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COURT OF APPEALS DECISION DATED AND FILED April 16, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Milwaukee County: Dominic S. Amato, Judge. Reversed and cause remanded with directions.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Michael R. Peloza appeals from an order of the circuit court directing that his car be forfeited to the Milwaukee Metropolitan Drug Enforcement Group. Peloza contends that the forfeiture violates the Eighth Amendment. We agree and reverse the order. Upon remand, the circuit court shall vacate the forfeiture order, direct return of the car to Peloza, and dismiss the State’s forfeiture complaint.
¶2 Based on information from a confidential informant, the Drug Enforcement Group began investigating Peloza for drug activity. Investigator Jonathan Rivamonte made contact with Peloza and made arrangements to purchase approximately one ounce of marijuana for $355. After that sale, Rivamonte asked Peloza for a larger quantity. Peloza agreed to sell him another six ounces of marijuana for about $1500. The sale was not completed, as Peloza was arrested and charged with felony possession with intent to deliver marijuana.
¶3 Peloza entered a deferred prosecution agreement in which he pled guilty to misdemeanor possession. Peloza successfully completed the agreement and, upon payment of a $250 fine, Peloza’s conviction was ordered expunged. In the meantime, the State filed a summons and complaint for the forfeiture of Peloza’s car, a 2009 Mitsubishi Lancer GTS, because it had been used to transport drugs. After the criminal case was resolved, the forfeiture case proceeded.
¶4 Rivamonte testified, as did Peloza’s grandfather, Richard Lemke. Lemke told the court that he had loaned Peloza $15,000 to pay off his high-interest car loan. At the time of the hearing, Peloza still owed his grandfather about $8000. The circuit court adjourned the hearing to allow Lemke an opportunity to document this loan and its legitimacy.
¶5 Meanwhile, Peloza retained a new attorney who, at the next hearing, raised additional issues on which the court allowed briefing. As relevant to this appeal, Peloza’s new attorney asserted that forfeiture of the vehicle, valued at approximately $16,000, was unconstitutional because it was excessive.[1] The circuit court rejected this argument, concluding that there was really no Eighth Amendment issue, and it ordered the vehicle forfeited to the Drug Enforcement Group. The forfeiture was subject to an $8000 payment to Lemke for his security interest in the vehicle. Peloza then filed this appeal.
¶6 The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” (Emphasis added.) The excessive-fines clause applies to forfeitures. See State v. Boyd, 2000 WI App 208, ¶7, 238 Wis. 2d 693, 699, 618 N.W.2d 251, 254 (“If the goal of a civil forfeiture action is, at least in part, punishment, the forfeiture may not be constitutionally excessive.”). Neither party disputes that Peloza’s car was properly considered as subject to potential forfeiture under Wis. Stat. § 961.55(1). The question of whether forfeiture of Peloza’s car violates the Eighth Amendment is an issue we review de novo. See Boyd, 2000 WI App 208, ¶7, 238 Wis. 2d at 698–699, 618 N.W.2d at 254.
¶7 To determine whether a forfeiture is excessive, we are to consider the “‘proportionality test.’” See id., 2000 WI App 208, ¶11, 238 Wis. 2d at 702, 618 N.W.2d at 256 (citing United States v. Bajakajian, 524 U.S. 321, 333–334 (1998)). This test requires us to consider “the nature of the offense, the purpose for enacting the statute, the fine commonly imposed upon similarly situated offenders and the harm resulting from the defendant’s conduct.” Boyd, 2000 WI App 208, ¶14, 238 Wis. 2d at 702, 618 N.W.2d at 256.
¶8 When we consider the factors in this case, it is patently obvious that forfeiture of Peloza’s car is excessive. Certainly, drug sales are not to be encouraged, but Peloza was ultimately convicted of mere possession. Peloza’s offense did not involve violence, did not result in injury to anyone, and was not gang related. There is no suggestion that Peloza is a large-scale drug dealer, and he had no prior criminal record. The total value of the drugs he sold was less than $2000. The State apparently does not view the offense as exceptionally serious, as it was willing to permit a disposition resulting in expunction of the conviction and payment of a small $250 fine. The maximum fine for misdemeanor possession was $1000, and even for the originally charged felony, the maximum fine was only $10,000. Forfeiture of a $16,000 vehicle is unconstitutionally disproportionate to the offense at hand. Upon remand, the circuit court shall vacate the forfeiture order, direct return of the car to Peloza, and dismiss the State’s forfeiture complaint.
By the Court.—Order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.