People v. Gardner

Decision Date22 April 2010
Docket NumberNo. 09CA0085.,09CA0085.
Citation250 P.3d 1262
PartiesThe PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Jeremy GARDNER, Defendant–Appellant.
CourtColorado Court of Appeals


John W. Suthers, Attorney General, Corelle M. Spettigue, Assistant Attorney General, Denver, Colorado, for PlaintiffAppellee.Jeremy Gardner, Pro Se.Opinion by Judge LICHTENSTEIN.

Defendant, Jeremy Gardner, appeals the district court's denial of his motion for postconviction relief under Crim. P. 35(c), following the entry of guilty pleas. We affirm the district court's order in part, reverse it in part, and remand for proceedings consistent with this opinion.

I. Background

In May and October 2005, the prosecution filed four cases against Gardner alleging theft, forgery, and fraud by check. These charges stemmed from allegations that Gardner overstated or misrepresented the amount of accounts receivable for his company, Cutting Edge Fabrication, to various factoring companies and other entities in order to obtain funding based upon the value of the accounts receivable.

In February 2006, Gardner pleaded guilty to three counts of theft over $15,000, each a class three felony in violation of the relevant version of section 18–4–401(1) and (2)(d). These three counts were derived from two separate cases and alleged theft from two factoring companies.

Subsequent to Gardner's entry of his guilty plea, but before sentencing, Gardner discharged his counsel and proceeded pro se. At sentencing, according to the terms of the plea agreement, the court imposed three consecutive six-year prison terms, ordered restitution to the companies involved, and dismissed the remaining counts and cases.

On December 9, 2008, Gardner filed a motion for postconviction relief pursuant to Crim. P. 35(c), challenging his convictions on various constitutional and jurisdictional grounds.

The district court denied Gardner's motion, adopting the People's arguments that, by pleading guilty, Gardner waived his constitutional challenges to section 18–4–401 and his double jeopardy claims, and that his subject matter jurisdiction claims failed on the merits.

Gardner now appeals.

II. General Standards

The general rule is that a valid guilty plea renders irrelevant all claims that a defendant's constitutional rights have been violated. However, a defendant may collaterally attack his conviction based upon a guilty plea if the postconviction relief sought relates to either (1) the voluntary and intelligent nature of the plea or (2) the power of the court to enter the conviction or impose the sentence, or to the state's power to prosecute in the first place. See United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (citing Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975)); Patton v. People, 35 P.3d 124, 132 (Colo.2001). This latter exception is narrowly construed to balance the state's interest in the finality of adjudications achieved through plea bargaining against a defendant's ability to collaterally attack his sentence, and accordingly only applies to those claims which are based on the language of the statute or indictment itself and require no further evidentiary proof. See Broce, 488 U.S. at 575–76, 109 S.Ct. 757; Patton, 35 P.3d at 132–33; see also People v. Owen, 122 P.3d 1006, 1007–08 (Colo.App.2005).

We review the district court's summary denial of a motion for postconviction relief under Crim. P. 35(c) de novo. People v. Trujillo, 169 P.3d 235, 237 (Colo.App.2007).

III. Collateral Attack—Multiplicity of Charges

Gardner contends he did not waive his right to assert that the charges under which he was convicted as a result of his guilty plea were multiplicitous, and therefore violate the state and federal constitutions' proscription of double jeopardy. We agree in part with this contention.

Contrary to the People's assertion, Gardner preserved and validly asserted this issue on appeal.

A. Effect of Guilty Plea on Double Jeopardy Claim

In Patton the supreme court held that “a guilty plea does not waive a valid double jeopardy claim of being punished twice for the same offense.” 35 P.3d at 132 (citing Broce, 488 U.S. 563, 109 S.Ct. 757; Menna, 423 U.S. 61, 96 S.Ct. 241; Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)). However, the double jeopardy inquiry is limited to a consideration of “the structure of the information and guilty plea at the time of the providency hearing,” and the court “cannot inquire into the facts underlying the guilty plea or take into account statements made at the sentencing hearing.” Patton, 35 P.3d at 133 (citing Broce, 488 U.S. at 574–75, 109 S.Ct. 757); see also Broce, 488 U.S. at 575, 109 S.Ct. 757 (“a plea of guilty to a charge does not waive a claim that— judged on its face—the charge is one which the State may not constitutionally prosecute” (quoting Menna, 423 U.S. at 63 n. 2, 96 S.Ct. 241)).

Here, Gardner's double jeopardy claims arise solely from the language contained in the three counts to which he pleaded guilty. He contends these counts facially alleged only one crime of theft, rather than three separate crimes. Accordingly, we conclude Gardner's double jeopardy claim is not waived by his entry of a guilty plea. See Patton, 35 P.3d at 132.

B. Gardner's Double Jeopardy Claims

Gardner, relying on the applicable version of section 18–4–401(4), which designated all instances of theft within a six-month period as a single theft offense, asserts that the three charges under which he was convicted occurred within a single six-month period and therefore are multiplicitous in violation of his right to be free from double jeopardy under both the federal and state constitutions. We agree in part.

The Double Jeopardy Clauses of both the United States and Colorado Constitutions preclude a defendant from being placed twice in jeopardy for the same criminal act.1 U.S. Const. amend. V; Colo. Const. art. II, § 18; see also Woellhaf v. People, 105 P.3d 209, 214 (Colo.2005). This protection precludes being tried twice for the same offense, as well as being subjected to multiple punishments for the same offense without legislative authorization. See Woellhaf, 105 P.3d at 214 (citing Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)).

Double jeopardy may be violated in cases involving multiplicity, which “is the charging of multiple counts and the imposition of multiple punishments for the same criminal conduct.” Id. (citing People v. Borghesi, 66 P.3d 93, 98 (Colo.2003), and United States v. Morehead, 959 F.2d 1489, 1505 (10th Cir.1992)).

In cases where multiplicity is based on charges under the same statutory provision, the question becomes whether the legislature intended to create a separate “unit of prosecution for each charge. United States v. Chipps, 410 F.3d 438, 447 (8th Cir.2005); see also Woellhaf, 105 P.3d at 215.

The unit of prosecution is the manner in which a criminal statute permits a defendant's conduct to be divided into discrete acts for purposes of prosecuting multiple offenses. Once the General Assembly prescribes the unit of prosecution, that prescription determines the scope of protection offered by the Double Jeopardy Clause.

Woellhaf, 105 P.3d at 215 (citations omitted).

In Roberts v. People, 203 P.3d 513, 516 (Colo.2009), the supreme court determined that former section 18–4–401(4)—applicable at the time of Gardner's offenses—reflected the General Assembly's prescription of the unit of prosecution for theft. The relevant version of section 18–4–401(4) stated that

[w]hen a person commits theft twice or more within a period of six months without having been placed in jeopardy for the prior offense or offenses, and the aggregate value of the things involved is five hundred dollars or more but less than fifteen thousand dollars, it is a class 4 felony; however, if the aggregate value of the things involved is fifteen thousand dollars or more, it is a class 3 felony.

Ch. 314, sec. 10, § 18–4–401(4), 1998 Colo. Sess. Laws 1437 (amended in 2007 and 2009). In Roberts, the court stated “this language not only permits, but in fact requires, all thefts committed by the same person within a six-month period ... to be joined and prosecuted as a single felony.” 203 P.3d at 516. Accordingly, the unit of prosecution applicable here treats all separately prosecutable thefts committed within a six-month period as a single theft, unless jeopardy has previously attached regarding one of the thefts. See id.

Here, Gardner was convicted under three separate theft charges, all alleging violations of the same provisions of the relevant version of the theft statute, section 18–4–401(1)(a)(b), (2)(d). There were two victims involved in the three charges, one victim for the first charge and another victim for the second and third charges.2 We must now determine whether the three counts to which Gardner pleaded guilty constitute more than one defined unit of prosecution. See Woellhaf, 105 P.3d at 219.

First, in case number 05CR5321 the two charges under which Gardner was convicted and sentenced contained identical language. Both charges stated that Gardner committed theft from Praxis Capital in an amount exceeding $15,000, in violation of section 18–4–401(1)(a)(b), (2)(d), C.R.S.” Further, both charges stated that the thefts were committed “between and including September 1, 2005, and October 21, 2005.” Judged by the face of the charges, the two offenses are identical, and necessarily occurred within less than a six-month period. Accordingly, under the holding in Roberts and the language of the relevant version of section 18–4–401(4), these two charges constitute a single unit of prosecution. Consequently, we conclude Gardner's multiple convictions and punishments for these counts violated the proscription against double jeopardy.

Gardner was also convicted and sentenced under another count...

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