Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA1954
Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General Kevin E. McReynolds, Assistant Attorney General
Attorneys for Respondent: Law Office of Lynn C. Hartfield,
LLC Lynn C. Hartfield Denver, Colorado
Respondent John Stellabotte owned a towing company that he
used to illegally tow cars and then demand payment from the
owners. At the time he did this, his thefts constituted a
class 4 felony. But before he had been convicted and
sentenced, the General Assembly changed the theft statute to
make the crime a class 5 felony, with a correspondingly lower
sentence. The amendment to the theft statute did not say
whether it applied prospectively or retroactively. Without
any party bringing this statutory change to the trial
court's attention, it sentenced Stellabotte, as relevant
here, for two class 4 felony counts under the old theft
Stellabotte appealed, arguing he should have been sentenced
for two class 5 felonies under the amended statute. A
division of the court of appeals agreed, reversing on this
point, albeit in a split opinion. Because the statutory
amendment was silent on its application, the majority
reasoned that Stellabotte should have received the benefit of
its ameliorative effects under section 18-1-410(1)(f), C.R.S.
(2017), and a line of cases reaching the same result. Judge
Dailey disagreed, reasoning that ameliorative legislation
applies only prospectively-under sections 2-4-202 and
2-4-303, C.R.S. (2017), and a different line of cases echoing
that principle-unless the General Assembly indicates its
intent for the legislation to apply retroactively.
In this opinion, we hold that ameliorative, amendatory
legislation applies retroactively to non-final convictions
under section 18-1-410(1)(f), unless the amendment contains
language indicating it applies only prospectively. In
reaching this conclusion, we clarify that our decision in
People v. Thomas, 525 P.2d 1136 (Colo. 1974)
(allowing retroactive application of ameliorative statutory
amendments under section 18-1-410(1)(f)), remains good
law and governs here. We further explain that section
18-1-410(1)(f)'s retroactive application for changes in
criminal law acts as an exception to the general presumption
of prospectivity that sections 2-4-202 and 2-4-303 provide.
The division properly concluded that the theft amendment
applies retroactively to cases involving convictions that
were not final on the effective date of the amendment.
So, we affirm the division's judgment and remand for
further proceedings consistent with this opinion.
Facts and Procedural History
John Stellabotte owned and operated a towing company. In
2012, he illegally towed two cars valued between $1, 000 and
$20, 000-demanding money from each owner for their return.
The People charged Stellabotte with, among other things,
felony theft. At that time, Stellabotte's actions
constituted a class 4 felony. But in 2013, the General
Assembly amended the theft statute, lowering the
classification of theft for items valued between $5, 000 and
$20, 000 to a class 5 felony. The 2013 amendment is silent
regarding whether it applies prospectively or retroactively.
A year after this change, a jury found Stellabotte guilty of
aggravated motor vehicle theft, two felony theft counts, and
a misdemeanor theft count. And the trial court found
Stellabotte to be a habitual offender, sentencing him to a
concurrent twenty-four years for the two felony theft counts
under the old theft statute.
Neither the People nor Stellabotte brought the 2013
reclassification to the trial court's attention. But had
Stellabotte been sentenced under the 2013 theft statute, he
would have received twelve years, assuming the trial court
sentenced the defendant concurrently. Stellabotte appealed,
arguing among other things that he should have received the
benefit of the 2013 amendment's reclassification.
In a split, published opinion, a division of the court of
appeals agreed, reversing in relevant part. Following
People v. Boyd, 2015 COA 109, 395 P.3d 1128
(concluding that although Amendment 64 did not state a clear
intent of retroactive application, it nevertheless applied
retroactively to the defendant's conviction for
possession of marijuana), aff'd on other
grounds, 2017 CO 2, 387 P.3d 755, and People v.
Russell, 2014 COA 21M, 396 P.3d 71 (same), aff'd
on other grounds, 2017 CO 3, 387 P.3d 750, the majority
concluded the amendment to the theft statute applied
retroactively to Stellabotte's felony theft convictions
under section 18-1-410(1)(f) because the amendment was
enacted while his case was pending in the trial court. Judge
Dailey's dissent reasoned Boyd and
Russell are inapposite because those cases concerned
a constitutional amendment, not an amended statute. In his
view, sections 2-4-202 and 2-4-203 and related precedent
foreclose retroactive application of ameliorative criminal
legislation unless the General Assembly clearly intends for
it to be applied retroactively.
The People appealed and we granted certiorari to review this
case and a related case in People v. Patton, 2018 CO
67, P.3d, which we also decide today.
Standard of Review
This case involves questions of statutory interpretation,
which we review de novo. State Farm Mut. Auto. Ins. Co.
v. Fisher, 2018 CO 39, ¶ 12, 418 P.3d 501, 504.
With conflicting precedent and statutes supporting their
divergent positions, the parties dispute whether the 2013
amendment to the theft statute applies retroactively. We
start with an overview of the applicable cases, and clarify
that our decision in People v. Thomas, 525 P.2d 1136
(Colo. 1974) (allowing retroactive application of
ameliorative statutory amendments under section
18-1-410(1)(f)), remains good law and governs here. Next, we
turn to the conflicting statutes at issue, and we explain why
section 18-1-410(1)(f) controls in this case. Finally, we
conclude that the theft amendment applies retroactively to
cases involving convictions that were not final on the
effective date of the amendment.
Thomas Remains Good Law and Governs Here
The theft amendment is silent regarding whether it applies
retroactively or prospectively, and the relevant legislative
history offers no guidance on this point either. See
ch. 373, sec. 1, § 18-4-401(2)(g), 2013 Colo. Sess. Laws
2195, 2195-96, 2202. ¶13 Both parties point to cases
from this court that-at first blush-appear to support their
sides. One line of cases follows this court's decision in
Thomas, which holds defendants should receive the
benefit of amendatory legislation that became effective at
any time before the conviction became final on appeal. A
different, more recent line of cases suggests that a
defendant can't receive such a benefit unless the General
Assembly clearly indicates its intent for the legislation to
apply retroactively. See Riley v. People, 828 P.2d
254 (Colo. 1992).
The People argue that the division erred in concluding that
the theft statute's amendments apply retroactively to
lessen Stellabotte's sentence. They claim Colorado courts
consistently rely on the presumption (articulated in the
latter line of cases) that statutes apply prospectively
unless the statute expressly states it applies retroactively.
Stellabotte disagrees. He contends Thomas applies
here and that the more recent cases upon which the People
rely are inapposite.
To resolve this case we must delve into our precedent on
whether ameliorative statutory changes apply retroactively to
benefit criminal defendants ...