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State v. One 2002 Dodge Intrepid Auto.

Supreme Court of North Dakota

December 19, 2013

STATE of North Dakota, Appellee and Plaintiff
v.
ONE 2002 DODGE INTREPID AUTOMOBILE, Defendant. Kawo Otis Flah, Interested Party and Appellant.

Page 240

Dawn M. Deitz, Assistant State's Attorney, Bismarck, ND, for appellee and plaintiff.

Kawo O. Flah, self-represented, Jamestown, ND, interested party and appellant; submitted on brief.

KAPSNER, Justice.

[¶ 1] Kawo Otis Flah appeals from a district court order mandating forfeiture of a 2002 Dodge Intrepid. Because Flah's due process rights were violated when the notice to appear was mailed to Flah at a residential address rather than at his in-custody address, we reverse the district court judgment and remand for proceedings consistent with this opinion.

I

[¶ 2] On April 30, 2012, Flah participated in the controlled sale of marijuana to a confidential informant. Flah was charged with delivery of a controlled substance and conspiracy to deliver a controlled substance and was taken into custody. Flah remained in custody at all times relevant to this appeal, and his criminal case proceeded in Burleigh County District Court. On August 16, 2012, the Burleigh County

Page 241

sheriff personally served Flah with a summons and complaint for forfeiture at the Burleigh County Detention Center.[1] Flah responded, objecting to the forfeiture, and the district court treated this response as an answer by an interested party.

[¶ 3] A notice to appear for a forfeiture hearing, dated March 28, 2013, was mailed by the calendar clerk of Burleigh County District Court to Flah at a residential address in Bismarck. On April 3, 2013, the notice to appear, marked " Moved left no address, unable to forward, return to sender," was returned to the district court. The calendar clerk then sent the notice to appear to a Minneapolis address.

[¶ 4] On May 9, 2013, a forfeiture hearing was held, at which the Burleigh County State's Attorney's Office presented evidence in support of forfeiture. Flah did not appear at this hearing. The testimony at the forfeiture hearing demonstrated that Flah had previously been tried on controlled substances charges and was found guilty of those charges. The court found that the defendant vehicle had been used to transport or deliver controlled substances, forfeited the vehicle, and awarded it to the Metro Area Narcotics Task Force. Copies of the findings of fact, conclusions of law, and order for judgment and the judgment were mailed to Flah at the same residential address as the notice to appear.

[¶ 5] Flah's appeal indicates he did not receive the notice to appear and was unaware of the forfeiture hearing until after it occurred. In late May and early June of 2013, he requested case summaries from the clerk of the Burleigh County District Court, at which time he learned that the forfeiture hearing had been held.

II

[¶ 6] On appeal from the district court's order, Flah argues his due process rights were violated when the notice to appear was mailed to a residential address rather than to Flah's in-custody address. Although an order for judgment is not appealable, " [a]n attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists." Lund v. Lund,2011 ND 53, ¶ 5, 795 N.W.2d 318 (citations omitted). Generally, this Court does not address issues that were not raised below unless the alleged error was obvious. See State v. Parisien, 2005 ND 152, ¶ 17, 703 N.W.2d 306. The party raising obvious error has the burden of establishing plain error that affects substantial rights. Id. (citing State v. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d ...


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