Appeal from the Circuit Court of Du Page County. No. 95--CF--544. Honorable Eugene A. Wojcik, Judge, Presiding.
Released for Publication October 25, 1996.
The Honorable Justice Colwell delivered the opinion of the court: Doyle and Hutchinson, JJ., concur.
The opinion of the court was delivered by: Colwell
JUSTICE COLWELL delivered the opinion of the court:
In March 1995, defendant, Joe C. Daniels, was indicted with one count of unlawful delivery of more than 15 grams but less than 100 grams of a controlled substance (cocaine) (720 ILCS 570/401(a)(2)(A) (West 1992)); and two counts of unlawful delivery of more than 1 gram but less than 15 grams of a controlled substance (cocaine) (720 ILCS 570/401(c)(2) (West 1992)). Defendant moved to dismiss the criminal prosecution against him on the basis of former jeopardy, arguing that, because a vehicle titled in his name and seized at the time of his arrest was forfeited, the seizure and forfeiture constituted punishment for the same conduct as the criminal offenses and barred further prosecution against him. After a hearing on September 14, 1995, the circuit court denied defendant's motion, and he timely appealed (see 145 Ill. 2d R. 604(f)). We affirm and remand for further proceedings.
The operative facts gleaned from the record are brief and undisputed. When defendant was arrested, a 1978 Oldsmobile Coupe bearing the vehicle identification number 3N37K8C149983 was seized. The State sent defendant a notice of a pending forfeiture, but he did not file a claim for the vehicle. Defendant subsequently received a declaration of forfeiture advising him that the car was forfeited on May 26, 1995, pursuant to the Illinois Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 et seq. (West 1992)).
Under the provisions of the Forfeiture Act, the State's Attorney may initiate a nonjudicial forfeiture proceeding against personal property subject to forfeiture in connection with a drug offense if the property does not exceed $20,000 in value, excluding the value of any conveyance. 725 ILCS 150/6 (West 1992). The State's Attorney gives statutory notice of the pending forfeiture to known and unknown owners and interest holders of the property who may then file a claim against the property within 45 days of the effective date of the notice. 725 ILCS 150/4, 6(B), 6(C)(1) (West 1992). If the claimant properly files a claim, the State's Attorney then initiates a judicial in rem forfeiture proceeding for the court to adjudicate whether the property should be forfeited. If no claim is timely made, the State's Attorney declares the property forfeited administratively and disposes of the property in accordance with the law. 725 ILCS 150/6(C), 6(D) (West 1992). Here, defendant did not file a claim against the forfeited automobile, and it was administratively forfeited.
On appeal, defendant argues that, under the holding of our State supreme court in In re P.S., 169 Ill. 2d 260, 214 Ill. Dec. 475, 661 N.E.2d 329 (1996), the forfeiture of defendant's automobile must be deemed punishment for double jeopardy purposes, and defendant's right to dismissal of the criminal charges should not have been denied on the ground that defendant did not claim the property, since the forfeited auto was a titled vehicle which, according to defendant, distinguishes this case from this court's ruling in People v. Towns, 269 Ill. App. 3d 907, 918-19, 207 Ill. Dec. 279, 646 N.E.2d 1366 (1995), rev'd in part on other grounds sub nom. In re P.S., 169 Ill. 2d 260, 214 Ill. Dec. 475, 661 N.E.2d 329 (1996), vacated in part & remanded sub nom. Illinois v. Kimery, 518 U.S. , 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996) (mem.). Defendant also relies on United States v. Ursery, 59 F.3d 568 (6th Cir. 1995) (where government instituted civil forfeiture action against Ursery's property alleging it had been used to facilitate drug offenses and defendant agreed to settle the claim, appeals court concluded that forfeiture and criminal conviction were punishment for the same offense and violated prohibition against double jeopardy; jeopardy attached when forfeiture judgment was entered; conviction and sentence vacated). However, during the pendency of this appeal the appellate decision in Ursery was reversed by United States v. Ursery, 518 U.S. , 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996).
In P.S., a consolidated case, our State supreme court affirmed this court's judgment (No. 2-93-1212) with respect to defendant John Kimery, who was charged with unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c) (now 720 ILCS 570/402(c) (West 1992))). Kimery's automobile was seized in connection with the charge and was eventually forfeited to the State in an in rem proceeding in which Kimery filed a claim for the property. We vacated Kimery's conviction and sentence and dismissed the criminal charge against him after concluding that criminally prosecuting Kimery following the forfeiture of his car violated the double jeopardy clause. However, our supreme court's judgment affirming our decision was later vacated by the United States Supreme Court with respect to Kimery. In re P.S., Nos. 2-93-1050, 2-93-1212 cons. (2d Dist. March 1, 1995) (unpublished order under Supreme Court Rule 23), aff'd in part & rev'd in part & remanded, 169 Ill. 2d 260, 661 N.E.2d 329, 214 Ill. Dec. 475 (1996), vacated in part & remanded sub nom. Illinois v. Kimery, 518 U.S. , 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996) (mem.). We concluded in P.S. and Towns that the in rem forfeiture of a defendant's property in a separate civil proceeding barred further criminal prosecution of the defendant for the underlying drug offense on double jeopardy grounds because it would constitute additional punishment. As many other jurisdictions had done, we reached this conclusion after interpreting and attempting to harmonize the holdings of Department of Revenue v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994); Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993); and United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989).
Our supreme court similarly concluded that further prosecution of Kimery following the civil in rem forfeiture of his vehicle was prohibited by the double jeopardy clause, but reached a different conclusion as to defendants P.S. and Roderick Turner, finding that the conduct leading to the forfeitures in their cases was different from the conduct constituting the criminal offenses. In re P.S., 169 Ill. 2d 260, 214 Ill. Dec. 475, 661 N.E.2d 329. From the subsequent history of P.S., which occurred during the pendency of the present appeal, it appears to us that the portion of the decision in P.S. pertaining to Kimery is no longer good law.
In People v. Towns, 269 Ill. App. 3d at 918-19, a consolidated case, we concluded that defendant Towns' failure to make a claim to the $411 in cash that was seized from him at the time of his arrest rendered him a nonparty to the forfeiture proceeding; the forfeiture was not a punishment as to him because he was never "in jeopardy" in the forfeiture proceeding. We therefore affirmed his subsequent conviction (No. 2--93--1376). Towns, 269 Ill. App. 3d at 919. In that same case, defendant Roderick Turner was arrested on a drug charge, and he appeared to contest the forfeiture of $2,165 seized at the time of his arrest. We concluded that the double jeopardy prohibition against multiple punishments protected defendant Turner from further prosecution. The State appealed the judgment as to defendant Turner; Towns was not a party to the appeal. In re P.S., 169 Ill. 2d 260, 214 Ill. Dec. 475, 661 N.E.2d 329. Thus, it appears that the portion of the decision in Towns regarding defendant Towns, who failed to contest the forfeiture, is still good law. Towns, 269 Ill. App. 3d at 918-19; accord People v. Delatorre, 279 Ill. App. 3d 1014, 1019, 216 Ill. Dec. 865, 666 N.E.2d 33 (1996).
In the present case, we affirm the trial court's decision on two grounds. First, recent jurisprudence in the law of double jeopardy conclusively reestablishes that, absent exceptional circumstances, a civil in rem forfeiture of a defendant's property will not ordinarily be deemed a "punishment" for double jeopardy purposes even though the forfeiture arises from the same unlawful conduct which is the subject of a separate criminal prosecution of the defendant. United States v. Ursery, 518 U.S. , 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996). We also find no meaningful distinction between titled property, such as a vehicle, and cash that prevents us from concluding that the forfeiture is not punishment for double jeopardy purposes.
Additionally, because defendant never became a party-claimant in the administrative forfeiture proceeding, no jeopardy attached as to him; defendant was not "at risk" for double jeopardy purpose. People v. Smith, 275 Ill. App. 3d 844, 851-52, 212 Ill. Dec. 200, 656 N.E.2d 797 (1995); Towns, 269 Ill. App. 3d at 918-19 (defendant Towns, a nonparty, was not at risk for double jeopardy purposes), rev'd in part on other grounds sub nom. In re P.S., 169 Ill. 2d 260, 214 Ill. Dec. 475, 661 N.E.2d 329 (1996), vacated in part & remanded sub nom. Illinois v. Kimery, 518 U.S. , 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996) (mem.); accord People v. Delatorre, 279 Ill. App. 3d 1014, 1019, 216 Ill. Dec. 865, 666 N.E.2d 33 (1996); see People v. Krizek, 271 Ill. App. 3d 533, 538-39, 2 ...