State Of Washington v. Harvey Johnson

• Court: Court of Appeals of Washington
• Decided: November 29, 2016
• Docket: 47478-6
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

November 29, 2016

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 47478-6-II

Respondent,

v.

HARVEY S. JOHNSON, UNPUBLISHED OPINION

Appellant.

J. SUTTON — Harvey S. Johnson pleaded guilty to one count of assault in the third degree

with sexual motivation and four counts of assault in the third degree. He appeals a provision of

his judgment and sentence ordering the forfeiture of contraband. Because the forfeiture is

specifically limited to contraband, the trial court had the authority to order the forfeiture.

Accordingly, we affirm.

FACTS

Harvey Johnson pleaded guilty to one count of assault in the third degree with sexual

motivation and four counts of assault in the third degree. His judgment and sentence includes a

handwritten provision noting “forfeit contraband.” Clerk’s Papers (CP) at 149. And, provision

4.4a, which reads “all contraband is hereby forfeited,” is checked. CP at 149. Johnson appeals

only the order that he forfeit contraband. No. 47478-6-II

ANALYSIS

Johnson argues that the trial court exceeded its sentencing authority by ordering him to

forfeit contraband because there is no statute specifically authorizing the trial court to order

forfeiture. Johnson is incorrect. While the trial court lacks the authority to order forfeiture of

property without a statute, Washington law recognizes the trial court’s authority to order forfeiture

of contraband. Accordingly, we affirm.

“[A] court may refuse to return seized property no longer needed for evidence only if (1)

the defendant is not the rightful owner; (2) the property is contraband; or (3) the property is subject

to forfeiture pursuant to statute.” State v. Alaway, 64 Wn. App. 796, 798, 828 P.2d 591 (1992).

Contraband is “an object, ‘the possession of which, without more, constitutes a crime.’” Alaway,

64 Wn. App. at 799 (quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85

S. Ct. 1246, 1250, 14 L. Ed. 2d 170 (1965)). Here, the provision in Johnson’s judgment and

sentence very clearly designates that the property to be forfeited is limited to contraband.

Accordingly, the forfeiture is permitted under Alaway. We affirm the judgment and sentence.

Johnson relies on State v. Roberts, 185 Wn. App. 94, 339 P.3d 995 (2014), to argue that

the trial court exceeded its authority. However, Roberts does not apply here. Roberts dealt with

a trial court’s order forfeiting “any items seized by law enforcement.” 185 Wn. App. at 96. The

forfeiture at issue in Roberts was much broader than the forfeiture in Johnson’s case and

encompasses more than simply contraband. Therefore, the forfeiture provision in Roberts

exceeded the limitations imposed on the courts in Alaway. But, Roberts does not control here

because the forfeiture provision in Johnson’s judgment and sentence is limited to contraband.

2 No. 47478-6-II

Because the forfeiture provision in Johnson’s judgment and sentence is limited to

contraband, the trial court did not exceed its authority to order forfeiture as established in Alaway.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

SUTTON, J. We concur:

WORSWICK, P.J.

LEE, J.