The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 3, 2018

No. 16CA0192 People v. Madison — Crimes — Theft; Criminal Law — Sentencing — Restitution

Pursuant to an agreement between the defendant and the

prosecution in a theft case, the defendant was permitted to take

possession of the stolen property if he paid restitution to the victims

within a contractual period of time. The defendant did not pay the

restitution and, five years later, the sheriff’s office moved for an

order authorizing it to destroy the stolen property. Defendant

objected, but the court granted the motion.

On appeal, the defendant argues that he had an ownership

interest in the stolen property based on the Uniform Commercial

Code (UCC) and conversion principles. A division of the court of

appeals concludes that the disposition of the stolen property is governed by the agreement, not by the UCC or conversion

principles, and that the agreement allowed the sheriff’s office to

destroy the stolen property when defendant did not pay restitution

within the contractual period of time.

COLORADO COURT OF APPEALS

Court of Appeals No. 16CA0192 Jefferson County District Court No. 09CR1101 Honorable Todd L. Vriesman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Edward Madison,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE HARRIS Taubman and Márquez*, JJ., concur

Announced May 3, 2018

Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, 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. 2017.

¶1 Defendant, Edward Madison, appeals the district court’s order

granting the Jefferson County sheriff’s office’s motion to destroy

evidence associated with Madison’s theft conviction. We affirm.

I. Background

¶2 Between March 2007 and April 2009, Madison stole scores of

bottles of expensive wine from multiple liquor stores in Jefferson

County. The prosecution charged him with three counts of theft

($1000 to $20,000), all class 4 felonies, in violation of section 18-4-

401(1), C.R.S. 2017.

¶3 In April 2010, Madison pleaded guilty to an added count of

attempted theft, a class 6 felony. In exchange, the prosecution

agreed to a sentence of “probation with restitution.”

¶4 The court sentenced Madison to a two-year term of probation.

As for the restitution, the liquor stores declined to accept the wine

recovered from Madison’s home because the method of storage

could not be confirmed, and therefore the wine was unmarketable.

Instead, the stores sought reimbursement for the retail value of the

wine. Accordingly, the court ordered restitution in the amount of

1 $16,514.1 Police had seized $7000 during the search of Madison’s

home and that money was distributed to the victims, leaving a

restitution balance of $9514.

¶5 Contemporaneously with the plea agreement, Madison and the

prosecution entered into an “Evidence Disposition Agreement”

(Agreement). The Agreement provided in relevant part:

 “Law enforcement may dispose of all evidence on the

attached log except” sixty-seven bottles of wine recovered

by police which would be returned to “defendant when

restitution [was] paid.”

 “Law enforcement shall release” the sixty-seven bottles of

wine to the defendant or his lawyer “when restitution

[was] paid,” but the wine had to be requested “within 90

days” of the date of the Agreement.

 “Defendant understands that the agency may dispose of

these items if they are not picked up within 90 days,

unless other arrangements are made.”

1That figure included $5600 to a prospective third-party buyer who had agreed to purchase some of the wine. But after the prospective buyer sent Madison the money, Madison failed to send him the wine. 2  “The defendant waives any right to further notification

before the disposition for the items authorized above.”

 “Any disposition will be according to the law enforcement

agency’s procedures and protocols, which may include

returning property to the rightful owner or destruction.”

¶6 Madison did not pay the outstanding restitution or request the

wine within ninety days.

¶7 Nearly two years later, in January 2012, Madison’s probation

officer filed a complaint to revoke his probation, alleging that

Madison had pleaded guilty to shoplifting in April 2011. In

addition, though Madison’s two-year probationary sentence was set

to expire a few months later, Madison still owed $7740 in

restitution.

¶8 The court revoked Madison’s probation, resentenced him to a

one-year term of probation, and reimposed the restitution

obligation.

¶9 In May 2015, five years after Madison signed the Agreement,

the sheriff’s office moved for an order authorizing the destruction of

the wine. Madison objected, contending that — although he still

owed $7540 in restitution — he should be permitted to take 3 possession of the wine and sell it, then apply the proceeds to his

restitution balance. Madison argued that he had “a claim to

ownership” of the wine based on the Uniform Commercial Code

(UCC) and conversion principles. The court granted the motion, but

stayed its order.

¶ 10 On appeal, Madison reasserts his argument that he has an

ownership interest in the wine. As a result, he contends, the court

should have either permitted him to sell the wine or ordered the

sheriff’s office to sell it, with any proceeds applied to his restitution

obligation. We conclude that disposition of the wine is governed by

the Agreement, not by the UCC or conversion principles, and that

the Agreement expressly provides for the destruction of the wine

under these circumstances.

II. Discussion

A. Disposition of the Evidence is Governed by The Evidence Disposition Agreement

¶ 11 Madison does not dispute that he entered into the Agreement

with the prosecution. Thus, we look to the Agreement to determine

whether it specifically allows law enforcement officials to destroy or

4 otherwise dispose of the wine and whether it provides for an offset

against Madison’s restitution obligation.

¶ 12 The Agreement between Madison and the prosecution is, like

Madison’s related plea agreement, a contract. See People v.

Johnson,

(Colo. 2000); see also McCary v. People,

(Colo. 1994) (holding that a defendant is bound

by her agreement to pay restitution). So we apply contract

interpretation principles to construe the Agreement. Johnson,

. In doing so, we seek to effectuate the intent of the

parties, focusing on “the meaning a reasonable person would have

attached to the agreement under the circumstances.”

¶ 13 The meaning of the Agreement is a question of law that we

review de novo.

¶ 14 Pursuant to the plain language of the Agreement, Madison

could recover the stolen wine from law enforcement officials (1)

“when restitution [was] paid” and (2) if the wine was “picked up

within ninety days.” We conclude that the only reasonable

interpretation of the Agreement is that Madison had to both pay the

restitution and pick up the wine within ninety days.

5 ¶ 15 If Madison did not pay restitution and pick up the wine before

the deadline, the Agreement expressly provided that “law

enforcement” (i.e., the sheriff’s office) could “dispose of the items”

without further notice to Madison. And the “disposition” of the wine

could “include . . . destruction.”

¶ 16 Madison did not pay restitution or pick up the wine within

ninety days. At that point, under the plain and ordinary meaning of

the Agreement’s terms, the sheriff’s office had the right (without

seeking approval from the court or notifying Madison) to dispose of

the wine. See People v. Barton,

(Colo. 2008) (a

plea agreement is interpreted according to the plain and ordinary

meaning of its terms). Further, no provision in the Agreement gave

Madison the right to determine the particular disposition of the

wine or to demand that any proceeds from the disposition be

distributed to the victims and then applied to reduce his restitution

balance. See, e.g., Janicek v. Obsideo, LLC,

(Colo. App. 2011) (in interpreting a contract, the court may not

rewrite or restructure the parties’ agreement).

¶ 17 Thus, the Agreement unambiguously gave the prosecution (or

the sheriff’s office) the right to dispose of the wine in May 2015.

6 When the terms of the plea agreement or similar contract are

unambiguous, we ordinarily enforce the terms as written. See Craig

v. People,

(Colo. 1999); see also United States v.

Jordan,

(4th Cir. 2007) (“If the plea agreement is

unambiguous as a matter of law, and there is no evidence of

governmental overreaching, we should interpret and enforce the

agreement accordingly.”).

¶ 18 Still, Madison says that by failing to promptly exercise its right

to destroy the wine, the prosecution either modified the Agreement

or waived any right to enforce the ninety-day deadline. We are not

persuaded.

¶ 19 As for the purported modification, Madison does not explain

when the Agreement was modified or identify any new rights or

obligations of the parties based on the modification. We therefore

need not address this contention. See People v. Diefenderfer,

(Colo. 1989) (Appellant must “inform a reviewing

court both as to the specific errors relied upon and as to the

grounds, supporting facts and authorities therefor.”).

¶ 20 As for the prosecution’s alleged waiver, we acknowledge that a

party may waive a contract provision where the party is “entitled to

7 assert a particular right, knows the right exists, but intentionally

abandons that right.” Tarco, Inc. v. Conifer Metro. Dist.,

(citation omitted); see also Dep’t of Health v. Donahue,

(Colo. 1984) (Conduct implying an intent to waive

must be “free from ambiguity and clearly manifest the intention not

to assert the benefit.”).

¶ 21 However, the circumstances of this case do not fit squarely

within the doctrine of waiver. The purpose of the waiver doctrine is

“to prevent the waiving party from lulling the other party into a

belief that strict compliance with a contractual duty will not be

required and then either suing for noncompliance or demanding

compliance for the purpose of avoiding the transaction.” 13

Williston on Contracts § 39:15, Westlaw (4th ed. database updated

May 2017) (footnote omitted). Here, the prosecution neither sued

Madison for noncompliance nor demanded compliance as a way to

avoid the Agreement. More importantly, Madison has not alleged,

and there is no evidence in the record, that the sheriff’s office or the

prosecution “lulled” him into a belief that law enforcement officials

would store the wine indefinitely on the off chance that he might

someday fulfill his restitution obligation.

8 ¶ 22 In any event, even if the prosecution waived the initial

ninety-day deadline, and implicitly extended the deadline by five

years (a deadline Madison still failed to meet), a new deadline was

set at the hearing on Madison’s objection to the motion to destroy

evidence. See State of Fla., Dep’t of Ins. v. United States,

(Fed. Cir. 1996) (nonbreaching party does not waive

a deadline if it sets a new deadline for performance “so that the

parties will understand when performance is required”). In August

2015, the court essentially re-extended the deadline for an

additional thirty days, explaining that if Madison paid the

restitution by September 2015 (now, a full sixty-five months after

he agreed to pay restitution), he could reap the benefit of the

expired Agreement. But Madison did not pay the restitution.

¶ 23 Under these circumstances, we cannot conclude that the

prosecution intentionally abandoned any deadline for collecting the

restitution and implicitly agreed to store the wine forever.

¶ 24 Accordingly, we must enforce the unambiguous terms of the

Agreement. And because Madison failed to satisfy the conditions

precedent to his recovery of the wine, he is not entitled to take

9 possession of the wine or to otherwise dictate the terms of its

disposition.2

B. The Agreement Did Not Give Madison an Ownership Interest in the Wine and an Ownership Interest Is Not Conferred by Any Statute or Legal Principle

¶ 25 We reject Madison’s contention that, notwithstanding his

failure to satisfy its requirements, the Agreement gave him an

ownership interest in the wine, as did various statutes or legal

principles.

¶ 26 Though it almost goes without saying, we emphasize, as a

preliminary matter, that “one who steals or converts property to his

own use does not thereby acquire title thereto.” Stewart v. People,

,

(1977) (quoting Trustee

Company v. Aetna Co.,

,

(1957)); see

also West v. Roberts,

(Colo. 2006) (“A thief has

2 Although Madison has no right to determine the disposition of the property, if, in accordance with its “procedures and protocols,” the sheriff’s office sells the wine and if it distributes the sale proceeds to the victims (because they have not otherwise been compensated for the loss — from, for example, the proceeds of an insurance policy), Madison is entitled to a setoff against the balance of his restitution obligation. § 18-1.3-603(3)(b)(II), C.R.S. 2017; People v. Stanley,

(noting the restitution statute does not permit double recovery by the victim). 10 no title and can pass none, not even to a buyer in the ordinary

course.”). With that elementary principle in mind, we turn to

Madison’s arguments.

¶ 27 First, Madison says that the Agreement “effectively became a

sales contract” because “the parties agreed that Madison could

obtain the property,” and “Madison therefore had rights to that

property.” As we have discussed, Madison had a right to obtain the

property upon the satisfaction of certain conditions precedent. He

did not satisfy those conditions and therefore he did not obtain any

right to the wine.

¶ 28 Second, Madison argues that the UCC gave him an ownership

interest in the wine. Madison says that, pursuant to section 4-2-

401(2), C.R.S. 2017, he “bec[a]me a buyer of the goods via his

restitution order” and that “title passed to Madison upon [the]

delivery” of the wine to the sheriff’s office.

¶ 29 Section 4-2-401 has no application to this case. That

provision explains when title to goods passes from a seller to a

buyer under a contract for sale — “[u]nless otherwise explicitly

agreed, title passes to the buyer at the time and place at which the

seller completes his performance” — and notes that any reservation

11 by the seller of the title is limited to a reservation of a security

interest. § 4-2-401(2).

¶ 30 Setting aside the fact that the victims are not “sellers” because

they relinquished their right to the property by seeking

reimbursement from Madison; and setting aside the fact that

Madison is not a “buyer” within the meaning of the UCC, see § 4-1-

201(9), C.R.S. 2017; and, finally, setting aside the fact that even

under the UCC, title does not transfer until the seller has delivered

the goods to the buyer (which did not occur here), the parties had

“otherwise explicitly agreed” in the Agreement that Madison’s right

to ownership of the wine was contingent on payment of restitution

within ninety days. By its own terms, section 4-2-401(2) cannot

override the parties’ agreement.

¶ 31 Third, the existence of a judgment lien did not give Madison an

ownership interest in the wine. We agree that an order for

restitution “is a final civil judgment in favor of the state and any

victim,” § 18-1.3-603(4)(a)(1), C.R.S. 2017, and that the order

therefore “creates a lien by operation of law against the defendant’s

personal property and any interest that the defendant may have in

any personal property,” § 18-1.3-603(b)(II)(c). But the wine was not

12 Madison’s personal property, at least not until he paid for it by

fulfilling his restitution obligation.

¶ 32 And finally, Madison did not obtain a property interest in the

wine under principles of conversion. He contends that “a ‘judicial

sale’ was effected pursuant to 4-2-401(2), C.R.S. 2017, passing title

to him, when the theft [victims] opted to receive restitution for full

value.” Section 4-2-401(2) has nothing to do with judicial sales.

Instead, as Madison noted in the district court, a “de facto” judicial

sale is a remedy for the tort of conversion:

In conversion the measure of damages is the full value of the chattel, at the time and place of the tort. When the defendant satisfies the judgment in the action for conversion, title to the chattel passes to him, so that he is in effect required to buy it at a forced judicial sale. Restatement (Second) of Torts § 222A cmt. c. (Am. Law Inst. 1965).

Under conversion principles, title to the wine was not transferred to

Madison when the victims sought restitution; rather, ownership

would have transferred to Madison only if he had paid for the wine,

and thereby reimbursed the victims for their loss. But he did not.

III. Conclusion

¶ 33 The order is affirmed.

13 JUDGE TAUBMAN and JUDGE MÁRQUEZ concur.

14