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 defendants 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 courts 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 sheriffs personnel as a result of searches
conducted of the defendants 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 sheriffs 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
States entries of nolle prosequi.[2] The pertinent plea
agreement, i.e., the defendants "Notice of
Intent to Plead Guilty," does not itself appear in the
record; however, the trial courts 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
Page 930
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 sheriffs
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 sheriffs 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 defendants counsel at that
hearing, there was no dispute between the parties as to the
States 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 sheriffs 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 defendants "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 ...