2006-567, IN RE TOYOTA AVALON VIN # 4TIBJ18BXWU251611

The defendant, Dervon Benedict, appeals a decision of the

Dervon Benedict, by brief, pro se. to press. Errors may be reported by E-mail at the following address:

attorney general, on the brief), for the State. Kelly A. Ayotte, attorney general (Jane E. Young, senior assistant

IN RE TOYOTA AVALON VIN # 4T1BJ18BXWU251611

editorial errors in order that corrections may be made before the opinion goes No. 2006-567 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as underlying criminal offense. This appeal followed.

p. 2 the legislature did not see fit to include. consider what the legislature might have said or add language that RSA 318-B:17-b and that its forfeiture was not excessive in relation to the

State’s petition as admitted. Following the hearing, the superior court granted Superior Court Rule 133, the superior court deemed the allegations in the

a statute’s language is plain and unambiguous, we need not look ascribe the plain and ordinary meanings to the words used. When (2005). first examine the language of the statute, and, where possible, Because the defendant’s answer to the State’s petition did not comply with statutory scheme. Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 38-39 enacting them, and in light of the policy sought to be advanced by the entire omitted). Our goal is to apply statutes in light of the legislature’s intent in Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005) (citations forfeiture of his vehicle.

argument in turn. as expressed in the words of the statute considered as a whole. We June 8, 2006, the superior court held a hearing on the State’s petition. forfeiture was excessive in relation to the underlying offense. We address each review de novo. We are the final arbiters of the legislature’s intent distribution of a controlled drug in felonious violation of RSA 318-B:2.” On forfeiture; (2) forfeiture violated the terms of his plea agreement; and (3) the The interpretation of a statute is a question of law, which we the defendant had used the vehicle in “the procurement, trafficking, delivery or

prosecution, it could not prosecute him, and, therefore, could not seek 2006). According to the defendant, when the State referred his case for federal “or at least could be,” prosecuted under RSA chapter 318-B (2004 & Supp. seek forfeiture only of those items used in connection with an offense that is, The defendant first contends that RSA 318-B:17-b permits the State to

prosecution of his case over to the federal government, it could not pursue State filed a petition for forfeiture of the defendant’s Toyota Avalon alleging that On appeal the defendant argues: (1) because the State turned

more than five grams of cocaine base.

On May 4, 2005, prior to referring the case for federal prosecution, the

the defendant pled guilty in federal court to possession with intent to distribute United States Attorney’s Office for federal prosecution. On March 16, 2006, p. 3 3

criminal proceedings that could have been brought. forfeiture petition was brought in the court with jurisdiction over related petition should be brought, the superior court had jurisdiction since the

held, however, that RSA p. 3 318-B:17-b is a civil, non-punitive statute, and that 122 N.H. 892, 895 (1982); State v. Hogg, 118 N.H. 262, 266 (1978). We have duplication of trials in two jurisdictions for the same offense. State v. McNally, violated double jeopardy, the New Hampshire Constitution prevents the As to the defendant’s argument that maintaining the forfeiture petition

actually be brought, but only defines the proper court in which the forfeiture statute, by its plain language, does not require that a criminal proceeding County when the petition for forfeiture was filed. In any event, because the in fact been brought against the defendant and were pending in Merrimack files a forfeiture petition, it must do so in the court having jurisdiction over could be brought for violation of the statute. Indeed, criminal proceedings had referred to the federal system. Instead, the statute requires that if the State activities in Merrimack County, it is in that county that criminal proceedings Therefore, because the defendant had used this vehicle to engage in criminal in Merrimack County to conduct drug sales in violation of RSA chapter p. 3 318-B. that the defendant had used this vehicle when traveling from Boston to areas prosecute him, it could not maintain the forfeiture action. In this case, the State alleged, and the trial court accepted as admitted, would violate double jeopardy. Therefore, because the State could not violations of RSA chapter 318-B. brought, but also when criminal proceedings could be brought as a result of broadly to apply not only when criminal proceedings have actually been related criminal proceeding which could be brought. The statute is phrased

neither grants nor removes jurisdiction from the state courts when a case is Regarding the defendant’s statutory argument, RSA p. 3 318-B:17-b, IV(a)

federal court, the State lacked authority to prosecute him because to do so cocaine. Also, the defendant contends that once he entered his guilty plea in had jurisdiction over the criminal prosecution for his possession of crack referred his prosecution to the federal government, the superior court no longer The defendant argues that under RSA p. 3 318-B:17-b, IV(a), when the State

which could be brought under this chapter. court having jurisdiction over any related criminal proceedings the provisions of this section. Such petition shall be filed in the forfeiture of items or property interests subject to forfeiture under name of the state in the nature of a proceeding in rem to order The department of justice may petition the superior court in the

RSA p. 3 318-B:17-b, IV(a) states: properly be the subject of forfeiture.

p. 4 vehicle were not the proceeds of drug sales, the defendant’s vehicle could under RSA 318-B:17-b, I(b). Thus, even if the funds used to purchase the distribution of a controlled drug. Such use of a vehicle is grounds for forfeiture because the defendant used the vehicle in the trafficking, delivery or

in relation to the value of the drugs, the costs of investigation and prosecution conducted by or through the use of the property, and the value of the property

and not the proceeds of drug sales, the State argued that forfeiture was proper

connection of the property to the crime, the extent of the criminal activities IV(e). In so doing, the trial court was to consider, among other things, the defendant’s argument that the vehicle was purchased with legitimate funds, forfeiture was excessive in relation to the underlying offense. RSA 318-B:17-b, specific administrative or government agency involved. vehicle vastly outweighs the value of the drugs seized. Regarding the subject to forfeiture. The trial court then had to determine whether the because such matters are solely within the discretion of the legitimate funds, his criminal activities were not extensive, and the value of the

IV(e) required the trial court to first determine whether the property at issue is consequences that may result from the defendant’s plea of guilty, in relation to the underlying offense because the vehicle was purchased with Regarding the other arguments made by the defendant, RSA 318-B:17-b, to the defendant with respect to any civil or administrative defendant acknowledges that no representations have been made any other federal authority, or any state or local authority. The

Next, the defendant contends that forfeiture of his vehicle was excessive

violate the defendant’s plea agreement. Agreement is limited to the undersigned parties and cannot bind terms of the defendant’s plea agreement. Thus, this forfeiture action did not Chevrolet Cavalier, 142 N.H. at 709, and is therefore explicitly exempt from the plea agreement, however, states, in relevant part: A forfeiture action is a civil suit, see RSA 318-B:17-b, IV(b); In re 1994

State’s forfeiture petition following the defendant’s guilty plea in federal court. state, court. Accordingly, we conclude that double jeopardy does not bar the

The defendant acknowledges and understands that this Plea

contends that forfeiture was a breach of his plea agreement. The defendant’s We address the defendant’s remaining arguments briefly. The defendant

apply a different reasoning when the plea is entered in federal, rather than 1994 Chevrolet Cavalier involved a guilty plea in state court, we see no need to jeopardy. In re 1994 Chevrolet Cavalier, 142 N.H. 70 p. 5 5, 709 (1998). While In re enforcing its provisions, even after a guilty plea, does not offend double 5

record and will not be overturned. The trial court’s findings under RSA 318-B:17-b, IV(e) are supported by the trafficking and distribution of drugs, including in the underlying crime here.

worth $10,000 to $11,000; and this vehicle was used extensively in the

investigation cost between $3,000 and $6,000; the defendant’s vehicle was uncontested facts that: the value of the drugs seized was about $4,000; the forfeiture, and that forfeiture was not excessive based upon virtually BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

the trial court found that the defendant’s vehicle was properly the subject of and the harm caused by the criminal conduct. RSA 318-B:17-b, IV(e). Here,