J-S09014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    FRANKLYN M. GEIGER                          :
                                                :
                       Appellant                :     No. 645 WDA 2018

               Appeal from the Order Entered February 14, 2018
                In the Court of Common Pleas of Warren County
              Criminal Division at No(s): CP-62-CR-0000149-2016


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.:                              FILED OCTOBER 9, 2019

        Franklyn Geiger appeals nunc pro tunc from the order entered February

14, 2018, in the Warren County Court of Common Pleas, granting the

Commonwealth’s        motion     to   dismiss   the    “Petition   to   Open   Consent

Order/Forfeiture Judgment” and Motion for Return of Property filed by Geiger.

We affirm in part and remand in part.

        In May of 2016, the Commonwealth filed various criminal charges

against Geiger, all arising from allegations that he possessed marijuana and

oxycodone with the intent to deliver. Following a guilty plea colloquy, Geiger

entered a negotiated guilty plea to one count of possession of marijuana with

intent to deliver, one count of possession of marijuana and                oxycodone

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   Retired Senior Judge assigned to the Superior Court.
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hydrochloride with intent to deliver, and one count each of criminal use of

communication facility, corrupt organizations, illegal exchange of federal food

stamps, and cruelty to animals.1

       In conjunction with his guilty plea, Geiger entered into a consent order

with the Commonwealth. Under the consent order, Geiger agreed to forfeit

certain real and personal property specifically listed in the order. In return,

the Commonwealth agreed to return any items it had seized that were not

specifically listed in the consent order.

       Geiger was sentenced on October 28, 2016. He filed a post-sentence

motion for reconsideration, which was subsequently denied. On February 2,

2017, the trial court granted Geiger’s motion to extend the time for filing an

appeal until March 6, 2017. Geiger did not file a direct appeal.2

       On December 1, 2017, Geiger filed a “Petition to Open Consent

Order/Forfeiture Judgment and Motion for Return of Property.” On February




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1 Respectively, 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 7512(a);
911(b)(1); 7313(a); 5511(c)(1).

2 Geiger later filed a petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, raising multiple issues related to
the voluntariness of his plea based on ineffectiveness of counsel. After an
extension of time was granted to file an amended PCRA petition, the trial court
dismissed the PCRA petition. We affirmed the dismissal.



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14, 2018, the trial court granted the Commonwealth’s motion to dismiss, as

it deemed Geiger’s filing untimely. This nunc pro tunc3 appeal followed.

       As an initial matter, we note that Geiger’s pro se brief is not a model of

clarity. To the best of our ability, we have reframed his issues to address the

cognizable arguments contained in his brief.

       In his first issue on appeal, Geiger claims the trial court erred in not

opening or voiding the consent order. He sets forth various arguments based

upon the Rules of Civil Procedure and authorities addressing the procedures

to be followed when the Commonwealth initiates a forfeiture proceeding. The

common basis of all of Geiger’s arguments under his first issue is that Geiger

“did not know (and his attorney failed to advise him) that he had an

opportunity to dispute the facts asserted and that he had a right to a civil

trial.” Appellant’s Brief, at 14.

       A forfeiture proceeding initiated by the Commonwealth is civil in nature

and governed by the Rules of Civil Procedure. See Commonwealth v. All

That Certain Lot or Parcel of Land Located at 605 University Drive, 104

A.3d 411, 426 (Pa. 2014). Here, it is undisputed that the Commonwealth

never petitioned for forfeiture in this matter. Rather, the parties reached a

consensual agreement which was reduced to writing. This writing provides



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3On April 11, 2018, the trial court granted Geiger’s request for the right to
appeal nunc pro tunc. His appeal, filed within thirty days, is therefore timely.


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that Geiger waived the right to require the Commonwealth to file such a

petition. See Motion for Consent Order, 9/9/16, at ¶ 7. Geiger also waived his

right to a hearing before the items listed in the motion were forfeited. See

id., at ¶¶ 9-10. Finally, the parties agreed that any items seized by the

Commonwealth in this case, but not listed in the motion, would be returned

to Geiger. See id., at ¶ 16.

       Here, the consent agreement is essentially a settlement, one that

resolved the Commonwealth’s claims under the Forfeiture Act to the listed

property. Geiger’s arguments gathered under his first issue on appeal all seek

to void this settlement agreement.4 However, parties are bound even by

settlement agreements whose consequences they may not understand. See,

e.g., Muhammad v. Strassburger, McKenna, Messer, Shilobod, and

Gutnick, 587 A.2d 1346, 1349 (Pa. 1991). Therefore, Geiger is not entitled

to relief.

       We therefore conclude Geiger is not entitled to void the consent

agreement. However, we also note Geiger has alleged that the Commonwealth

has not honored its obligations under the consent order. See Petition,

12/1/17, at ¶ 11, 20. These allegations, if true, would entitle Geiger to an

order enforcing the consent order. See Mastroni-Mucker v. Allstate Ins.


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4 To the extent Geiger claims trial counsel failed to apprise Geiger of his rights
under the Forfeiture Act, we lack jurisdiction to consider this claim as counsel
is not a named party in this case. See Belliveau v. Phillips, 207 A.3d 391,
395 (Pa. Super. 2019).

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Co., 976 A.2d 510, 518 (Pa. Super. 2009) (observing that settlement

agreements between parties are favored and enforced pursuant to contract

principles).

      Geiger claims the Commonwealth sold or retained property that was

seized from him but was not included in the consent order. For instance, he

alleges that the Commonwealth auctioned off real property located at 11½

Madison Avenue. See id., at ¶ 11. This property, if it even legally exists, is

not listed in the consent order. The consent order cannot therefore legally

form the basis of the Commonwealth’s right to sell 11½ Madison Avenue at

auction (again, assuming the property’s legal existence).

      We cannot discern whether the Commonwealth actually kept any items

that it was supposed to return to Geiger. In fact, we cannot even determine

whether the items identified by Geiger actually exist. Therefore, we remand

the matter to the trial court for further proceedings to determine whether the

Commonwealth has violated the consent order regarding the property

identified by Geiger that is not explicitly listed in the consent order.

      Next, Geiger claims the trial court erred in dismissing his motion for

return of property under Pa.R.Crim.P. 588 without a hearing. To the extent

that Geiger seeks the return of property specifically listed in the consent order,

we agree with the trial court that Geiger’s petition was untimely.

      Geiger was required to file a petition for return of property while the

trial court retained jurisdiction over the underlying criminal prosecution. See


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Commonwealth v. Allen, 107 A.3d 709, 717 (Pa. 2014). Here, the trial court

retained jurisdiction over Geiger’s underlying criminal case until March 6,

2017. Geiger did not file his petition for return of property until December 1,

2017. The petition was therefore untimely, and the trial court properly denied

it without a hearing.

      In summary, we conclude that Geiger is due no relief with respect to

any items explicitly listed in the consent order. In contrast, we conclude Geiger

is entitled to an opportunity to develop his claim that the Commonwealth

retained the property identified in his petition that is not explicitly listed in the

consent order.

      Order affirmed in part and vacated in part. Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2019




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