Opinion
No. 10-457.
November 3, 2010. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2009-2791 "L" HONORABLE MARILYN CASTLE, DISTRICT JUDGE.
Terence Paul Sias, In Proper Person, Lafayette, Louisiana, DEFENDANT/APPELLANT.
Michael Harson, District Attorney — Fifteenth Judicial District, Ronald E. Dauterive — Assistant District Attorney, Lafayette, Louisiana, COUNSEL FOR APPELLEE: State of Louisiana.
Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
In this forfeiture proceeding instituted by the State of Louisiana under the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, Terence Paul Sias appeals the seizure of $1,171.00 in cash. For the following reasons, we affirm.
Louisiana Revised Statutes 40:2601-2622 set forth the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989.
This court notes that throughout the record, Defendant's name is alternatively spelled "Terrance" and "Terence." Considering the spelling used by Defendant and for consistency with a prior writ disposition concerning Defendant, his name will be spelled "Terence" throughout this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The Marshall's Office for the City of Lafayette, Louisiana, seized the $1,171.00 in cash at issue herein from Terence Paul Sias. On April 2, 2009, Judge Marilyn Castle of the Louisiana District Court for the Fifteenth Judicial District signed a Seizure Warrant, finding probable cause that the currency was subject to forfeiture based on the averred facts in the supporting affidavit of Deputy City Marshall Shane P. Duplechin. According to the affidavit:
[O]n March 19, 2009[,] Deputy Marshall Shane P. Duplechin received reliable information about narcotic activity that was continuously taking place in the 200 block of East Clinton Street, which is located in the City of Lafayette. Deputy Duplechin drove the informant to East Clinton Street and the informant told Deputy Duplechin that the address where narcotics were being sold out of was 231 East Clinton Street. Deputy Duplechin and the informant left the area. On the morning of March 20, 2009[,] at approximately 10:54 a[.]m[.], Deputy Duplechin began conducting surveillance from a concealed area across the street from 231 East Clinton Street. While watching the house[,] Deputy Duplechin observed a white male and a black male standing on the front porch of the residence. Deputy Duplechin noticed a blue car parked in the driveway of the residence with two people sitting inside the car. Deputy Duplechin observed the black male suspect place something in the while male subject's hand. The white male subject then looked at his palm and closed his hand and began to walk back to his car. From experience in working high crime and high drug areas, Deputy Duplechin informed Deputy Jeffery Mahler[,] who was waiting around the corner, that a hand to hand drug transaction had possibly taken place and to drive up to the residence. Deputies then began running to the residence from across the street. While [the deputies were] running towards the house[,] the black male subject quickly got off of the front porch and began to "fast walk" between his house and the neighbor's house. Deputy Duplechin [lost sight] of the black male for approximately four seconds. As Deputy Duplechin rounded the corner of the house, the black male subject was observed standing next to a fence that separates 231 East Clinton and a neighbor's house. Deputy Mahler arrived on [the] scene and detained the white male, while Deputy Duplechin detained the black male subject. Deputy Duplechin then identified that black male as [Terence] Sias and the white male as Troy Shay. Deputy Duplechin then Mirandized both subjects and informed them [of] the reason for the investigation. Before questions were asked, Deputy Duplechin separated both subjects. Deputy Duplechin first spoke to [Terence] Sias and told him about the hand to hand transaction that was observed, and asked him for an explanation of what was going on. Mr. Sias stated that Mr. Shay was just visiting and that deputies didn't see a drug transaction. Deputy Duplechin then went and spoke with Troy Shay and told him what deputies thought occurred and that it was in his best interest to be honest with [the] deputies. Troy Shay told deputies that he was given two rocks of crack cocaine by Mr. Sias[] and that he swallowed them when he saw deputies running up to the residence. Deputy Duplechin then walked to where Terence Sias was standing between the houses and began looking for crack cocaine. Deputy Duplechin looked across the hurricane fence into the neighbor's yard and observed a prescription pill bottle. Deputy Duplechin retrieved the pill bottle and observed several rocks of crack cocaine inside. Deputy Duplechin also observed that the bottle was clean of any dust, pollen, dirt, or morning dew that would have been on the bottle if it was there for an extended amount to time. Deputy Duplechin then advised Terence Sias that he was under arrest for distribution of crack cocaine. A FIELD TEST WAS MADE OF THE CONTENTS AND RESULTED IN A POSITIVE READING FOR COCAINE. Deputy Duplechin then searched Terence Sias once he was placed under arrest. Once the contents were taken out of Mr. Sias' pockets, it was observed that he had a large amount of cash on him. Terence Sias stated that some of the money was from him working at Red's. Deputy Duplechin did observe a check stub from Red's in the amount of $365.00 with the date of 3-20-09 and check number 44130, but the money was separated from the check stub. The money was counted and had a total of $1,171.00 dollars (2 $100.00 bills, 1 $50.00 bill, 36 $20.00 bills, 8 $10.00 bills, 23 $5.00 bills, 2 $2.00 bills and 2 $1.00 bills). Deputy Duplechin knew the female inside of the car and knew that she was previously arrested for warrants on narcotics. She told Deputy Duplechin that they were there to "score crack cocaine." The crack cocaine was weighed by Deputy Maher [sic] and found to weight [sic] 1.2 grams. Terence Sias was given a receipt for the $1,171.00 seized. According to records available on Terence Sias, he is on parole for Possession With Intent to Deliver Cocaine from a conviction on 2-23-2000.
Mr. Sias personally accepted service of the Notice of Pending Forfeiture on April 2, 2009. Said notice contained the entire text of La.R.S. 40:2610 wherein he was informed of the procedure he must follow in order to preserve any right that he may have to the $1,171.00 and of the resulting consequences if such steps were not taken.
Louisiana Revised Statutes 40:2610 provides:
A. Only an owner of or interest holder in property seized for forfeiture may file a claim, and shall do so in the manner provided in this Section. The claim shall be mailed to the seizing agency and to the district attorney by certified mail, return receipt requested, within thirty days after Notice of Pending Forfeiture. No extension of time for the filing of a claim shall be granted.
B. The claim shall be in affidavit form, signed by the claimant under oath, and sworn to by the affiant before one who has authority to administer the oath, under penalty of perjury or false swearing and shall set forth all of the following:
(1) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
(2) The address where the claimant will accept mail.
(3) The nature and extent of the claimant's interest in the property.
(4) The date, identity of the transferor, and the circumstances of the claimant's acquisition of the interest in the property.
(5) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
(6) All essential facts supporting each assertion.
(7) The specific relief sought.
On May 8, 2009, the State filed a Petition for Forfeiture, asserting "[l]egal delays for making a claim or otherwise disputing the seizure have elapsed with no action taken toward the property in question." The trial court signed a Judgment of Forfeiture the same day.
The record indicates that it was not until August 14, 2009, that Mr. Sias ultimately filed a Motion for Release of Seized Property, seeking the return of the seized currency. In his appeal filed with this court, without specifically identifying any assignments of error, Mr. Sias basically raises issues of whether probable cause existed for the issuance of the Seizure Warrant on April 2, 2009, and whether the currency was contraband. Because he has failed to timely file a claim for relief from the seizure of the $1,171.00 in question, for the reasons set forth below, the issues raised by Mr. Sias need not be addressed by this court.
In State v. 2003 Infiniti G35 VIN No. JNKCV51E93MO24167 , 09-1193, p. 14 (La. 1/20/10), 27 So.3d 824, 834, our supreme court declared:
The mandatory, plain-language requirements for the filing of a timely, valid claim or request for stipulation are clear and, if not met, carry significant consequences. [Louisiana Revised Statutes] 40:2610 clearly establishes a thirty-day filing deadline that cannot be extended under any circumstances; prescribes the necessary form of the claim; and sets forth the required content of the averments with unambiguous specificity. The failure to fulfill any of these requirements-whether it be missing the deadline, filing a claim not in affidavit form, or not setting forth the necessary averments-precludes the owner or interest holder from further participation in the forfeiture proceeding.
Mr. Sias failed to comply with the mandate of La.R.S. 40:2610(A) which required that he file a claim within thirty days of his receipt of the Notice of Pending Forfeiture. His claim was untimely; therefore, we find that his appeal is without merit.
We note that Mr. Sias has filed with this court a Request for Entry of Default. There is no such procedure for "requesting" a default judgment in an appellate court; therefore, said request was not considered by this court.
DECREE
For the foregoing reasons, we affirm the Judgment of Forfeiture signed by the trial court on May 8, 2009. Costs of this appeal are assessed to Defendant/Appellant, Terence Paul Sias.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules — Courts of Appeal, Rule 2-16.3.