Opinion
NO. 2015-CA-000355-MR
05-27-2016
TORI VAN BERG APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: J. Vincent Aprile II Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOSEPH W. CASTLEN, III, JUDGE
ACTION NO. 06-CR-00429 OPINION AND ORDER
REVERSING AND REMANDING
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BEFORE: DIXON, J. LAMBERT, AND NICKELL, JUDGES. NICKELL, JUDGE: Alleging six separate theories of error, Tori Van Berg challenges the Daviess Circuit Court's entry of an order of forfeiture for her 1995 Chevrolet Corvette. The order was entered after a hearing at which the court found the Commonwealth had produced more than a preponderance of evidence to believe Van Berg had used the Corvette to transport and deliver methamphetamine she then transferred to a confidential informant on January 12, 2006. In the court's view, the Corvette was, therefore, subject to forfeiture under KRS 218A.410. Crucial dates are May 6, 2006, the date the Corvette was seized; September 18, 2007, the date final judgment was entered in the trial court; and July 11, 2014, the date the Commonwealth moved to forfeit the vehicle—more than eight years after the post-conviction seizure even though KRS 413.120(3) establishes a five-year window. Hinkle v. Commonwealth, 104 S.W.3d 778, 782 (Ky. App. 2002) (internal citation omitted). Citing Forwood v. City of Louisville, 140 S.W.2d 1048, 1051 (Ky. 1940), Van Berg maintains the five years runs "from the time when a complete cause of action accrues." She further argues a conviction is not a prerequisite to forfeiture. Osborne v. Commonwealth, 839 S.W.2d 281, 283 (Ky. 1992) ("nothing in the forfeiture statute requires criminal conviction of the person whose property is sought to be forfeited.")—something the trial court erroneously believed.
Van Berg maintains she received nothing—no money or anything else—in return for transferring the methamphetamine.
Prior to entry of the forfeiture order, Van Berg was indicted on two counts of trafficking in a controlled substance in the first degree (methamphetamine), Kentucky Revised Statutes (KRS) 218A.1412. Her first trial ended in a mistrial. In August 2007, a jury convicted her on one count of first-degree trafficking in a controlled substance and one count of first-degree possession of a controlled substance and recommended a sentence of six-years' imprisonment on the trafficking offense and three-years' imprisonment on the possession charge, both terms to be served consecutively for a total of nine (9) years. Judgment was entered October 18, 2007, with the trial court imposing the jury's sentencing recommendations. Probation was denied. A panel of this Court affirmed the conviction. Van Berg v. Commonwealth, 2007-CA-002426-MR (Ky. App. October 1, 2010). The Supreme Court of Kentucky denied discretionary review. A second appeal to this Court, challenging a denial of shock probation, was also affirmed. Van Berg v. Commonwealth, 2012-CA-000788-MR (Ky. App. June 14, 2013). She was eventually released on supervised parole. --------
In deeming forfeiture appropriate, the trial court concluded: the Commonwealth's forfeiture motion, filed July 11, 2014, was timely; Van Berg's underlying conviction became final when this Court affirmed it on October 1, 2010, meaning the forfeiture motion was filed well within the five-year window; the Commonwealth sufficiently linked the Corvette to the crime of trafficking; and, being subject to forfeiture and sufficiently tainted by the crime, taking the Corvette was neither an excessive fine, nor grossly disproportionate to the trafficking offense—a Class C felony allowing punishment within a range of five to ten years. The court found particularly convincing the playing of a tape at trial in which Van Berg boasted of using rental cars to travel to other states to purchase pseudoephedrine which the court believed showed she knew using the Corvette to transport drugs would subject the car to seizure and forfeiture. Additionally, Van Berg being the sole owner and operator of the Corvette, which was unsecured by any lien, no innocent third party was impacted by the forfeiture.
On appeal, the Commonwealth has confessed error, a result with which we agree because the forfeiture motion, filed July 11, 2014, was not filed within five years of the offense date, January 12, 2006, as required by KRS 413.120(3).
Based on the foregoing, we REVERSE and REMAND the order of forfeiture entered by the Daviess Circuit Court on February 2, 2015. Further, we direct the Daviess Circuit Court to deny the forfeiture motion, rescind the order of forfeiture of Van Berg's Corvette, and order the Daviess County Sheriff's Department to return the vehicle to Van Berg forthwith.
ALL CONCUR. ENTERED: May 27, 2016
/s/ C. Shea Nickell
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: J. Vincent Aprile II
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky