1), read in conjunction with the Indiana Code provisions of the same chapter, violates the Due Process Clause" and permanently enjoined the Marion County Prosecutor from "enforcing Indiana Code Section 34-24-1-1(a)(1), as read in conjunction with Indiana Code provisions of the same chapter."

Id. at 980. In September of 2017, the Marion County Prosecutor appealed from the district court's determination. Appellants moved for relief from the default judgment on December 12, 2017. Appellees filed an objection to the motion, and the trial court held a hearing on the motion on February 26, 2018. While that motion was pending, Butler pled guilty to Level 4 felony dealing in a narcotic drug in his criminal case.

[5] Effective July 1, 2018, the 2018 Amendments took effect, which were an apparent attempt to address the due-process problems identified by the district court in Washington . See Ind. P.L. 47-2018, §§ 1-2. On July 11, 2018, the trial court granted Appellants' motion for relief from judgment, vacating the default judgment. Appellees filed a probable-cause affidavit, and, on July 16, 2018, the trial court found probable cause for the seizure of the Car. The parties cross-moved for summary judgment. In Butler's memorandum submitted in support of his summary-judgment motion, he did not acknowledge the 2018 Amendments, much less argue that they failed to cure Indiana Code chapter 34-24-1 's constitutional deficiencies. On December 4, 2018, without a hearing, the trial court granted Appellees' motion for summary judgment, ordering forfeiture of both the $236 and the Car. On January 2, 2019, Appellants appealed from the trial court's grant of summary judgment in favor of Appellees.

[6] Meanwhile, on February 19, 2019, the United States Court of Appeals for the Seventh Circuit issued its disposition of the Marion County Prosecutor's appeal in Washington . See Washington v. Marion Cty. Prosecutor , 916 F.3d 676 (7th Cir. 2019). While the Seventh Circuit Court of Appeals acknowledged the parties' arguments regarding whether the 2018 Amendments cured Indiana Code chapter 34-24-1 's constitutional infirmities, it declined to address them:

The district court did not have a chance to address the amendments. Given that the record and arguments regarding the amendments are under-developed, we remand this case to the district court for further proceedings. SeeRestoration Risk Retention Grp. v. Gutierrez , 880 F.3d 339, 349 (7th Cir. 2018) (remanding to district court "to determine the operation and effect of the amended statute" and to "determine whether the case is moot"); Hager v. Nat'l Union Elec. Co. , 854 F.2d 259, 262–63 (7th Cir. 1988) ("We believe that the district court ought to have the opportunity to reconsider its decision in light of this most significant pronouncement from the Supreme Court of Indiana."); United States v. Elrod , 627 F.2d 813, 819–20 (7th Cir. 1980) (remanding to district court given enactment of statute during pendency of appeal).

On remand, the district court should address the parties' contentions regarding the amendments. Do the amendments ameliorate the constitutional problems the district court identified? The district court should resolve these contentions to the extent necessary and proper.

If appropriate, the district court should also revisit the class to determine whether it should be decertified or redefined in light of the amendments.

At present, we express no opinion regarding the constitutionality of the old or new versions of the statute, regarding mootness, or regarding the class. Also, our argument summaries do not limit the arguments the parties may raise on remand. We leave latitude to the district court to conduct further proceedings it deems necessary and proper given the amendments and the parties' positions. Any review we are subsequently called upon to make will benefit from these proceedings and the reasoning of the district court.

Id. at 679–80. On December 13, 2019, however, the parties issued a joint stipulation of dismissal in Washington , having agreed to a settlement. In other words, the district court never had the opportunity to determine the effect of the 2018 Amendments in Washington .

Discussion and Decision

[7] Appellants challenge the forfeiture of the Car pursuant to Indiana Code chapter 34-24-1. While Appellants acknowledge the 2018 Amendments, they argue, at most, that the amended statutes do not apply to the seizure of the Car because it was originally seized in December of 2016. Appellants make no claim or argument whatsoever that the 2018 Amendments failed to cure the constitutional defects of Indiana Code chapter 34-24-1. Appellees argue that the 2018 Amendments do apply to the 2016 seizure and that they cured whatever constitutional infirmities existed in the previous statutes, rendering the second forfeiture proper.

I. Whether the Amended Statutes Apply to the Seizure of the Car

[8] Appellants contend that the 2018 Amendments do not apply to this case because the initial seizure of the Car occurred in December of 2016. We interpret this as a challenge on the ground that use of the amended chapter 34-24-1 to seize the Car would amount to an impermissible ex post facto law.¹

We have previously stated that the constitutional prohibitions against ex post facto criminal sanctions require that criminal proceedings be governed by the statutory provision in effect at the time of the offense.^[2]Settle v. State , 709 N.E.2d 34, 35 (Ind. Ct. App. 1999). [...] However, we have noted that the ex post facto clause " ‘does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.’ " Hayden v. State , 771 N.E.2d 100, 102 (Ind. Ct. App. 2002) (quoting Dobbert v. Florida , 432 U.S. 282, 293, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977) ), trans. denied . The clause is not designed "to limit legislative control of remedies and modes of procedure which do not affect matters of substance." Id. "Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto ." Id.

Our first task then is to determine whether [the changes are] procedural or substantive for purposes of the ex post facto provisions of both the Indiana and United States Constitutions. We have previously noted that " ‘[p]rocedural, adjective or remedial law is that portion of the law which prescribes the method of enforcing a right or obtaining a redress for the invasion of that right. Substantive law, on the other hand, is that portion of the law which creates, defines and regulates rights.’ " Id. (quoting State v. Fletcher , 149 Ariz.

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