Appeal from the District Court of the Second Judicial District, State of Idaho, Idaho County. Hon. Jeff M. Brudie, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Order of the district court forfeiting vehicle, affirmed.
Ginger J. Key appeals from the district court‟s order forfeiting her vehicle after her guilty plea to possession of marijuana in a quantity greater than three ounces. We affirm.
After a drug dog alerted on Key‟s 1992 Toyota Celica, officers discovered approximately 5.23 ounces of marijuana*fn1 inside a backpack in the vehicle and approximately $2,100 cash in her purse. Key was charged with possession of marijuana with the intent to deliver, possession of marijuana with the intent to deliver where a child is present, and possession of marijuana in an amount greater than three ounces. The state requested criminal forfeiture of Key‟s Toyota and the $2,100. The state later withdrew its request to forfeit the $2,100.
Key pled guilty to possession of marijuana in an amount greater than three ounces pursuant to a plea agreement. The state agreed to dismiss the remaining charges and recommend that the court retain jurisdiction. Key also reserved the right to challenge the state‟s request for the forfeiture of her vehicle.*fn2
At the sentencing hearing, the parties stipulated that the value of Key‟s vehicle was $1,500, but also noted Key‟s reservation of the right to challenge the forfeiture. The state informed the court that it was relying on the testimony provided at the hearing on Key‟s suppression motions, as well as the material contained in the PSI report in support of its forfeiture request, and that it would not provide any additional evidence. It then argued that the vehicle should be forfeited on the basis that it had been used to possess and transport the large amount of marijuana found in the backpack. In turn, Key argued that forfeiture was not appropriate where she had pled guilty to mere possession as opposed to possession with an intent to deliver, there was no evidence that the vehicle was used to facilitate possession of the marijuana, and the state had not shown that the marijuana was purchased on the day of the stop.
The district court sentenced Key to five years imprisonment with two years determinate and retained jurisdiction, eventually placing Key on probation. It also ordered restitution in the amount of $800, and the forfeiture of Key‟s vehicle.*fn3 Key now appeals the forfeiture of her vehicle.
Key raises several issues on appeal in regard to the forfeiture, namely that her constitutional right to a jury trial under both the Idaho and Federal Constitutions was violated when the question of whether the state was entitled to forfeiture was tried before the district judge rather than a jury, that the court erred in failing to determine whether the size of the property forfeited was unfairly disproportionate to the size of the property actually used in the commission of the underlying offense and in determining that her vehicle was used to commit or facilitate the underlying offense, and that the forfeiture violated the Eighth Amendment prohibition against excessive fines.
A. Constitutional Right to a Jury Trial
Key contends that her constitutional right to a jury trial, ensured by both the Idaho and Federal Constitutions, was violated when the issue of whether the state was entitled to forfeiture of her vehicle was tried before a district judge and not a jury, despite the fact that Key never waived her right to a jury determination of the issue. Given that the district court forfeited Key‟s vehicle pursuant to Idaho Code § 37-2801(2),*fn4 the state argues that Key failed to preserve the issue for appeal because she did not object to the statute‟s constitutionality below and Idaho courts have held that a party may not challenge the constitutionality of a statute for the first time on appeal. Key concedes that she is raising the issue for the first time on appeal, however, she contends that the prohibition against challenging the constitutionality of a statute for the first time on appeal does not bar her claim because her "actual assertion is based upon a direct violation of her personal constitutional right, and is not an abstract assertion that I.C. § 37-2801(2) is unconstitutional." While conceding that the statute is "pertinent to the issues regarding her right to a jury trial insofar as the statute has language that there is no right to a jury trial," she argues that "regardless of the language of the statute, [her] constitutional right to a jury trial would trump any contrary language in the statute; and therefore the statutory language is in no way dispositive of the analysis and outcome in this case." We first analyze whether we may address the issue for the first time on appeal, and concluding that we can, proceed to address the merits of Key‟s constitutional challenges.
Idaho appellate courts have typically indicated that we will not consider the constitutionality of a statute for the first time on appeal. See State v. Wiedmeier, 121 Idaho 189, 192, 824 P.2d 120, 123 (1992) (refusing to consider an equal protection challenge to a statute where the issue had been raised for the first time on appeal); State v. Fox, 130 Idaho 385, 387, 941 P.2d 357, 359 (Ct. App. 1997) (refusing to consider whether an arson statute was unconstitutionally vague or overbroad where the defendant had failed to raise the issue before the trial court). However, in State v. Hollon, 136 Idaho 499, 36 P.3d 1287 (Ct. App. 2001), we indicated that we may address the constitutionality of a statute where the issue has not been preserved if we are persuaded that it would be fundamental error for this Court to allow a defendant to waive the right at issue. Id. at 503, 36 P.3d at 1291. In Hollon, the defendant had challenged for the first time on appeal the constitutionality of I.C. § 18-705, criminalizing resisting and obstructing officers, contending it was overbroad as it applied to him where he alleged that prosecution for his failure to cooperate with the officer was a violation of his First Amendment right to free speech. We did not reach the issue, however, noting that we were not persuaded that it amounted to fundamental error to allow the defendant to waive a challenge that the statute was overbroad as applied. Id.
Thus, we examine here whether it would be fundamental error to allow Key to waive a challenge to the statute as violating her state and federal constitutional rights to a jury trial where she did not raise the issue below. Error that is fundamental must be such error as goes to the foundation or basis of a defendant‟s rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive. State v. Severson, 147 Idaho 694, 716, 215 P.3d 414, 436 (2009). In this instance, the right implicated--the right to a jury trial--has been afforded the utmost regard. As we discuss below, Article 1, § 7 of the Idaho Constitution states that the "right of trial by jury shall remain inviolate." In State v. Bennion, 112 Idaho 32, 37, 730 P.2d 952, 957 (1986), our Supreme Court expounded on the historical importance of the right:
The right to trial by jury always has been salient to the American people. In no less a document than the Declaration of Independence, our nation‟s founders grounded, in part, their dissolution of political ties with Great Britain on the King‟s "depriving us, in many cases, of the benefits of trial by jury." As the United States Supreme Court has observed, the Framers of both the federal and state constitutions interposed juries of citizens between governments and those persons the governments have accused of wrong in order to avert the abuse of authority:
The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. Duncan [v. Louisiana, 391 U.S. 145, 155-56 (1968)].
The Framers of the Idaho Constitution phrased their convictions in unequivocal fashion: "The right of trial by jury shall remain inviolate . . . ." Idaho Const. Article 1, § 7.
"[T]his Court," Justice McQuade accurately observed, "has a duty to protect the people‟s rights as enumerated in the Idaho and United States Constitutions from legislative encroachment." Thompson v. Hagan, 96 Idaho 19, 24, 523 P.2d 1365, 1371 (1974). The right to a jury trial is a fundamental right, and must be guarded jealously.
Bennion, 112 Idaho at 36-37, 730 P.2d at 956-57 (citation omitted). See also State v. Carrasco, 117 Idaho 295, 297, 787 P.2d 281, 283 (1990) (recognizing that the right to a jury trial is a fundamental right such that a valid waiver of the right will not be inferred by mere silence but must be demonstrated by express and intelligent action on the part of the defendant); State v. Wheeler, 114 Idaho 97, 101, 753 P.2d 833, 837 (1998) (same). On this basis, we conclude that the claimed error in this instance qualifies for appellate review under the fundamental error doctrine such that we will address the merits of Key‟s constitutional challenges for the first time on appeal. Accord State v. Hunnel, 125 Idaho 623, 625, 873 P.2d 877, 879 (1994) (holding that claimed error regarding the waiver of defendant‟s Sixth Amendment right to counsel qualified as fundamental error).
2. United States Constitution
Key contends that her constitutional right to a jury trial, pursuant to the Sixth Amendment of the United Constitution, was violated when the issue of whether the state was entitled to forfeiture of her vehicle was tried before the district judge despite the fact that she never waived her right to a jury determination of the issue.
On appeal, Key concedes that the United States Supreme Court has addressed, and rejected, the assertion that there is a Sixth Amendment right to a jury determination in criminal forfeiture actions. See Libretti v. United States, 516 U.S. 29, 48-49 (1995). She counters, however, that the Court‟s basis for the Libretti decision has since been disavowed by the Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000) and their progeny. The state contends that this same argument has been made and repeatedly rejected by federal circuit courts of appeal throughout the country. In her reply brief, Key responds that these federal appeals cases were wrongly decided and continues to assert her Sixth Amendment argument.
In Libretti, the defendant argued that he enjoyed a constitutional right to have a jury decide the extent of his criminal forfeiture. In rejecting the argument, the Court explained that "the right to a jury verdict on forfeitability does not fall within the Sixth Amendment‟s constitutional protection" because criminal forfeiture concerns sentencing, not the elements of a crime. Id. at 49. The Court disagreed with Libretti‟s characterization of forfeiture as a "hybrid that shares elements of both a substantive charge and a punishment imposed for criminal activity," id. at 40, and refused to put the forfeitability determination on ...