State v. Notice ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In the Matter of:
ONE HUNDRED SEVENTY-SEVEN DOLLARS ($177.00) IN U.S.
CURRENCY, et al., IN REM
__________________________________________________________
STATE OF ARIZONA, Plaintiff/Appellee,
v.
CHRISTOPHER ALEXANDER NOTICE, Claimant/Appellant.
No. 1 CA-CV 15-0185
FILED 2-11-2016
Appeal from the Superior Court in Maricopa County
No. CV2014-013833
The Honorable James R. Morrow, Judge Pro Tempore
APPEAL DISMISSED
COUNSEL
Christopher A. Notice, Marana
Claimant/Appellant
Arizona Attorney General’s Office, Phoenix
By Eric Rothblum, Kenneth R. Hughes
Counsel for Plaintiff/Appellee
STATE v. NOTICE
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.
P O R T L E Y, Judge:
¶1 Christopher A. Notice appeals the forfeiture of $6406 in U.S.
currency. For the following reasons, we dismiss the appeal.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 Law enforcement surveillance officers were following Notice,
who had been identified as the partner of a known marijuana and cocaine
supplier. On August 30, 2011, they stopped Notice, while he was driving
the supplier’s car. During the traffic stop, they found marijuana in the
center console of the car. They arrested Notice, searched him incident to
the arrest, and found $6406 on his person. After the arrest, the officers went
to the apartment Notice had left just before the traffic stop, and found
packaging material consistent with the transportation of marijuana.
¶3 The State filed an amended notice of forfeiture in November
2014, and personally served Notice on December 3, 2014. He did not
respond even though the amended notice included instructions, which
directed him to file a verified claim in the superior court. The State
subsequently filed an application for an order of forfeiture of the unclaimed
money, and the court granted a forfeiture judgment. Notice now appeals
the judgment.
DISCUSSION
¶4 Notice claims he is entitled to recover the money taken from
his person. Specifically, he claims that he responded to the amended notice
of forfeiture by mailing a letter to the Attorney General’s office on
December 15, 2014. We disagree.
1 “We view the facts in the light most favorable to sustaining the verdict
reached by the trial court.” In re 4030 W. Avocado, 184 Ariz. 219, 219, 908
P.2d 33, 33 (App. 1995).
2
STATE v. NOTICE
Decision of the Court
¶5 In Arizona, “[a]ny party aggrieved by a judgment” can file an
appeal. ARCAP 1(d). However, because the State sought to forfeiture
Notice’s property, the $6406, the action was a judicial in rem proceeding.
See State v. 1810 E. Second Ave., 193 Ariz. 1, 3, 969 P.2d 166, 168 (App. 1997).
In order to become a party to the proceeding and challenge the forfeiture,
Notice was required to follow the statute; that is, file a claim with the
superior court, and seek a hearing to prove the validity of his claim. Ariz.
Rev. Stat. (“A.R.S.”) § 13-4311(D).2
¶6 Although Notice sent a letter with the Attorney General’s
Office, he did not comply with the statute, nor with the instructions in the
amended notice. His letter was not signed under penalty of perjury, was
not filed with the superior court, nor was it mailed to the seizing agency.
A.R.S. § 13-4311(D) - (F). As a result, the letter was, as a matter of law,
ineffective to make him a party to the in rem proceeding. See 1810 E. Second
Ave., 193 Ariz. at 6, 969 P.2d at 171; In re $70,269.91 in U.S. Currency, 172
Ariz. 15, 19, 833 P.2d 32, 36 (App. 1991) (“To contest a forfeiture action, one
must be a party to the action and have standing. . . . In a civil forfeiture
action, one acquires standing by alleging an interest in the property.”).
Consequently, because Notice did not properly challenge the forfeiture
action before the superior court, he does not have standing to challenge the
judgment by an appeal.
CONCLUSION
¶7 For the foregoing reasons, we dismiss the appeal challenging
the forfeiture judgment.
:ama
2 We cite the current version of the statute unless otherwise noted.
3