People v. Hargrave, 06CA0212.

• Decision Date: 23 August 2007
• Docket Number: No. 06CA0212.,06CA0212.
• Citation: 179 P.3d 226
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James A. HARGRAVE, Defendant-Appellant.
• Court: Colorado Court of Appeals

179 P.3d 226

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James A. HARGRAVE, Defendant-Appellant.

No. 06CA0212.

Colorado Court of Appeals, Div. I.

August 23, 2007.

John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, James A. Hargrave, appeals the trial court's order releasing the property seized from him subject to proof of ownership satisfactory to the Northglenn Police Department and concluding that it did not have jurisdiction to resolve the storage and towing charges of a private company. We reverse and remand for further proceedings.

The salient facts are undisputed. On August 17, 2004, officers of the Northglenn Police Department and the Adams County Sheriff's Office executed a search warrant at defendant's residence. They seized a large quantity of motorcycle parts and other property that had been reported stolen, along with a significant quantity of similar property that had not been reported stolen.

On November 4, 2004, defendant was charged with three class 3 felonies of theft by receiving, § 18-4-410(1), (5), C.R.S.2006. Defendant pleaded guilty to two class 4 felonies of theft by receiving, § 18-4-410(1), (4), C.R.S.2006, pursuant to a plea agreement, and the remaining count was dismissed on January 31, 2005. Defendant was then sentenced on April 4, 2005, to two concurrent ten-year sentences with the Department of Corrections, mandatory parole, and restitution in the amount of $26,517.50, reserving the award of restitution as to three victims. Following a hearing, the trial court increased the restitution to $51,117.50 for one of the reserved victims on August 8, 2005, nunc pro tunc April 4, 2005, and denied defendant's motion for reconsideration of his sentence on the same date.

On November 1, 2005, defendant, through plea counsel, filed a motion for return of his property in which he alleged, inter alia, that (1) the Northglenn Police Department had authorized a towing and storage company to release the property upon proof of ownership; (2) his parents had made three unsuccessful attempts to retrieve the property between May and September 2005, all of which were rejected for lack of proof of ownership; and (3) jurisdiction was proper and there was a presumption that he owned the property, citing authority.

A hearing was held on December 14, 2005, at which no evidence was offered. The district attorney, while offering his personal belief that all the property had been stolen, stated his position as follows:

My understanding is that everything [for which] we can identify ... the rightful owner, other than the defendant, has been returned at this point. I sent a letter to the Northglenn Police on May 6, 2005, stating that things could be returned to the rightful owners and frankly that includes the defendant as well. Anything that is left in evidence or impound—I understand if they wanted to keep it, the police could keep it understanding [that] it's my burden to [prove] by a preponderance of the evidence it could be kept. I can't make that burden with anything that is left. So, from my point of view, I think it's up to the defendant to follow the appropriate procedures from impound and the police but I have no objection to anything that is remaining being released back to [defendant].

After a short discussion of the towing and storage fees claimed by a private party who had contracted with the Northglenn Police Department, the trial court stated:

I don't see anything wrong with the police department requiring that the property be released to the rightful owner, that seems appropriate. [It has] liability if [it] release[s] the property to the person who is not the rightful owner and I am not going to mess with those issues. I find it very inappropriate for this court to be involved in the matters which are really civil matters .... I cannot automatically assume that everything that was found in [defendant's] home belonged to him, especially under the circumstances under which the search warrant [theft by receiving] was executed and the reason it was executed.... [B]ut I am not going to extend my authority or jurisdiction to waive the fees or do anything of that nature.

The trial court then ordered the return of the property to defendant subject to his providing proof of ownership satisfactory to the Northglenn Police Department.

On appeal, defendant contends, as he did before the trial court, that the trial court should have determined the rightful owner of the property and allocated or discharged the towing and storage fees. Further, he contends that conditioning the return of his property on the payment of the towing and storage fees contracted for by the city is an unconstitutional deprivation of his property. We agree with the former contention and decline to address the latter because it was not raised in the trial court. The In so concluding, we necessarily reject the People's argument that the trial court had no post-sentencing jurisdiction to enter an order for the return of property.

When the need for property seized in a case has ended, the trial court has the jurisdiction and the obligation to order its return and, if necessary, to conduct a hearing to determine its appropriate disposition and any ancillary issues. People v. Rautenkranz, 641 P.2d 317, 318 (Colo.App.1982).

Evidence of seizure from the defendant is prima facie evidence of his or her ownership of the property. People v. Buggs, 631 P.2d 1200, 1201 (Colo.App.1981); see also People v. Strock, 931 P.2d 538, 539 (Colo.App. 1996) (defendant establishes a prima facie case by showing that the property was seized from him, and burden then shifts to the prosecution to prove by a preponderance of the evidence that the items seized were the fruit of an illegal activity or that a connection exists between those items and criminal activity); cf. United States v. Dean, 100 F.3d 19, 20 (5th Cir.1996).

People v. Rautenkranz, supra, presents circumstances very similar to those presented here. There, the defendant pleaded guilty to theft by receiving and subsequently filed a motion for return of property, a Jeep and windmill vane, which had been seized pursuant to a search warrant. The prosecution objected to the release of both items, alleging that the windmill vane belonged to another person and that the Jeep was contraband because the serial numbers had been altered or removed. The trial court concluded that because there were questions of ownership and no notice had been given to other interested parties, it had no jurisdiction to proceed with the matter. A division of this court reversed, stating:

"We hold that the district court, once its need for the property has terminated, has both the jurisdiction and the duty to return the contested property here regardless and independently of the validity or invalidity of the underlying search and seizure .... It goes without saying, that if the Government seeks to forfeit the property a proper proceeding should be instigated to accomplish that purpose. A claim by the owner for the return of his property cannot be successfully resisted by asserting that the property is subject to forfeiture. If the property is subject to forfeiture, appropriate proceedings should be started expeditiously."

.... We are aware of no Colorado cases in which the present issue regarding the proper forum for the relief sought has been determined. However, in People v. Angerstein, 194 Colo. 376, 572 P.2d 479 (1977), and People v. Buggs, [supra], the appellate courts tacitly acknowledged that the filing of a motion for return of seized property in the same action in which the charges were determined was a proper remedy, and that on the filing of the motion an evidentiary hearing should be held to determine the rights of the parties.

People v. Rautenkranz, supra, 641 P.2d at 318 (emphasis added) (quoting United States v. Wilson, 540 F.2d 1100, 1103-04 (D.C.Cir. 1976)) (citation omitted).

In support of their argument that the trial court lost jurisdiction to consider a motion for return of property after the imposition of a valid sentence, the People rely on Smith v. Johns, 187 Colo. 388, 390, 532 P.2d 49, 50 (1975) (trial court had no jurisdiction to change a sentence after it entered a valid sentence); People v. Campbell, 738 P.2d 1179, 1180 (Colo.1987) (trial court had no jurisdiction to reconsider the defendant's motion for a new trial following the imposition of a valid sentence); People v. Wiedemer, 692 P.2d 327, 329 (Colo.App.1984)) (trial court lacked jurisdiction to consider a motion to return property following the entry of a valid sentence); and People v. Galves, 955 P.2d 582, 583 (Colo.App.1997) (trial court lacked jurisdiction to consider a motion for return of property after committing defendant to a psychiatric facility following a verdict of not guilty by reason of insanity).

However, both supreme court cases, Smith v. Johns, supra, and People v. Campbell, supra, dealt with defendants challenging their convictions or sentences or both. Therefore, citing either of these cases for the proposition that following the entry of a valid sentence the trial court's jurisdiction is limited to that granted by Crim. P. 35, as divisions of our court did in People v. Wiedemer, supra, and People v. Galves, supra, does not recognize the significant distinction between challenging the conviction or sentence and requesting the return of property.

Furthermore, People v. Wiedemer, supra, distinguished People v. Rautenkranz, supra; People v. Angerstein, supra; People v. Buggs, supra; and People v. Ward, 685 P.2d 238 (Colo.App.1984), which had either held or implied that there was jurisdiction to entertain motions for the return of property, on...