People v. Zuniga

Citation80 P.3d 965
Decision Date23 October 2003
Docket NumberNo. 02CA0724.,02CA0724.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip J. ZUNIGA, Sr., Defendant-Appellant.
CourtCourt of Appeals of Colorado

Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Phillip J. Zuniga, Sr., Pro Se.

Opinion by Judge CASEBOLT.

Defendant, Phillip J. Zuniga, Sr., appeals the order denying his motion for postconviction relief. We affirm.

In a consolidated plea agreement reached in three cases, defendant pleaded guilty to one count of theft by receiving and two counts of unlawful distribution, manufacturing, dispensing, sale, and possession of marihuana and marihuana concentrate. With respect to the latter convictions, defendant admitted that he used or displayed a gun during the commission of the offense and that he was thus subject to enhanced sentencing as a special offender pursuant to § 18-18-407, C.R.S.2002. In exchange for his guilty pleas, the People agreed to dismissal of the remaining charges, including the four habitual offender charges filed in each of the three cases. The parties agreed that the sentences imposed for the three convictions would run consecutively.

After accepting defendant's guilty plea, the trial court sentenced him to a six-year prison term for the theft by receiving conviction and a twelve-year term for each of the drug-related convictions. The trial court ordered the sentences to be served consecutively.

Defendant thereafter filed a Crim. P. 35 motion asserting that: (1) the theft by receiving charge was barred by the statute of limitations because he obtained the property ten years before the charge was filed; (2) his guilty plea was invalid because he received an inadequate providency advisement and the prosecution coerced him into pleading guilty by filing the habitual offender charges; (3) he received ineffective assistance of counsel; (4) the sentences imposed for his drug-related convictions are illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (5) those sentences are excessive and constitute an abuse of discretion by the trial court. The trial court denied the motion without appointing counsel or holding a hearing.

I.

Defendant first asserts that his theft by receiving conviction must be vacated because the charge was filed after the statute of limitations had expired. We disagree.

Because the statute of limitations is jurisdictional in a criminal case, a violation of the statute may be raised at any time. Hence, defendant did not waive this claim by pleading guilty. See People v. Verbrugge, 998 P.2d 43 (Colo.App.1999)

.

A.

The statute of limitations applicable to the offense of theft by receiving is three years. Section 16-5-401(1)(a), C.R.S.2002.

When an offense is based on a series of acts performed at different times, the period of limitations begins to run when the last act is committed. Section 16-5-401(4), C.R.S.2002; People v. Chavez, 952 P.2d 828 (Colo.App.1997); see also People v. Flagg, 18 P.3d 792, 794 (Colo.App.2000)

(a crime "is not committed until all the elements are complete").

When a crime is a continuing offense that is perpetrated over time, the crime continues, and the statute of limitations does not begin to run, as long as the illegal conduct continues. See People v. Thoro Prods. Co., 70 P.3d 1188 (Colo.2003)

.

A crime will not be considered a continuing offense unless the language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that the legislature must surely have intended that it be treated as a continuing one. People v. Thoro Prods. Co., supra.

As pertinent here, a person commits theft by receiving when he or she "retains ... anything of value of another, knowing or believing that said thing of value has been stolen, and when he intends to deprive the lawful owner permanently of the use or benefit of the thing of value." Section 18-4-410(1), C.R.S.2002.

The General Assembly did not specifically define theft by receiving as a continuing offense as it has defined some other crimes. See, e.g., § 18-2-204(1), C.R.S.2002 (defining conspiracy as a continuing course of conduct). We conclude, however, that the nature of the offense of theft by receiving is such that the General Assembly must have intended it to be a continuing course of conduct when, as here, the charge is based on the defendant's retention of stolen property.

The theft by receiving statute does not define the word "retain." The most common dictionary definition of "retain" is "to keep in possession or use." Webster's Third New International Dictionary 1938 (1986); see Halverstadt v. Dep't of Corr., 911 P.2d 654 (Colo.App.1995)

(adopting same definition of "retain" in analyzing meaning of state personnel rule); see also People v. Thoro Prods. Co., supra, 70 P.3d at 1194 (noting that courts frequently look "to the dictionary to ascertain the meaning of undefined words in a statute"). This definition connotes something other than mere momentary possession and is thus consistent with the generally accepted legal definition of "retain," which is "to continue to hold, have, use ... and to keep." Black's Law Dictionary 1316 (6th ed.1990).

We note that possession of stolen property is not otherwise a separate offense in Colorado, and, by using the word "retain" in the theft by receiving statute, the General Assembly defined the crime to include the offense of possession of stolen property. See People v. McCoy, 870 P.2d 1231, 1238 n. 13 (Colo.1994)

; People v. Hampton, 758 P.2d 1344, 1355 n. 5 (Colo.1988).

A defendant necessarily continues to commit any crime involving possession, including the offense of possession of stolen property, during the entire period he or she possesses the property. See Von Eichelberger v. United States, 252 F.2d 184, 185 (9th Cir.1958)

(when "the essence" of a crime, such as concealing or retaining stolen property, is possession, the offense is a continuing one); see also State v. Lawrence, 312 N.W.2d 251 (Minn.1981)(concealing or possessing stolen goods is a continuing offense for purposes of statute of limitations); State v. Lodermeier, 481 N.W.2d 614, 620-21 (S.D.1992)(under possession of stolen property statute which "incorporated" the crime of "receiving and retaining," the use of the word "retain" indicated a clear intent to make that aspect of the crime a continuing one); cf. People v. Morgan, 785 P.2d 1294 (Colo.1990)(defendant's alleged theft of two canoes in Colorado and his admitted possession of them on the Navajo Reservation constituted a continuing course of conduct).

Our conclusion that, by using the word "retain," the General Assembly intended to make this aspect of the crime of theft by receiving a continuing offense is supported by the fact that some federal and many other state courts have analyzed similar statutes and reached the same conclusion. See United States v. Blizzard, 27 F.3d 100 (4th Cir.1994)

(concealing and retaining stolen government property is a continuing offense and the statute of limitations does not run during the defendant's possession of the property); Von Eichelberger v. United States, supra, United States v. Cunningham, 902 F.Supp. 166, 169 (N.D.Ill.1995)(possession of stolen mail is a continuing offense for purposes of the statute of limitations); United States v. Fleetwood, 489 F.Supp. 129 (D.Or.1980)(concealing and retaining United States savings bonds and freedom share notes constitutes a continuing offense), disapproved on other grounds by United States v. Wyatt, 737 F.2d 1499 (9th Cir.1984); Scott v. State, 69 Ark.App. 121, 10 S.W.3d 476 (2000); State v. Temple, 65 Haw. 261, 650 P.2d 1358 (1982)(inclusion of the term "retain" in receiving stolen property statute evinces legislative intent to make that aspect of the crime a continuing one for purposes of statute of limitations); State v. Maidwell, 137 Idaho 424, 50 P.3d 439 (2002); State v. Lawrence, supra; Davis v. State, 586 So.2d 817 (Miss.1991)(receipt of stolen property is a continuing course of conduct); State v. Homer, 78 Ohio App.3d 477, 605 N.E.2d 426 (1992); State v. Harelson, 147 Or.App. 556, 938 P.2d 763 (1997); State v. Lodermeier, supra.

We recognize that courts in several other jurisdictions have reached a different result, but we disagree with those cases and are satisfied that ours is the better conclusion. See State v. Saathoff, 29 P.3d 236 (Alaska 2001)

(concluding that theft by receiving is not a continuous offense and that the word "retain" describes a defendant's actions at a particular point in time); People v. Kimbro, 182 Ill.App.3d 572, 131 Ill.Dec. 451, 538 N.E.2d 826 (1989); State v. Harrison, 561 N.W.2d 28 (Iowa 1997)(theft by exercising control over stolen property is not a continuing offense for statute of limitations purposes); State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980); State v. Nuss, 235 Neb. 107, 454 N.W.2d 482 (1990).

Here, because theft by receiving based on defendant's retention of stolen property is a continuing offense, the statute of limitations did not begin to run until defendant no longer possessed the property. Because the stolen property was seized from defendant four days before the charge was filed, the trial court correctly rejected his statute of limitations claim.

B.

To the extent defendant contends either that the property was not stolen or that he did not retain it through the date alleged in the information and that there was thus no factual basis for the charge, he waived that claim when he entered his guilty plea. See People v. Flagg, supra

(pleading guilty is the equivalent of admitting all material facts alleged in the charge, and by pleading guilty a defendant admits involvement in the crime up to and including the last date alleged in the charge); see also People v. Sandreschi, 849 P.2d 873 (Colo.App.1992).

C.

We reject defendant's suggestion...

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