People v. Vogel

• Decision Date: 26 March 2020
• Docket Number: Court of Appeals No. 19CA0446
• Citation: 463 P.3d 352
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, v. William Frederick VOGEL, Respondent-Appellant.
• Court: Colorado Court of Appeals

463 P.3d 352

The PEOPLE of the State of Colorado, Petitioner-Appellee,

v.William Frederick VOGEL, Respondent-Appellant.

Court of Appeals No. 19CA0446

Colorado Court of Appeals, Division VII.

Announced March 26, 2020

Michael Dougherty, District Attorney, Adam D. Kendall, Chief Trial Deputy District Attorney, Boulder, Colorado, for Petitioner-Appellee

William Frederick Vogel, Pro Se

Opinion by JUDGE LIPINSKY

¶ 1 Pro se respondent, William Frederick Vogel, appeals the district court's entry of a default order of forfeiture against him. We affirm because Vogel failed to comply with the statutory requirements for responses to civil forfeiture petitions and, therefore, failed to prove that the trial court erred in denying his request to set aside the default order.

I. Background

A. Facts

¶ 2 Vogel rented space on property in unincorporated Boulder County to store five tractor trailers. A confidential source tipped off a Boulder County deputy sheriff that marijuana was being illegally cultivated in the five tractor trailers. After the deputy sheriff corroborated the source's information, a detective with the Boulder County Drug Task Force obtained a search warrant for the property.

¶ 3 During the execution of the search warrant, law enforcement officers discovered the five tractor trailers, which they saw housed a marijuana grow operation; a generator on a black flatbed trailer (the trailer); and approximately 163 marijuana plants. Officers seized the trailer, along with other items, and held it as evidence in the related criminal case filed against Vogel.

¶ 4 This appeal concerns the civil forfeiture of the trailer. (The generator was the subject of civil forfeiture in another case. The Boulder County Drug Task Force was awarded the generator by default after Vogel failed to appear in that proceeding.)

¶ 5 The Boulder County District Attorney filed a petition in forfeiture to perfect title in the trailer, alleging that the trailer was contraband. The District Attorney requested that the district court (1) issue a citation to interested persons to show cause why the trailer should not be forfeited as contraband pursuant to section 16-13-503, C.R.S. 2019; and (2) enter a final order perfecting the State's right and interest in, and title to, the trailer, pursuant to sections 16-13-503 and 16-13-506, C.R.S. 2019.

¶ 6 The District Attorney supported the petition with an affidavit executed by the deputy sheriff who had received the tip from the confidential informant. In the affidavit, the deputy sheriff stated that Vogel was at large, with active warrants for five criminal charges relating to the marijuana grow operation. Further, the affidavit said that Vogel had told the confidential informant that he intended to set up another marijuana grow operation "in the mountains" once he recovered his generator.

¶ 7 The district court found probable cause to believe the trailer was contraband. The court issued a "Citation to Show Cause (Advisement)" stating that Vogel would forfeit title to the trailer if he did not respond or appear before the court for a show cause hearing on the petition set for January 8, 2019. The District Attorney served Vogel, who was at the time jailed in Virginia, with the citation to show cause, the petition, and the supporting affidavit on January 3, 2019. The district court did not receive Vogel's response to the petition before, and Vogel did not appear at, the January 8 hearing, however.

¶ 8 Eight days after the hearing, the district court received two unsworn "Motions to Quash" from Vogel. Vogel apparently had mailed them to the district court from the Virginia jail on January 7, 2019. In the motions, Vogel asserted, among other contentions, that without "photos, VIN identification, or proper serial numbers," he could not substantiate whether the trailer belonged to him. He noted that he had owned various pieces of heavy equipment in Colorado, some of which had been stolen. The district court summarily denied the "Motions to Quash" on January 30, 2019.

¶ 9 On February 13, 2019, the district court entered a default order of forfeiture against Vogel pursuant to 16-13-505(8), C.R.S. 2019. The court found that Vogel had received notice of the claim for forfeiture, failed to appear at the January 8 hearing, and failed to file a responsive pleading "accepted by the court." The court ordered that the trailer was forfeited to the State in accordance with sections 16-13-506 and 16-13-316(2), C.R.S. 2019. Further, the court authorized a public sale of the trailer pursuant to section 16-13-311, C.R.S. 2019, with the sale proceeds to be deposited into the court registry for distribution in accordance with section 16-13-311.

¶ 10 Vogel filed motions for an extension of time to appear in the forfeiture case and "properly address this situation with the plaintiff," which the district court received on February 19, 2019, and February 26, 2019. The district court summarily denied both motions. Vogel also filed "Motions to Appeal for Relief" and supporting "Legal Briefs," which the court received on February 19, 2019. The district court interpreted the "Motions to Appeal for Relief" as notices of appeal of the default order of forfeiture and concluded that, because "this [c]ourt has already issued a final, appealable order, any appeal of this [c]ourt's order must be taken to the Colorado Court of Appeals." Vogel filed a pro se notice of appeal in this court on March 25, 2019.

B. The Procedures Governing Civil Forfeiture Actions

¶ 11 Pursuant to a lawful search, a law enforcement officer may seize and hold certain property — including vehicles, personal property, and fixtures — that the officer has probable cause to believe is "contraband." § 16-13-504(1), C.R.S. 2019. Property is "contraband" if it "has been or is being used in any of the acts specified in section 16-13-503 or in, upon, or by means of which any act under said section has taken or is taking place." § 16-13-504(1).

¶ 12 The acts specified in section 16-13-503 include "[e]ngaging in the unlawful manufacture, cultivation, growth, production, processing, or distribution for sale of, or sale of, or storing or possessing for any unlawful manufacture or distribution for sale of, or for sale of, any controlled substance." § 16-13-503(1)(a). Marijuana is a controlled substance. § 18-18-102(5), C.R.S. 2019. Although article XVIII, section 16 of the Colorado Constitution permits the licensed "[c]ultivating, harvesting, processing, packaging, transporting, displaying, or possessing" of marijuana under specified conditions, such activities remain a criminal offense if unlicensed or if they otherwise fall outside the scope of section 16. See § 18-18-406, C.R.S. 2019.

¶ 13 Once contraband is seized, "[a]ll rights and interest in and title to contraband property shall immediately vest in the state ..., subject only to perfection of title, rights, and interests in accordance with this part 5." § 16-13-504(1).

¶ 14 Section 16-13-505 identifies the procedures through which the State can perfect title to contraband under the Colorado Contraband Forfeiture Act (the Act), §§ 16-13-501 to - 511, C.R.S. 2019. See also § 16-13-505(4) (explaining that the Colorado Rules of Civil Procedure apply to forfeiture proceedings in the absence of conflicting language in section 16-13-505).

¶ 15 A prosecuting attorney may initiate a proceeding to perfect title to contraband under the Act by filing a petition and a supporting affidavit containing the information specified in section 16-13-505(2)(a). If, based on the petition and affidavit, the court finds probable cause that the subject property is contraband, as defined in the Act, it shall "issue a citation directed to interested parties to show cause why the property should not be forfeited. The citation shall fix the date and time for a first appearance on the petition." § 16-13-505(2)(b).

¶ 16 A person wishing to contest a forfeiture petition shall, before the "first appearance on the petition," file a response that includes:

(I) A statement admitting or denying the averments of the petition;

(II) A statement setting forth with particularity why the seized property should not be forfeited. The statement shall include specific factual and legal grounds supporting it and any affirmative defense to forfeiture as provided in this part 5;

(III) A list of witnesses whom the respondent intends to call at the hearing on the merits, including the addresses and telephone numbers thereof; and

(IV) A verified statement, supported by documentation, that the claimant is the true owner of the property or an interest therein.

§ 16-13-505(2)(d). No other responsive pleading is permitted. Id. ; see People v. Merrill , 816 P.2d 958, 959 (Colo. App. 1991) (holding that the procedures in the Act are the exclusive means for recovery of an article seized as "contraband property" under section 16-13-504(1) ).

¶ 17 If a claimant to the subject property who has been properly served fails "to appear personally or by counsel on the first appearance date or fails to file a response as required by this section," the court shall "forthwith find said person in default and enter an order forfeiting said person's interest in the property and distributing the proceeds of forfeiture as provided in this part 5." § 16-13-505(8).

¶ 18 Once a default order of forfeiture is entered, it may be set aside only

upon an express finding by the court that a claimant was improperly served through no fault of such claimant and had no notice of the first appearance on the citation or was prevented from appearing and responding due to an emergency situation caused by events beyond such claimant's control when such claimant had made diligent, good faith, and reasonable efforts to prepare a response and appear.

Id.

C. Appeal

¶ 19 Vogel raises several challenges to the default order of forfeiture. We consider only the issues properly presented in this appeal. First, we address whether Vogel complied with the...