                                                                                                                  PILED
                                                                                                       COURT OF APPEALS
                                                                                                            DIVISION 11
                                                                                                      2014 APR 29
                                                                                                                  a 6: Lt6
                                                                                                      ST




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

STATE OF WASHINGTON,                                                                No. 44474 -7 -II


                                       Respondent,


         v.



JUAN CARLOS PARRA -
                  INTERIAN,                                                 UNPUBLISHED OPINION


                                        Appellant.


         HUNT, J.—          Juan Carlos Parra -Interian appeals the trial court' s denial of his CrR 2. 3( e)


motion for return of property seized in connection with his 2012 prosecution for solicitation to

commit    first degree       murder and    conspiracy to      commit     first degree     murder.   We remand for an


evidentiary hearing to determine who has the right to possess the properties at issue.

                                                         FACTS


         Juan Carlos Parra -Interian appeal of his jury convictions is currently pending in No.

43432 -6 -II.    Meanwhile, he filed a pro se Motion for Order to Return Property Illegally Seized

during   execution      of a search      warrant   by   the Kelso Police Department, asserting that ( 1)                 the



warrant was invalid because it did not specify the place to be searched; and ( 2) in addition to the

items listed     on   the   search warrant,    the   police   had     seized $   8, 700 in cash and impounded four


vehicles.      But he did not appear at his December 13, 2012 motion hearing, at which the State

informed the trial          court   that all the property Parra- Interian         asked   to be   returned " was       either




forfeited     or admitted as evidence at      trial."   Report   of   Proceedings ( RP) ( Dec. 13, 2012)     at   1.
No. 44474 -7 -II



             The trial court denied Parra- Interian' s motion for return of property, entering an order

that stated:


             Any property that was forfeited in the forfeiture proceedings or is still subject of
             such a process is not within the Court' s review. Any property that was offered or
             admitted as evidence in this case is to be retained until the conclusion of the
             appellate process.




Clerk'   s   Papers ( CP)   at   21.   Parra -
                                             Interian appeals this order.'


                                                         ANALYSIS


             Parra- Interian argues that the trial court erred in denying his CrR 2. 3( e) motion for return

of   property     without   first conducting        an   evidentiary   hearing.   The State responds that State v.


Marks2 requires an evidentiary hearing only where the parties dispute whether the defendant had

a    lawful ownership interest in the property.                 We agree with Parra -
                                                                                    Interian that CrR 2. 3( e)


requires an evidentiary hearing to resolve the dispute about who has a lawful interest in the

property that he seeks to have returned to him.

             CrR 2. 3( e) allows a motion for the return of property no longer needed for evidence or

illegally     seized   during     an unlawful search.       State v. Alaway, 64 Wn. App. 796, 798, 828 P.2d

591,     review     denied, 119         Wn. 2d    1016 ( 1992).        Such a motion may be brought after a

determination       of guilt.     State   v.   Card, 48 Wn.   App.   781, 786, 741 P. 2d 65 ( 1987).   On the filing

of a CrR 2. 3( e) motion for return of property:




1
    A commissioner of this court initially considered Parra- Interian' s appeal as a motion on the
merits under RAP 18. 14 and then referred it to a panel of judges.


2 State v. Marks, 114 Wn.2d 724, 735, 790 P.2d 138 ( 1990).
                                                               2
No. 44474 -7 -II


                   1.    An evidentiary hearing is required under CrR 2. 3( e) where the State
        and the defendant can offer evidence of their claimed right to possession;
                  2.    The purpose of this hearing is to determine the right to possession as
        between the State and the defendant;
                   3.   The State has the initial burden ofproof to show right to possession;
                  4.     Thereafter, the defendant must come forward with sufficient facts to
        convince the court of his right to possession. If such a showing is not made, it is
        the court' s duty to deny the motion.

Marks, 114 Wn.2d at 735 ( emphasis added).


         Here there is a dispute about who has the right to possess the property. The State claims

some of the property has already been forfeited and that it retains the right to possession of the

unforfeited property while Parra -Interian' s appeal is ongoing; the State, however, has filed no

declarations in support of its assertions of prior forfeiture and right to possession, even though it


has the burden to show its right to possession. See Card, 48 Wn. App. at 786.

         A court may refuse to return seized property no longer needed for evidence only if
          1) the defendant is not the rightful owner; ( 2) the property is contraband or ( 3)
         the property is subject to forfeiture pursuant to statute.

City   of Walla Walla          v. $   401, 333. 44, 164 Wn.    App.   236, 244, 262 P. 3d 1239 ( 2011) (   emphasis




added) (    quoting     City    of Walla Walla       v. $   401, 333. 44, 150 Wn. App. 360, 367, 208 P. 3d 574

 2009)).    Thus, an evidentiary hearing is required before the trial court can deny Parra- Interian' s

CrR 2. 3(   e)   motion    for    return    of   property.    Accordingly, we remand for such an evidentiary




                                                                3
No. 44474 -7 -II


           3
hearing.

        A majority of the panel, having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




3 In light of this disposition, we need not address Parra- Interian' s Statement of Additional
Grounds filed under RAP 10. 10.


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