16CA0348 Peo v Strepka 01-06-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 16CA0348
City and County of Denver District Court No. 15CR328
Honorable Ann B. Frick, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Mark Strepka,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE HARRIS
Fox and Tow, JJ., concur
Prior Opinion Announced April 2, 2020, Reversed in 20SC401
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 6, 2022
Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mark D. Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
This case returns to us on remand after reversal by the
supreme court. In People v. Strepka, (Colo. App. No. 16CA0348,
Apr. 2, 2020) (not published pursuant to C.A.R. 35(e)) (Strepka I), a
division of this court vacated the trial court’s order denying the
motion of defendant, Mark Strepka, for return of his property,
reasoning that the trial court had lost jurisdiction to rule on the
motion after the felony charges against Strepka were dismissed.
The supreme court granted Strepka’s petition for certiorari review
and reversed. See Strepka v. People, 2021 CO 58 (Strepka II). The
court held that a trial court retains jurisdiction to resolve a motion
for return of unlawfully obtained property after it dismisses a case
as long as the motion is filed before the appeal period expires. Id. at
¶ 26. Under that standard, Strepka’s motion was timely. See id. at
¶¶ 5, 28. We therefore proceed with the appeal on the merits.
¶ 2
The facts of the case are detailed in Strepka I and Strepka II so
we provide only a brief summary. During a traffic stop, police
officers searched Strepka’s car and seized methamphetamine and
two firearms. At the time of the stop, Strepka had at least four
prior felony convictions. The People charged him with possession of
2
a controlled substance and possession of a weapon by a previous
offender.
¶ 3
The trial court granted Strepka’s motion to suppress the drugs
and firearms and then granted the prosecution’s motion to dismiss
the charges. Strepka later filed a motion for the return of certain
property seized during the traffic stop, including the firearms. He
argued that the guns should be returned to him or a suitable third
party. The trial court granted the motion in part but denied it with
respect to the firearms based on Strepka’s status as a convicted
felon.
¶ 4
Though the prosecution objected to Strepka’s motion in the
trial court, on appeal, the People stipulate that Strepka is entitled to
have the firearms sold (with the proceeds paid to him) or transferred
to a suitable third party. In changing course, the People rely on
Henderson v. United States, 575 U.S. 622 (2015). In Henderson, the
defendant lawfully possessed firearms but was required to
surrender them after he was charged with a felony to which he
ultimately pleaded guilty. Id. at 624. After serving his sentence,
the defendant sought an order from the federal district court
directing law enforcement to transfer the guns to a third party who
3
had agreed to buy them. The district court denied the request. Id.
at 624-25. On appeal, the Supreme Court held that because federal
law prohibits possession, but not ownership, of a firearm by a
convicted felon, the defendant had a right to sell or transfer his
firearms as long as the district court was persuaded that the
defendant would not retain control over the firearms. Id. at 630-31.
¶ 5
While we are not bound by the parties’ stipulations on
questions of law or mixed questions of law and fact, see Bar 70
Enters., Inc. v. Tosco Corp., 703 P.2d 1297, 1306 (Colo. 1985), we
are mindful of the party presentation principle. That principle
generally requires courts to rely on the parties to frame the issues
to be decided, on the theory that “the parties know what is best for
them, and are responsible for advancing the facts and arguments
entitling them to relief.” Greenlaw v. United States, 554 U.S. 237,
244 (2008) (quoting Castro v. United States, 540 U.S. 375, 386
(2003)).
¶ 6
Accordingly, we need not decide here whether Henderson
compels the result to which the People have stipulated on appeal.1
1 In their answer brief, the People describe Henderson v. United
States, 575 U.S. 622 (2015), as a case addressing “the appropriate
4
The People have not offered any argument in opposition to Strepka’s
position, and we will not develop one on their behalf.
¶ 7
The trial court’s order denying Strepka’s motion for return of
the firearms is reversed. The case is remanded for further
proceedings to allow the trial court to transfer the firearms in a
manner that precludes Strepka from retaining control over them.
JUDGE FOX and JUDGE TOW concur.
disposition of firearms that were unlawfully seized.” The firearms in
that case were not seized unlawfully, however. The case involved a
defendant who lawfully possessed firearms but was required to
“surrender all his firearms as a condition of his release on bail”
after he was charged with the felony offense of distributing
marijuana. Id. at 624.