                             2017 IL App (2d) 151203
                                  No. 2-15-1203
                            Opinion filed May 16, 2017
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 14-CF-735
                                       )
ISIDRO PENA,                           ) Honorable
                                       ) John A. Barsanti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
       Justices Schostok and Birkett concurred in the judgment and opinion.

                                            OPINION

¶1     Defendant, Isidro Pena, appeals the trial court’s order that denied his “Motion for Return

of Property.” Defendant sought to vacate the administrative forfeiture of certain property,

arguing that he did not receive notice of the forfeiture. The court held that the State’s notice was

sufficient and denied the motion. Defendant contends that the State’s effort to notify him of the

proceedings did not meet constitutional standards. We vacate and remand.

¶2     On April 27, 2014, a Kane County sheriff’s deputy stopped a van that defendant was

driving.   Defendant was arrested and charged with money laundering (720 ILCS 5/29B-

1(a)(1.5)(B)(ii) (West 2014)). Defendant’s van was seized, along with $8,986 and two cellular
2017 IL App (2d) 151203


telephones. When he was arrested, defendant gave his address as 14960 Chatsworth Street,

Mission Hills, California.

¶3     On May 7, 2014, the trial court reduced defendant’s bond. Defendant’s sister, Maria

Delgadillo, posted bond. As conditions of his pretrial release, defendant was ordered to remain

in Illinois and to report to pretrial services. On May 9, he reported for intake at pretrial services.

He stated that he would be living with Delgadillo at 316 Marilyn in Glendale Heights.

Subsequently, defendant attended all scheduled court appearances and continued to report to

pretrial services, listing the Glendale Heights address.

¶4     The Kane County State’s Attorney sought the administrative forfeiture of the van and the

cash. At a later court hearing, the prosecutor represented that the State had sent notice of the

forfeiture proceedings by certified mail to the Mission Hills, California, address. On July 3,

2014, the return receipt was returned as “UNCLAIMED UNABLE TO FORWARD.” The

prosecutor further represented that the State sent a declaration of forfeiture to the Mission Hills,

California, address on July 7, 2014, and that a tracking service showed that the notice was left at

that address.

¶5     During this time, the trial court denied defendant’s motion to quash his arrest and

suppress evidence. However, when the case was called for trial on April 15, 2015, the State nol-

prossed the charges.

¶6     On May 1, 2015, defendant filed in the criminal case a motion for the return of his

property. After several transfers between the criminal and civil divisions of the circuit court, the

case was returned to the criminal division, where the court denied defendant’s motion. Based on

the prosecutor’s representations, the court found that the State had complied with the relevant

statute in that it sent notice by certified mail to defendant’s last known address. Moreover, the



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2017 IL App (2d) 151203


statute placed the burden on defendant to notify the State of any address changes, and defendant

had not notified the State’s Attorney of his address change. Defendant timely appealed.

¶7     Defendant’s property was forfeited pursuant to the money-laundering statute. 720 ILCS

5/29B-1 (West 2014). The statute authorizes the forfeiture of any property “constituting, derived

from, or traceable to any proceeds the person obtained” as a result of violating the statute (720

ILCS 5/29B-1(h)(1)(A) (West 2014)) and all conveyances used to transport such property (720

ILCS 5/29B-1(h)(1)(C) (West 2014)). If the value of the property, excluding the value of any

conveyances, is less than $20,000, the State’s Attorney may administratively forfeit the property.

The procedure for doing so is as follows:

               “(1) If, after review of the facts surrounding the seizure, the State’s Attorney is of

       the opinion that the seized property is subject to forfeiture, then within 45 days after the

       receipt of notice of seizure from the seizing agency, the State’s Attorney shall cause

       notice of pending forfeiture to be given to the owner of the property and all known

       interest holders of the property in accordance with subsection (i) of this Section.

               (2) The notice of pending forfeiture must include a description of the property, the

       estimated value of the property, the date and place of seizure, the conduct giving rise to

       forfeiture or the violation of law alleged, and a summary of procedures and procedural

       rights applicable to the forfeiture action.

               (3)(A) Any person claiming an interest in property which is the subject of notice

       under paragraph (1) of this subsection (k), must, in order to preserve any rights or claims

       to the property, within 45 days after the effective date of notice as described in subsection

       (i) of this Section, file a verified claim with the State’s Attorney expressing his or her

       interest in the property.” 720 ILCS 5/29B-1(k)(1), (k)(2), (k)(3)(A) (West 2014).



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2017 IL App (2d) 151203


¶8     The statute contains the following requirements for notice to the property owner:

               “(A) If the owner’s or interest holder’s name and current address are known, then

       by either personal service or mailing a copy of the notice by certified mail, return receipt

       requested, to that address. For purposes of notice under this Section, if a person has been

       arrested for the conduct giving rise to the forfeiture, then the address provided to the

       arresting agency at the time of arrest shall be deemed to be that person’s known address.

       Provided, however, if an owner or interest holder’s address changes prior to the effective

       date of the notice of pending forfeiture, the owner or interest holder shall promptly notify

       the seizing agency of the change in address or, if the owner or interest holder’s address

       changes subsequent to the effective date of the notice of pending forfeiture, the owner or

       interest holder shall promptly notify the State’s Attorney of the change in address; or

               (B) If the property seized is a conveyance, to the address reflected in the office of

       the agency or official in which title or interest to the conveyance is required by law to be

       recorded, then by mailing a copy of the notice by certified mail, return receipt requested,

       to that address; or

               (C) If the owner’s or interest holder’s address is not known, and is not on record

       as provided in paragraph (B), then by publication for 3 successive weeks in a newspaper

       of general circulation in the county in which the seizure occurred.” 720 ILCS 5/29B-

       1(i)(1)(A)-(i)(1)(C) (West 2014).

¶9     Defendant contends that the trial court erred by holding that the notice was proper. He

argues that, although the State might have complied with the statute as written, it was required to

do more where it had reason to know that he would not receive the notice at his last known

address.



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2017 IL App (2d) 151203


¶ 10     The State argues that the trial court lacked jurisdiction to hear defendant’s motion,

because the motion was filed too late. The State appears to contend that defendant was required

to seek administrative review of the State’s Attorney’s decision and that his motion was filed

more than 35 days after the State notified him of that decision. See 735 ILCS 5/3-103 (West

2014).       On the merits, the State responds that, if defendant had been incarcerated for the

underlying offense, it would have had to serve him in the jail but, because he was not in jail, it

had no additional obligation to search for him.

¶ 11     The State thus questions the trial court’s jurisdiction and, by extension, our jurisdiction.

Due to the irregular nature of the proceedings below, we ordered the parties to file supplemental

briefs on the jurisdictional issue. Having considered the supplemental briefs, we conclude that

the trial court had jurisdiction of defendant’s motion.

¶ 12     Except in cases of administrative review, the Illinois Constitution gives circuit courts

jurisdiction of all justiciable matters. Belleville Toyota, Inc. v. Toyota Motors Sales, U.S.A., Inc.,

199 Ill. 2d 325, 334 (2002) (citing Ill. Const. 1970, art. VI, § 9). Here, at least technically,

defendant did not seek administrative review, in which the trial court’s jurisdiction is controlled

by statute. Instead, in a criminal action, he filed a motion for the return of property. The return

of property is a justiciable matter, as is, of course, a criminal action. 1 Thus, the trial court had

         1
             As a general matter, parties routinely file motions relating to the return of seized

property in criminal cases. A person who is arrested is entitled to an inventory of all items that

were seized on a search without a warrant, and such an inventory must be delivered to the

criminal court. 725 ILCS 5/108-2 (West 2014). All items, other than contraband, must be

returned when the person is released without being charged. Id. The trial court must provide for

the custody of any seized items pending further proceedings. 725 ILCS 5/108-11 (West 2014).



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2017 IL App (2d) 151203


jurisdiction of defendant’s motion. See Brewer v. National R.R. Passenger Corp., 165 Ill. 2d

100, 105 (1995) (trial court retains jurisdiction over a cause for 30 days after entry of a final

order or judgment).

¶ 13   The State observes that the statute provides that property subject to forfeiture under the

statute “shall not be subject to return or release by a court exercising jurisdiction over a criminal

case involving the seizure of such property unless such return or release is consented to by the

State’s Attorney.” 720 ILCS 5/29B-1(l)(10) (West 2014). But the divisions of a circuit court are

not jurisdictional (In re Marriage of Schweihs, 222 Ill. App. 3d 887, 890 (1991)), and, as noted,

outside of administrative review, the legislature may not divest a circuit court of its jurisdiction

(Belleville Toyota, 199 Ill. 2d at 335).

¶ 14   However, even if, substantively, defendant did seek administrative review, but did so in

an untimely manner (and in the wrong division), the trial court’s jurisdiction merely turns on the

merits of whether the State’s notice of its decision was constitutionally adequate. If it was, the

trial court properly denied defendant’s motion.          But if the notice was constitutionally

inadequate—regardless of whether it was statutorily adequate—then defendant is not subject to

the statutory limitations on his action. See Grimm v. Calica, 2017 IL 120105, ¶ 21; Bell v.

Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago, 398 Ill. App. 3d 758,

763 (2010) (35-day jurisdictional requirement will not bar a plaintiff’s complaint for

administrative review where the agency fails to fairly and adequately inform the plaintiff of its

decision).

¶ 15   Thus, we now turn to the merits. Defendant contends that, in light of due process

concerns, simply mailing notice to the address he gave at the time of his arrest was insufficient.

He argues that the statutory provision that an address given at the time of an arrest is deemed to



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2017 IL App (2d) 151203


be the address for purposes of notice is merely a presumption that applies when the State has no

reason to know that the defendant is residing elsewhere. Here, he contends, the State had reason

to know that he would likely not be able to retrieve mail from that address, because the

conditions of his pretrial release required him to remain in Illinois and to report weekly to

pretrial services.

¶ 16    In Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983), the Court held that—

prior to an action that could affect an interest in life, liberty, or property—due process requires

that a State provide “ ‘notice reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present their

objections.’ ” Id. at 795 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

314 (1950)). This requires, at a minimum, “[n]otice by mail or other means as certain to ensure

actual notice” if the party’s name and address are reasonably ascertainable. Id. at 800.

¶ 17    Defendant cites several cases holding that literal compliance with the governing statute

did not comport with due process. In Robinson v. Hanrahan, 409 U.S. 38 (1972) (per curiam),

the State of Illinois sought the forfeiture of the defendant’s car. Although the State knew that the

defendant was in jail awaiting trial, it nevertheless mailed notice of the forfeiture to his home

address, as permitted by the statute. Id. at 38. Citing Mullane, the Court held that, under the

circumstances, “it cannot be said that the State made any effort to provide notice which was

‘reasonably calculated’ to apprise appellant of the pendency of the forfeiture proceedings.” Id. at

40.

¶ 18    In People v. Smith, 275 Ill. App. 3d 844 (1995), this court held that notice of a pending

forfeiture mailed to the defendant’s home address was insufficient where the defendant was in

jail at the time. We noted that his address at the jail was readily ascertainable and that the notice



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2017 IL App (2d) 151203


mailed to his home was not reasonably calculated to apprise him of the pending forfeiture

proceeding. Id. at 850.

¶ 19   Of particular relevance to this case is In re Forfeiture of $2,354.00 United States

Currency, 326 Ill. App. 3d 9 (2001). There, the State sought the nonjudicial forfeiture of cash

seized from the defendant. It sent notice by certified mail to the defendant’s home address in

Byron. However, the defendant’s wife had obtained an order of protection that barred the

defendant from that home. Id. at 11. The defendant had promptly notified the circuit clerk’s

office of his new address. After two attempts to deliver the notice to the Byron address, the

return receipt was returned as unclaimed.

¶ 20   We held that the State’s attempt at service denied the defendant due process. We first

noted that, generally, notice by certified mail is sufficient even if the claimant does not actually

receive it, but that the ultimate issue is whether the government acted reasonably under the

circumstances. Id. at 14. We recognized that there could be at least three scenarios in which

such notice is inadequate. The second of those applied in that case: where the State does not

actually know, but should know, the party’s correct address when it mails the notice. Id.

¶ 21   We rejected the State’s attempt to distinguish Smith on the ground that, in Smith, the

defendant was in jail. We stated:

       “In Smith, we simply applied the broad rule that due process requires notice that is

       reasonable in view of what the State actually knows and what the State should know

       through the exercise of reasonable diligence. Of course, whether the property owner is

       incarcerated may bear on the reasonableness of the State’s efforts and on whether his

       address is reasonably ascertainable. However, the fundamental question is still whether




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2017 IL App (2d) 151203


       the State has acted reasonably under all the circumstances.” (Emphasis in original.) Id.

       at 16.

¶ 22   We further rejected the State’s contention that the defendant’s failure to notify the seizing

agency of his address change relieved it of its obligation to provide due process of law. Id. We

noted that, at the very least, after the original notice was returned unclaimed, the State had some

further duty to attempt to locate the defendant, noting that “[c]ontrary to what the State claimed

at the hearing, due process does require the State—within reason—to ‘try to follow people

around and try to figure out where they are.’ Under the facts here, the State did not fulfill its

obligation.” Id. at 17; see also Montgomery v. Scott, 802 F. Supp. 930, 936 (W.D.N.Y. 1992)

(“The Government’s duty to act reasonably does not end when it drops the notice in the mail; it

is simply unreasonable for the Government to rely on a notice it knows has failed to reach the

intended recipient, for the same reason that it is unreasonable for the Government to rely on

notice sent to an address at which it knows a party no longer resides.”).

¶ 23   By contrast, in People ex rel. Devine v. $30,700.00 United States Currency, 199 Ill. 2d

142 (2002), the State mailed notice of a forfeiture hearing to the defendant’s home address. The

defendant did not receive the notice, because he was in prison in Vandalia on an unrelated

charge. The court held that the notice was sufficient under the circumstances. The court

distinguished cases where notice was found insufficient, because, in those cases, the arrest and

seizure were interrelated, “such that the seizing agency knew the claimant’s actual location.” Id.

at 160. In the case before it, however, the court found no evidence that the State knew or should

have known of the defendant’s arrest and incarceration on charges unrelated to the seizure. Id. at

161.




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¶ 24   Here, the State had ample reason to know that defendant would not receive the notice at

his California address. Although a transcript of the hearing is not in the record, a prosecutor was

presumably in the courtroom when the trial court granted defendant’s motion to reduce his bond

and placed him on pretrial release. At that time, defendant was ordered to remain in Illinois and

to report to pretrial services. A copy of the order containing those conditions appears in the

record. Moreover, the record shows that defendant faithfully reported to pretrial services. Thus,

the State was on notice that defendant would not be able to retrieve mail from his California

residence.

¶ 25   Moreover, defendant’s address was readily ascertainable. While the State need not go to

“heroic lengths” (In re $2,354.00, 326 Ill. App. 3d at 14) to locate a would-be claimant, a check

of the court file would have revealed the order that he remain in the state and report to pretrial

services. From there, a simple phone call to pretrial services would have revealed that defendant

had reported living with his sister in Glendale Heights. 2 Given that he had been reporting

regularly to pretrial services, it would have been reasonable to conclude that that agency would

have his current address.

¶ 26   The State makes essentially the same arguments that we rejected in In re $2,354.00: that

the relevant consideration is whether defendant was in jail on charges related to the forfeiture

when the notice was sent. It contends that, because defendant was not in jail, it had no further

       2
           The court in In re $2,354.00 did not explicitly decide whether the defendant’s informing

the circuit clerk of his new address constituted notice to the seizing agency, but it seems to have

assumed that it did not. Defendant here does not argue that his notice to pretrial services—

likewise an administrative arm of the circuit court in the relevant jurisdiction—fulfilled his duty

to notify the seizing agency. Thus, we do not decide that question.



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2017 IL App (2d) 151203


duty to search for him. We rejected that argument in In re $2,354.00, holding, consistently with

Robinson and Devine, that the key question was whether the State had reason to know that the

defendant was not at his listed address or, more broadly, whether the State acted reasonably

under the circumstances.

¶ 27    The State relies heavily on Devine. However, as noted, key to the holding in Devine was

the absence of evidence that the State knew or should have known that the defendant was

incarcerated on an unrelated charge. Here, the State should have known that defendant, although

not in jail, was forbidden from leaving the state as a condition of his pretrial release in the same

case that gave rise to the forfeiture.

¶ 28    Given that the State should have known that defendant would be unable to receive mail at

his California address, due process required the State to take further action to learn defendant’s

then-current address and serve him there.

¶ 29    The question remains as to the proper remedy. Defendant contends that we should

simply vacate the forfeiture and order his property returned to him. However, he cites no

authority for this remedy, and we find it inappropriate here. The parties have not addressed the

substantive issue of whether defendant is entitled to have the property returned, and that issue is

not presently before the court.

¶ 30    Alternatively, defendant suggests that we vacate the forfeiture and remand for further

proceedings. This appears to be the proper resolution. As defendant did not receive proper

notice of the forfeiture, he did not timely file a verified claim with the State’s Attorney

expressing his interest in the property. See 720 ILCS 5/29B-1(k)(3)(A) (West 2014). Defendant

now has actual notice of the forfeiture. To put the case back in its correct procedural posture, we

vacate the order denying defendant’s motion for the return of property, and we remand the cause.



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2017 IL App (2d) 151203


Defendant will have 45 days from the issuance of our mandate in which he may file, if he

chooses, a verified claim with the State’s Attorney.

¶ 31   The judgment of the circuit court of Kane County is vacated and the cause is remanded.

¶ 32   Vacated and remanded.




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