                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS



State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                       June 18, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 19-0383 (Marion County CC-24-2012-F-168)                               SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Steven J. Dukes, aka Steven Young,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


        Petitioner Steven J. Dukes, aka Steven Young, a self-represented litigant, appeals the
Circuit Court of Marion County’s March 27, 2019, order denying his motion for return of property.
Respondent the State of West Virginia, by counsel Holly M. Flanigan, filed a response.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

        The West Virginia State Police were involved in a drug investigation into Christine
Swindler for distributing heroin, including a drug buy in which Ms. Swindler sold heroin. That
drug buy led to Ms. Swindler cooperating with law enforcement, and she revealed that petitioner
was her heroin supplier. At the direction of law enforcement, Ms. Swindler called petitioner and
asked him to come to her home in order to pay him money she owed him and to request that he
deliver more heroin. Law enforcement observed petitioner leaving his home and driving toward
Ms. Swindler’s home. Later, law enforcement obtained a warrant for petitioner’s arrest due to a
violation of his probation in another state. They conducted a traffic stop of petitioner’s vehicle,
during which they found heroin stamps on petitioner’s person. Thereafter, a search of his home
revealed additional heroin stamps and $3,500 in cash, in addition to a stolen gun, a scale, and large
amounts of packaging materials.

        Petitioner was indicted on one count of possession of a controlled substance with intent to
deliver on June 4, 2012. Following a jury trial, petitioner was convicted of that charge. On August
27, 2012, petitioner filed his post-trial motions for a new trial and for a judgment of acquittal.
Those motions were denied by an order entered on April 2, 2013. He appealed his conviction to

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this Court, and it was affirmed. State v. Dukes, No. 13-0649, 2014 WL 1672948 (W. Va. Apr. 25,
2014) (memorandum decision).

        The State filed a recidivist information on September 21, 2012, seeking enhancement of
petitioner’s sentence based on his three prior convictions: the instant conviction of possession of
a controlled substance; a December 20, 2000, felony conviction on one count of possession of a
deadly weapon by a prohibited person; and an April 30, 1992, felony conviction in North Carolina
on one count of possession of cocaine. On February 11, 2012, the jury returned a verdict finding
that petitioner was twice or more previously convicted of crimes punishable by penitentiary
confinement as alleged in the recidivist information. On that same date, petitioner filed post-trial
motions in the recidivist case, which were denied by order entered on April 2, 2013. Petitioner was
sentenced on March 19, 2013, to a life sentence.

        On June 8, 2012, the State filed a petition for forfeiture, in Marion County Case No. 12-P-
89, pursuant to the West Virginia Contraband Forfeiture Act, West Virginia Code §§ 60A-7-701
to -707. In the petition, the State sought the forfeiture of $3,500 seized upon petitioner’s arrest. On
October 18, 2012, the circuit court held a full evidentiary hearing on that petition. During that
hearing, testimony showed that a search of petitioner’s residence revealed heroin stamps and
$3,500, in addition to money used in the controlled buy that was the basis for his conviction. The
circuit court granted the petition for forfeiture based upon the evidence presented during the
hearing, in addition to its review of the DVD evidence as requested by petitioner. Petitioner then
filed a “Motion for Appeal” with the circuit court, which was denied by that court. In its order
denying that motion, the circuit court found that the State proved that the money seized at the time
of petitioner’s arrest was furnished in the exchange of controlled substances. Petitioner did not
appeal that decision to this Court.

        On March 7, 2019, petitioner filed a “Motion for Return of Property” with the circuit court
in his criminal proceeding seeking the return of the money at issue. The circuit court denied that
motion by order entered on March 27, 2019. In that order, the circuit court noted that it had
reviewed the written motion and the court files in both of petitioner’s cases. It found that petitioner
was not entitled to the relief sought in his motion and that no hearing was warranted. Petitioner
appeals from that order.

        “Where the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal
R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). With regard to the circuit court’s
treatment of facts and its ultimate disposition, we have held, “This Court reviews the circuit court’s
final order and ultimate disposition under an abuse of discretion standard. We review challenges
to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.”
Syl. Pt. 4, Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996).

        On appeal, petitioner sets forth three assignments of error. First, he argues that the money
should have been returned to him because the indictment and recidivist information do not properly
allege the property was subject to forfeiture. Petitioner asserts that while the indictment and
recidivist information plainly informed him of the character and cause of the accusations against
him, neither properly alleged the property was subject to forfeiture under West Virginia Rule of

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Criminal Procedure 7(c)(2). He, therefore, contends that the money should be returned to him.

        At the outset, we note that the State admits that the indictment did not identify the property
subject to forfeiture but contends that petitioner’s argument is fundamentally erroneous because
the property at issue was forfeited in Marion County Case No. 12-P-89 as an in rem civil
proceeding pursuant to West Virginia Contraband Forfeiture Act. Pursuant to West Virginia Code
§ 60A-7-703(a)(7),

       [a]ll moneys, negotiable instruments, securities or other things of value furnished
       or intended to be furnished in violation of this chapter by any person in exchange
       for a controlled substance, all proceeds traceable to the exchange and all moneys,
       negotiable instruments and securities used, or which have been used, or which are
       intended to be used to facilitate any violation of this chapter: Provided, That no
       property may be forfeited under this subdivision, to the extent of the interest of an
       owner, by reason of any act or omission established by that owner to have been
       committed or omitted without his or her knowledge or consent [are subject to
       forfeiture.]

Further, West Virginia Code § 60A-7-704 provides, in relevant part:

       (a) Seizure of property made subject to forfeiture by the provisions of this article
       may be made upon process issued by any court of record having jurisdiction over
       the property.
       (b) Notwithstanding the provisions of subsection (a) of this section, seizure of
       property subject to forfeiture by the provisions of this article may be made
       without process if:
       (1) The seizure is incident to a lawful arrest or pursuant to a search under a search
       warrant or an inspection warrant; . . . .

It is undisputed that the State filed a petition for forfeiture before the circuit court, in Marion
County Case No. 12-P-89, and that after the consideration of the evidence and arguments, the
circuit court granted that petition. Petitioner did not appeal that October 31, 2012, order granting
forfeiture. Therefore, the decision is final. Accordingly, we find there is no merit to petitioner’s
first assignment of error.

        Petitioner next argues that the money should be returned to him because he did not waive
his right to a committee or guardian ad litem throughout the underlying proceeding and none was
appointed. According to petitioner, he is currently incarcerated at Mount Olive Correctional
Complex and meets the definition of a “convict” pursuant to West Virginia Code § 2-2-10(o).1 He
also points to West Virginia Code § 28-5-36, which provides that

       [n]o action or suit shall be instituted by or against such convict after he is
       incarcerated, and all actions or suits to which he is a party at the time of his


       1
          “The word “convict” means a person confined in a penitentiary or correctional facility of
this or any other state, or of the United States[.]” W. Va. Code § 2-2-10(o).
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       incarceration shall abate, and continue so until revived by or against the committee,
       whose duty it shall be to prosecute or defend, as the case may be.

As a result, he asserts that the court “or clerk” should have appointed a discreet and competent
attorney to serve as petitioner’s guardian ad litem “or should have made such other order as it
deemed proper for the protection of the petitioner in the forfeiture proceeding.”

      Petitioner’s argument ignores this Court’s key holdings in State ex rel. Lawson v. Wilkes,
202 W. Va. 34, 501 S.E.2d 470 (1998). In that case, we specifically found as follows:

              2. A forfeiture action brought under the West Virginia Contraband
       Forfeiture Act, W.Va. Code §§ 60A-7-701, et seq., is an action in rem that is
       brought against the item(s) sought to be forfeited, and not an action against the
       owner of such item(s).”

              3. Rule 17(c) of the West Virginia Rules of Civil Procedure does not require
       appointment of a guardian ad litem for an otherwise unrepresented convict whose
       property is subject to a civil forfeiture action pursuant to the West Virginia
       Contraband Forfeiture Act, W.Va. Code §§ 60A-7-701, et seq., as such an action
       is maintained against the property, and is not directly maintained against the owner
       convict.

Syl. Pts. 2 and 3, State ex rel. Lawson, 202 W. Va. at 35, 501 S.E.2d at 471. Under those holdings,
it is clear that the circuit court was not required to appoint a guardian ad litem for petitioner, an
otherwise unrepresented convict, in the forfeiture action.

        Finally, petitioner asserts that the money should be returned to him because the State failed
to introduce any evidence to substantiate a connection between the property seized and the illegal
drug transaction. He argues that the State failed to demonstrate by a preponderance of the evidence
that there was any connection between the property seized from petitioner’s home and the drug
buy at Ms. Swindler’s home. Petitioner contends that the officers failed to follow clearly
established drug buy protocols and that the money found in petitioner’s home was not substantially
the same money used to purchase heroin from Ms. Swindler.

      In considering this allegation of error, we first note that petitioner’s brief fails to comply
with West Virginia Rule of Appellate Procedure 10(c)(7), which requires as follows:

       The brief must contain an argument exhibiting clearly the points of fact and law
       presented, the standard of review applicable, and citing the authorities relied on,
       under headings that correspond with the assignments of error. The argument must
       contain appropriate and specific citations to the record on appeal, including
       citations that pinpoint when and how the issues in the assignments of error were
       presented to the lower tribunal. The Court may disregard errors that are not
       adequately supported by specific references to the record on appeal.

Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not

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Comply With the Rules of Appellate Procedure, this Court specifically noted that “[b]riefs that lack
citation of authority [or] fail to structure an argument applying applicable law” are not in
compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation
to legal authority to support the argument presented and do not ‘contain appropriate and specific
citations to the record on appeal . . . ’ as required by rule 10(c)(7)” are not in compliance with this
Court’s rules. Id.

         The State filed its petition for forfeiture in 2012, alleging that the $3,500 at issue was seized
after it was found pursuant to the execution of a lawful search warrant. The State further alleged
that the seized property is subject to forfeiture pursuant to the West Virginia Contraband Forfeiture
Act since it was money furnished or intended to be furnished in violation of West Virginia Code
§ 60A-1-10, et seq., by any person in exchange for a controlled substance. Following a full
evidentiary hearing in that matter, Marion County Case No. 12-P-89, the circuit court entered its
October 31, 2012, order granting forfeiture. Petitioner did not appeal that order. Instead, he waited
until March 7, 2019, to try to relitigate those issues before the circuit court in the criminal case,
Marion County Case No. CC-24-2012-F-168. Before issuing the order on appeal denying
petitioner’s motion, the circuit court reviewed the files in both the criminal and civil cases. It is
apparent from the record before this Court that if petitioner sought to challenge the forfeiture of
the property at issue, he could have appealed the circuit court’s grant of the State’s petition for
forfeiture entered in 2012. However, he failed to do so. Due to his noncompliance with the West
Virginia Rules of Appellate Procedure and his apparent desire to relitigate an issue decided in
2012, we decline to address the merits of petitioner’s final assignment of error.

        For the foregoing reasons, we affirm.

                                                                                               Affirmed.

ISSUED: June 18, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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