MEMORANDUM DECISION
                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                        Aug 25 2016, 8:37 am
this Memorandum Decision shall not be                              CLERK
regarded as precedent or cited before any                      Indiana Supreme Court
                                                                  Court of Appeals
court except for the purpose of establishing                        and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


PRO SE APPELLANT                                         ATTORNEYS FOR APPELLEE
Robert Smith                                             Gregory F. Zoeller
Greencastle, Indiana                                     Attorney General of Indiana

                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Smith,                                            August 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1601-MI-158
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable James B. Osborn,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49D14-1308-MI-32290



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1601-MI-158 | August 25, 2016   Page 1 of 7
                                          Case Summary
[1]   Pro-se Appellant Robert Smith (“Smith”) appeals a summary judgment granted

      to the State of Indiana (“the State”) upon the State’s Complaint for Forfeiture.

      We affirm.



                                                    Issues
[2]   Smith presents two issues for review:

              I.       Whether Indiana Code Section 34-24-1-1 is
                       unconstitutional; and


              II.      Whether the trial court improvidently granted summary
                       judgment to the State in light of the State’s lack of
                       response to Smith’s motion for release of funds in his
                       criminal case.


                            Facts and Procedural History
[3]   During the early evening of July 2, 2013, Indianapolis Police Officer

      Christopher Shaw (“Officer Shaw”) saw Smith, who was not wearing a seatbelt,

      driving a 1995 Chevy truck in reverse. Officer Shaw initiated a traffic stop.

      Smith was found to be in possession of more than eight grams of cocaine.

      Smith also had $535.00 in cash. The truck and cash were confiscated.


[4]   Smith was arrested and charged with Dealing in Cocaine, Possession of

      Cocaine, and Resisting Law Enforcement. At the conclusion of a jury trial on



      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-MI-158 | August 25, 2016   Page 2 of 7
      July 30, 2014, he was convicted as charged. Smith was sentenced to twenty

      years imprisonment.


[5]   On August 23, 2013, the State filed a Complaint for Forfeiture, in civil cause

      number 49D14-1308-MI-032290 (“Cause No. MI-032290”). The named

      defendants were Smith, $535.00 in U.S. Currency, One 1995 Chevrolet, and

      Cassandra Carter (“Carter”), who allegedly held title to the 1995 Chevrolet.

      Carter entered into an agreed judgment with the State providing for forfeiture of

      the 1995 Chevrolet, and she was dismissed as a defendant. On October 22,

      2015, the State filed its motion for summary judgment. On October 30, 2015,

      the trial court entered an order providing in part: “If neither party requests a

      hearing, the Court shall rule on the motion without further notice or hearing.”

      (App. at 17.)


[6]   Prior to the disposition of the forfeiture claim, on June 2, 2015, in criminal

      cause number 49G20-1307-FA-043290 (“Cause No. FA-043290”), Smith filed a

      pro-se “Motion for Release of Funds.” (App. at 1.) Smith requested the release

      of the $535.00 in cash, but did not assert a claim regarding the 1995 Chevy

      truck.1 On June 12, 2015, the trial court entered an order stating that the State

      had thirty days to file a response. Smith subsequently filed a motion for

      summary judgment, alleging that the State had failed to file a response and he




      1
       Smith asserts that Carter provided her attorney with proof of Smith’s income, in an effort to verify that the
      $535.00 was legally obtained.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-MI-158 | August 25, 2016               Page 3 of 7
      was entitled to summary judgment. On August 3, 2015, the trial court denied

      Smith’s motion for summary judgment.


[7]   On November 25, 2015, Smith filed a “Motion to Reconsider Denial of

      Summary Judgment,” his initial filing in Cause No. MI-032290. (App. at 6.)

      In that motion, Smith claimed that the State’s civil forfeiture claim should be

      dismissed because the State “did not respond in a timely manner” to Smith’s

      “Motion for Return of Funds [of] June 2, 2015.” (App. at 6.)


[8]   On December 22, 2015, the in rem civil proceedings concluded when the trial

      court entered a judgment of forfeiture against Smith and the named property.

      This appeal ensued.



                                  Discussion and Decision
                       Constitutionality of Forfeiture Statute
[9]   Smith asserts that Indiana Code Section 34-24-1-1 is unconstitutional. The

      portion relevant to forfeiture of Smith’s property provides:

              The following may be seized: . . . Real or personal property[.] . . .
              Money . . . found near or on a person who is committing,
              attempting to commit, or conspiring to commit any of the
              following offenses shall be admitted into evidence in an action
              under this chapter as prima facie evidence that the money . . . is
              property that has been used or was to have been used to facilitate
              the violation of a criminal statute or the proceeds of the violation
              of a criminal statute: IC 35-48-4-1 (dealing in or manufacturing
              cocaine or a narcotic drug).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-MI-158 | August 25, 2016   Page 4 of 7
       I.C. § 34-24-1-1(a)(18)(d)(1). We presume that a statute is constitutional, and

       the challenger bears the burden of proving it is not. $100 v. State, 822 N.E.2d

       1001, 1008 (Ind. Ct. App. 2005). All reasonable doubts are to be resolved in

       favor of the statute’s constitutionality. Id.


[10]   Smith’s argument with respect to the constitutionality of Indiana Code Section

       34-24-1-1 is as follows:


               Firstly, Smith asserts, that the forfeiture statue in Indiana is
               unconstitutional. Therefore, review of the argument is de novo.
               Willis v. State, 806 N.E.2d 817 (Ind. Ct. App. 2004). Smith
               claims the forfeiture of his property violates the prohibition in the
               United States Constitution against Excessive Fines and serves
               more than a remedial purpose. Smith also asserts that this taking
               of his property is no more than a bill of attainder inflicting
               punishment on individuals without a judicial trial.


       Appellant’s Brief at 5. Smith’s bald assertion of unconstitutionality does not

       constitute cogent reasoning, as required by Indiana Appellate Rule 46(A)(8).

       To the extent that Smith asserts that the forfeiture statute is a bill of attainder, a

       panel of this Court has previously rejected a similar argument. See $100 v. State,

       822 N.E.2d at 1012-13 (describing a bill of attainder as a substitution of a

       legislative for a judicial determination of guilt and concluding that the forfeiture

       statute is not a bill of attainder because a judicial trial occurs prior to a court

       order of forfeiture). Smith has not proved the forfeiture statute to be

       unconstitutional.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-MI-158 | August 25, 2016   Page 5 of 7
                                Grant of Summary Judgment
[11]   Pursuant to Indiana Trial Rule 56(C), a movant is entitled to summary

       judgment if the designated material shows there is no genuine issue as to any

       material fact and the moving party is entitled to judgment as a matter of law. A

       trial court’s grant of summary judgment on appeal to this Court is “clothed with

       a presumption of validity,” and an appellant has the burden of demonstrating

       that the grant of summary judgment was erroneous. Williams v. Tharp, 914

       N.E.2d 756, 762 (Ind. 2009).


[12]   Smith claims that “the State’s case should have been dismissed for failure to

       timely pursue their case.” Appellant’s Brief at 5. We observe that Smith filed

       no response to the motion for summary judgment in Cause No. MI-032290

       until his motion to reconsider and filed no separate request for dismissal prior to

       the grant of summary judgment.


[13]   Nonetheless, as best we can discern Smith’s argument on appeal, he contends

       that the State was not entitled to pursue a summary judgment in the civil

       proceedings because the State did not respond to Smith’s motion for return of

       funds filed in Cause No. FA-043290. According to Smith, the State’s failure to

       respond to his motion and failure to “file a separate cause of action as required

       by the forfeiture statute” and “follow-up with forfeiture proceedings” denied

       Smith due process that should be afforded to an “innocent owner.” Appellant’s

       Brief at 6. This argument does not address the merits of the State’s entitlement

       to judgment as a matter of law in Cause No. MI-032290. Thus, Smith has not


       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-MI-158 | August 25, 2016   Page 6 of 7
       overcome the presumption of validity attached to the summary judgment order

       in the civil forfeiture case.



                                               Conclusion
[14]   Smith has not demonstrated that Indiana Code Section 34-24-1-1 is

       unconstitutional or that the grant of summary judgment to the State is

       erroneous.


[15]   Affirmed.


       Riley, J., and Barnes, J., concur.




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