APPEAL FROM THE JACKSON CIRCUIT COURT. The Honorable William E. Vance, Judge. Cause No. 36C01-1111-MI-38.
APPELLANT, Pro se, VICTOR HUGO MESA, Plainfield, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; KYLE HUNTER, Deputy Attorney General, Indianapolis, Indiana.
PYLE, Judge. MATHIAS, J., concurs with opinion. BRADFORD, J., concurs.
STATEMENT OF THE CASE
Victor Hugo Mesa (" Mesa" ), pro se, appeals the trial court's order granting summary judgment to the State of Indiana, the Office of the Jackson County Prosecuting Attorney, and the Seymour Police Department (collectively, " the State" ) on the State's complaint for forfeiture, which alleged that Mesa's vehicle was purchased with proceeds from cocaine dealing.
Whether the trial court erred by ordering forfeiture of Mesa's vehicle pursuant to a summary judgment motion and without a hearing.
On November 7, 2011, the State filed a complaint for forfeiture, pursuant to Indiana Code chapter 34-24-1, against Mesa, seeking forfeiture of his 2004 yellow Hummer (" the vehicle" ) based on the allegation that the vehicle was " traceable as proceeds of the violation of a criminal statute" and was " property that [was] the object of a corrupt business influence violation." (App. 61). Thirty days later, Mesa, by counsel, filed an answer and denied the State's allegations.
On January 23, 2012, the State filed a motion for default judgment, claiming that more than twenty days had passed since Mesa had been served with the complaint and alleging that Mesa had " failed to plead or otherwise comply with the Indiana Rule[s] of Trial Procedure." (App. 44, 46). The State attached affidavits and exhibits to its motion for default judgment to support its argument that it was entitled to forfeiture of the vehicle. On February 8, 2012, the trial court denied the State's default judgment motion, specifically noting that Mesa had filed an answer on December 7, 2011.
On March 20, 2013--after more than a year had passed with no activity in the case--the trial court, on its own motion, ordered the State, pursuant to Trial Rule 41(E), to show cause within thirty days why the State's case should not be dismissed for lack of prosecution. Specifically, the trial court instructed the State to file its response in writing and warned that the State's failure to respond within thirty days would result in dismissal of its case.
On April 18, 2013, the State responded to the trial court's order by filing a motion for summary judgment. In its motion, the State argued that there were no genuine issues of material fact and that it was entitled to forfeiture of the vehicle. In support of its motion, the State designated, among other things, the affidavits and exhibits attached to its motion for default judgment. One of the affidavits was from a confidential informant, Evelyn Contreras Perez (" Perez" ), who averred that " [w]hile [she] was buying cocaine from Mesa, he told [her] that he sells six to seven ounces of cocaine each week, and that he paid for his Yellow Hummer with money from doing business, which [she] understood in the context of [their] conversation as selling cocaine." (App. 53). In her affidavit, Perez also stated that Mesa asked her " to invest in buying a kilo of cocaine with him, and he told [her] that he would put up his title as collateral for his half of the kilo of cocaine." (App. 53). Another affidavit, from Seymour Police Officer Carl Lamb (" Officer Lamb" ), asserted that the officer was familiar with Mesa through personal contact and drug investigations and that he had been informed that Mesa had been dealing cocaine for five to six years. (App. 52). Officer Lamb's affidavit also provided that Mesa had " paid in full a loan" on the vehicle in October 2010 and that the title to the vehicle showed that Mesa owned the vehicle. (App. 52).
Thereafter, on May 6, 2013, Mesa filed a pro se response to the State's summary judgment motion. In his motion, Mesa requested the trial court to dismiss the forfeiture proceedings under Trial Rule 41(E) because " the State took no action in this case for more than 390 days" and because the State " did not explain the reason for said lack of prosecution even after [it had] been ordered to do so by this Court[.]" (App. 31). Mesa stated that the " only allegation which could entitle [the State] to prevail in these forfeiture proceedings" was Perez's affidavit. (App. 31). In his response, Mesa challenged the impartiality of Perez and the interpretation the " doing business" statements in her affidavit. Mesa did not designate any evidence to show that there was a genuine issue of material fact precluding the entry of summary judgment. Mesa requested " an evidentiary hearing pursuant to Ind. Code § 34-24-1-4" and that the trial court make findings of fact and conclusions of law pursuant to Trial Rule 52. (App. 34).
On June 10, 2013, the trial court entered an order granting the State's summary judgment motion without Mesa's requested hearing. The trial court found that the " designated evidentiary matter show[ed] that there [was] no genuine issue as to any material fact" and that the State was " entitled to judgment as a matter of law." (App. 27). Thus, the trial court ordered that Mesa's ownership interest in the vehicle was forfeited.
On June 24, 2013, Mesa, pro se, filed a motion to correct error, a motion to proceed in forma pauperis, and a motion to stay disposition of property. In his motion to correct error, Mesa argued that: (1) the trial court's Trial Rule 52 findings were inadequate because they did not provide an explanation for granting summary judgment in favor of the State; (2) the trial court erred by failing to hold a hearing addressing dismissal of the State's case under Trial Rule 41(E); (3) the trial court erred by failing to hold a hearing, pursuant to Indiana Code § 34-24-1-4, prior to ordering forfeiture of the vehicle; (4) the trial court erred by granting summary judgment because Mesa had showed that material facts were in dispute and because the State did not designate any evidence to support the averments in Perez's affidavit; (5) summary judgment was generally not appropriate in a forfeiture proceeding.
On July 3, 2013, the trial court granted Mesa's motion to proceed in forma pauperis. The trial court did not rule on Mesa's motion to correct error; thus, it was deemed denied. Mesa now appeals.
Mesa appeals the trial court's grant of summary judgment to the State in this forfeiture action.
Before turning to our standard of review, we note that " [c]ivil forfeiture is a device, a legal fiction, authorizing legal action against inanimate objects for participation in alleged criminal activity, regardless of whether the property owner is proven guilty of a crime--or even charged with a crime." Serrano v. State, 946 N.E.2d 1139, 1140 (Ind. 2011). " To obtain the right to dispose of property, use the property, or recover law enforcement costs the State must demonstrate by a preponderance of ...