                                                                          FILED
                                                                     May 31 2017, 8:54 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bradley Keffer                                            Curtis T. Hill, Jr.
Brooke Smith                                              Attorney General of Indiana
Keffer Barnhart, LLP                                      Andrea E. Rahman
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

$47,940.00 U.S. Currency and                              May 31, 2017
Dustin Sorhaindo,                                         Court of Appeals Case No.
Appellant-Defendant,                                      49A05-1608-MI-1814
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable Patrick J. Dietrick,
State of Indiana and Indiana                              Judge
State Police,                                             Trial Court Cause No.
Appellees-Plaintiffs.                                     49D12-1512-MI-42103




Riley, Judge.




Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017                       Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Dustin Sorhaindo (Sorhaindo), appeals the trial court’s

      order granting transfer of $47,940.00 to the United States under Indiana Code

      section 35-33-5-5(j). 1


[2]   We reverse and remand.


                                                     ISSUE
[3]   Sorhaindo presents two issues on appeal, which we consolidate and restate as

      the following single issue: Whether the trial court properly granted the State’s

      notice to transfer the seized funds when there was similar action pending in

      another court.


                      FACTS AND PROCEDURAL HISTORY
[4]   On June 30, 2015, Detective Brian Thorla (Detective Thorla) and other officers

      from the Indianapolis Metropolitan Police Department were given verbal

      consent to enter and visually inspect suspicious parcels at a local shipping

      company in Indianapolis, Indiana. During the inspection, a parcel addressed to

      Sorhaindo was singled out for further investigation. Detective Thorla, a

      certified K9 handler, used a certified K9 to conduct a narcotic examination of

      Sorhaindo’s suspicious parcel and a few others. The K9 gave a positive




      1
        We heard oral argument in this case on April 26, 2017, at Wabash College in Crawfordsville, Indiana. We
      commend counsel for their excellent presentations and thank Wabash College for its hospitality in hosting
      this oral argument.

      Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017                       Page 2 of 13
indication of a controlled substance in Sorhaindo’s package. On the same day,

the State opened a miscellaneous criminal case in Marion Superior Court,

Criminal Division, Courtroom 6, under Cause number 49G06-1506-MC-

022791 (MC-22791), and applied for a search warrant. Sorhaindo’s name was

not included in the caption of the search warrant application. In the probable

cause affidavit supporting the search warrant application, Detective Thorla

described the parcel as a “Brown Box with black duct tape . . . ADDRESSED

TO: Dustin Sorhaindo, FedEx Office and Print Cent[er], 935 W Huntington

Dr., Monrovia, CA 91016[,] (404) 840-6835 and Dustin Sorhaindo 125 W.

Olive Monrovin, CA 91016,” and with “TRACKING # 8077 8940 5551.”

(Appellant’s App. Vol. II, p. 16). Detective Thorla further averred that the

suspicious package was being shipped to California, “a State known by [the

officers] to be a source state for the importation/exportation of controlled

substances.” (Appellant’s App. Vol. II, p. 16). Detective Thorla added that he

had probable cause to believe that the parcel contained controlled substances

based on the narcotic search conducted by his certified K9. The trial court

granted the warrant and limited the “search for controlled substances, records

of drug trafficking, and proceeds of drug trafficking.” (Appellant’s App. Vol. II,

p. 19). When the officers opened the package, they found socks stuffed around

another heavily taped box. The search of the second box yielded several folders

with various papers, and underneath the folder, there was United States

currency in the amount of $47,940.00. No controlled substances were found in

the package.



Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017   Page 3 of 13
[5]   On July 2, 2015, under cause number MC-22791, the State filed a Notice and

      Motion to Transfer Seized Property to the United States. 2 In the motion, the

      State referenced the search conducted on June 30, 2015, pursuant to the search

      warrant in which IMPD officers searched Sorhaindo’s package and seized

      $47,940 of United States currency. The motion to transfer further stated that

      the money was “confiscated as proceeds of narcotics trafficking . . . and money

      laundering.” (Appellant’s App. Vol. II, p. 74). In paragraph 8, the State

      indicated that a “copy of this Motion has been sent by certified mail, prior filing

      with the court, to both the sender and receipt at the addresses listed on the

      parcel in order to provide notice to the parties of the State’s intention to

      transfer.” (Appellant’s App. Vol. II, p. 74). The record shows that the State’s

      notice on the motion to transfer seized property could not be delivered to the

      different addresses listed on Sorhaindo’s package and was subsequently

      returned on July 9, 2015.


[6]   On September 2, 2015, Sorhaindo’s attorney wrote an email to the Marion

      County Prosecutor’s Office stating, “[We] have been retained as local counsel

      to handle the Turnover re: [] Sorhaindo’s seizure. We’ll be getting our

      appearance and objection to the turnover on file shortly.” (Appellant’s App.

      Vol. II, p. 49). The Prosecutor’s Office responded back stating, “Status update:

      After [] shuffling around from person to person, we have located the correct



      2
        Sorhaindo presents a copy of this Notice and Motion to Transfer Seized Property in his appendix; however,
      it is not filed-stamped. In addition, Sorhaindo does not present us with a certified copy of the Chronological
      Case Summary for cause number MC-22791 to confirm the filing.

      Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017                           Page 4 of 13
      person willing to fix this issue as it involves JTAC, ISA and Odyssey. She is

      hopeful that this will be resolved by the end of the week. I will give you

      instructions on how to proceed when I get them.” (Appellant’s App. Vol. II, p.

      49). In reply, Sorhaindo’s counsel wrote, “Great! I want to get my objection

      on file, but should I continue to hold off until you give me the high sign?”

      (Appellant’s App. Vol. II, p. 49). The Prosecutor’s Office confirmed, “[T]hat is

      accurate because at this moment it will be rejected by the court no matter where

      you file it.” (Appellant’s App. Vol. II, p. 74). There was no further

      communication between the parties on this issue.


[7]   On December 22, 2015, the State filed a Complaint for Forfeiture against

      Sorhaindo in Marion Superior Court, Civil Division, Courtroom 12, under

      cause number 49D12-1512-MI-042103 (MI-42103). The complaint referenced

      the search conducted on June 30, 2015, where the IMPD officers seized

      $47,940.00 in United States currency while conducting a criminal investigation.

      The following day, under MI-42103, the State filed a Notice and Motion to

      Transfer Seized Property to the United States. On January 5, 2016, the trial

      court granted the State’s transfer motion.


[8]   On January 13, 2016, Sorhaindo filed an answer to the State’s complaint for

      forfeiture, a consolidated motion to correct error and objection to the transfer of

      seized funds, and a motion to dismiss under Indiana Trial Rule 12(B)(8). In his

      consolidated motion to correct error and objection to the transfer of seized

      funds, Sorhaindo requested the trial court to set aside the January 5th transfer

      order. In addition, quoting Adams v. State, 967 N.E.2d, 568 (Ind. Ct. App.

      Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017   Page 5 of 13
      2012) (holding that a property owner is entitled to challenge the legality of the

      search underlying the transfer request), Sorhaindo challenged the lawfulness of

      the search, the subsequent seizure, and requested a hearing for a determination

      of the same. In his motion to dismiss, Sorhaindo claimed that there were two

      similar motions to transfer seized property in two different courtrooms, i.e., the

      miscellaneous criminal case filed in Courtroom 6 under MC-22791, and the

      civil forfeiture case filed in Courtroom 12 under MI-42103. Sorhaindo argued

      that pursuant to Trial Rule 12(B)(8), the tranfer actions filed in cause numbers

      MC-22791 and MI-42103, involved the same parties, search, seized property,

      and requested remedies. As such, Sorhaindo argued that MI-42103, which was

      subsequently filed Courtroom 12, should be dismissed. On January 19, 2016,

      the trial court stayed the transfer order granted on January 5, 2016.


[9]   On February 3, 2016, an attorney’s conference was held by the trial court and

      Sorhaindo’s motion to dismiss hearing was set for March 30, 2016. Sorhaindo

      was also permitted to challenge the validity of the search and seizure at the

      motion to dismiss hearing. The record shows that the motion to dismiss

      hearing was cancelled. On February 25, 2016, the parties filed an Agreed Entry

      and Stipulation of Partial Dismissal under cause number MI-42103, in which

      the State dismissed its complaint for forfeiture, leaving only its motion to

      transfer filed on December 23, 2015, under cause number MI-42103.

      Additionally, the parties agreed that the matter would continue for the limited

      purpose of determining the transfer motion action filed in MI-42103 and

      Sorhaindo’s multiple challenges to the same.


      Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017   Page 6 of 13
[10]   On May 4, 2016, the State filed its response to Sorhaindo’s objection on its

       motion to transfer seized funds under cause MI-42103. The State initially noted

       that cause MC-22791 was a “dummy” cause number, and added that:

               In Marion County, MC cause numbers [XXXXX-XXXX-MC-
               XXXXXX] are used as a way to track certain types of
               documents. While they appear in the form of a regular cause
               number, they are not an active case, are not visible through
               online court resources, and requests for hearings will not result in
               a calendared hearing in front of a judicial officer. For all intents
               and purposes it is merely a tracking number.


       (Appellant’s App. Vol. II, p. 63). In explicating its reasons for subsequently

       filing cause number MI-42103, the State specified that the filing of the

       successive turnover action was the only way it could obtain Sorhaindo’s

       objection on file. In a footnote, the State noted:

               If [Sorhaindo] were to file his written objection under the original
               dummy cause number, [] MC-022791, [Courtroom 6] would not
               have set the matter for hearing because “MC” does not designate
               a true active case.


       (Appellant’s App. Vol. II, p. 64). The State also claimed that the Agreed Entry

       and Stipulation of Partial Dismissal under cause number MI-42103 filed in

       February 2016, disposed of Sorhaindo’s motion to dismiss. Finally, the State

       posited that if the seizure was determined to be lawful under Article 1 section

       11 of the Indiana Constitution, the seized funds should be transferred to the

       relevant federal authorities pursuant to Indiana Code section 35-33-5-5(j).



       Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017    Page 7 of 13
[11]   On July 11, 2016, under cause number MI-42103, Sorhaindo responded to the

       State’s motion filed on May 4, 2016. Sorhaindo first refuted the State’s position

       that its motion to dismiss was disposed of by the parties’ agreed entry filed in

       February 2016. In the discussion section, Sorhaindo raised two issues: (1)

       whether the State could bring a transfer motion under MI-42103 after having

       filed a similar transfer motion in MC-22791; and (2) in the event the trial court

       determined that the State was not barred from pursuing the turnover motion

       filled in MI-42103, the trial court should afford him a meaningful hearing

       pursuant to Adams v. State, 967 N.E.2d, 568 (Ind. Ct. App. 2012), to challenge

       the validity on the search.


[12]   On July 19, 2016, without an evidentiary hearing, the trial court issued findings

       of fact and order, granting the State’s motion to transfer the seized property to

       the United States under MI-42103.


[13]   Sorhaindo now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                          I. Competing Cause Numbers


[14]   Sorhaindo argues that the trial court erred in granting the State’s motion to

       transfer his seized funds, and in essence, erred in denying his motion to dismiss.

       In characterizing both causes as competing causes because they are based on

       the same parties, search, seizure, and remedy, Sorhaindo alleges that under

       Trial Rule 12(B)(8), MI-42103 should be dismissed, with cause MC-22791 to

       proceed.
       Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017   Page 8 of 13
[15]   As we consider Sorhaindo’s argument, we observe that we apply a de novo

       standard of review to the grant or denial of a motion to dismiss because the

       same action is pending in another court, in asmuch as it is a question of law.

       Ind. & Mich. Elec. Co. v. Terre Haute Indus., Inc., 467 N.E.2d 37, 42 n. 2 (Ind. Ct.

       App. 1984). In Indiana, when two courts have concurrent jurisdiction over a

       case, the court first acquiring jurisdiction is considered to have exclusive

       jurisdiction over that case. Pivarnik v. N. Ind. Pub. Serv. Co., 636 N.E.2d 131,

       135 (Ind. 1994). “Once a court has acquired exclusive jurisdiction over a case,

       the case is pending in that court within the meaning of Trial Rule 12(B)(8).” Id.

       The court in which a case is first instituted has exclusive jurisdiction over the

       case. Id.


[16]   The State contends that MC-22791 could not be “utilized for a motion to

       transfer or an evidentiary hearing. If Sorhaindo were to file his written

       objection under the original dummy cause number, [Courtroom 6] would not

       have set the matter for a hearing because MC does not designate a true active

       case.” (Appellees’ Br. p. 15) (internal quotation marks omitted). Despite the

       apparent existence of the motion to transfer seized funds in MC-22791, the

       State also claims that it “appears that on July 2, 2015, [it] attempted to file a

       notice and motion to transfer seized property to the United States pursuant to

       Indiana Code section 35-33-5-5(j) under . . . cause number . . . [MC-22791] but

       it was not accepted for filing.” (Appellees’ Br. p. 9). In support of its claim, the

       State references the certified copy of the Chronological Case Summary in MC-

       22791 which only notes three entries on June 30, 2015—i.e., a new criminal


       Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017     Page 9 of 13
       miscellaneous filing, a request for search warrant, and an order granting the

       request for a search warrant. The State postulates that since the motion to

       transfer was never filed in MC-22791, there was no pending action in

       Courtroom 6.


[17]   In advancing his claim that MC-22791 was an active case in Courtroom 6,

       Sorhaindo relies on Membres v. State, 889 N.E.2d 265 (Ind. 2008), a criminal

       miscellaneous case with an MC designation filed in Marion Superior Court

       where evidence relating to a transfer of seized property pursuant to Indiana

       Code § 35-33-5-5(j) was heard. Sorhaindo additionally contends in his appellate

       brief that to assert that MC cases are not active cases, “would result in [an]

       absurd situation where the employees of the Marion County Clerk’s Office . . . .

       would have the power to make certain types of cases essentially disappear

       simply by assigning them an” MC designation. (Appellant’s Br. p. 16).


[18]   Notwithstanding the State’s assertion that MC cases are not active or existing

       cases, Marion County Local Rule 49-CR2.3-101(g) recognizes that existing

       pending cases include cases with an “MC” designation. Aside from the

       apparent filing defect on the motion to transfer (i.e., that it lacked a court file

       stamp to confirm its filing), the record shows that it was filed under MC-22791.

       Shortly after the search of Sorhaindo’s package and seizure of his funds, the

       State filed the transfer motion and indicated in paragraph 8 that it had mailed a

       copy of that motion to Sorhaindo’s addresses as listed on the package. The

       record demonstrates that the motion could not be delivered and was instead

       returned to the State. Notwithstanding the lack of notice on the filing of the

       Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017     Page 10 of 13
       State’s motion to transfer, Sorhaindo became aware of the State’s filing and

       retained counsel in Indiana. In September 2015, Sorhaindo’s counsel contacted

       the Prosecutor’s office to discuss the motion to transfer filed under MC-22791,

       and he questioned the office on how to proceed in the filing of Sorhaindo’s

       objection on the same. At no point did the State refute the existence of the

       motion to transfer under MC-22791. Sorhaindo was named as a defendant in

       the State’s original transfer motion and he ostensibly knew of that pending case

       when it was filed. In light of Marion County Local Rule 49-CR2.3-101(g), and

       the State’s admission on the filing of the transfer motion in MC-22791, we

       conclude that MC-22791 was a pending active case in Courtroom 6. To that

       end, we now turn our focus on whether Courtroom 12 erred by denying

       Sorhaindo’s motion to dismiss.


[19]   When an action is pending before an Indiana court, other Indiana courts must

       defer to that court’s authority over that case. Crawfordsville Apartment Co. v. Key

       Trust Co. of Flo., 692 N.E.2d 478, 479 (Ind. Ct. App. 1998). Trial Rule 12(B)(8)

       implements this principle by allowing dismissal of one action on the grounds

       that the same action is pending in another Indiana court. Id. at 479-80. Two

       actions are the “same” for purposes of the Rule if the parties, subject matter,

       and remedies sought are the same or substantially the same. Id. at 480. The

       determination of whether two actions being tried in different state courts

       constitute the same action depends upon whether the outcome of one action

       will affect the adjudication of the other. Ind. & Mich. Elec. Co., 467 N.E.2d at

       40. An “unseemly conflict of jurisdiction” exists between two courts of


       Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017   Page 11 of 13
       concurrent jurisdiction where both exert authority over the same case, so the

       jurisdiction of the court first acquiring jurisdiction is deemed exclusive. See

       State ex rel. Int’l Harvester Co. v. Allen Circuit Court, 265 Ind. 175, 352 N.E.2d 487,

       489 (1976). “As a matter of policy and practicality in the operation of our

       judicial system, only one court should be able to exercise jurisdiction over a

       cause of action at any particular time. To hold otherwise would create

       confusion and chaos in our trial and appellate courts.” State ex rel. Coleman v.

       Hendricks Superior Court II, 272 Ind. 40, 396 N.E.2d 111, 112 (1979).


[20]   Here, the parties in the transfer actions filed in MC-22791 and MI-42103 were

       the State and Sorhaindo. In addition, the subject matter in both causes was

       substantially similar. Both causes involved the transfer of the $47, 940.00

       seized from Sorhaindo’s parcel to the relevant federal authorities. Finally, the

       remedy sought in both actions was a turnover order, which would allow the

       commencement of forfeiture proceedings in federal court. Here, we hold that

       the actions pending in Courtroom 6 and Courtroom 12 were substantially the

       same action. Courtroom 12, therefore, erred by denying Sorhaindo’s motion to

       dismiss because Courtroom 6 retained exclusive jurisdiction over the original

       turnover action.


[21]   As we concluded that Courtroom 12, in which cause MI-42103 was filed did

       not have jurisdiction, the transfer order issued in that court was improper. The

       appropriate remedy in this case is to set aside the turnover order issued in MI-

       42103 and to remand this cause to MC-22791 for the commencement of

       turnover proceedings. Because we are remanding for new turnover proceedings

       Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017     Page 12 of 13
       under MC-22791, we need not address Sorhaindo’s other pertinent challenge

       concerning the scope of the search warrant, i.e., whether the seizure exceeded

       the warrant’s language. However, should Sorhaindo again choose to challenge

       the lawfulness of the search warrant leading to the seizure of his funds,

       Sorhaindo should be afforded a hearing on whether the seizure complied with

       the warrant’s language.


                                              CONCLUSION
[22]   Based on the foregoing, we set aside the transfer order issued in MI-42103 on

       July 19, 2016, and remand this cause to MC-22791 for the commencement of

       turnover proceedings.


[23]   Reversed and remanded.


[24]   Robb, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 49A05-1608-MI-1814 | May 31, 2017   Page 13 of 13
