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State v. Philogene

Supreme Court of Maine

August 23, 2018

JERRY PHILOGENE, Party-in-Interest $16, 545 U.S. Currency, Defendant in rem

          Submitted On Briefs: July 24, 2018

          Jerry Philogene, appellant pro se

          Andrew S. Robinson, District Attorney, and Michael B. Dumas, Asst. Dist. Atty., Prosecutorial District III, Lewiston, for appellee State of Maine

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

          ALEXANDER, J.

         [¶1] Jerry Philogene appeals from a judgment entered by the Superior Court (Androscoggin County, Horton, J.) denying his motion to set aside a default and for relief from a judgment. See M.R. Civ. P. 55(c), 60(b). The default judgment extinguished Philogene's property rights, as a party-in-interest, to $16, 545 in cash seized as part of a civil asset forfeiture proceeding, see 15 M.R.S. §§ 5821-5822 (2017), [1] initiated following a motor vehicle stop and the filing of criminal charges related to Philogene's operation of a motor vehicle.

         [¶2] Philogene contends, among other arguments, that the court abused its discretion when it denied his motion for relief from judgment, arguing that he demonstrated excusable neglect because (1) he believed that the attorney representing him with regard to the seized money in a parallel criminal matter also represented him in the civil forfeiture proceeding; (2) he was unable, while in jail, to file the necessary documents or respond to the State's filings, resulting in his default; and (3) the State lacked probable cause to seize the cash. We vacate the judgment.

         I. CASE HISTORY

         [¶3] The facts of this case are drawn from the records of the overlapping criminal and civil matters that began with the arrest of Jerry Philogene and the seizure of his property.[2] On March 7, 2017, an Androscoggin County Sherriff's Deputy stopped a vehicle Philogene was operating for erratic driving. The officer determined that Philogene was not the owner of the vehicle, did not have permission to use the vehicle, and had a suspended Massachusetts driver's license. The officer arrested Philogene and, after conducting a search incident to the arrest, seized $16, 545 in cash found in Philogene's pockets.[3]

         [¶4] On March 8, 2017, the State filed a criminal complaint against Philogene for theft by unauthorized use of property (Class D), 17-A M.R.S. §360(1)(A) (2017), and operating after license suspension (Class E), 29-A M.R.S. § 2415 (2017). Philogene was provided a court-appointed attorney and released on bail. On April 7, 2017, Philogene, through counsel, filed a motion for return of the seized property, contending that no connection existed between the money seized and the charges filed against him. See M.R.U. Crim. P. 41(j).

         [¶5] On April 28, 2017, Philogene was arrested a second time after law enforcement authorities executed a search warrant at a home in Mexico where Philogene was visiting. Authorities discovered scales, drug packaging materials, and 86 grams of cocaine in the home. At the time of the April search, Philogene was found to be in possession of 8.4 grams of heroin and 17.4 grams of cocaine.

         [¶6] On June 8, 2017, the State amended its criminal complaint against Philogene to include two counts of conspiracy to commit trafficking of scheduled drugs (Class B), 17-A M.R.S. § 1105-A(1)(D), (H) (2017), and one count of criminal forfeiture relating to the cash seized on March 7, 15 M.R.S. § 5826 (2017).

         [¶7] Also on June 8, the State filed, in the Superior Court (Androscoggin County), a separate civil asset forfeiture action against the $16, 545, as defendant in rem, and Philogene, as a party-in-interest. See 15 M.R.S §§5821-5822. The State served Philogene with a summons for the civil forfeiture at the courthouse on June 8 while he was in court for the criminal matter.[4] No notice of the civil matter was given to his criminal attorney.

         [¶8] On June 19, 2017, the State filed an ex parte motion to impound the $16, 545 during the pendency of the civil action. See 15 M.R.S. § 5822(6). The court [MG Kennedy, J.) granted that motion on June 27, 2017.

         [¶9] The following day, on June 28, 2017, Philogene, accompanied by his court-appointed attorney, made his initial appearance on the three additional criminal charges alleged in the State's amended complaint. At the hearing, the court discussed Philogene's motion for return of seized property, see M.R.U. Crim. P. 41 (j), and ruled that the criminal motion was "moot pending the outcome of the civil forfeiture action." During this proceeding, the State provided Philogene's attorney with a copy of the court's ex parte order to impound.

         [¶10] On July 10, 2017, the State, without notice to the attorney representing Philogene in his criminal matters, filed an affidavit and request for default judgment after Philogene failed to appear or defend in the civil forfeiture action.[5]See M.R. Civ. P. 55. On July 13, 2017, the clerk entered a default and, on the same day, the court [MG Kennedy, J.) entered a judgment by default against Philogene, as a party-in-interest, and the $16, 545, as defendant in rem. See M.R. Civ. P. 55(b)(2); 15 M.R.S. ยง 5822(5). Although Philogene's motion for return of seized property remained ...

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