People v. Allman , 2017 COA 108 ( 2017 )

COLORADO COURT OF APPEALS 2017COA108
Court of Appeals No. 15CA1235
Boulder County District Court No. 14CR552
Honorable Andrew R. Macdonald, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Fredrick Leroy Allman,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division V
Opinion by CHIEF JUDGE LOEB
Davidson* and Casebolt*, JJ., concur
Announced August 10, 2017
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lauretta A. Martin Neff, Alternate Defense Counsel, Bayfield, Colorado, for
Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 Defendant, Fredrick Leroy Allman, appeals the judgment of
conviction entered on jury verdicts finding him guilty of eight
counts of identity theft pursuant to section 18-5-902(1)(a), C.R.S.
2016. He also appeals a number of sentencing issues. We affirm.
I. Background
¶2 In the summer of 2013, Allman met the victim, an elderly
widower, at a social event. Using the alias “John Taylor,” Allman
presented himself to the victim as a businessman who had recently
moved from Washington to Colorado. At some point, upon
establishing a rapport with the victim, Allman asked him if he could
temporarily live in the victim’s basement while he adjusted to life in
Colorado. The victim agreed.
¶3 Although Allman’s tenancy was initially intended to be a
temporary stay, it evolved into a semipermanent one. In total,
Allman lived with the victim for approximately five months and,
during the course of that time, he ingratiated himself with the
victim and gained the victim’s trust.
¶4 In December 2013, the victim left for a planned vacation in
Australia. Immediately after the victim’s departure, Allman gained
access to the victim’s bank accounts and stole money from them.
1
Allman also opened several credit cards in the victim’s name. And,
by the time the victim returned to Colorado five weeks later, Allman
had moved out of his home, taken the victim’s car, and obtained
over $40,000 of credit in the victim’s name. Moreover, because
Allman had been using an alias, police officers were initially unable
to determine his whereabouts.
¶5 Eventually, on March 18, 2014, Allman was arrested while
attempting to purchase a new car with funds from an account that
the police had been monitoring.1 He was subsequently charged
with twelve felonies, including one count of theft of over $500 from
an at-risk adult (Count 1), one count of aggravated motor vehicle
theft (Count 3), eight counts of identity theft (Counts 2, 4, 5, 6, 7, 8,
9, and 10), and two counts of forgery (Counts 11 and 12).
¶6 A jury convicted Allman on all counts. Both at trial and at
sentencing, counsel for Allman objected to the eight counts of
identity theft, arguing that identity theft, as charged in this case,
1 At the time of his arrest, Allman had in his possession copies of
the victim’s personal password lists and identifying information, as
well as personal and financial information belonging to other senior
citizens Allman had come to know in Colorado. It was later
determined that Allman was also wanted on an outstanding
warrant in Oregon for conduct similar to that in this case.
2
constituted a continuing course of conduct of stealing a single
victim’s identity and should therefore merge into one conviction and
sentence. The trial court overruled these objections and imposed
consecutive sentences for Counts 1, 2, 3, 4, and 5, totaling fifteen
years in the custody of the Department of Corrections, concurrent
prison sentences for Counts 6, 7, 8, 9, 10, and 11, and a ten-year
sentence to probation for Count 12, which would run consecutively
to Allman’s fifteen-year prison term, but concurrently with his
parole, with the option of early termination if Allman paid the full
amount of restitution ordered by the court.
II. Identity Theft
¶7 Allman’s primary contention on appeal is that his convictions
for eight counts of identity theft under section 18-5-902(1)(a) are
unconstitutionally multiplicitous because identity theft is a
continuing crime where, as here, he stole the identity of only one
victim. Thus, Allman argues, all eight convictions for identity theft
must merge into one conviction for that offense. We disagree and
conclude, as a matter of first impression, that the crime of identity
theft under section 18-5-902(1)(a) is not a continuing course of
3
conduct and, therefore, each discrete act of identity theft under that
subsection is a separately chargeable offense.
A. Applicable Law and Standard of Review
¶8 “The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect an accused against being twice
placed in jeopardy for the same crime.” Woellhaf v. People, 105
P.3d 209, 214 (Colo. 2005); see also U.S. Const. amend V; Colo.
Const. art II, § 18. The doctrine of multiplicity, which implicates
Double Jeopardy principles, prohibits a defendant from receiving
multiple punishments for a series of repeated acts that occurred as
a part of a continuing course of conduct. See Woellhaf, 105 P.3d at
214-15, 220. However, the Double Jeopardy Clauses “[do] not
prevent the General Assembly from [specifically authorizing]
multiple punishments based upon the same criminal conduct.” Id.
at 214. Thus, where the General Assembly has not defined a crime
as continuous, a defendant may be punished for each separate
criminal act. See People v. McMinn, 2013 COA 94, ¶ 29 (noting that
the doctrine of continuing crimes applies only where the General
Assembly has unmistakably communicated its intent to create such
an offense).
4
¶9 In order to determine whether a crime is a continuing course
of conduct, we apply the analysis articulated in People v. Thoro
Products Co., 70 P.3d 1188, 1192-93 (Colo. 2003) (discussing the
doctrine of continuing offenses in the context of statutes of
limitations); see also People v. Zadra, 2013 COA 140, ¶ 78 (holding
that, for Double Jeopardy purposes, a series of materially false
statements over a short period of time does not constitute a single
instance of perjury for which there can only be one charge), aff’d,
2017 CO 18; McMinn, ¶¶ 28-29 (in the context of a Double Jeopardy
analysis, concluding that the offense of vehicular eluding is not a
continuing offense).
¶ 10 First, we consider “the explicit language of the substantive
criminal statute” and determine whether it “compels” the
conclusion that the offense is continuing. People v. Johnson, 2013
COA 122, ¶ 11. In reviewing the language of the statute, we “give
words their plain and ordinary meaning.” Id. at ¶ 7; see also § 2-4-
101, C.R.S. 2016 (In construing a statute, “[w]ords and phrases
shall be read in context and construed according to the rules of
grammar and common usage.”). “Where the statutory language is
clear and unambiguous, we do not resort to legislative history or
5
further rules of statutory construction.” Smith v. Exec. Custom
Homes, Inc., 230 P.3d 1186, 1189 (Colo. 2010).
¶ 11 Only if we conclude that the statutory text is ambiguous do we
proceed to the second step of the Thoro analysis and examine the
nature of the crime involved and whether it “is such that the
General Assembly ‘must assuredly have intended’ [the offense] be
treated as [a continuing one].” See Thoro, 70 P.3d at 1193 (quoting
Toussie v. United States, 397 U.S. 112, 115 (1970)); see also § 2-4-
203, C.R.S. 2016 (detailing various aids in construction where a
statute is ambiguous).
¶ 12 We review de novo a claim that multiplicitous convictions
violate a defendant’s constitutional protection against Double
Jeopardy. McMinn, ¶ 18. “Determining whether a particular
violation of law constitutes a continuing offense is primarily a
question of statutory interpretation,” People v. Lopez, 140 P.3d 106,
108 (Colo. App. 2005), and is, therefore, also reviewed de novo, see
Johnson, ¶ 7. However, overlaying our inquiry is a strong
presumption against interpreting criminal offenses as continuing.
Thoro, 70 P.3d at 1193 (citing Toussie, 397 U.S. at 115); McMinn,
6
¶ 29 (perceiving no “unmistakable intent” to create the offense of
vehicular eluding as a continuing crime).
B. Analysis
¶ 13 As pertinent here, a person is guilty of identity theft in
Colorado 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.
§ 18-5-902(1)(a) (emphasis added). For the reasons below, we
conclude that the plain language of this statute is unambiguous
and indicates that the General Assembly did not intend for this
offense to be a continuing crime.
¶ 14 In examining the plain language of section 18-5-902(1)(a), we
initially note that the word “uses” is not defined anywhere in either
the elemental identity theft statute, see § 18-5-902, or in the
general definitional statute for identity theft and related offenses,
see § 18-5-901, C.R.S. 2016.
¶ 15 Relying on the rules of grammar, we first conclude that, in the
subsection at issue, the mens rea “knowingly” describes the actus
7
reus “uses.” Thus, in this context, the word “uses” is a verb. Next,
we consider the dictionary definition of the verb “use.” See § 2-4-
102, C.R.S. 2016 (“The singular includes the plural, and the plural
includes the singular.”); see also People v. Fioco, 2014 COA 22, ¶ 19
(“[W]hen construing statutory terms, ‘[w]e have frequently looked to
the dictionary for assistance in determining the plain and ordinary
meaning of words.’” (quoting People v. Forgey, 770 P.2d 781, 783
(Colo. 1989))).
¶ 16 Black’s Law Dictionary defines the verb “use” as “[t]o employ
for the accomplishment of a purpose; to avail oneself of.” Black’s
Law Dictionary 1776 (10th ed. 2014); see also Webster’s Third New
International Dictionary 2523 (2002) (defining “use” similarly). In
turn, the verb “employ” is defined as “1. To make use of. 2. To hire.
3. To use as an agent or substitute in transacting business.”
Black’s Law Dictionary 638 (10th ed. 2014) (emphasis omitted). We
find these definitions instructive, because each connotes a discrete
action, as opposed to a sustained or continuous one.
¶ 17 The verb “uses” in subsection (1)(a) describes the object clause
of the sentence, namely, “the personal identifying information,
financial identifying information, or financial device of another.”
8
§ 18-5-902(1)(a). In that regard, the object clause does not describe
another’s identity, as Allman argues, but another’s personal
belongings, which are means of authenticating one’s identity.
¶ 18 In addition, the final verb clause of subsection (1)(a) describes
the crime of identity theft as including the unauthorized use of
another’s belongings “to make a financial payment.” Id. (emphasis
added). Here, too, the statute describes a singular act, as opposed
to a continuing course of conduct. In our view, the use of another’s
personal or financial information to make a single financial
payment supports the conclusion that subsection (1)(a) does not
describe a continuing course of conduct.
¶ 19 Allman’s reliance on People v. Pérez, 129 P.3d 1090, 1092-93
(Colo. App. 2005), in which a division of this court held that the
crime of criminal impersonation was a continuing offense, is
misplaced. To commit the crime of impersonation, one must
“knowingly . . . assume[] a false or fictitious identity.” § 18-5-
113(1), C.R.S. 2016 (emphasis added). In contrast, to commit the
crime of identity theft under section 18-5-902(1)(a), one must
“knowingly use[] the personal identifying information, financial
identifying information, or financial device of another.” The
9
difference in language is significant, and, in our view, assuming a
person’s identity is not the same actus reus as using, for example,
someone’s credit card or other financial device, notwithstanding
that both offenses are a species of fraud.
¶ 20 Finally, the crime of identity theft under section 18-5-902(1)(b)
may well constitute a continuing offense, although we need not
resolve that issue. Under subsection (1)(b), a person commits
identity theft through the unauthorized possession of another’s
information or financial device with the intent to use it for some
benefit in the future. Crimes of possession have typically been
viewed as continuing. See, e.g., People v. Zuniga, 80 P.3d 965, 968-
70 (Colo. App. 2003) (concluding that theft by receiving is a
continuing crime because “retaining” is akin to “possession,” which
“connotes something other than mere momentary possession”). To
read the language “uses the personal identifying information,
financial identifying information, or financial device of another
without permission or lawful authority,” § 18-5-902(1)(a), as
describing a continuing course of conduct that encompasses both
active use and inactive possession would potentially render
subsection (1)(b) superfluous. See St. Vrain Valley Sch. Dist. RE-1J
10
v. A.R.L., 2014 CO 33, ¶ 23 (“In interpreting a statute, whenever
possible, we give each word independent effect so that no word is
rendered superfluous.”).
¶ 21 In sum, we conclude that, according to the plain meaning of
“uses” in section 18-5-902(1)(a), the General Assembly has
authorized punishment for each discrete, unauthorized use of a
victim’s “personal identifying information, financial identifying
information, or financial device,” with the intent to obtain some
benefit “or to make a financial payment.” See § 18-5-902(1)(a).
Therefore, the crime of identity theft under subsection (1)(a) is not a
continuing offense for purposes of Double Jeopardy. Rather, the
offense is committed on each occasion where “all of the [statutory]
elements are complete,” People v. Flagg, 18 P.3d 792, 794 (Colo.
App. 2000) (quoting People v. Bastian, 981 P.2d 203, 205 (Colo.
App. 1998).2
2 Although several courts across the country have addressed the
question of whether identity theft is a continuing crime, Allman
does not cite, nor have we found, any decision concluding that
identity theft is a continuing crime for purposes of Double Jeopardy
where the statutory language at issue was identical or similar to
that in section 18-5-902(1)(a). Compare People v. Mitchell, 78 Cal.
Rptr. 3d 855, 864-66 (Cal. Ct. App. 2008) (identity theft is not a
11
¶ 22 Accordingly, we reject Allman’s contention that all eight of his
identity theft convictions are multiplicitous.
III. Sentencing Issues
¶ 23 Allman next raises five contentions related to his sentences.
First, he contends that, because identity theft is a continuing crime,
his sentences for those counts should merge. Second, in the
alternative, he contends that all eight of his identity theft sentences
should run concurrently because they are based on identical
evidence. Third, he contends that his sentences for two counts of
forgery should run concurrently to each other and to one of his
sentences for identity theft because each count is based on identical
evidence. Fourth, Allman contends that his consecutive sentence to
probation for one count of forgery (Count 12) was illegal (or at least
an abuse of discretion) because the court sentenced him to the
custody of the Department of Corrections on all other counts and
he received a concurrent sentence on his other forgery count (Count
continuing offense even where defendant only stole from one
victim), and State v. Green, 172 P.3d 1213, 1218 (Kan. Ct. App.
2007) (same), with State v. Leyda, 138 P.3d 610, 337-38 (Wash.
2006) (identity theft is a continuing crime), superseded by statute
as stated in In re Newlun, 240 P.3d 795 (Wash. Ct. App. 2010), and
State v. Ramirez, 633 N.W.2d 656, 661 (Wis. Ct. App. 2001) (same).
12
11). Fifth, Allman contends that his sentence on Count 1 for theft
from an at-risk adult should run concurrently to his other
sentences, because the jury could have relied on identical evidence
with regard to that offense. We disagree with each of these
contentions.
A. Applicable Law and Standard of Review
¶ 24 We review sentencing decisions that are within the sentencing
court’s statutory authority for an abuse of discretion “because the
trial court’s ‘familiarity with the facts of the case’ places it ‘in the
best position to fix a sentence that reflects a balance of the relevant
considerations.’” People v. Torrez, 2013 COA 37, ¶ 71 (quoting
People v. Vigil, 718 P.2d 496, 507 (Colo. 1986)).
¶ 25 Where the defendant argues that a court exceeded its
statutory sentencing authority, “[o]ur inquiry . . . requires us to
interpret statutes.” People v. Jenkins, 2013 COA 76, ¶ 12. We
review such issues de novo. Id.
¶ 26 Where a defendant has been charged with multiple counts for
a continuing crime, those convictions should merge at sentencing.
See Woellhaf, 105 P.3d at 214-15, 220.
13
¶ 27 Where a defendant is convicted of two or more offenses that
are supported by identical evidence, “the sentences imposed [for
those offenses] shall run concurrently.” § 18-1-408(3), C.R.S. 2016
(emphasis added). However,
[a] sentencing court is mandated to impose
concurrent sentences only when the evidence
will support no other reasonable inference
than that the convictions were based on
identical evidence. In all other instances, the
trial court retains its sentencing discretion,
and its decision must be upheld unless the
trial court abused its discretion.
Juhl v. People, 172 P.3d 896, 900 (Colo. 2007) (emphasis added)
(citation omitted).
¶ 28 In lieu of a prison sentence, a court may impose probation.
The probationary power of the court is as follows:
When it appears to the satisfaction of the court
that the needs of justice and the best interest
of the public, as well as the defendant, will be
served thereby, the court may grant the
defendant probation for such period and upon
such terms and conditions as it deems best.
§ 18-1.3-202(1), C.R.S. 2016. The statute accordingly delegates
broad authority to sentencing courts to consider the availability,
conditions, and duration of a probationary sentence. See Jenkins,
¶ 39 (concluding that the probation statutes give trial courts broad
14
powers to craft appropriate conditions of probation). The purpose of
this authority is to ensure that sentencing courts “retain flexibility
in order to best serve the ends of justice and the interests of the
public.” People v. Guatney, 214 P.3d 1049, 1052 (Colo. 2009).
B. Analysis
¶ 29 Allman first contends that his sentences for identity theft are
multiplicitous and, thus, his sentences for those counts should
merge. Because we have already concluded that Allman was
properly charged with, and convicted of, eight separate counts of
identity theft, we conclude that his sentences for those counts do
not merge. See Patton v. People, 35 P.3d 124, 129 (Colo. 2001) (“For
purposes of both double jeopardy and merger, a defendant may be
subjected to multiple punishments based upon the same criminal
conduct as long as such punishments are ‘specifically authorized’
by the General Assembly.” (quoting People v. Leske, 957 P.2d 1030,
1035 (Colo. 1998))).
¶ 30 Second, we reject Allman’s alternative contention that, even if
his sentences for identity theft do not merge, those sentences
should run concurrently because they are based on identical
evidence. Based on our review of the record, Allman’s eight
15
convictions for identity theft were based on factually distinct
evidence:
 Count 2: On December 9, 10, and 12, 2014, Allman,
identifying himself as the victim, made several
unauthorized transfers from one of the victim’s Wells
Fargo accounts to another account without the victim’s
permission.
 Count 4: On December 12, 2013, Allman obtained a
Citibank Visa credit card and made several charges to it,
in the name of the victim and without the victim’s
permission.
 Count 5: On December 11, 2013, Allman obtained
another Citibank Visa credit card and made several
charges to that card, in the name of the victim and
without the victim’s permission.
 Count 6: On December 11, 2013, Allman obtained a Bill
Me Later credit card and made two charges to it, in the
name of the victim and without the victim’s permission.
 Count 7: On December 30, 2013, Allman obtained a First
National Bank of Omaha Visa credit card and made
16
several charges to it, in the name of the victim and
without the victim’s permission.
 Count 8: On December 10, 2013, Allman obtained an
American Express credit card and made several charges
to it, in the name of the victim and without the victim’s
permission.
 Count 9: Between December 8, 2013, and January 9,
2014, Allman attempted to obtain a Bank of America
credit card, in the name of the victim and without the
victim’s permission.
 Count 10: On December 9, 2014, Allman obtained an
American Express credit card and made several charges
to that card, in the name of the victim and without the
victim’s permission.
¶ 31 Because each of these offenses was factually distinct, the trial
court was not required to impose concurrent sentences. See Juhl,
172 P.3d at 900 (“A sentencing court is mandated to impose
concurrent sentences only when the evidence will support no other
reasonable inference than that the convictions were based on
identical evidence.”); see also § 18-1-408(3). We perceive nothing in
17
the record to indicate the court abused its discretion in how it
imposed sentences on Allman’s identity theft convictions. Torrez,
¶ 71.
¶ 32 Third, Allman contends that his sentences for both of his
forgery convictions should run concurrently with one another and
with his sentence for Count 4 (identity theft) because he used the
same Citibank Visa credit card for all three offenses. We disagree.
¶ 33 Count 4 was charged as identity theft based on Allman’s use
of the victim’s information to obtain the Citibank Visa without the
victim’s permission. By contrast, Allman’s two forgery convictions
were based on the following evidence:
 Count 11: Allman defrauded a liquor store, located at
100 Superior Plaza Way #100, Superior, CO 80027, by
authorizing a credit card payment at that location.
 Count 12: Allman defrauded another retailer, located at
400 Marshall Road, Superior, CO 80027, by authorizing a
credit card payment at that location.
¶ 34 The record is clear that neither forgery offense is factually
identical to the other, nor is either of them factually identical to
Count 4. Therefore, the court was not required to impose
18
concurrent sentences for these offenses. See Juhl, 172 P.3d at 900;
see also § 18-1-408(3).
¶ 35 Fourth, Allman contends that the sentencing court illegally
sentenced him to both the custody of the Department of Corrections
and probation. Specifically, he argues that the sentencing court
was only authorized to impose an overall sentence either to
probation or imprisonment — but not both — notwithstanding that
he was convicted of multiple offenses. We disagree.
¶ 36 As an initial matter, we note that a sentence to probation is
not ordinarily subject to appellate review unless it was granted
contrary to the provisions of section 18-1.3-104(1)(a), C.R.S. 2016,
or section 18-1.3-202(1). See Jenkins, ¶ 10; see also People v.
Whitlock, 2014 COA 162, ¶ 29. However, “where, as here, a
defendant contends that ‘a court has exceeded its statutory
authority’ in imposing a probationary sentence, appellate review is
warranted.” Jenkins, ¶ 10 (quoting People v. Rossman, 140 P.3d
172, 174 (Colo. App. 2006)).
¶ 37 Under section 18-1.3-202(1),
the court may grant the defendant probation
for such period and upon such terms and
conditions as it deems best. The length of
19
probation shall be subject to the discretion of
the court and may exceed the maximum period
of incarceration authorized for the
classification of the offense of which the
defendant is convicted . . . .
(Emphasis added.) Under the plain language of this statute, a
sentencing court has broad authority to impose a sentence to
probation. See Jenkins, ¶ 39. This discretion is limited only by
restrictions “derived from statute.” Chism v. People, 80 P.3d 293,
294 (Colo. 2003).
¶ 38 There are certain limitations on the probationary power of a
court.3 See, e.g., Veith v. People, 2017 CO 19, ¶ 4 (holding that a
defendant must consent to probation); People v. Bassford, 2014
COA 15, ¶ 25 (concluding that a sentencing court may not impose a
sentence of incarceration for a single offense and then suspend that
sentence and order probation). None of these statutory limitations
is at issue in this case.
3 One reason for the broad discretion given to a sentencing court is
to ensure that the court “select[s] a sentence, a sentence length,
and a level of supervision that addresses the offender’s individual
characteristics and reduces the potential that the offender will
engage in criminal conduct after completing his or her sentence.”
§ 18-1-102.5(1)(e), C.R.S. 2016.
20
¶ 39 Furthermore, in People v. Trujillo, 261 P.3d 485, 487-88 (Colo.
App. 2010), a division of this court held that a sentencing court is
authorized to impose a sentence of probation that runs
consecutively to the end of the defendant’s period of incarceration
in a separate case. The division reasoned that there is “no
meaningful distinction between an order for a probationary
sentence to be served consecutively to the entirety of another
sentence, and an order for a probationary sentence to be served
consecutively to the incarceration component of another sentence.”
Id. at 488. We perceive the holding and reasoning in Trujillo to be
applicable here as well. In our view, if Trujillo permits the
imposition of a sentence to probation consecutively to a sentence of
imprisonment in another case, we see no reason why its rationale
should not also encompass the imposition of a sentence to
probation that runs consecutively to a sentence of imprisonment for
a separate offense in the same case.
¶ 40 We are not persuaded by Allman’s reliance on People v.
Flenniken, 749 P.2d 395, 399 (Colo. 1988). In Flenniken, the
supreme court held that a trial court was prohibited from
sentencing a defendant to both imprisonment and probation for a
21
single offense in the same case. Id. Allman argues that Flenniken
should thus be extended to hold that a sentencing court lacks
authority to impose a consecutive sentence to probation for one
offense where the court has sentenced the defendant to prison for
other offenses in a single case. However, Allman does not cite, nor
have we found, any statute or case suggesting that the probationary
power of the court is so limited. See Trujillo, 261 P.3d at 488-89.
Indeed, the sentencing statutes generally, and the text of the
probationary power of the sentencing court specifically, are replete
with language suggesting that a sentence is indivisible only for each
offense; nowhere in those statutes are convictions for multiple
offenses regarded as a package for purposes of sentencing. See,
e.g., § 18-1-102.5(1)(a), C.R.S. 2016 (referring to sentences for each
“offense,” not for each case); see also § 18-1.3-202(1) (“The length of
probation shall be subject to the discretion of the court and may
exceed the maximum period of incarceration authorized for the
classification of the offense of which the defendant is
convicted . . . .”) (emphasis added). Contrary to Allman’s argument,
as discussed above, we are more persuaded that Trujillo provides
22
the proper analytical framework for resolving this issue. See
Trujillo, 261 P.3d at 487-88.
¶ 41 In sum, we conclude that, where, as here, a court sentences a
defendant for multiple offenses in the same case, it may, within its
discretion, impose imprisonment for certain offenses and probation
for others — including probation consecutively to a period of
incarceration — subject only to statutory limitations. Accordingly,
we perceive no error in Allman’s consecutive sentence to probation
for forgery under Count 12. See Torrez, ¶ 71.
¶ 42 Allman also appears to argue that the court abused its
discretion by sentencing him both to probation under Count 12 and
to imprisonment on all other counts, because a sentence to
imprisonment is exclusively punitive, whereas a sentence to
probation is exclusively rehabilitative. Again, we disagree. As
discussed above, nothing in the applicable statutes prohibits such
sentencing. And Trujillo expressly recognizes the practical
difficulties of ordering a probationary sentence to run concurrently
with a sentence to incarceration. See Trujillo, 261 P.3d at 488-89.
Further, the record shows that the sentencing court relied on a
presentencing memorandum from the prosecution recommending
23
that Allman serve his probation after his period of incarceration to
allow him to repay the significant restitution owed in this case.
¶ 43 As noted by a division of this court in People v. Maxich,
“[r]estitution is part of the criminal sentence rather than merely a
debt owed by the defendant to the victim. Payment of restitution
advances the rehabilitative purpose of a probationary sentence.”
971 P.2d 268, 269 (Colo. App. 1998) (citation omitted).4 Under
these circumstances, we perceive no abuse of discretion in the
court’s imposition of the consecutive sentence to probation on
Count 12.
¶ 44 Finally, Allman contends that his sentence on Count 1 for
theft from an at-risk adult should run concurrently to his other
sentences because the jury was not expressly required to make a
specific finding regarding what, exactly, Allman stole from the
4 To the extent that Allman argues that the victim in this case will
likely be deceased by the time he completes his prison sentence,
and, therefore, the purpose of his probation sentence is futile, he is
incorrect. Where a victim, for purposes of restitution, “is deceased
or incapacitated, the person’s spouse, parent, legal guardian,
natural or adopted child, child living with the victim, sibling,
grandparent, significant other . . . or other lawful representative,”
who is “aggrieved by the conduct of [the] offender,” is entitled to
restitution. People v. Lane, 2014 COA 48, ¶ 44 (emphasis added)
(quoting § 18-1.3-602(4)(a), C.R.S. 2016).
24
victim as the basis for that count. Allman argues that,
consequently, the jury could have based its verdict on evidence
identical to his other convictions under section 18-1-408(3). Here,
too, we disagree.
¶ 45 According to our supreme court, “[t]he mere possibility that
the jury may have relied on identical evidence in returning more
than one conviction is not sufficient to trigger the mandatory
concurrent sentencing provision” set forth in section 18-1-408(3).
People v. Muckle, 107 P.3d 380, 383 (Colo. 2005); accord Juhl, 172
P.3d at 900. “Instead, [section 18-1-408(3)] requires courts to
impose concurrent sentences ‘only when the evidence will support
no other reasonable inference than that the convictions were based
on identical evidence.’” Torrez, ¶ 33 (quoting Juhl, 172 P.3d at 900).
¶ 46 During closing argument, the prosecutor explained to the jury
exactly what evidence supported the theft count, stating as follows:
So in relation to the theft, we’re talking about
the Victim’s bank account, 6005, the account
that [the victim] set up specifically to go to
Australia, because that is the account that
[Allman’s] purchases were made from. And the
value of those purchases, which you saw, was
$1,763.75 and was made over a four-day
period, between the 9th and 13th of December.
And so you have two questions to answer in
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relation to that theft. If you decide that
[Allman] stole that money from [the victim]’s
Wells Fargo bank account, you then have to go
on and decide did [Allman] steal over $500;
and, secondly, did [Allman] know that [the
victim] was an “at risk” elder? Did he know
[the victim] was over 70? . . . So that’s the first
count involving the bank account. And look at
the elements of the theft and decide if you
think that is proved beyond a reasonable
doubt.
¶ 47 Accordingly, under these circumstances, we cannot conclude
that the sentencing court was required to order a concurrent
sentence for Allman’s theft conviction. See Muckle, 107 P.3d at
383; see also Torrez, ¶ 33.
¶ 48 For the reasons stated above, we perceive no error in any of
Allman’s sentences in this case. See Torrez, ¶¶ 71-72.
IV. Conclusion
¶ 49 The judgment and sentence are affirmed.
JUDGE DAVIDSON and JUDGE CASEBOLT concur.
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