IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 47478-6-II

Respondent,

v.

HARVEY S. JOHNSON, UNPUBLISHED OPINION

Appellant.

J. SUTTON — Harvey S. Johnson pleaded guilty to one count of assault in the third degree 

with sexual motivation and four counts of assault in the third degree. He appeals a provision of 

his judgment and sentence ordering the forfeiture of contraband. Because the forfeiture is

specifically limited to contraband, the trial court had the authority to order the forfeiture. 

Accordingly, we affirm.

FACTS

Harvey Johnson pleaded guilty to one count of assault in the third degree with sexual 

motivation and four counts of assault in the third degree. His judgment and sentence includes a 

handwritten provision noting “forfeit contraband.” Clerk’s Papers (CP) at 149. And, provision 

4.4a, which reads “all contraband is hereby forfeited,” is checked. CP at 149. Johnson appeals 

only the order that he forfeit contraband.

Filed

Washington State

Court of Appeals

Division Two

November 29, 2016
No. 47478-6-II

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ANALYSIS

Johnson argues that the trial court exceeded its sentencing authority by ordering him to 

forfeit contraband because there is no statute specifically authorizing the trial court to order 

forfeiture. Johnson is incorrect. While the trial court lacks the authority to order forfeiture of 

property without a statute, Washington law recognizes the trial court’s authority to order forfeiture 

of contraband. Accordingly, we affirm.

“[A] court may refuse to return seized property no longer needed for evidence only if (1) 

the defendant is not the rightful owner; (2) the property is contraband; or (3) the property is subject 

to forfeiture pursuant to statute.” State v. Alaway, 64 Wn. App. 796, 798, 828 P.2d 591 (1992). 

Contraband is “an object, ‘the possession of which, without more, constitutes a crime.’” Alaway, 

64 Wn. App. at 799 (quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 

S. Ct. 1246, 1250, 14 L. Ed. 2d 170 (1965)). Here, the provision in Johnson’s judgment and 

sentence very clearly designates that the property to be forfeited is limited to contraband. 

Accordingly, the forfeiture is permitted under Alaway. We affirm the judgment and sentence.

Johnson relies on State v. Roberts, 185 Wn. App. 94, 339 P.3d 995 (2014), to argue that 

the trial court exceeded its authority. However, Roberts does not apply here. Roberts dealt with 

a trial court’s order forfeiting “any items seized by law enforcement.” 185 Wn. App. at 96. The 

forfeiture at issue in Roberts was much broader than the forfeiture in Johnson’s case and 

encompasses more than simply contraband. Therefore, the forfeiture provision in Roberts

exceeded the limitations imposed on the courts in Alaway. But, Roberts does not control here 

because the forfeiture provision in Johnson’s judgment and sentence is limited to contraband.
No. 47478-6-II

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Because the forfeiture provision in Johnson’s judgment and sentence is limited to 

contraband, the trial court did not exceed its authority to order forfeiture as established in Alaway. 

Accordingly, we affirm. 

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

SUTTON, J.

We concur:

WORSWICK, P.J.

LEE, J.