Opinion
No. 5-938 / 04-1860
Filed February 1, 2006
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrum and Don C. Nickerson, Judges.
Kenneth Utsler appeals from the forfeiture ruling of the district court. AFFIRMED.
Cathleen Siebrecht of Siebrecht Siebrecht Law Firm, Des Moines; and Ryan J. Ellis, Indianola, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and Robert Diblasi and Daniel Voogt, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Kenneth Utsler appeals from the forfeiture ruling of the district court. We affirm.
I. Background Facts and Proceedings.
On July 27, 2004, Kenneth Utsler received a copy of the State's In Rem Forfeiture Complaint against (1) $3,419.00 cash, (2) a 1998 Chevy Blazer, and (3) a 1984 Chevy Corvette. The complaint alleged these items were either proceeds of criminal activity, or otherwise used in the commission of a crime. On August 16, 2004, Utsler filed his resistance to the forfeiture complaint, contending the items were not subject to forfeiture because they were obtained through legitimate employment and were never used in the commission of any crime.
Utsler's counsel filed a Motion to Continue the hearing scheduled for September 24, 2004, indicating he would be available for hearing on October 8. A continuance was granted, but the hearing was rescheduled for October 15. Utsler's counsel again requested a continuance of the hearing by filing a motion with the Clerk of District Court on October 13. The court was not provided a copy of this second motion for continuance prior to commencement of the forfeiture hearing scheduled on October 15.
On the morning of the forfeiture hearing, a court attendant telephoned Utsler's counsel's office to remind counsel of the hearing scheduled for that afternoon. Counsel's staff apparently indicated their awareness of the hearing, but informed the attendant that a motion to continue had been filed. Neither Utsler nor his counsel appeared for the hearing on October 15.
After concluding adequate notice of the October 15 hearing date had been provided to Utsler, the district court received testimony from the State's witnesses concerning the property's substantial criminal connection and ordered forfeiture.
The 1984 Corvette was used by Utsler in an attempt to elude police. Utsler, a convicted felon, was in possession of a firearm at the time he led police on a high speed chase. At the time it was seized by police, the 1998 Blazer contained a myriad of ingredients and precursors necessary for methamphetamine manufacture, including anhydrous ammonia and over 200 pseudoephedrine pills. Evidence was presented tending to show Utsler purchased the Blazer with over $7,000 cash. Utsler reported employment earnings of $290 from 1993 to 2004.
On October 19, 2004, counsel for Utsler filed a motion to set aside the ruling, claiming Utsler was denied due process of law as a consequence of the ex parte forfeiture hearing. Noting that both Utsler and his counsel were notified of the October 15 hearing and that Utsler had not obtained a ruling on the motion for continuance filed on October 13, the district court refused to set aside the forfeiture ruling.
Utsler next filed a motion urging the district court to expand its reasons for the forfeiture. A hearing on the motion to expand was scheduled, but was later cancelled after Utsler filed his notice of appeal. On appeal, Utsler contends (1) the ex parte forfeiture hearing denied him due process, and (2) the district court abused its discretion in refusing to set aside the forfeiture.
II. Scope and Standards of Review.
We review de novo the constitutionality of a civil forfeiture of property with an established connection to criminal activity. In re Property Seized from Terrell, 639 N.W.2d 18, 21 (Iowa 2002).
We review the district court's refusal to grant Utsler's motion to set aside the forfeiture for correction of errors of law, and we will only reverse if there is an abuse of discretion. Brandenburg v. Feterl Mfg. Co., 603 N.W.2d 580, 585 (Iowa 1999). Generally, after viewing the evidence in the light most favorable to the ruling, "we find such an abuse only when there is a lack of substantial evidence to support the district court's ruling" Central Nat. Ins. Co. of Omaha v. Insurance Co. of North America, 513 N.W.2d 750, 753-54 (Iowa 1994).
III. Discussion.
Due process implicates two fundamental requirements: notice and the opportunity to be heard. In re K.L.C., 372 N.W.2d 223, 226 (Iowa 1985). Utsler does not suggest on appeal that he was denied notice of the October 15 forfeiture hearing, as he was clearly aware of the hearing date when the second motion to continue was filed on October 13. We therefore must decide whether his opportunity to defend against the State's complaint was improvidently denied by the district court.
In deciding this question, we note that the district court exercises considerable discretion in deciding whether sufficient reasons justify a continuance. See State v. Teeters, 487 N.W.2d 346, 348 (Iowa 1992) (noting that a ruling denying a motion for continuance is discretionary in nature and calls for reversal only upon a showing of abuse of discretion). As the discretionary nature of a ruling on a motion for continuance readily suggests, a continuance is not a matter of right, but rather of merit. It is not the duty of the district court to anticipate a party's intention to seek a continuance; rather it is the party's duty to file the motion in a timely fashion and obtain a ruling thereon. See Greif v. K-Mart Corp., 404 N.W.2d 151, 154 (Iowa 1987) (stating that plaintiff has affirmative obligation to obtain a continuance to avoid dismissal of a claim).
Utsler filed a motion for continuance just two days before the October 15 hearing was to take place. This "late hour" filing should have itself raised some concern on the part of counsel about whether relief would be granted. Whatever assumption Utsler's counsel might have harbored about the likelihood of a second continuance of the forfeiture hearing should have evaporated when the court's attendant called to deliver the message that the hearing would proceed as scheduled that afternoon. We find Utsler's failure to participate in the hearing was the result of his counsel's unfortunate assumption that a continuance would be granted in response to the second motion for continuance. We therefore conclude no violation of Utsler's due process rights was occasioned by the ex parte forfeiture hearing.
We likewise find no abuse of discretion in the district court's ruling on Utsler's motion to set aside the forfeiture. As noted above, we are convinced Utsler was afforded both reasonable notice of the hearing and an opportunity to be heard. The State presented evidence tending to prove that each item seized was forfeitable under Iowa Code chapter 809A (2003). We conclude the district court did not abuse its discretion in refusing to set aside the forfeiture.