Peo v. Vogel , 2020 COA 55 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 26, 2020
2020COA55
No. 19CA0446, Peo v Vogel — No. 19CA0446, Peo v Vogel —
Criminal Law — Colorado Contraband Forfeiture Act —
Forfeiture Proceedings — Default
A division of the court of appeals considers (1) the grounds for
entry of a default order in a civil forfeiture case; (2) the
requirements for setting aside a default order of forfeiture; and (3)
whether the procedures in the Colorado Contraband Forfeiture Act
comport with due process. The division affirms the district court’s
orders entering a default order of forfeiture against respondent and
denying respondent’s motion to set aside the default order.
COLORADO COURT OF APPEALS 2020COA55
Court of Appeals No. 19CA0446
Boulder County District Court No. 18CV31019
Honorable Thomas F. Mulvahill, Judge
The People of the State of Colorado,
Petitioner-Appellee,
v.
William Frederick Vogel,
Respondent-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE LIPINSKY
Fox and Berger, JJ., concur
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
¶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
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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
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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
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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
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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.
5
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
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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
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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.
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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
statutory requirements for responses in civil forfeiture proceedings.
Second, we consider whether the district court erred by entering the
default order of forfeiture. Third, we determine whether the district
court erred by declining to set aside the default order. Fourth, we
address whether the district court’s decision not to set aside the
default order violated Vogel’s due process rights. And fifth, we
address Vogel’s arguments arising under the Fourth and Sixth
Amendments to the United States Constitution.
II. Standards of Review
¶ 20 The district court’s interpretation of the civil forfeiture statutes
is a question of law that we review de novo. Harvey v. Centura
Health Corp. & Catholic Health Initiatives, 2020 COA 18M, ¶ 10, ___
P.3d ___, ___. In construing statutes, we give effect to the General
Assembly’s intent, as determined primarily from the plain language
of the statute; construe the statute as a whole in an effort to give
consistent, harmonious, and sensible effect to all its parts, reading
9
words and phrases in context and according to the rules of
grammar and common usage; do not engage in further statutory
analysis if the statutory language is clear and unambiguous; and
“give effect to every word and render none superfluous.” Id.
(quoting Baum v. Indus. Claim Appeals Office, 2019 COA 94, ¶ 35,
___ P.3d ___, ___).
¶ 21 In contrast, we apply the abuse of discretion standard in
reviewing a district court’s denial of a motion to set aside a default
judgment. Borer v. Lewis, 91 P.3d 375, 379 (Colo. 2004); Meyer v.
Haskett, 251 P.3d 1287, 1292 (Colo. App. 2010); see also People v.
McBeath, 709 P.2d 38, 39 (Colo. App. 1985) (holding that, in civil
forfeiture cases, a trial court has “broad latitude” in permitting a
claimant to file an untimely responsive pleading). A trial court
abuses its discretion “when its decision is manifestly arbitrary,
unreasonable, or unfair.” Meyer, 251 P.3d at 1292.
III. Vogel Failed to Comply with the Statutory Requirements for
Responses in Civil Forfeiture Proceedings
¶ 22 As discussed in Part I.B above, a claimant seeking to prevent
the State from obtaining title to seized property pursuant to a
forfeiture petition must file a response to the prosecuting attorney’s
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petition that satisfies the four requirements enumerated in section
16-13-505(2)(d). See § 16-13-505(2)(d)(I)-(IV).
¶ 23 We consider Vogel’s “Motions to Quash” to constitute a
response to the District Attorney’s petition. Even if we liberally
construe Vogel’s motions, see People v. Bergerud, 223 P.3d 686, 697
(Colo. 2010) (explaining that a court must liberally construe a pro
se party’s pleadings), however, Vogel’s response fell short of the
requirements in section 16-13-505(2)(d). Vogel arguably met the
first two requirements in the statute because, in the motions, he
denied the averments of the District Attorney’s petition and “set[]
forth with particularity why the seized property should not be
forfeited.” § 16-13-505(2)(d)(I), (II). But the “Motions to Quash”
lacked the required witness list and “verified statement, supported
by documentation, that the claimant is the true owner of the
property or an interest therein.” § 16-13-505(2)(d)(III), (IV).
Significantly, Vogel admitted in the motions that, because of his
incarceration in Virginia, he had “no way to know if [the trailer]
belongs to him.”
¶ 24 Because the “Motions to Quash” did not comply with the
statutory requirements for responsive pleadings in civil forfeiture
11
cases, Vogel did not submit a proper response to the District
Attorney’s petition. Despite proceeding pro se, Vogel was required
to follow the law. Viles v. Scofield, 128 Colo. 185, 187, 261 P.2d
148, 149 (1953) (“If a litigant, for whatever reason, sees fit to rely
upon his own understanding of legal principles and the procedures
involved in the courts, he must be prepared to accept the
consequences of his mistakes and errors.”).
¶ 25 The district court therefore properly denied Vogel’s “Motions to
Quash.” See § 16-13-505(8); see also Merrill, 816 P.2d at 961(holding that the trial court did not err in rejecting a response to a
civil forfeiture petition that did not allege an interest in the
purported contraband and was neither verified nor supported by
documentation).
¶ 26 Because the district court properly denied Vogel’s “Motions to
Quash,” we need not consider whether the motions were timely filed
or whether the service on Vogel in Virginia only five days before the
hearing frustrated the General Assembly’s intent to provide
claimants with sufficient time to respond to petitions before a
scheduled hearing. See § 16-13-505(2)(b) (requiring that a hearing
be set no earlier than thirty-five days from the date of issuance of
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the citation, but not prescribing a minimum number of days
between service on the respondent and the hearing). Vogel
apparently placed the motions in the mail only four days after he
was served and one day before the hearing on the petition. See
C.R.C.P. 5(f) (“Except where personal service is required, a pleading
or paper filed or served by an inmate confined to an institution is
timely filed or served if deposited in the institution’s internal
mailing system on or before the last day for filing or serving. If an
institution has a system designed for legal mail, the inmate must
use that system to receive the benefit of this rule.”). But whether
timely or not, Vogel’s response to the District Attorney’s petition fell
short of satisfying the statutory requirements.
IV. The District Court Properly Entered the Default Order
Forfeiting Vogel’s Interest in the Trailer
¶ 27 Section 16-13-505(8) requires that a court find a claimant in a
civil forfeiture hearing in default if the claimant “is properly served
with the citation . . . and fails to appear . . . on the first appearance
date or fails to file a response as required by this section.” See
People v. Davenport, 998 P.2d 473, 475 (Colo. App. 2000) (“The
unambiguous language of § 16-13-505(8) imposes alternative, not
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cumulative, requirements, and in that circumstance we must apply
the statute as written.”). Thus, Vogel was not required to appear at
the January 8, 2019, hearing if, before the hearing, he submitted a
response that complied with section 16-13-505(2)(d). But, as noted
above, Vogel did not file a proper response. For this reason, the
district court did not err by entering the default order forfeiting
Vogel’s claimed interest in the trailer. See § 16-13-505(8).
V. The District Court Did Not Err by Declining to Set Aside the
Default Order
¶ 28 A court may set aside a default order of forfeiture if the court
expressly finds that the claimant was improperly served and had no
notice of the hearing, or the claimant “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.” § 16-13-505(8).
¶ 29 Vogel’s “Motions to Appeal for Relief” could be construed as
either a motion to set aside the default order of forfeiture or a notice
of appeal. The district court concluded that the motions were the
equivalent of a notice of appeal. The court, therefore, declined to
14
take action on the motions and informed Vogel that, to appeal the
order of default, he was required to file an appeal with the Colorado
Court of Appeals. Even if the district court misconstrued the
motions, and Vogel instead filed a motion to set aside the default
order of forfeiture, the “Motions to Appeal for Relief” and “Legal
Briefs” did not comply with the requirements contained in section
16-13-505(8) for setting aside a default order of forfeiture.
¶ 30 Because Vogel admits he was served with the petition, the
supporting affidavit, and the citation to show cause on January 3,
2019, and because he did not file a proper response to the petition,
he can succeed in setting aside the default order of forfeiture only if
he can establish that he “was prevented from appearing and
responding due to an emergency situation caused by events beyond
[his] control.” § 16-13-505(8).
¶ 31 Although Vogel was incarcerated at the time he was served,
the record shows that Vogel was capable of filing, and did file,
documents with the district court. He is in default not because his
incarceration prevented him from “appearing and responding,” but
because the documents he filed did not comply with the statutory
requirements, even if we were to assume they were timely.
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¶ 32 Thus, Vogel was not entitled to an order setting aside the
default order of forfeiture.
VI. The Denial of Vogel’s Request to Set Aside the Default Order of
Forfeiture Did Not Violate His Due Process Rights
¶ 33 We consider Vogel’s assertion that entry of the default order of
forfeiture violated his due process rights, even though he did not
support that argument with a substantive legal argument. See
C.A.R. 28(a)(7)(B) (explaining that an appellant must provide
“reasoning, with citations to the authorities and parts of the record
on which the appellant relies”). Because, as noted above, we
construe Vogel’s assertions liberally, see Bergerud, 223 P.3d at 696,
we address his cursory due process argument on the merits — to
the extent we understand it.
¶ 34 “[D]ue process requires an opportunity for a hearing before a
deprivation of property takes effect.” Fuentes v. Shevin, 407 U.S.
67, 88 (1972).
The right to prior notice and a hearing is
central to the Constitution’s command of due
process. “The purpose of this requirement is
not only to ensure abstract fair play to the
individual. Its purpose, more particularly, is
to protect his use and possession of property
from arbitrary encroachment — to minimize
16
substantively unfair or mistaken deprivations
of property.”
United States v. James Daniel Good Real Prop., 510 U.S. 43, 53
(1993) (quoting Fuentes, 407 U.S. at 80-81).
¶ 35 “The essence of due process is the requirement that ‘a person
in jeopardy of serious loss [be given] notice of the case against him
and opportunity to meet it.’” Mathews v. Eldridge, 424 U.S. 319,
348 (1976) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S.
123, 171-72 (1951) (Frankfurter, J., concurring)). In a civil
forfeiture case, “due process requires that a prompt post-seizure
retention hearing before a neutral magistrate be afforded, with
adequate notice, to all [claimants] . . . .” County of Nassau v.
Canavan, 802 N.E.2d 616, 625 (N.Y. 2003).
¶ 36 Under the Act, Vogel was entitled to receive — and did receive
— sufficient notice of the civil forfeiture proceeding. He admittedly
was served with the District Attorney’s petition, the supporting
affidavit, and the citation to show cause. Through those
documents, Vogel received actual notice of
 the nature of the proceeding;
 the relief sought;
17
 the legal basis for the District Attorney’s case;
 the factual allegations underlying the District
Attorney’s contention that the trailer was
contraband under section 16-13-503 because it was
used in a marijuana grow operation;
 a description of the trailer;
 the date, time, and location of the show cause
hearing;
 the deadline for Vogel’s response to the petition; and
 information about Vogel’s right to seek a
continuance of the hearing.
No more is required to satisfy due process. See James Daniel Good
Real Prop., 510 U.S. at 53.
¶ 37 Thus, the entry of the default order of foreclosure did not
violate Vogel’s due process rights.
VII. Vogel’s Arguments Under the Fourth and Sixth Amendments
Fail
¶ 38 Vogel’s arguments arising under the Fourth and Sixth
Amendments lack merit on their face. Vogel argues that the search
that resulted in the seizure of his trailer was unlawful because
18
there was no proof of a valid warrant and the search had not been
“proven . . . reasonable.” We disagree.
¶ 39 The affidavit supporting the petition explained that the search
warrant was the product of an investigation stemming from a
confidential informant’s tip, as well as other information. A
detective on the Boulder Country Drug Task Force prepared the
warrant, which specified the place to be searched and the things to
be seized, and a judge for the Twentieth Judicial District authorized
it. See People v. Gall, 30 P.3d 145, 149 (Colo. 2001)
(“[W]arrants . . . must particularly describe the place to be searched
and the person or things to be seized.”). Because Vogel provides no
further information to challenge the validity of the warrant, we
conclude that Vogel’s argument lacks merit.
¶ 40 Additionally, the district court’s order of default did not violate
Vogel’s Sixth Amendment right to counsel because Vogel was not
entitled to appointed counsel in the civil forfeiture proceeding. See
People v. $30,000 U.S. Currency, 41 Cal. Rptr. 2d 748, 752 (Ct. App.
1995) (“[M]ost courts to have considered the issue . . . have
concluded that an indigent party to a civil forfeiture proceeding
does not have the right to appointed counsel.”).
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VIII. Conclusion
¶ 41 The default order of forfeiture is affirmed.
JUDGE FOX and JUDGE BERGER concur.
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