Roberts v. State

         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). Michael A. Youngpeter, Judge

         Ryan T. Northrup of The Northrup Firm, Mobile, for appellant.

         Steve Marshall, atty. gen., and P. David Bjurberg, for appellee.

         OPINION

         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

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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

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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 ...