This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-840

 

Robert M.A. Johnson, Anoka County Attorney,

Appellant,

 

vs.

 

1999 Silver BMW Convertible,

License Number: DSW 683

VIN number: WBSBK9330XEC43992,

and Robert Joseph Jeddeloh,

Respondents.

 

Filed December 11, 2001

Reversed and remanded

Gordon W. Shumaker, Judge

 

Anoka County District Court

File No. C6004103

 

 

 

Robert M.A. Johnson, Anoka County Attorney, Thomas G. Haluska, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for appellant)

 

Jay Quam, Rick Petry, Fredrickson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402-3397 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            The county attorney appeals the district court’s denial of a petition for the civil forfeiture of an automobile used in the felony of fleeing a peace officer in a motor vehicle.  Because the forfeiture is supported by proof that the predicate crime is a felony and that the vehicle was used to endanger life or property, and because the forfeiture is not tainted by constitutional infirmity, we reverse and remand.

FACTS

            This is an appeal from a judgment dismissing a civil-forfeiture action.  The underlying facts show that Robert Jeddeloh was under the influence of alcohol, having a blood-alcohol reading of 0.21%, at about 1:30 in the morning of May 15, 2000, as he drove his 1999 BMW automobile along a public highway.  When a deputy sheriff on patrol signaled for him to stop, Jeddeloh instead increased his speed, sometimes exceeding 120 miles per hour, and for a distance of almost seven miles tried to elude pursuing law-enforcement officers.

            When Jeddeloh finally stopped, the officers arrested him, and the state charged him with the crimes of driving while under the influence of alcohol and fleeing a peace officer in a motor vehicle.

            On May 15, 2000, the Anoka County Attorney filed a petition under the civil-forfeiture provision of Minn. Stat. § 609.5312, subd 4 (1998), for the district court’s order permitting the county to retain Jeddeloh’s automobile pending the determination of the criminal charges.  The court granted the motion.

            After a bench trial, the district court found Jeddeloh guilty of both crimes, ordered a presentence investigation, and scheduled sentencing for a later date.

            Before the sentencing, the court issued a pretrial order in the forfeiture proceeding providing the parties with a right to present additional evidence and testimony in the forfeiture hearing.  But, the court stated, the failure to schedule any new testimony before the criminal sentencing would result in a waiver of that right.  Neither party scheduled the presentation of new testimony, and the court said it would not rehear the evidence that it had already heard in the criminal trial.  The parties then stipulated that the court’s findings and any additional facts in the criminal matter, together with some other stipulated facts, would be deemed established in the forfeiture proceeding.

            The court held the sentencing and the forfeiture hearing on January 17, 2001.  Minn. Stat. § 609.487, subd. 3 (1998), provides that fleeing a peace officer in a motor vehicle is a felony, and the presumptive sentence under the sentencing guidelines is a stayed sentence of one year and one day.  Minn. Sent. Guidelines IV, V.  Nevertheless, the district court departed downward dispositionally from the guidelines and imposed a gross-misdemeanor sentence.  Among the reasons the court gave for the departure was that Jeddeloh’s driving conduct did not endanger either life or property.  Alleging that the dispositional departure was improper, the county attorney appealed Jeddeloh’s sentence.

            During the pendency of the sentencing appeal, the district court issued its findings, conclusions, and order for judgment in the forfeiture action.  Recognizing that the forfeiture statute requires proof that the subject vehicle was used to commit a felony and was used to endanger life or property, the court ruled that neither element had been established.  The court specifically concluded that Jeddeloh’s driving “did not present a danger to life or property at any point,” and the court noted that Jeddeloh’s conviction was for a gross misdemeanor offense.  The court also ruled that the forfeiture of Jeddeloh’s BMW “would be ‘grossly disproportional’ to the gravity of the offense” and, therefore, would violate the excessive-fines clause of the Eighth Amendment to the Constitution of the United States and any corresponding Minnesota constitutional provision.  On these determinations, the district court dismissed the forfeiture action.  The county attorney appealed.

            While the civil-forfeiture appeal was pending, we reversed the district court’s gross misdemeanor sentence and remanded for resentencing in accordance with the presumptive guidelines sentence.  State v. Jeddeloh, No. C2-01-676 (Minn. App. Aug. 28, 2001).  We held that Jeddeloh’s driving conduct was egregious and placed the lives of others at risk.

            In the forfeiture appeal before us, the county attorney alleges that (1) the district court improperly combined the civil and criminal cases, and (2) erred in ruling that there was no felony conviction or (3) driving conduct that endangered life or property, and (4) that a forfeiture would violate the Eighth Amendment.

D E C I S I O N

            Because of our decision in State v. Jeddeloh, No. C2-01-676 (Minn. App. Aug. 28, 2001), we need not decide the first three issues raised by the county attorney.  In both the criminal and civil forfeiture appeals, the parties and the dispositive issues are identical.  In the criminal trial and the criminal appeal, the parties fully litigated the questions of the nature and the severity of the offense of fleeing a peace officer in a motor vehicle, the predicate crime for the civil forfeiture.  By reversing the district court’s sentencing decision, we have established that the crime of fleeing a peace officer is a felony and that Jeddeloh’s conduct endangered life and property.  Thus, the BMW is subject to forfeiture. 

            There remains only the question of whether a forfeiture of the BMW would violate the Eighth Amendment.  On this issue, the county attorney contends that, because the forfeiture of the BMW constitutes a civil in rem forfeiture of the instrumentality of the crime, it is not subject to the Excessive Fines Clause of the Eighth Amendment.

In general, the Excessive Fines Clauses of the United States and Minnesota constitutions limit the government’s power to impose fines on an individual as punishment for a crime.  U. S. Const. amend. VIII; Minn. Const. art I, § 5; State v. Rewitzer, 617 N.W.2d 407, 412 (Minn. 2000) (citations omitted).  Historically, civil in rem forfeitures were not subject to the excessive-fines clauses because the forfeitures were not considered punishment against an individual for an offense.  U.S. v. Bajakajian, 524 U.S. 320, 331, 118 S. Ct. 2028, 2035 (1998).  Property that was the actual means by which an offense was committed was treated as a form of “guilty property” that could be forfeited in civil in rem proceedings.  Id. at 332, 118 S. Ct. at 2036.

Property used to commit or facilitate the offense of fleeing a peace officer is subject to forfeiture.  Minn. Stat. § 609.531 (Supp. 1999); Minn. Stat. § 609.5312, subds. 1, 4 (1998).  In this case, the offense of fleeing a peace officer could not have been committed without the vehicle.  Therefore, the vehicle was an instrumentality of the crime and subject to forfeiture.

Even if the Eighth Amendment applies in this case, the test to determine whether a forfeiture violates the Excessive Fines Clause is “if it is grossly disproportional to the gravity of a defendant’s offense.”  Bajakajian, 524 U.S. at 334, 118 S. Ct. at 2036.  Three factors to consider in determining proportionality are

(1) the gravity of the offense and the harshness of the penalty, (2) comparison of the contested fine with fines imposed for the commission of other crimes in the same jurisdiction, and (3) comparison of the contested fine with fines imposed for commission of the same crime in other jurisdictions.

 

Rewitzer, 617 N.W.2d at 413 (citations omitted).

Here, the district court applied the three-factor test and determined that this forfeiture violates the Excessive Fines Clause.  First, the court concluded that, because Jeddeloh’s actions did not endanger life or property, he did not fall within the class of persons for whom the statute was designed and the harshness of the penalty would, therefore, be greater than the offense.  Second, the court determined that the forfeiture of a $35,000 vehicle was grossly disproportional to the maximum penalty for a gross-misdemeanor offense, which is $2,500.  Finally, the court concluded that other jurisdictions imposed much lower fines for the offense of fleeing a peace officer.

The county argues that the gross-disproportionality test cannot be applied because there is no evidence in the record as to the vehicle’s value.  We agree.  The record in the civil forfeiture proceeding does not contain evidence of the value of the vehicle, except for the trial court’s findings, which are apparently based solely on Jeddeloh’s lawyer’s argument.  But a lawyer’s argument on value is not evidence.  And the court cannot take judicial notice upon its own personal surmise as to the vehicle’s value.  Because there is no evidence supporting the district court’s finding, we cannot perform a gross-disproportionality analysis.

Because the vehicle was the instrumentality through which Jeddeloh accomplished the crime of fleeing a peace officer, and because there is no evidence in the record to establish that the forfeiture of the vehicle would be grossly disproportional to the gravity of the offense, we reject the argument that the forfeiture of Jeddeloh’s BMW would violate the Eighth Amendment.

            Thus, the judgment dismissing the forfeiture action and denying the county attorney’s petition to forfeit Jeddeloh’s 1999 BMW automobile is reversed, and the matter is remanded for the completion of the forfeiture.

Reversed and remanded.