Com. v. REAL PROPERTY AND IMPROVEMENTS

890 A.2d 35, 2006 Pa. Commw. LEXIS 7

• Court: Commonwealth Court of Pennsylvania
• Decided: January 6, 2006
• Status: Published

Opinions

OPINION BY

President Judge COLINS.

Before this Court, for the third time, Elizabeth Lewis appeals an order of the Court of Common Pleas of Philadelphia County sustaining the forfeiture of Lewis’s residence. After remand from the Supreme Court, the trial court took evidence as to the value of Lewis’s residence and concluded that the forfeiture was not grossly disproportional to the gravity of the offense.

On February 20,1995, undercover police purchased crack cocaine and marijuana at 5444 Spruce Street, Philadelphia, which was owned by Lewis, who lived there since 1962.¹ A search warrant executed the next day at the address led to the seizure of five packets of crack cocaine in a pocketbook that also contained Lewis’s personal identification documents and 11 packets of marijuana and $20 cash in a cup in the kitchen. Lewis was arrested and charged with delivery of a controlled substance, possession of a controlled substance with intent to deliver, and knowing and intentional possession of a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substances Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 — 780-179. On September 26, 1996, the trial court granted a Commonwealth petition to forfeit the Spruce Street property under the Controlled Substances Forfeitures Act (Forfeitures Act), 42 Pa. C.S. §§ 6801-6802.² On October 3, 1995, Lewis pleaded guilty to a single charge of possession with intent to deliver and received a sentence of 2 years of probation and a fine of $185. No other evidence of drug dealing or manufacture, such as scales, paper, cutting agents, sales records, were found during the search of Lewis’s home.

When Lewis first appealed the forfeiture, we remanded because the trial court failed to apply the clear and convincing burden of proof required when a forfeiture is challenged as an excessive fine. See In re King Properties, 535 Pa. 321, 635 A.2d 128 (1993).³ On remand the trial court again granted the forfeiture based on clear and convincing evidence of a pattern and practice of drug dealing at the Spruce Street address. Lewis appealed, challenging the constitutionality of the forfeiture as an excessive fine in violation of the Eighth Amendment, U.S. Const, amend. VIII, and Pa. Const, art. I, § 13. This Court again affirmed, relying on United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). The Supreme Court, rejecting this Court’s application of Bajakajian, reversed and remanded to the trial court for a determination of the value of 5444 Spruce Street, with instruction that the value must be weighed against the gravity of Lewis’s offense. Commonwealth v. Real Property & Improvements Commonly Known as 5444 Spruce Street, 574 Pa. 423, 832 A.2d 396 (2003).

After the second remand, the trial court conducted a valuation hearing on March 26, 2004. The trial court found that on February 20, 1995, Lewis sold drugs to undercover Philadelphia Police Officer Willie Jones; that the search conducted the next day turned up five packets of crack cocaine and 11 packets of marijuana in the residence, and one packet of marijuana on Lewis, who police returned to the residence after locating her in a neighborhood bar. The trial court credited the testimony of the police officer who conducted the search and that of Tarik Chapman, a juvenile who testified that he purchased illegal drugs from Lewis at the Spruce Street address several times a week and that if Lewis was not home, he purchased the drugs from her daughter. The judge rejected as not credible Lewis’s testimony that she pleaded guilty to protect her daughter, who according to Lewis, was the real drug dealer.

On the issue of the property’s value, the court credited the valuation of the Commonwealth’s appraiser and adopted his valuation of the property at $25,000. The court rejected the appraisal of Lewis’s expert as less accurate because he did not enter the premises, because the court rejected his characterization of the property as a duplex, and because he failed to provide the court with documentation regarding the “similar” properties he used in his competitive market analysis. The court also rejected Lewis’s subjective valuation of the property as irrelevant to its 1995 value.

Applying Bajakajian, the trial court concluded that the forfeiture of 5444 Spruce Street was not grossly disproportional to the gravity of the offense committed. Considering the value of the property to be between $25,000 and $40,000, the court found that the value of the property fell within the range of possible fines for the offense committed. The judge noted that selling crack to an undercover officer is punishable by a sentence of up to 10 years and a $100,000 fine; selling cocaine to a minor by a sentence of up to 20 years and a $100,000 fine; and sale of marijuana by a sentence of up to 5 years and a $15,000 fine. The court also considered the fact that the violation was part of a pattern of misbehavior and not an isolated incident and the obvious harm that resulted from Lewis selling drugs to neighborhood teenagers. The court rejected Lewis’s argument that the gravity of the offense should be determined by the sentence imposed.

On appeal, Lewis argues that the forfeiture of her property constitutes an unconstitutionally excessive fine for a drug crime involving narcotics worth less than $80 and that warranted a fine of only $185 and no jail sentence. She challenges the trial court’s determination that the Commonwealth’s appraisal used the proper method for determining the property’s value and that it failed to give weight to her subjective valuation. Our review of a forfeiture appeal is limited to determining whether the trial court’s findings of fact are supported by substantial evidence and whether it abused its discretion or committed an error of law. Commonwealth v. 648 West Mayfield Street, 819 A.2d 1226 (Pa.Cmwlth.2003).

“To determine whether the excessive fines clause has been violated, a court must consider whether the statutory provision imposes punishment; and if so, whether the fine is excessive.” 5444 Spruce Street, 574 Pa. at 428, 832 A.2d at 399. An in rem forfeiture effected pursuant to the Forfeitures Act is punitive, Id, and a punitive forfeiture violates the excessive fines clause if it is grossly disproportional to the gravity of the offense, Bajakajian, 524 U.S. at 336-37, 118 S.Ct. 2028; 5444 Spruce Street, 574 Pa. at 432, 832 A.2d at 401. A court must compare the value of the property to the gravity of the offense, and the gravity of the offense may be measured by comparing the penalty imposed with the maximum penalty available; whether the violation was isolated or part of a pattern of misbehavior; and the harm that resulted from the crime charged. Bajakajian, 524 U.S. at 338-39, 118 S.Ct. 2028; 5444 Spruce Street, 574 Pa. at 433, 832 A.2d at 402.

Lewis first challenges the trial court’s adoption of the appraisal method used by the Commonwealth’s appraiser. The trial court explained its acceptance of the Commonwealth’s valuation: The Commonwealth’s witness, Charles Mayfield, performed both a physical inspection of the inside and outside of the property and performed a market analysis using comparable properties in the Spruce Street vicinity. In contrast, the court found the appraisal of Lewis’s appraiser, to be less accurate because he did not perform a physical inspection and mischaracterized the property as a duplex with two living spaces, one of which could be rented. Moreover, despite the acceptance of the Commonwealth’s appraisal, the trial judge based her excessive fines analysis on a property value between $25,000 (the Commonwealth’s appraisal) and $40,000 (the high figure of Lewis’s appraisal). The trial court rejected as not credible Lewis’s testimony about the value of the property, rejecting her subjective valuation as irrelevant. We agree. Making a property owner’s subjective valuation the deciding factor would doubtless result in every forfeiture being ruled an unconstitutionally excessive fine. Lewis’s challenge to the trial court’s valuation of the property is without merit.

Lewis next argues that the forfeiture of her home was an excessive fine given the small amount of drugs found in her home, the fact that she received no jail time and a small fine, and her contention that the sale of illegal drugs was an isolated incident. She urges the Court to apply Bajakajian as did the Utah Supreme Court in State v. Real Property at 633 East 640 North, Orem, Utah, 994 P.2d 1254 (Utah 2000), cert. denied sub nom. Utah v. Cannon, 530 U.S. 1262, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000), wherein the defendant was convicted of possession of marijuana with intent to distribute, possession of cocaine, illegal drug tax, and possession of drug paraphernalia in connection with the possession of 2 lbs. of marijuana for sale over an 18-month period. The Utah court concluded that the forfeiture of the defendant’s home was grossly disproportional after considering the following factors to determine the gravity of the offense: whether the owner was negligent or reckless in allowing the illegal use of the property, whether the owner was directly involved in the illegal activity, and the harm caused by the illegal activity, including the amount of drugs and their value, the duration of the illegal activity, and the effect on the community. 994 P.2d at 1259. The court also considered the fair market value of the property (between $70,000 and $80,000) and the intangible, subjective value (i.e., whether it is a family home, the hardship to the defendant, and the effect of the forfeiture on the defendant’s family). Id. In overruling the trial court, the Utah Supreme Court based its conclusion that the forfeiture was grossly disproportional on the findings that the drug operation was small and the trial court’s sentence of probation and imposition of a light fine. The court rejected the State’s contention that the court should consider the maximum possible penalties, rather than the actual penalties, in evaluating the gravity of the defendant’s offense.

Although our Supreme Court did not authorize a particular approach to the excessive fines analysis or foreclose the application of any particular factors, 5444 Spruce Street, 574 Pa. at 433 n. 7, 832 A.2d at 402 n. 7,⁴ in the present case, the trial court in assessing the gravity of the offense, did consider the amount of dings found in Lewis’s home and them value, the duration of the illegal activity, and the effect on the community. Although the trial court found that the amount of drugs and their value were comparatively small, it gave greater weight to the duration of the illegal activity, having found a continuous pattern and practice of selling drugs to minors based on the credited testimony of Tarik Chapman. The court noted Chapman’s testimony that Lewis’s house was known as the neighborhood crack house. The court’s finding that Lewis willfully and repeatedly sold drugs from the house, that she subjected her young grandchild to an unsafe and unhealthy environment, and that she purposely sold drugs to juveniles without consideration for the ill effects on her neighbors and community. Those findings are supported by the credited evidence. The trial court’s focus comports with Bajakajian’s placement of the primary emphasis on the culpability of the defendant.

Finally, Lewis argues that the trial court should have considered the actual penalties imposed rather than the maximum possible penalties in evaluating the gravity of the defendant’s offense. After considering the parties’ arguments on this issue, we must conclude that the trial court properly adopted the more objective approach and compared the penalty imposed to the maximum penalty available, an approach endorsed in 5444 Spruce Street: “The Court enumerated factors by which a court may measure the gravity of the offense, each of which is limited to the conduct of the defendant: the penalty imposed as compared to the maximum penalty available; whether the violation was isolated or part of a pattern of misbehavior; and the harm resulting from the crime charged.” 574 Pa. at 433, 832 A.2d at 402 (citing Bajakajian, 524 U.S. at 338-39, 118 S.Ct. 2028).

In determining whether a forfeiture is “grossly disproportional” to the gravity of the offense, our considerations are not the same as those weighed by the sentencing judge. For any number of reasons, the charges against a criminal defendant are often reduced, and in many cases, sentencing does not reflect the actual gravity of the defendant’s conduct. As part of the excessive fines analysis, where the constitution prohibits “grossly disproportional” fines, a court is concerned with the statutory limits of punishment, which may not be exceeded. To consider only the penalties imposed would limit the forfeiture more to a unreasonableness standard than to a grossly disproportional standard. A penalty is not grossly disproportional if it does not exceed the reprehensibility of the defendant’s conduct or the statutory sanctions for that conduct. Willow Inn, Inc. v. Public Service Mutual Insurance Company, 399 F.3d 224 (3d Cir.2005) (applying Bajakajian to a punitive damage award); United States v. 415 East Mitchell Avenue, 149 F.3d 472 (6th Cir.1998) (comparing value of the forfeited real estate to the potential fine had the defendant been prosecuted under federal law); State v. Truman Mortensen Family Trust, 8 P.3d 266 (Utah 2000) (fine does not violate the Excessive Fines Clause where it is within the limits set by the legislature).

In the present case, the judge properly determined that pursuant to Section 13(f)(l.l) of the Controlled Substances Act, 35 P.S. § 780-113(0(1-1), the penalty for delivery of crack cocaine and possession of crack cocaine with intent to deliver are each punishable by imprisonment of up to ten years and a fine of up to $100,000 or both, “or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal distribution” of the controlled substances. The maximum penalty for an offense offers an accurate gauge of the gravity of the offense, and as noted by the Commonwealth, the forfeiture in this case, worth approximately 25 to 40 percent of the maximum fine, is clearly not grossly disproportional to the gravity of the offense. The trial court gave due consideration to all of the appropriate factors, and its findings and conclusion that the forfeiture in this case was not an excessive fine are supported by the requisite evidence.

Accordingly, the order of the trial court is affirmed.

ORDER

AND NOW, this 6th day of January 2006, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is affirmed.

1 . Lewis and her two brothers acquired title to the residence after the death of their parents. In 1991, Lewis bought her brothers' interest in the residence and became sole owner of the property. At the time of her arrest, Lewis lived there with her 23-year-old daughter and her granddaughter.

2 . The Forfeitures Act subjects to forfeiture real property used to facilitate any violation of the Controlled Substances Act.

3 . Overruled in part by Commonwealth v. Real Property & Improventents Commonly Known as 5444 Spruce Street, 574 Pa. 423, 832 A.2d 396 (2003).

4 . In footnote 7, before outlining approaches taken in other jurisdictions, the Court stated, "We do not here decide which approach is appropriate because without a value for the Lewis house we do not know yet whether the forfeiture meets the threshold question of whether the forfeiture is grossly disproportionate, nor has the question undergone the sharpening and annealing process of litigation in the lower courts.”