Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 15CA1235
Attorneys for Petitioner: Law Office of Suzan Trinh Almony
Suzan Trinh Almony Broomfield, Colorado.
Attorneys for Respondent: Philip J. Weiser, Attorney General
Kevin E. McReynolds, Assistant Attorney General Denver,
Colorado.
OPINION
BOATRIGHT, JUSTICE.
¶1
Frederick Leroy Allman was convicted of seven counts of
identity theft, two counts of forgery, and one count each of
attempted identity theft, aggravated motor vehicle theft, and
theft from an at-risk elder.[1] He was sentenced to a total of
fifteen years in the Department of Corrections
("DOC"), followed by a five-year period of parole.
Then, on one of the forgery counts, he was sentenced to ten
years of probation to be served consecutively to his DOC
sentence, but concurrently with his mandatory parole. Allman
appealed his convictions for identity theft[2] and raised
several issues regarding his sentencing. The court of appeals
affirmed the judgment and sentence, and Allman petitioned
this court for review.
¶2
In his petition, Allman contends as follows: (1) identity
theft is a continuing offense; (2) because identity theft is
a continuing offense, his convictions for the eight identity
theft counts should have merged at sentencing; (3) some of
his convictions were based on identical evidence and thus
require concurrent sentences; and (4) the court could not
legally sentence him to both imprisonment and probation for
different counts in the same case.[3]
¶3
We first hold that the crime of identity theft under section
18-5-902(1)(a), C.R.S. (2019), is not a continuing offense.
We therefore conclude that the trial court did not abuse its
discretion in sentencing Allman separately on the eight
counts of identity theft. Next, we determine that none of the
evidence supporting the identity theft counts and the forgery
counts is identical; hence, it was within the trial
court's discretion whether to sentence Allman to
consecutive sentences on those counts. Finally, we hold that
when a court sentences a defendant for multiple offenses in
the same case, it may not impose imprisonment for certain
offenses and probation for others.[4] Thus, we affirm the judgment
of the court of appeals in part, reverse in part, and remand
with instructions to return the case to the trial court for
resentencing consistent with this opinion.
I.
Facts and Procedural History
¶4
Allman met L.S., a seventy-five-year-old man, through a
meet-up group for older people; Allman introduced himself as
John Taylor. Some time after meeting L.S., Allman claimed to
be having difficulties with his living situation and asked
L.S. for a place to stay. L.S. agreed. After Allman had lived
with L.S. for five months, L.S. left for a three-week
vacation.
¶5
While L.S. was away, Allman used L.S.'s financial
information to repeatedly transfer funds out of L.S.'s
bank account. Allman also used L.S.'s personal
identifying information to open three credit cards and three
separate lines of credit. Allman attempted to open a fourth
credit card, but the issuing bank denied the application.
After making multiple purchases with the credit cards
totaling over $45, 000, Allman moved out of L.S.'s home,
taking a car owned by L.S.
¶6
Allman was charged with multiple crimes arising out of his
conduct, and a jury found him guilty of all charges. At
sentencing, the trial court imposed consecutive sentences to
the DOC for three counts of identity theft (two years each),
one count of theft from an at-risk elder (seven years), and
one count of aggravated motor vehicle theft (two years),
totaling fifteen years in custody of the DOC. The seven-year
sentence imposed for theft from an at-risk elder included the
maximum period of mandatory parole (five years). The court
then imposed two-year sentences for each of the four
remaining counts of identity theft and one count of forgery,
as well as a one-year sentence for attempted identity theft;
these sentences ran concurrently with the combined
fifteen-year sentence imposed on the other counts. Finally,
the court sentenced Allman to ten years of probation for the
second forgery count, to run consecutively to Allman's
DOC sentences, but concurrently with Allman's period of
parole. The court set restitution in the amount of $59,
758.95 as an express condition of Allman's probation.
¶7
Allman appealed, contending, as he does here, that identity
theft is a continuing offense; that many of his convictions
were based on identical evidence and require concurrent
sentences; and that he could not be sentenced to
incarceration and probation for different counts in the same
case. The court of appeals rejected all of Allman's
claims and affirmed his sentences. We granted certiorari and
now affirm in part, reverse in part, and remand with
instructions to return the case to the trial court for
resentencing.
II.
Analysis
¶8
We first determine whether the crime of identity theft, as
laid out in section 18-5-902(1)(a), is a continuing offense.
We hold that it is not. Next, we address Allman's
contentions that his convictions for identity theft, as well
as his convictions for forgery and one of his identity theft
convictions, should have merged and that his sentences were
required to run concurrently. Because identity theft is not a
continuing offense, we conclude that the trial court did not
abuse its discretion in refusing to merge Allman's
convictions for identity theft, and because the relevant
identity theft and forgery convictions are not based on
identical evidence, we conclude that they did not require
concurrent sentences. Finally, we hold that when a court
sentences a defendant for multiple offenses in the same case,
it may not impose imprisonment for certain offenses and
probation for others.
A.
Identity Theft Is Not a Continuing Offense
¶9
Allman contends that identity theft is a continuing offense,
meaning that his eight separate identity theft charges were
actually part of a continuous transaction and are therefore
one crime. As such, Allman contends that the identity theft
charges should have been merged at sentencing to avoid
violating his protection against double jeopardy.
¶10
Determining whether an offense is continuing is a matter of
statutory interpretation, which we review de novo. See
People v. Perez, 2016 CO 12, ¶ 8, 367 P.3d 695,
697.
¶11
"The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect an accused from being placed
in jeopardy twice for the same offense, " People v.
Williams, 651 P.2d 899, 902 (Colo. 1982); this includes
protection against receiving multiple punishments for the
same offense, id. (citing Brown v. Ohio,
432 U.S. 161, 165–66 (1977)). When the legislature
creates an offense, that offense is deemed committed once all
the substantive elements set forth by the legislature are
satisfied. See People v. Thoro Prods. Co., 70 P.3d
1188, 1192 (Colo. 2003). "However, in certain
circumstances, a crime continues beyond the first moment when
all its substantive elements are satisfied, " and it is
deemed a continuing offense. Id. If a "series
of repeated acts . . . are charged as separate crimes even
though they are part of a continuous transaction and
therefore actually one crime, " Woellhaf v.
People, 105 P.3d 209, 214 (Colo. 2005), those
convictions must be merged at sentencing to avoid violating
the U.S. and Colorado Constitutions' Double Jeopardy
Clauses. Thus, to determine whether a defendant's
protection against double jeopardy has been violated
"[i]n these situations, the inquiry is whether the
[legislature] has defined the crime as a continuous course of
conduct." Id. at 214–15.
¶12
A crime is deemed continuous when "the explicit language
of the substantive criminal statute compels such a
conclusion." Toussie v. United States, 397 U.S.
112, 115 (1970). For example, when defining conspiracy, the
legislature explicitly stated that "[c]onspiracy is a
continuing course of conduct." § 18-2-204(1),
C.R.S. (2019). If the explicit language of the statute does
not compel such a conclusion, a crime is deemed continuous if
"the nature of the crime involved is such that [the
legislature] must assuredly have intended that it be treated
as a continuing one." Toussie, 397 U.S. at 115.
In this analysis, we construe the statute to give effect to
the legislature's intent.
¶13
When construing a statute to give effect to the
legislature's intent, we first look to the statute's
text and "apply the plain and ordinary meaning of the
provision." Perfect Place, LLC v. Semler, 2018
CO 74, ¶ 40, 426 P.3d 325, 332. In doing so, we consider
"the statute as a whole, construing each provision
consistently and in harmony with the overall statutory
design." Whitaker v. People, 48 P.3d 555, 558
(Colo. 2002).
¶14
The statute at issue here is section 18-5-902(1)(a). It
prohibits a person from knowingly using another's
personal or financial information, without permission, and
with the intent to obtain something of value:
A person commits identity theft 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 . . . .
[5]
ยง 18-5-902(1)(a). Unlike statutes that explicitly define
the crime as "a continuing course of conduct, " the
identity theft statute contains no language that explicitly
defines identity theft as a continuing offense. Thus, we must
look to the alternative test to determine whether, based on
the nature of the crime, the legislature nevertheless
assuredly intended ...