Allman v. People

• Decision Date: 23 September 2019
• Docket Number: Supreme Court Case No. 17SC659
• Citation: 451 P.3d 826
• Parties: Frederick Leroy ALLMAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

451 P.3d 826

Frederick Leroy ALLMAN, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 17SC659

Supreme Court of Colorado.

September 23, 2019

Petition for Rehearing Denied November 25, 2019

Attorneys for Petitioner: Law Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 Frederick Leroy Allman was convicted of seven counts of identity theft, two counts of forgery, and one count each of attempted identity theft, aggravated motor vehicle theft, and theft from an at-risk elder.¹ He was sentenced to a total of fifteen years in the Department of Corrections ("DOC"), followed by a five-year period of parole. Then, on one of the forgery counts, he was sentenced to ten years of probation to be served consecutively to his DOC sentence, but concurrently with his mandatory parole. Allman appealed his convictions for identity theft² and raised several issues regarding his sentencing. The court of appeals affirmed the judgment and sentence, and Allman petitioned this court for review.

¶2 In his petition, Allman contends as follows: (1) identity theft is a continuing offense; (2) because identity theft is a continuing offense, his convictions for the eight identity theft counts should have merged at sentencing; (3) some of his convictions were based on identical evidence and thus require concurrent sentences; and (4) the court could not legally sentence him to both imprisonment and probation for different counts in the same case.³

¶3 We first hold that the crime of identity theft under section 18-5-902(1)(a), C.R.S. (2019), is not a continuing offense. We therefore conclude that the trial court did not abuse its discretion in sentencing Allman separately on the eight counts of identity theft. Next, we determine that none of the evidence supporting the identity theft counts and the forgery counts is identical; hence, it was within the trial court’s discretion whether to sentence Allman to consecutive sentences on those counts. Finally, we hold that when a court sentences a defendant for multiple offenses in the same case, it may not impose imprisonment for certain offenses and probation for others.⁴ Thus, we affirm the judgment of the court of appeals in part, reverse in part, and remand with instructions to return the case to the trial court for resentencing consistent with this opinion.

I. Facts and Procedural History

¶4 Allman met L.S., a seventy-five-year-old man, through a meet-up group for older people; Allman introduced himself as John Taylor. Some time after meeting L.S., Allman claimed to be having difficulties with his living situation and asked L.S. for a place to stay. L.S. agreed. After Allman had lived with L.S. for five months, L.S. left for a three-week vacation.

¶5 While L.S. was away, Allman used L.S.’s financial information to repeatedly transfer funds out of L.S.’s bank account. Allman also used L.S.’s personal identifying information to open three credit cards and three separate lines of credit. Allman attempted to open a fourth credit card, but the issuing bank denied the application. After making multiple purchases with the credit cards totaling over $45,000, Allman moved out of L.S.’s home, taking a car owned by L.S.

¶6 Allman was charged with multiple crimes arising out of his conduct, and a jury found him guilty of all charges. At sentencing, the trial court imposed consecutive sentences to the DOC for three counts of identity theft (two years each), one count of theft from an at-risk elder (seven years), and one count of aggravated motor vehicle theft (two years), totaling fifteen years in custody of the DOC. The seven-year sentence imposed for theft from an at-risk elder included the maximum period of mandatory parole (five years). The court then imposed two-year sentences for each of the four remaining counts of identity theft and one count of forgery, as well as a one-year sentence for attempted identity theft; these sentences ran concurrently with the combined fifteen-year sentence imposed on the other counts. Finally, the court sentenced Allman to ten years of probation for the second forgery count, to run consecutively to Allman’s DOC sentences, but concurrently with Allman’s period of parole. The court set restitution in the amount of $59,758.95 as an express condition of Allman’s probation.

¶7 Allman appealed, contending, as he does here, that identity theft is a continuing offense; that many of his convictions were based on identical evidence and require concurrent sentences; and that he could not be sentenced to incarceration and probation for different counts in the same case. The court of appeals rejected all of Allman’s claims and affirmed his sentences. We granted certiorari and now affirm in part, reverse in part, and remand with instructions to return the case to the trial court for resentencing.

II. Analysis

¶8 We first determine whether the crime of identity theft, as laid out in section 18-5-902(1)(a), is a continuing offense. We hold that it is not. Next, we address Allman’s contentions that his convictions for identity theft, as well as his convictions for forgery and one of his identity theft convictions, should have merged and that his sentences were required to run concurrently. Because identity theft is not a continuing offense, we conclude that the trial court did not abuse its discretion in refusing to merge Allman’s convictions for identity theft, and because the relevant identity theft and forgery convictions are not based on identical evidence, we conclude that they did not require concurrent sentences. Finally, we hold that when a court sentences a defendant for multiple offenses in the same case, it may not impose imprisonment for certain offenses and probation for others.

A. Identity Theft Is Not a Continuing Offense

¶9 Allman contends that identity theft is a continuing offense, meaning that his eight separate identity theft charges were actually part of a continuous transaction and are therefore one crime. As such, Allman contends that the identity theft charges should have been merged at sentencing to avoid violating his protection against double jeopardy.

¶10 Determining whether an offense is continuing is a matter of statutory interpretation, which we review de novo. See People v. Perez , 2016 CO 12, ¶ 8, 367 P.3d 695, 697.

¶11 "The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused from being placed in jeopardy twice for the same offense," People v. Williams , 651 P.2d 899, 902 (Colo. 1982) ; this includes protection against receiving multiple punishments for the same offense, id. (citing Brown v. Ohio , 432 U.S. 161, 165–66, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ). When the legislature creates an offense, that offense is deemed committed once all the substantive elements set forth by the legislature are satisfied. See People v. Thoro Prods. Co. , 70 P.3d 1188, 1192 (Colo. 2003). "However, in certain circumstances, a crime continues beyond the first moment when all its substantive elements are satisfied," and it is deemed a continuing offense. Id. If a "series of repeated acts ... are charged as separate crimes even though they are part of a continuous transaction and therefore actually one crime," Woellhaf v. People , 105 P.3d 209, 214 (Colo. 2005), those convictions must be merged at sentencing to avoid violating the U.S. and Colorado Constitutions’ Double Jeopardy Clauses. Thus, to determine whether a defendant’s protection against double jeopardy has been violated "[i]n these situations, the inquiry is whether the [legislature] has defined the crime as a continuous course of conduct." Id. at 214–15.

¶12 A crime is deemed continuous when "the explicit language of the substantive criminal statute compels such a conclusion." Toussie v. United States , 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). For example, when defining conspiracy, the legislature explicitly stated that "[c]onspiracy is a continuing course of conduct." § 18-2-204(1), C.R.S. (2019). If the explicit language of the statute does not compel such a conclusion, a crime is deemed continuous if "the nature of the crime involved is such that [the legislature] must assuredly have intended that it be treated as a continuing one." Toussie , 397 U.S. at 115, 90 S.Ct. 858. In this analysis, we construe the statute to give effect to the legislature’s intent.

¶13 When construing a statute to give effect to the legislature’s intent, we first look to the statute’s text and "apply the plain and ordinary meaning of the provision." Perfect Place, LLC v. Semler , 2018 CO 74, ¶ 40, 426 P.3d 325, 332. In doing so, we consider "the statute as a whole, construing each provision consistently and in harmony with the overall statutory design." Whitaker v. People , 48 P.3d 555, 558 (Colo. 2002).

¶14 The statute at issue here is section 18-5-902(1)(a). It prohibits a person from knowingly using another’s personal or financial information, without permission, and with the intent to obtain something of value:

A person commits identity theft if he or she ... [k]nowingly uses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority with the intent to obtain cash, credit, property, services, or any other thing of value or to make a financial payment....⁵

§ 18-5-902(1)(a). Unlike statutes that explicitly define the crime as "a continuing course of conduct," the identity theft statute contains no language that explicitly defines identity theft as a continuing offense. Thus, we must look to the alternative test to determine whether, based on the nature of the crime, the legislature nevertheless assuredly intended that identity theft be treated as a continuing...