                                                                         FILED
                                                                     Dec 27 2019, 8:37 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
ERIC BUTLER                                                THE STATE OF INDIANA
Stephen Gerald Gray                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Ellen H. Meilaender
                                                           Supervising Deputy Attorney
                                                           General
                                                           Indianapolis, Indiana



                                            IN THE

    COURT OF APPEALS OF INDIANA

Eric Butler, $236.00 in U.S.                               December 27, 2019
Currency, and One 2004 Pontiac                             Court of Appeals Case No.
Grand Prix,                                                19A-MI-5
Appellants-Defendants,                                     Appeal from the Marion Superior
                                                           Court
        v.                                                 The Hon. James Joven, Judge
                                                           Trial Court Cause No.
State of Indiana, the                                      49D13-1702-MI-7676
Consolidated City of
Indianapolis/Marion County,
and the Indianapolis
Metropolitan Law Enforcement
Agency,
Appellees-Plaintiffs.



Bradford, Judge.


Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019                           Page 1 of 12
                                           Case Summary
[1]   In December of 2016, Eric Butler was pulled over while driving his 2004

      Pontiac Grand Prix (“the Car”), and a search revealed thirty-four grams of

      marijuana, approximately forty-six grams of heroin, and $236 in cash. The

      State, the Consolidated City of Indianapolis/Marion County, and the

      Indianapolis Metropolitan Law Enforcement Agency (collectively,

      “Appellees”), filed a civil forfeiture action against Butler, $236.00 in U.S.

      Currency, and one 2004 Pontiac Grand Prix (collectively, “Appellants”).

[2]   While the civil forfeiture action was pending, the United States District Court

      for the Southern District of Indiana found Indiana’s civil-forfeiture scheme to

      be unconstitutional in several respects. Effective July 1, 2018, several

      amendments took effect which were intended to cure the constitutional

      infirmities in Indiana’s civil forfeiture laws (“the 2018 Amendments”). When

      the trial court entered judgment in favor of Appellants based on the old statutes,

      Appellees refiled pursuant to the amended statutes. In December of 2018, the

      trial court entered summary judgment in favor of Appellees. Appellants argue

      that the trial court erroneously entered summary judgment in favor of Appellees

      and abused its discretion in failing to award Appellants attorney’s fees. Because

      Appellants have failed to establish that the trial court erred in concluding that

      the 2018 Amendments cured the constitutional defects in Indiana’s civil-

      forfeiture statutes and have waived any claim regarding attorney’s fees in the

      trial court, we affirm. Moreover, we decline Appellants’ request for an award

      of appellate attorney’s fees.



      Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019         Page 2 of 12
                             Facts and Procedural History
[3]   On December 8, 2016, Indianapolis Metropolitan Police Officers conducted a

      traffic stop of the Car, which was driven and owned by Butler. During the stop,

      police discovered approximately thirty-four grams of marijuana in the vehicle,

      approximately forty-six grams of heroin in a baggy in Butler’s pocket, and $236

      in cash. The State charged Butler with Level 2 felony dealing a narcotic drug

      and Level 3 felony possession of a narcotic drug, and the Car and the cash were

      seized by law enforcement and held for forfeiture. On February 23, 2017,

      Appellees filed a civil complaint seeking forfeiture of the Car and the $236. In

      April of 2017, Appellees moved for default judgment, which the trial court

      granted on April 28, 2017.

[4]   On August 18, 2017, the United States District Court for the Southern District

      of Indiana ruled Indiana’s statutory forfeiture scheme unconstitutional. See

      Washington v. Marion Cty. Prosecutor, et al., 264 F. Supp. 3d 957, 961, 975–80

      (S.D. Ind. 2017). The district court concluded that “Indiana Code Section 34-

      24-1-1(a)(1), read in conjunction with the Indiana Code provisions of the same

      chapter, violates the Due Process Clause” and permanently enjoined the

      Marion County Prosecutor from “enforcing Indiana Code Section 34-24-1-

      1(a)(1), as read in conjunction with Indiana Code provisions of the same

      chapter.” Id. at 980. In September of 2017, the Marion County Prosecutor

      appealed from the district court’s determination. Appellants moved for relief

      from the default judgment on December 12, 2017. Appellees filed an objection

      to the motion, and the trial court held a hearing on the motion on February 26,



      Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019       Page 3 of 12
      2018. While that motion was pending, Butler pled guilty to Level 4 felony

      dealing in a narcotic drug in his criminal case.

[5]   Effective July 1, 2018, the 2018 Amendments took effect, which were an

      apparent attempt to address the due-process problems identified by the district

      court in Washington. See Ind. P.L. 47-2018, §§ 1-2. On July 11, 2018, the trial

      court granted Appellants’ motion for relief from judgment, vacating the default

      judgment. Appellees filed a probable-cause affidavit, and, on July 16, 2018, the

      trial court found probable cause for the seizure of the Car. The parties cross-

      moved for summary judgment. In Butler’s memorandum submitted in support

      of his summary-judgment motion, he did not acknowledge the 2018

      Amendments, much less argue that they failed to cure Indiana Code chapter 34-

      24-1’s constitutional deficiencies. On December 4, 2018, without a hearing, the

      trial court granted Appellees’ motion for summary judgment, ordering

      forfeiture of both the $236 and the Car. On January 2, 2019, Appellants

      appealed from the trial court’s grant of summary judgment in favor of

      Appellees.

[6]   Meanwhile, on February 19, 2019, the United States Court of Appeals for the

      Seventh Circuit issued its disposition of the Marion County Prosecutor’s appeal

      in Washington. See Washington v. Marion Cty. Prosecutor, 916 F.3d 676 (7th Cir.

      2019). While the Seventh Circuit Court of Appeals acknowledged the parties’

      arguments regarding whether the 2018 Amendments cured Indiana Code

      chapter 34-24-1’s constitutional infirmities, it declined to address them:




      Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019           Page 4 of 12
        The district court did not have a chance to address the
        amendments. Given that the record and arguments regarding the
        amendments are under-developed, we remand this case to the
        district court for further proceedings. See Restoration Risk Retention
        Grp. v. Gutierrez, 880 F.3d 339, 349 (7th Cir. 2018) (remanding to
        district court “to determine the operation and effect of the
        amended statute” and to “determine whether the case is moot”);
        Hager v. Nat’l Union Elec. Co., 854 F.2d 259, 262–63 (7th Cir. 1988)
        (“We believe that the district court ought to have the opportunity
        to reconsider its decision in light of this most significant
        pronouncement from the Supreme Court of Indiana.”); United
        States v. Elrod, 627 F.2d 813, 819–20 (7th Cir. 1980) (remanding to
        district court given enactment of statute during pendency of
        appeal).
        On remand, the district court should address the parties’
        contentions regarding the amendments. Do the amendments
        ameliorate the constitutional problems the district court identified?
        The district court should resolve these contentions to the extent
        necessary and proper.
        If appropriate, the district court should also revisit the class to
        determine whether it should be decertified or redefined in light of
        the amendments.
        At present, we express no opinion regarding the constitutionality
        of the old or new versions of the statute, regarding mootness, or
        regarding the class. Also, our argument summaries do not limit
        the arguments the parties may raise on remand. We leave latitude
        to the district court to conduct further proceedings it deems
        necessary and proper given the amendments and the parties’
        positions. Any review we are subsequently called upon to make
        will benefit from these proceedings and the reasoning of the
        district court.
Id. at 679–80. On December 13, 2019, however, the parties issued a joint

stipulation of dismissal in Washington, having agreed to a settlement. In other




Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019          Page 5 of 12
      words, the district court never had the opportunity to determine the effect of the

      2018 Amendments in Washington.


                                 Discussion and Decision
[7]   Appellants challenge the forfeiture of the Car pursuant to Indiana Code chapter

      34-24-1. While Appellants acknowledge the 2018 Amendments, they argue, at

      most, that the amended statutes do not apply to the seizure of the Car because it

      was originally seized in December of 2016. Appellants make no claim or

      argument whatsoever that the 2018 Amendments failed to cure the

      constitutional defects of Indiana Code chapter 34-24-1. Appellees argue that

      the 2018 Amendments do apply to the 2016 seizure and that they cured

      whatever constitutional infirmities existed in the previous statutes, rendering

      the second forfeiture proper.

                           I. Whether the Amended Statutes
                             Apply to the Seizure of the Car
[8]   Appellants contend that the 2018 Amendments do not apply to this case

      because the initial seizure of the Car occurred in December of 2016. We




      Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019       Page 6 of 12
interpret this as a challenge on the ground that use of the amended chapter 34-

24-1 to seize the Car would amount to an impermissible ex post facto law.1

         We have previously stated that the constitutional prohibitions
         against ex post facto criminal sanctions require that criminal
         proceedings be governed by the statutory provision in effect at the
         time of the offense.[2] Settle v. State, 709 N.E.2d 34, 35 (Ind. Ct.
         App. 1999). […] However, we have noted that the ex post facto
         clause “‘does not give a criminal a right to be tried, in all respects,
         by the law in force when the crime charged was committed.’”
         Hayden v. State, 771 N.E.2d 100, 102 (Ind. Ct. App. 2002) (quoting
         Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 53 L. Ed. 2d
         344 (1977)), trans. denied. The clause is not designed “to limit
         legislative control of remedies and modes of procedure which do
         not affect matters of substance.” Id. “Even though it may work to
         the disadvantage of a defendant, a procedural change is not ex post
         facto.” Id.
         Our first task then is to determine whether [the changes are]
         procedural or substantive for purposes of the ex post facto provisions
         of both the Indiana and United States Constitutions. We have
         previously noted that “‘[p]rocedural, adjective or remedial law is
         that portion of the law which prescribes the method of enforcing a




1
   We acknowledge that Butler, in his Brief of Appellant, fails to support this claim with any authority.
Although Butler does use the term ex post facto and support this argument with authority in his Reply Brief, it
is generally true that “[a]n issue not raised in an appellant’s brief may not be raised for the first time in a reply
brief.” Chupp v. State, 830 N.E.2d 119, 126 (Ind. Ct. App. 2005). That said, our preference for addressing
claims on the merits is well-established, see, e.g., Rexroad v. Greenwood Motor Lines, Inc., 36 N.E.3d 1181, 1183
(Ind. Ct. App. 2015) (“[W]here possible, we prefer to address cases on their merits.”), and we choose to
directly address his claim nonetheless.
2
  The United States Supreme Court recently rejected the State of Indiana’s argument that Indiana Code
chapter 34-24-1 is not covered by the Excessive Fines Clause of the Eighth Amendment to the United States
Constitution. See Timbs v. Indiana, --- U.S. ---, 139 S. Ct. 682, 689–91 (2019). Because the civil forfeiture of
property related to the commission of crimes—including an in rem action against the property—is at least
partially punitive, it is subject to the coverage of the Excessive Fines Clause. Id. at 689, see also State v. Timbs,
2019 WL 5540987 at *4 (Ind. Oct. 28, 2019) (“[F]orfeitures under Section [34-24-1-]1(a)(1)(A) are fines to
which the Excessive Fines Clause applies.”).



Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019                                      Page 7 of 12
        right or obtaining a redress for the invasion of that right.
        Substantive law, on the other hand, is that portion of the law
        which creates, defines and regulates rights.’” Id. (quoting State v.
        Fletcher, 149 Ariz. 187, 717 P.2d 866, 870 (1986)). “An
        amendment is ‘procedural in nature for purposes of the ex post facto
        doctrine, and may be applied to crimes committed before the
        effective date’ if it ‘neither changes the elements of the crime nor
        enlarges its punishment.’” Weaver v. State, 845 N.E.2d 1066, 1070
        (Ind. Ct. App. 2006) (quoting Ritchie v. State, 809 N.E.2d 258, 264
        (Ind. 2004), reh’g denied, cert. denied 546 U.S. 828, 126 S. Ct. 42,
        163 L. Ed. 2d 76 (2005)), trans. denied.
Abernathy v. Gulden, 46 N.E.3d 489, 495 (Ind. Ct. App. 2015). Without

addressing the question of whether the 2018 Amendments cured the

constitutional infirmities identified by the Washington court, we have little

hesitation in at least concluding that the 2018 Amendments were all procedural

in nature. To summarize, the amended statutes (1) now require a prosecutor to

file a probable-cause affidavit within seven days of the seizure and the trial

court to make a probable-cause determination, (2) now allow owners who were

not in possession of the property when it was seized to file a petition for

provisional release of their property, and (3) significantly shorten the amount of

time permitted between the seizure of the vehicle and the filing of the forfeiture

complaint. See Ind. Code § 34-24-1-2(b), -2(d), -3(a). The 2018 Amendments

do nothing to create, define, or regulate the State’s inherent power to seize

property from citizens under certain circumstances; they affect only the

procedures for enforcing that right and/or obtaining redress. Because the 2018

Amendments are procedural in nature, we conclude that applying them to the

seizure of the Car does not constitute an ex post facto law.



Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019         Page 8 of 12
                  II. Whether the 2018 Amendments Cured the
                     Defects in Indiana’s Civil Forfeiture Law
[9]    The next question is whether the 2018 Amendments cured the constitutional

       infirmities of chapter 34-24-1 as identified by the Washington court. As

       Appellees point out, however, Appellants do not even claim, much less develop

       an argument, that the 2018 Amendments failed to adequately address the

       defects identified by the district court. For a question of this importance, i.e.,

       the constitutionality of Indiana’s civil forfeiture statutes, we are not inclined to

       supply one side with its argument. See, e.g., Thomas v. State, 965 N.E.2d 70, 77

       n.2 (Ind. Ct. App. 2012) (stating that this court should not “‘make up its own

       arguments’” when a “‘party has not adequately presented them’” because this

       causes the court to become “‘an advocate rather than an adjudicator’”) (quoting

       Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997)); Shepherd v. Truex, 819

       N.E.2d 457, 463 (Ind. Ct. App. 2004) (stating that we will not “become an

       advocate for one of the parties” by developing a cogent argument on a party’s

       behalf).

[10]   Moreover, again because Appellants did not advance this claim in the trial

       court either, the record is inadequately developed. In Washington, the Seventh

       Circuit Court of Appeals declined to address the question of whether the 2018

       Amendments repaired Indiana Code chapter 34-24-1 because the district court

       had not yet had an opportunity to address the question or develop a record.

       Because we are faced with similar circumstances, we will follow the same path

       and decline to address a constitutional question that was not raised or argued to



       Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019          Page 9 of 12
       the trial court or addressed by it, much less with an adequately-developed

       record. We will diverge from the Seventh Circuit Court of Appeals, however,

       in that we will not remand for further proceedings on the effect of the 2018

       Amendments; Butler, unlike Washington, had the opportunity to raise the issue

       but did not. It is well-settled that “[f]ailure to raise an issue before the trial

       court will result in waiver of that issue.” Heaphy v. Ogle, 896 N.E.2d 551, 555

       (Ind. Ct. App. 2008). Because the argument has been waived, we express no

       opinion whatsoever on the question of whether the 2018 Amendments cured

       the constitutional defects of Indiana Code chapter 34-24-1. Butler has failed to

       carry his burden to establish that the seizure of the Car was in any way

       improper.

                                         III. Attorney’s Fees
[11]   Appellants are seemingly requesting an award of both trial attorney’s fees and

       appellate attorney’s fees. To the extent Appellants rely on Indiana Code section

       34-52-1-1, this claim is waived because it is raised for the first time on appeal.

       See, e.g., Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004); Evans v. Tuttle,

       645 N.E.2d 1119, 1121 (Ind. Ct. App. 1995) (applying this rule specifically to a

       challenge regarding attorney’s fees). Second, a trial court in a civil action may

       award attorney’s fees “to the prevailing party[,]” see Ind. Code § 34-52-1-1(b),

       and Appellants did not prevail below.

[12]   To the extent Appellants seek attorney’s fees under Indiana Appellate Rule

       66(E), that rule provides that “the Court may assess damages if an appeal,

       petition, or motion, or response, is frivolous or in bad faith. Damages shall be


       Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019           Page 10 of 12
       in the Court’s discretion and may include attorney’s fees.” The discretion to

       award attorney’s fees is limited to instances “when an appeal is permeated with

       meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of

       delay.” In the Matter of Guardianship of Lamey, 87 N.E.3d 512, 527 (Ind. Ct.

       App. 2017). We use “extreme restraint” when exercising this power because of

       the “potential chilling effect on the exercise of the right to appeal.” Id. The

       sanction is not imposed to punish “mere lack of merit, but something more

       egregious.” Id. To prevail on a substantive bad faith claim, such as

       Appellants’, “the party must show that the appellant’s contentions and

       arguments are utterly devoid of all plausibility.” Id.; see also Landmark Legacy,

       LP v. Runkle, 81 N.E.3d 1107, 1119 (Ind. Ct. App. 2017).

[13]   We conclude that this is not a case where an award of appellate attorney’s fees

       is warranted. Appellees presented a legal argument explaining why Washington

       did not prohibit the forfeiture of the Car, which forfeiture was proceeding under

       the newly-amended statutes that had been passed in response to Washington.

       The amended statutes have not been declared unconstitutional, nor has the

       State been enjoined from enforcing or proceeding under the amended statutes.

       This is an entirely legitimate legal argument for Appellees to pursue.

       Appellants have fallen short of establishing that Appellees’ arguments on appeal

       are frivolous or made in bad faith.

[14]   We affirm the judgment of the trial court and decline Appellants’ request for

       appellate attorney’s fees.




       Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019       Page 11 of 12
Crone, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Opinion 19A-MI-5 | December 27, 2019   Page 12 of 12
