J-S23028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
    LUTHER S. RYALS, JR.                 :
                                         :
                    Appellant            :   No. 2563 EDA 2016

                  Appeal from the Order Dated August 4, 2016
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0001198-2009


BEFORE:      OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                          FILED AUGUST 25, 2017

        Appellant Luther S. Ryals, Jr. appeals pro se1 from the order denying

his motion for return of property. We affirm.

        In a prior memorandum in this case, we set forth the following facts

and procedural history:

        In September 2008, Appellant was arrested and charged with
        possession and intent to distribute a controlled substance, and
        possession of drug paraphernalia.       Upon his arrest, three
        thousand one hundred thirty-two dollars ($3,132.00) was seized
        from Appellant. Specifically, Appellant avers that six hundred
        thirty two dollars ($632.00) cash was seized from Appellant, and
        an additional sum of two thousand five hundred dollars
        ($2,500.00) was paid by him to recover his automobile.

1
  Appellant is not entitled to counsel. See Commonwealth v. All That
Certain Lot or Parcel of Land Located at 605 Univ. Drive, 104 A.3d
411, 426 (Pa. 2014) (“[T]here is no constitutional right to the appointment
of counsel in a forfeiture proceeding.”); Boniella v. Commonwealth, 958
A.2d 1069, 1072-73 (Pa. Cmwlth. 2008) (per curiam) (holding that a
claimant seeking the return of property is not entitled to counsel).
J-S23028-17



     [The Commonwealth filed a petition for forfeiture.2]             On
     November 17, 2008, a stipulated order (“the Stipulated Order”),
     signed by Douglas B. Breidenbach, Jr., Appellant’s trial counsel,
     and James W. Staerk, Assistant District Attorney, [was entered
     in the forfeiture action. That order] states, in pertinent part:

        The sum of six hundred thirty two dollars ($632.00) is
        forfeited to the District Attorney of Montgomery County.
        An additional sum of two thousand five hundred dollars
        ($2,500.00) shall also be forfeited to the District Attorney
        of Montgomery County. The Pottstown Police Department
        shall release custody and control of one 2005 BMW 7
        Series to Appellant or his authorized agent.

     On October 19, 2010, Appellant was convicted and sentenced to
     8½ to 20 years’ incarceration.

     On November 5, 2014, Appellant, proceeding pro se, filed a
     petition for return of property. A . . . hearing was scheduled
     before the Honorable Gary S. Silow on December 11, 2014.
     During the . . . hearing, the Honorable Gary S. Silow reviewed
     the Stipulated Order, and issued an order dated December 11,
     2014, which dismissed Appellant’s Petition for Return of Property
     as moot.

     Thereafter, on April 10, 2015, Appellant filed a motion to vacate
     forfeiture.  In said motion, Appellant sought to vacate the
     Stipulated Order, and have his property returned to him,
     arguing: (1) that he never authorized his trial counsel to sign the
     Stipulated Order; (2) that he was unaware of the existence of
     the Stipulated Order until the hearing on December 11, 2014;
     and (3) that his property was improperly forfeited as he was not
     afforded the basic due process rights of notice and an
     opportunity to be heard prior to forfeiture.

     On April 28, 2015, [the trial court] denied Appellant’s motion to
     vacate forfeiture, and noted that Appellant’s prior motion for
     Return of Property was denied on December 11, 2014.


2
  See Commonwealth v. Ryals (One 2005 BMW 7 Series & $632 in US
Currency), No. CP-46-MD-0001480-2008.



                                    -2-
J-S23028-17


Commonwealth v. Ryals, 1542 EDA 2015, at 1-3 (Pa. Super., Feb. 1,

2016)   (unpublished     memorandum)    (footnotes,   brackets,   and   citation

omitted).

      On May 19, 2015, Appellant filed a notice of appeal from both the

December 11, 20143 and April 28, 2015 orders. In his appellate brief, he

contended, among other things, that his right to due process was violated in

the forfeiture proceeding and the court erred by denying as moot his

November 5, 2014 motion for return of property because he did not agree to

the joint stipulation.   On February 1, 2016, this Court affirmed the trial

court’s orders. We deemed Appellant’s claims with regard to his motions for

return of property and to vacate forfeiture waived because they were not

included in his Pa.R.A.P. 1925(b) statement. Ryals, 1542 EDA 2015, at 5.4

      On June 21, 2016, Appellant filed a “petition/motion to have a

forfeiture hearing.”     On June 23, 2016, the trial court ordered the

Commonwealth to respond to Appellant’s petition within ten days. 5          On




3
  Although it appeared that the notice of appeal was untimely with regard to
the December 11, 2014 order, we deemed the appeal timely based on
Appellant’s claim that he did not receive the order until May 1, 2015. Ryals,
1542 EDA 2015, at 3-4, 5.
4
   In his Rule 1925(b) statement, Appellant challenged only the legality of
his sentence. Ryals, 1542 EDA 2015, at 5.
5
  The Commonwealth avers that it filed a timely response on July 5, 2016.
The Commonwealth has included a copy of this time-stamped response in
the reproduced record; however, the response does not appear on the



                                    -3-
J-S23028-17


July 15, 2016, Appellant filed a motion entitled “Return of Defendant’s

Property for the Commonwealth has failed to Timely Respond to the Court

Order for Forfeiture Hearing.”    On August 4, 2016, the trial court denied

Appellant’s July 15, 2016 motion, explaining:

          This Court recognizes its June 23, 2016 Order directing the
      Commonwealth to file an Answer to Defendant’s June 21, 2016
      Petition/Motion to Have a Forfeiture Hearing and the
      Commonwealth’s failure to file a timely response. That said, the
      issue of the return of forfeited property has already been
      litigated and disposed of by the Superior Court (No. 1542 EDA
      2015).     Therefore, Defendant/Petitioner’s petition is deemed
      moot.

Order, 8/4/16. Appellant filed a timely notice of appeal.

      In this appeal, Appellant raises the following issues:

      Did the Court of Common Pleas err when it failed to grant the
      Appellant a Forfeiture Hearing[?] Specifically, but not limited to,
      before the seizure of the property/currency belonging to the
      Appellant?

      Did the Court of Common Pleas err when it mistakenly
      intertwined the specific meaning, in difference, of the Appellant’s
      Motion for Return of Property with his motion for a Forfeiture
      Hearing?

      Did the Court of Common Pleas fail to grant relief to the
      Appellant and rule in his favor, when it was apparent that the
      Commonwealth failed to respond to the Court’s ORDER in a
      timely manner?

Appellant’s Brief at 5.




docket or in the certified record.    The existence and timing of the
Commonwealth’s response is not material to the disposition of this appeal.



                                     -4-
J-S23028-17


      “[T]he standard of review applied in cases involving petitions for

forfeiture and motions for the return of property is for an abuse of

discretion.”   Beaston v. Ebersole, 986 A.2d 876, 880 (Pa. Super. 2009)

(citation omitted).

      Appellant’s issues concern the procedure whereby his property was

forfeited. First, he complains that he was not provided due process during

the forfeiture proceeding.   Second, he argues that his November 5, 2014

motion for return of property should not have been denied as moot based on

the stipulation in the forfeiture case. Finally, he argues that the trial court

should have returned his property based on the Commonwealth’s failure to

respond to his June 21, 2016 motion.

      The trial court found that, notwithstanding the Commonwealth’s failure

to file a timely response, Appellant was not entitled to relief because the

issue of the return of his property had already been litigated. We agree.

      This Court recently explained:

         The law of the case doctrine expresses the practice of courts
      generally to refuse to reopen what has been decided. The
      doctrine is composed of a collection of rules that not only
      promote the goal of judicial economy but also operate (1) to
      protect the settled expectations of the parties; (2) to insure
      uniformity of decisions; (3) to maintain consistency during the
      course of a single case; (4) to effectuate the proper and
      streamlined administration of justice; and (5) to bring litigation
      to an end.

         The Supreme Court of Pennsylvania has embraced this
      doctrine most specifically with respect to adherence to prior
      decisions in the same case by a higher court or by another judge
      of coordinate jurisdiction. But . . . the considerations that


                                       -5-
J-S23028-17


     underlie the doctrine also strongly weigh in favor of adherence
     by a trial judge to a decision by that same judge earlier in the
     case:

          Law of the case doctrine saves both litigants and the
          courts from duplications of effort. If permitted to argue
          and brief the same issue repeatedly during the course of
          the same litigation, some litigants would be indefatigable
          in their efforts to persuade or to wear down a given judge
          in order to procure a favorable ruling. Such use of clients’
          finances, legal counsels’ time and energy, and judicial
          resources is wasteful from a systemic perspective. . . .

          ...

     Once a matter has been decided by a trial judge the decision
     should remain undisturbed, unless the order is appealable and
     an appeal therefrom is successfully prosecuted. As a general
     proposition, a court should not revisit questions it has already
     decided.

Bienert v. Bienert, ___ A.3d ___, 2017 WL 3378876, at *5 (Pa. Super.

Aug. 7, 2017) (quotation marks, brackets, ellipses, and citations omitted).

     The first two issues Appellant raises in this appeal were previously

raised in Appellant’s April 10, 2015 Motion to Vacate Forfeiture, which was

denied. Appellant filed an appeal from that denial, which raised the same

issues, and we found he waived the issues for failure to preserve them in the

court-ordered Rule 1925(b) statement.         Pursuant to the law of the case

doctrine, Appellant was not entitled to re-litigate these claims in a new

appeal. See Bienert, ___ A.3d at ___, 2017 WL 3378876, at *5.

     In his third issue, Appellant argues that the trial court should have

ordered    the   Commonwealth      to    return   his   property   because   the

Commonwealth failed to file a timely response to his motion for a forfeiture


                                        -6-
J-S23028-17


hearing. Appellant cites no authority for the proposition that the return of

property would be an appropriate remedy for the Commonwealth’s alleged

failure to file a timely response, and this Court has found none.      Absent

supporting legal authority, Appellant’s argument fails to carry any persuasive

weight.   Having found no abuse of discretion, we affirm the trial court’s

August 4, 2016 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/25/2017




                                    -7-
