Appeal
from Mobile Circuit Court (CC-16-6189, CC-16-6190,
CC-16-6191, CC-16-6192, CC-16-6193, CC-16-6194, CC-16-6195,
CC-16-6196, CC-16-6197, and CC-16-6198)
HANSON, Judge.
This
appeal, transferred to this court by the Alabama Court of
Criminal Appeals on the authority of Jones v. State,
937 So.2d 59 (Ala. 2006), concerns the duty of the State of
Alabama to return to a criminal defendant particular items
previously seized in connection with a criminal prosecution
despite that defendant's stipulation in a plea agreement
to disclaim possession of those items. On the facts
presented, we agree with the State and with the Mobile
Circuit Court that Douglas Ryan Roberts ("the
defendant") validly waived any right he may have had to
reclaim those items specified in his accepted plea agreement,
and we therefore affirm the trial court's judgment.
The
abbreviated record in this appeal, which even as supplemented
consists of only 213 pages (many of which are copies of
case-action-summary sheets from 40 separate criminal
proceedings brought against the defendant), [1] reveals the
following facts. The defendant was arrested on July 13, 2016,
on 20 felony charges of impersonating a peace officer
(see generally Ala. Code 1975, § 13A-10-11) and
20 felony charges of second-degree possession of a forged
instrument (see generally Ala. Code 1975, §
13A-9-6), at which time a number of items were seized by
Mobile County sheriff's personnel as a result of searches
conducted of the defendant's home and motor vehicle; the
record does not contain any copies of the warrants issued in
connection with those searches and seizures. The defendant
pleaded not guilty as to each of the 40 charges against him.
On March 15, 2018, four days before a scheduled trial as to
those charges, the defendant filed what he termed a
"request for production" containing a lengthy list
of items purportedly seized by sheriff's personnel; the
defendant averred that there had been no attempt to institute
civil-forfeiture proceedings as to those items and that any
items not specifically marked as trial exhibits should be
returned to him. For all that appears in the record, the
trial court did not immediately act upon that "request
for production."
On
March 19, 2018, the defendant withdrew his pleas of not
guilty in the 40 criminal actions and instead entered pleas
of guilty as to 5 impersonation charges and 5
forged-instrument charges pursuant to a plea agreement; the
remaining 30 charges were dismissed as a result of the
State's entries of nolle prosequi.[2] The pertinent
plea agreement, i.e., the defendant's
"Notice of Intent to Plead Guilty," does not itself
appear in the record; however, the trial court's judgment
indicates that that document, which was signed by the
defendant, by his counsel, and by counsel for the State,
provided that the defendant "agreed to 'forfeit any
weapons, ammunition, badges & uniforms' along with
other potential property items." The judgment further
notes that the trial court had "conducted a plea
colloquy" with the defendant "to make sure [his]
pleas were being made voluntarily and knowingly" and
that, upon being satisfied as to those matters, the trial
court had accepted those guilty pleas, ultimately rendering a
plea order stating that the defendant had "'agree[d]
to forfeit his weapons, ammunition, police uniform, police
vests, and any items which are used or associated with law
enforcement.'"
On
April 23, 2018, in advance of a sentencing hearing in the 10
remaining criminal cases, the defendant filed a
"supplemental request for production" seeking the
return of items allegedly seized by Mobile County
sheriff's personnel on July 13, 2016, at the conclusion
of the sentencing hearing or, in the alternative, an award of
"a sum certain" as to any lost items. In an order
entered on July 2, 2018, the trial court noted that it had
held a hearing on the matter of whether items of property
seized by Mobile County sheriff's personnel should be
returned to the defendant, and the court directed the parties
to file briefs, setting a subsequent hearing on August 13,
2018.
Although
the record in this appeal does not contain any briefs filed
by the parties in response to that order, the hearing itself
was transcribed, and the transcript of that hearing was
included in the record on the motion of the defendant.
According to the remarks of the defendant's counsel at
that hearing, there was no dispute between the parties as to
the State's duty to return the majority of the items
specified by the defendant in his "requests for
production" -- the parties disagreed only as to
"the items that are ... mentioned in the Notice of
Intent to Plead Guilty," including "guns,"
"ammunition," "[b]adges," and
"uniforms." The defendant contended that (a) under
Ala. Code 1975, §§ 15-5-2 and 15-5-14, the Mobile
County sheriff's personnel had acquired only custodial
possession of the items seized and that the State could
acquire title to the items only through a civil-forfeiture
proceeding; (b) the waiver provision gave rise to a sentence
that was not authorized or was, in a constitutional sense,
"unusual"; and (c) the waiver should not be
construed as operating against possible third-party claims.
After the parties had presented their arguments, the trial
court took the matter under submission.
On
August 27, 2018, the trial court entered a judgment granting
the defendant's "requests for production"
except to the extent that they had sought the return to him
of the "guns," "ammunition,"
"[b]adges," and "uniforms" specified in
the plea agreement and ordering the State to take possession
of property within those categories. The trial court reasoned
as follows:
"There is no specific civil forfeiture statute governing
the type of crime or property involved in this case.
Presumably, that is why the State has not filed such an
action. However, a [d]efendant in a criminal case can
voluntarily stipulate to a forfeiture of his personal
property. Cf. State v. Richardson, 703 So.2d 421,
423 (Ala Crim. App. 1997). In Richardson, a criminal
defendant argued that the State's pursuit of both
criminal sanctions and a civil forfeiture placed the
defendant in double jeopardy. The court did not have to
directly address that issue due to a dispositive procedural
deficiency, but the court did take the opportunity to address
the defendant's voluntary forfeiture of property as part
of a plea agreement:
"'[T]he forfeiture in this case resulted from a
stipulation between [the defendant] and the State. Under the
terms of that stipulation, the State returned certain items
of seized property, [the defendant] forfeited certain items
of seized property, and both parties sought dismissal of the
civil forfeiture action.... Forfeiture resulted not as a
sanction by the court, but because [the defendant]
voluntarily forfeited certain items of his property as part
of an agreement with the State.... [The defendant] will not
now be heard to complain of an agreement into which he freely
entered.'
"Richardson, 703 So.2d at 423.
"Although there was an applicable civil forfeiture
statute (Ala. Code [1975, ] § 20-2-93) in
Richardson and the quoted language was
dicta, the concept discussed in that case can be
soundly applied to the instant case. To gain the dismissal of
thirty felony cases, [the defendant] agreed to voluntarily
forfeit certain items of personal property to the State. The
items voluntarily forfeited (items used or associated with
law enforcement) related to the charges against [the
defendant] -- impersonating a police officer. [He] cannot be
heard now to complain about the agreement plea into which he
freely entered.
"... There was no civil forfeiture action filed because
none was applicable to this type of action or property.
Ultimately, the question here is whether a defendant can
stipulate or agree to voluntarily give up personal property
to the State as part of a plea agreement even when there is
no applicable civil forfeiture statute. [This court] answers
that question in the affirmative."
On
appeal from the trial court's judgment denying the return
of the specified seized property, the defendant first asserts
that the trial court erred because, he says, the seizure of
property by the Mobile County sheriff's personnel on July
13, 2016, did not vest title to that property in the State or
its agencies or subdivisions. He cites Ala. Code 1975, §
15-5-2, which sets forth three particular grounds upon which
a search warrant may be issued and property seized incident
thereto: (1) the property was "stolen or
embezzled"; (2) the property "was used as the means
of committing a felony"; and (3) the property is
"in the possession of any person with the intent to use
it as a means of committing a public offense or in the
possession of another to whom he ...