This Opinion is subject to revision upon final publication.
El Paso County District Court No. 10CR3460. Honorable Kirk S. Samelson, Judge.
Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Audrey E. Bianco, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
J. JONES, JUDGE.
[¶1] Defendant, Ronald Clanton, appeals his conviction for forgery and the restitution portion of his sentence. We affirm the conviction but vacate that portion of his sentence that includes a statutory penalty as part of his restitution obligation and remand the case to the district court.
[¶2] Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The People charged him with one count of forgery and one count of attempt to influence a public servant based on his indorsement and cashing of state-issued checks.
[¶3] The trial court found defendant not guilty of attempt to influence a public servant but guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a fifty percent statutory penalty of $4132.50, which the court believed was required by section 8-81-101(4)(a)(II), C.R.S. 2014.
[¶4] Defendant contends that he was unlawfully convicted of forgery because: (1) his conduct could be charged only under section 8-81-101(1)(a); and (2) charging him with forgery when his conduct could have been charged under section 8-81-101(1)(a) violated his constitutional right to equal protection of the laws. He also contends that the court erroneously imposed the statutory penalty as part of restitution because the penalty does not represent a pecuniary loss to the victim.
A. General or More Specific Statutory Prohibition
[¶5] The People charged defendant under the general forgery statute, section 18-5-102, C.R.S. 2014, which is part of the Colorado Criminal Code. Defendant contends that because his conduct fit the more specific statute prohibiting the making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits, section 8-81-101(1)(a), he could be charged only under the latter statute. The statutory basis of the charge matters because forgery is a felony, but making a false statement in violation of section 8-81-101(1)(a) is only a misdemeanor. Defendant asserts that it also matters because if the People could only have charged him under section 8-81-101(1)(a), he cannot be charged under that section if we reverse his forgery conviction. See § 18-1-408(2), C.R.S. 2014 (where several offenses are known to the prosecuting authority at the time charges are instituted, they must be prosecuted in a single prosecution if they arise out of the same act or series of acts; " any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution" ).
[¶6] We conclude that the People could charge defendant under the general forgery statute.
1. Applicable Law and Standard of Review
[¶7] As relevant here, the general forgery statute under which the People charged defendant provides:
(1) A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
. . .
(e) A written instrument officially issued or created by a public office, public servant, or ...