           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                 :
                                             :
               v.                            : No. 781 C.D. 2016
                                             : Submitted: September 22, 2017
$997.00 ex rel Craig Woodard,                :
                   Appellant                 :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                      FILED: November 20, 2017


               Craig Woodard (Woodard) appeals, pro se, an order of the Court of
Common Pleas of Philadelphia County (trial court) denying as untimely his motion
for the return of $997.00 in United States currency, which was seized at the time of
his arrest under the Controlled Substances Forfeiture Act (former-Forfeiture Act).1




       1
          The former-Forfeiture Act, 42 Pa.C.S. §§ 6801–6802, was repealed effective June 29,
2017, by the Act of June 29, 2017, P.L. 247, No.13 (Act 13), which extensively revised, inter
alia, forfeiture law. However, because all relevant facts pertaining to this matter occurred prior
to the former-Forfeiture Act’s repeal, this appeal is governed by the then-existing provisions of
the former-Forfeiture Act.
                                                 I.
                On November 20, 2008, Philadelphia police officers stopped a vehicle
in which Woodard was riding as a passenger and arrested him due to an
outstanding warrant. During a search incident to arrest, seven bags of cocaine,
three bags of crack and $997.00 cash were found on his person and seized.


                Prior to Woodard’s criminal trial, the Commonwealth filed a motion
for forfeiture of property, averring that the $997.00 seized was used to facilitate a
violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic
Act (Act).2 Because Woodard did not respond to that petition and failed to appear
at the forfeiture hearing, on June 2, 2009, the property at issue was forfeited by
default judgment. (See Commonwealth’s Brief at Appendix A.)


                Following a bench trial, on July 30, 2009, Woodard was found guilty
of Possession of Controlled Substances with Intent to Deliver3 and sentenced to
two to seven years’ incarceration. On August 4, 2009, Woodard filed a post-
sentence motion which was denied on December 3, 2009. Woodard did not file a
motion seeking the return of the $997.00 that was seized from him during his
arrest, either while his criminal charges were pending or within 30 days following
his conviction. See Pa. R.Crim.P. 588.4 On December 8, 2009, Woodard appealed


      2
          Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 – 780-144.

      3
          Section 113(a)(16)&(30) of the Act, 35 P.S. § 780-113(a)(16)&(30).

      4
          Pa. R.Crim.P. 588 provides, in relevant part:

(Footnote continued on next page…)

                                                 2
to our Superior Court, which affirmed the judgment of sentence on December 29,
2010. Woodard then petitioned for allowance of appeal, which was later denied.


             While Woodard’s petition for allowance of appeal was pending, on
March 18, 2011, he filed a “Petition for Return of Property” (return motion) for the
$997.00 seized from him when he was arrested. On April 21, 2016, a hearing was
held before the trial court.5


             Before the trial court, the Commonwealth submitted a motion to
dismiss because Woodard’s return motion was not filed within 30 days of his
conviction as required by Pa. R.Crim.P. 588. However, further testimony revealed
that Woodard’s return motion was actually attempting to open the default forfeiture
judgment because he allegedly never received notice of the forfeiture hearing.


(continued…)

             (A) A person aggrieved by a search and seizure, whether or not
             executed pursuant to a warrant, may move for the return of the
             property on the ground that he or she is entitled to lawful
             possession thereof. Such motion shall be filed in the court of
             common pleas for the judicial district in which the property was
             seized.

             (B) The judge hearing such motion shall receive evidence on any
             issue of fact necessary to the decision thereon. If the motion is
             granted, the property shall be restored unless the court determines
             that such property is contraband, in which case the court may order
             the property to be forfeited.

      5
         Neither the Commonwealth nor Woodard explained why it took more than five years to
hold a hearing for the return motion.




                                             3
THE COURT: [The Commonwealth] is asking I dismiss
[your motion] because the law requires you to file a
motion for return of property 30 days after your case is
disposed. Your case was disposed in 2009, and a
forfeiture was granted in June of 2009. Was that
formally reopened?

[COMMONWEALTH]: When they file the return of
property petitions, we either construe it as evidence of
[return of property] or motion to vacate.

THE COURT: Okay.

                          ***

THE COURT: So her position is, since you were more
than 30 days, approximately 2 years after your case was
disposed of that the law says her motion to dismiss
should be granted. Do you understand that?

THE PETITIONER: Yes, but I thought I was supposed
to receive some type of notice that it was a forfeiture, I
never received nothing.

THE COURT: You were never given service of the
original notice of default?

THE PETITIONER: No.

                          ***

THE COURT: So you didn’t know about the default in
June of 2009?

THE PETITIONER: No.

                          ***

[COMMONWEALTH]: And your Honor, I don’t have a
copy of the green card but our records stated that we
were successful in serving him by certified mail of the
petition for forfeiture.


                            4
               THE COURT: Well, I don’t want to get into those
               niceties. I won’t consider [Woodard’s motion a] motion
               to vacate, I’ll consider it an original motion for return of
               property and I see no reason to excuse the laches
               involved, so it’s untimely, and the motion to dismiss is
               granted.


(Notes of Testimony (N.T.) 04/21/2016 at 4-6.)6 On the same day, the trial court
dismissed Woodard’s return motion as untimely. This appeal followed.7


                                                 II.
               On appeal, Woodard again contends that the trial court erred in
dismissing his return motion because he was never provided notice of the
Commonwealth’s petition for forfeiture. In other words, despite being styled a
“return” motion, what Woodard is actually seeking – and was seeking below – is to
vacate the default forfeiture judgment that he allegedly was never notified about.
Notwithstanding the substance of his allegations, the trial court concluded that




       6
          In its 1925(a) Opinion, the trial court further explained that Woodard’s stand-alone
return motion was untimely because he “was arrested on November 20, 2008, and was convicted
and sentenced on July 30, 2009, [and] he was required to submit his claim to the trial court
between those dates or include it in or file it with the post sentence motion he did file.” (Trial
Court’s 1925(a) Opinion at 9.) “Since [Woodard] did not allege anything to indicate there were
impediments precluding him from filing the return motion timely, the court . . . had no choice but
to deny it as untimely.” (Id. at 10.)

       7
          Our review of a trial court’s decision on a petition for the return of property is limited to
determining whether the trial court’s findings are supported by competent evidence and whether
the trial court abused its discretion or committed an error of law. In re One 1988 Toyota
Corolla, 675 A.2d 1290 (Pa. Cmwlth. 1996).




                                                  5
Woodard filed an untimely return motion and, consequently, did not accept
evidence of whether Woodard was provided notice of the forfeiture proceeding.8


               While return and forfeiture proceedings have been described as the
“mirror image” of one another, it is well-settled that the two proceedings are
distinct, and the filing of one proceeding does not automatically initiate the other.
See In re One 1988 Toyota Corolla (Blue Two-Door Sedan) Pa. License TPV 291,
675 A.2d 1290, 1295 (Pa. Cmwlth. 1996). The reason these proceedings are
treated as distinct is because return motions are governed by Rule 588(a) of the Pa.
R.Crim.P., which requires “[a] person aggrieved by a search and seizure . . . [to]
move for the return of the property on the ground that he or she is entitled to lawful
possession thereof[,]” whereas forfeiture motions are governed by the Forfeiture
Act9 which declares “proceedings for the forfeiture . . . of property . . . shall be in
rem, in which the Commonwealth shall be the plaintiff and the property the

       8
         As the Commonwealth points out in its brief, strictly speaking, a motion for return is an
improper vessel for challenging a final default forfeiture because forfeiture extinguishes the
former owner’s property rights. See former-Forfeiture Act, 42 Pa.C.S. § 6801; Act 13, 42
Pa.C.S. § 5802(6)(i); Commonwealth v. Pena, 751 A.2d 709, 710 (Pa. Cmwlth. 2000).
Moreover, a return motion in this matter would be untimely because, as the trial court correctly
reasoned, Woodard’s failure to file a return motion during the pendency of the criminal charges
against him or within 30 days following his conviction, precludes review of his stand-alone
return petition. See Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014). Accordingly, for
Woodard to challenge the forfeiture of his property, the 2009 default forfeiture judgment must be
vacated.

       9
          The newly enacted Forfeiture Procedure, as set forth in 42 Pa.C.S. § 5805(a), echoes the
relevant language of the former-Forfeiture Act and provides, in pertinent part, “The proceedings
for the forfeiture or condemnation of property, the sale of which is provided for in this chapter,
shall be in rem, in which the Commonwealth shall be the plaintiff and the property the
defendant.”




                                                6
defendant.” Section 6802 of the former-Forfeiture Act, 42 Pa. C.S. § 6802(a)
(emphasis added).


                 Significantly, the former-Forfeiture Act requires that the party seeking
forfeiture “shall” serve a copy of the petition personally or by certified mail on the
owner and provides for a hearing in which the property owner can respond to the
Commonwealth’s evidence. 42 Pa.C.S. §§ 6802(b)&(j).10                         “[N]otice and [an]
opportunity to be heard are integral to forfeiture proceedings.” Commonwealth v.
Mosley, 702 A.2d 857, 860 (Pa. 1997). Absent these procedural safeguards, we
“cannot assume that the defendant would have acquiesced to the forfeiture
proceedings.” Commonwealth v. Smith, 757 A.2d 354, 359 (Pa. 2000).


                 Woodard’s allegation, if accepted as true, demonstrates a deprivation
of due process that would require vacating the default forfeiture judgment.
Woodard has waived his ability to file a stand-alone return petition pursuant to Pa.
R.Crim.P. 588 because he failed to file a return motion during the pendency of the
criminal charges against him or within 30 days following his conviction. See
Allen, 107 A.3d at 718. Notwithstanding, under the former-Forfeiture Act,11 he

       10
           The forfeiture procedure enacted through Act 13 similarly provides that a copy of the
forfeiture petition “shall be served personally or by certified mail on the owner, if known, and on
each person in possession at the time of the seizure, if known.” 42 Pa.C.S. § 5805(b)(1).

       11
            Similar to the former-Forfeiture Act, 42 Pa.C.S. § 5805(f) provides:

                 (f) Release of seized property pending conclusion of
                 proceedings.--

                         (1) A claimant to property subject to forfeiture is permitted
                 to seek the immediate release of seized property if:
(Footnote continued on next page…)

                                                  7
still had a right to “present[] a petition” after which “the court may order the
property returned or delivered to the claimant.” 42 Pa.C.S. § 6802(k).12 Likely, for
this reason, even the Commonwealth in Allen conceded:

(continued…)


                                (i) the claimant has a possessory interest in the
                property;

                                                       ***

                        (2) The following shall apply:

                               (i) The claimant under paragraph (1) may file a
                motion in the court of common pleas in which the forfeiture
                petition has been filed or, if no forfeiture petition has been filed, in
                the court of common pleas in the jurisdiction in which the property
                was seized. The motion shall be served upon the district attorney
                or Attorney General who has jurisdiction over the case.

                               (ii) The motion described in this subsection shall set
                forth the basis on which the requirements of paragraph (1) have
                been met.

                        (3) If the Commonwealth establishes that the claimant's
                motion is meritless, the court shall deny the motion. In response to
                a motion under this subsection, the Commonwealth may, in
                appropriate cases, submit evidence ex parte in order to avoid
                disclosing any matter that may adversely affect an ongoing
                criminal investigation or pending criminal trial.

42 Pa.C.S. § 5805(f).

       12
            Section 6802(k) provides:

                (k) Court-ordered release of property.--If a person claiming the
                ownership of or right of possession to or claiming to be the holder
                of a chattel mortgage or contract of conditional sale upon the
                property, the disposition of which is provided for in this section,
(Footnote continued on next page…)

                                                   8
              [W]hen it files a forfeiture petition in response to an
              untimely motion for return of property, or when the
              return motion is filed in response to its forfeiture
              petition, it is waiving the defenses of untimeliness or
              waiver by claiming ownership of the subject property and
              asking the court to adjudicate the merits of its claim.


Id. at 715 n.7 (citations omitted, emphasis added).13


              Where a return of property motion has not been filed, then a person
who is identified as the owner of the property sought to be forfeited may oppose
the forfeiture and, if successful, obtain the return of his or her property. In this
case, if the default proceeding is reopened because he never received notice, then


(continued…)

              prior to the sale presents a petition to the court alleging over the
              property lawful ownership, right of possession, a lien or
              reservation of title and if, upon public hearing, due notice of which
              having been given to the Attorney General or the district attorney,
              the claimant shall prove by competent evidence to the satisfaction
              of the court that the property was lawfully acquired, possessed and
              used by him or, it appearing that the property was unlawfully used
              by a person other than the claimant, that the unlawful use was
              without the claimant’s knowledge or consent, then the court may
              order the property returned or delivered to the claimant. Such
              absence of knowledge or consent must be reasonable under the
              circumstances presented. Otherwise, it shall be retained for
              official use or sold in accordance with section 6801(e) or
              6801.1(f).

42 Pa.C.S. § 6802(k).

       13
           While our Supreme Court has not commented on the Commonwealth’s position
relating to responsive return motions, it acknowledged the argument as “persuasive.” Allen, 107
A.3d at 717 n.9.



                                               9
Woodard would be able to oppose the forfeiture and, if successful, be entitled to
the property.


                Accordingly, because defective notice of the forfeiture proceeding
would necessitate vacating the default judgment entered against the $997.00 seized
from Woodard, we vacate and remand the matter to the trial court to take evidence
and make findings as to whether notice was provided and, if notice was not
provided, conduct a hearing on the Commonwealth’s forfeiture motion.



                                        ___________________________________
                                        DAN PELLEGRINI, Senior Judge




                                         10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania              :
                                          :
             v.                           : No. 781 C.D. 2016
                                          :
$997.00 ex rel Craig Woodard,             :
                   Appellant              :




                                    ORDER


             AND NOW, this 20th day of November, 2017, it is hereby ordered
that the order of the Court of Common Pleas of Philadelphia County (trial court)
filed on April 21, 2016, is vacated and the matter is remanded to the trial court for
further proceedings consistent with this opinion.


             Jurisdiction relinquished.



                                          ___________________________________
                                          DAN PELLEGRINI, Senior Judge
                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                    :
                                                :
                      v.                        :
                                                :
$997.00 ex rel Craig Woodard,                   :   No. 781 C.D. 2016
                        Appellant               :   Submitted: September 22, 2017


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COVEY                                              FILED: November 20, 2017

              I respectfully dissent from the Majority’s conclusion that “despite being
styled a ‘return’ motion, what [Craig Woodard (]Woodard[)] is actually seeking – and
was seeking below – is to vacate the default forfeiture judgment that he allegedly was
never notified about.” Majority Op. at 5. The Majority states that it bases its
conclusion on “the substance of [Woodard’s] allegations[.]”                     Id.    However,
Woodard’s “PETITION FOR RETURN OF PROPERTY” is a boilerplate return motion
that alleges nothing more than the seizure’s date and location, the arresting police
officer’s name, that Woodard was the seized property’s lawful owner, and that he did
not consent to its seizure. Woodard Return Motion at 1. Woodard does not allege
nor is there any mention of the forfeiture, let alone a request for opening the forfeiture
judgment.1



       1
         Moreover, Woodard’s proposed order attached thereto requests only that “the property . . .
be returned[;]” there is no mention or reference to open or vacate the forfeiture judgment. Woodard
Return Motion at 4.
                 As the Majority explained: “While return and forfeiture proceedings
have been described as the ‘mirror image’ of one another, it is well-settled that the
two proceedings are distinct, and the filing of one proceeding does not
automatically initiate the other.”2             Majority Op. at 6 (emphasis added).      The
Majority expounded:

            [S]trictly speaking, a motion for return is an improper
            vessel for challenging a final default forfeiture because
            forfeiture extinguishes the former owner’s property
            rights. See former-Forfeiture Act, 42 Pa.C.S. § 6801; Act
            13, 42 Pa.C.S. § 5802(6)(i); Commonwealth v. Pena, 751
            A.2d 709, 710 (Pa. Cmwlth. 2000). Moreover, a return
            motion in this matter would be untimely because, as the
            trial court correctly reasoned, Woodard’s failure to file a
            return motion during the pendency of the criminal charges
            against him or within 30 days following his conviction,
            precludes review of his stand-alone return petition. See
            Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014).
            Accordingly, for Woodard to challenge the forfeiture of
            his property, the 2009 default forfeiture judgment must
            be vacated.
Majority Op. at 6 n.8 (emphasis added).




       2
           Further,
                 [a Return] Motion and the Forfeiture Petition are separate actions
                 having different burdens of proof. A motion for return of property
                 should not be granted unless the movant has presented the trial court
                 with credible evidence of ownership of or entitlement to the property
                 being requested. A forfeiture petition is dependent upon whether the
                 property is contraband, and the Commonwealth bears the burden of
                 proving that the property is contraband.

Commonwealth v. Harris (Pa. Cmwlth. No. 2263 C.D. 2010, filed October 27, 2011), slip op. at 5
n.3. We acknowledge that this Court’s unreported memorandum opinions may be cited “for [their]
persuasive value, but not as a binding precedent.” Section 414 of the Commonwealth Court’s
Internal Operating Procedures, 210 Pa. Code § 69.414.



                                              AEC - 2
              The Dissent believes that Pena is controlling. In Pena, as here, Pena
filed a motion for return of property after a forfeiture of the property had already
occurred. Pena claimed he never received notice of the forfeiture. Because the
property’s forfeiture to the Commonwealth extinguishes the former owner’s property
rights, the Pena Court determined that the trial court properly dismissed Pena’s return
motion on the ground that he failed to establish that he was entitled to lawful
possession. The Pena Court further held: “To the extent that Pena argues that his
motion should have been granted on the ground he was denied due process in the []
forfeiture action, that claim cannot be raised in a motion for return of property under
[Pennsylvania Rule of Criminal Procedure] 324.” Id. Thus, in the instant case, in
order for Woodard to present his due process claim, he must file a motion to open the
forfeiture judgment and proceed accordingly. It is not this Court’s prerogative to
ignore binding precedent or bypass proper, well-established procedure.3 Nor may this
Court redesignate the title and contents of a party’s pleading.
              Moreover, as the Majority stated, our standard of review “is limited to
determining whether the trial court’s findings are supported by competent evidence
and whether the trial court abused its discretion or committed an error of law. In re
One 1988 Toyota Corolla, 675 A.2d 1290 (Pa. Cmwlth. 1996).” Majority Op. at 5
n.7. Here, the trial court’s order is supported by competent evidence and the trial
court did not abuse its discretion or commit an error of law. Accordingly, I would
affirm the trial court’s order.
                                            ___________________________
                                            ANNE E. COVEY, Judge


       3
          The Majority appears to rely on the Commonwealth’s statement: “When they file the
return of property petitions, we either construe it as evidence of [return of property] or motion to
vacate[,]” as support for its determination. Majority Op. at 4. However, the Commonwealth’s
statements are not controlling. The Commonwealth, like this Court, is not at liberty to ignore
binding precedent or bypass proper, well-established procedure.
                                             AEC - 3
