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ADVANCE SHEET HEADNOTE May 11, 2020

No. 18SC656, Halaseh v. People—Entry of Conviction on Remand—Lesser Included Offenses.

Halaseh petitioned for review of the court of appeals’ remand order in his

underlying appeal, which directed the district court to enter four convictions for

class 4 felony theft in place of the single conviction of class 3 felony theft reflected

in the charge and jury verdict. The intermediate appellate court reversed the

conviction for class 3 felony theft on the grounds that when the statutory

authorization for aggregating separate acts of theft was properly applied, there

was insufficient evidence to support a single conviction for theft of $20,000 or

more. It also found, however, that there was sufficient evidence to support four

separate convictions for aggregated thefts with values qualifying as class 4

felonies, and that substituting these four class 4 felony convictions for the vacated

class 3 felony conviction was necessary to fulfill what it understood to be its

obligation to maximize the effect of the jury’s verdict. The supreme court disapproves the remand order because no theft offense

requiring the aggregation of two or more separate instances of theft, whether that

aggregation were to be based on commission within a period of six months or on

commission as a single course of conduct, was a lesser included offense of the class

3 felony of which Halaseh was actually charged and convicted, no such offense

was implicitly found by the jury, and therefore none could be entered in lieu of the

reversed conviction without depriving the defendant of his right to a jury trial. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 18SC656 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA478

Petitioner:

John M. Halaseh,

v.

Respondent:

The People of the State of Colorado.

Judgment Reversed en banc May 11, 2020

Attorneys for Petitioner: Megan A. Ring, Public Defender Jud Lohnes, Deputy Public Defender Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General Kevin E. McReynolds, Assistant Attorney General Denver, Colorado

CHIEF JUSTICE COATS delivered the Opinion of the Court. ¶1 Halaseh petitioned for review of the court of appeals’ remand order in his

underlying appeal, which directed the district court to enter four convictions for

class 4 felony theft in place of the single conviction of class 3 felony theft reflected

in the charge and jury verdict. The intermediate appellate court reversed the

conviction for class 3 felony theft on the grounds that when the statutory

authorization for aggregating separate acts of theft was properly applied, there

was insufficient evidence to support a single conviction for theft of $20,000 or

more. It also found, however, that there was sufficient evidence to support four

separate convictions for aggregated thefts with values qualifying as class 4

felonies, and that substituting these four class 4 felony convictions for the vacated

class 3 felony conviction was necessary to fulfill what it understood to be its

obligation to maximize the effect of the jury’s verdict.

¶2 Because no theft offense requiring the aggregation of two or more separate

instances of theft, whether that aggregation were to be based on commission

within a period of six months or on commission as a single course of conduct, was

a lesser included offense of the class 3 felony of which Halaseh was actually

charged and convicted, no such offense was implicitly found by the jury, and

therefore none could be entered in lieu of the reversed conviction without

depriving the defendant of his right to a jury trial. The remand order of the court

2 of appeals is therefore disapproved, and the case is remanded with directions to

simply reverse the conviction for class 3 felony theft.

I.

¶3 John M. Halaseh was charged with one count of theft of $20,000 or more

from the Social Security Administration, committed over a three-year period

extending from January 2008 to January 2011. He was convicted of that charge,

which at the time was a class 3 felony, and was sentenced to probation with a

condition requiring payment of restitution.

¶4 At trial the prosecution presented evidence to the effect that the defendant

took Social Security payments under circumstances amounting to theft,

periodically, on thirty-seven different occasions, with a total value of $24,494. As

the result of a May 2009 amendment to the theft statute affecting the aggregation

of individual acts of theft for purposes of determining the amount or value of the

theft offense charged, and therefore the classification of that offense, the

intermediate appellate court found there to have been insufficient evidence to

support a single conviction for theft of over $20,000. It therefore reversed the

defendant’s conviction. Reasoning that it had an obligation to maximize the jury’s

verdict by ordering the substitution of as many convictions as were both implicit

in the reversed conviction and supported by sufficient evidence, and further

reasoning that by applying the applicable aggregation provisions of the statute, 3 the jury could have legally aggregated the individual instances of theft into four

class 4 felonies—three based on acts of theft over separate six-month periods and

one based on acts of theft that were part of the same course of conduct—the

appellate court vacated the defendant’s class 3 felony conviction and remanded

with directions to enter those four class 4 felony convictions in its place.

¶5 The defendant petitioned this court for a writ of certiorari, challenging the

intermediate appellate court’s remand order on a number of grounds related to

the deprivation of his rights to notice and a jury trial.

II.

¶6 As a matter of constitutional limitation, a criminal verdict may not be

directed for the State nor a criminal conviction entered for an offense not

authorized by the jury’s verdict, no matter how overwhelming the evidence. See

Sanchez v. People,

,

(directly relying on Sullivan v.

Louisiana,

(1993)); see also Medina v. People,

(Colo. 2007) (finding that the district court erred “when it entered its own

conviction and sentence . . . instead of determining the punishment warranted by

the jury’s guilty verdict”). However, under certain circumstances, in both federal

and Colorado law, a judgment of conviction may enter for an offense necessarily

implied in a jury verdict that has been successfully challenged on appeal. See

Rutledge v. United States,

(1996) (“Consistent with the views 4 expressed by the District of Columbia Circuit, federal appellate courts appear to

have uniformly concluded that they may direct the entry of judgment for a lesser

included offense when a conviction for a greater offense is reversed on grounds

that affect only the greater offense. This Court has noted the use of such a practice

with approval.” (citing 8A J. Moore, Federal Practice ¶ 31.03[5] & n.54 (2d ed. 1995);

and Morris v. Mathews,

, 246–47 (1986); other citations omitted)); see also

United States v. Mitcheltree,

, 1352 n.17 (10th Cir. 1991); Allison v.

United States,

, 450–51 (D.C. Cir. 1969); People v. Sepulveda,

,

1007–08 (Colo. 2003); Crespin v. People,

(Colo. 1986); People v.

Patterson,

(Colo. 1975).

¶7 Procedurally, the federal courts have found authority for the entry of such

implied convictions in

(2018), which provides that an appellate

court “may affirm, modify, vacate, set aside, or reverse any judgment.” See

Mitcheltree,

n.17; Allison, 409 F.2d at 450–51. Similarly, we have

long found authority for this practice in Colorado Appellate Rule 35, which

provides that an appellate court “may, in whole or in part, dismiss an appeal;

affirm, vacate, modify, reverse, or set aside a lower court judgment; and remand

any portion of the case to the lower court for further proceedings.” See Patterson,

.

5 ¶8 However, consistent with constitutional limitations, a lesser offense can be

considered necessarily implied in a jury verdict finding a criminal defendant

guilty of a greater offense only to the extent that it can be determined from the

jury’s verdict alone that each of its elements has already been charged and found

by the jury beyond a reasonable doubt. See Sanchez, ¶ 13,

(“Taken

together, the Fifth Amendment Due Process Clause and the Sixth Amendment

guarantee of a trial by jury permit conviction only upon a jury verdict finding the

defendant guilty of having committed every element of the crime with which he

has been charged.”). Because we have now made clear that an offense is a lesser

included offense of another in this jurisdiction only “if the elements of the lesser

offense are a subset of the elements of the greater offense, such that the lesser

offense contains only elements that are also included in the elements of the greater

offense,” see Reyna-Abarca v. People,

,

, a lesser

included offense in this jurisdiction is always implied in the conviction of its

greater offense. Whether all of the findings required for the guilty verdict returned

by a jury are better characterized as “elements,” or instead may be better

characterized for certain purposes as “sentencing factors,” a lesser offense, the

required findings for which include no more than has been alleged in the charging

document and already found beyond a reasonable doubt by the jury, is necessarily

implied in the jury verdict. Cf. People v. Garcia,

, 363–64 (Colo. 1997), 6 as modified on denial of reh’g (Aug. 4, 1997) (finding the prosecution entitled to an

instruction on a lesser offense as if it were a lesser included offense where the

offense as charged alleges a sentence enhancement factor giving the defendant

notice that it must be proved as if it were an element). A lesser offense as to which

the prosecution would not have been entitled to an instruction in the absence of

its express inclusion in the charging document clearly could not be considered

implied in a jury verdict.

¶9 We have never, however, suggested that an appellate court must enter

judgment of conviction of a lesser offense that is necessarily implied in a jury

verdict reversed on appeal, much less that the appellate court must “maximize”

the jury’s verdict by entering judgment of conviction for as many such lesser

offenses as possible. Instead we have held only that it would be “authorized,” or

“proper,” or “appropriate,” to enter judgment on a lesser included offense under

some circumstances, and we have at times expressly found it appropriate not to

enter such a judgment but rather to offer the prosecution the option to retry the

defendant for the greater offense or rest on such a lesser offense conviction, should

it so choose. See, e.g., Sepulveda, 65 P.3d at 1007–08; Crespin, 721 P.2d at 692–93.

Nor have we ever attempted to define or circumscribe the scope of an appellate

court’s discretion in this regard.

7 ¶10 The intermediate appellate court’s attempt to fulfill what it understood to

be its duty to maximize the jury verdict was therefore misplaced. In a related

context, we have in the past merely addressed the merger of multiple convictions

that cannot separately stand by reason of either constitutional or statutory

prohibitions; and in those cases, we have merely instructed trial courts to select

the combination of offenses that can simultaneously stand that produce the most

convictions and the longest sentences, in order to maximize the effect of the jury’s

verdict. See People v. Wood,

, ¶¶ 28–29,

(“[I]n

determining which conviction or convictions should be vacated to honor the double

jeopardy clause, a trial court ‘should be directed to enter as many convictions and

impose as many sentences as are legally possible to fully effectuate the jury’s

verdict.’” (emphasis added) (quoting People v. Glover,

(Colo.

1995)).

¶11 In People v. Bartowsheski,

(Colo. 1983), for example,

where the defendant was convicted of deliberation murder, felony murder, and

the underlying felony of robbery, after finding that a defendant may be convicted

of only one count of murder for killing the same victim and that felony murder

and its underlying felony merge, we concluded that the defendant should stand

convicted of first degree murder after deliberation and robbery because doing so

would “give as much effect to the jury’s resolution of the issues submitted to it as 8 can be done without running afoul of the defendant’s constitutional and statutory

rights.” See also Wood, ¶¶ 28–29,

; Glover,

. Our

guidance in this regard has, however, clearly been limited to instructing lower

courts on the merger of multiple convictions from the same proceeding that cannot

simultaneously stand for the reason that they are effectively convictions for the

same offense. E.g., Wood, ¶¶ 28–29,

.

III.

¶12 The defendant asserts that in its remand order the court of appeals erred in

ordering that the trial court enter multiple judgments of conviction against him for

a number of related reasons, not least among them being that he was never

charged with, and therefore was not on notice that he could be convicted of, more

than one count of theft. We need not address the broader question whether an

appellate court could, under some conceivable set of circumstances, or even under

these particular circumstances, enter multiple judgments of conviction in place of

a single overturned jury verdict, for the reason that none of the judgments entered

by the court of appeals in this case was implied in the jury’s verdict.

¶13 As we recounted in Roberts v. People,

(Colo. 2009),

“Colorado is among the substantial majority of states that have consolidated the

crimes of larceny, embezzlement, and theft under false pretenses in a single crime

of theft.” Whichever way the crime is committed, it constitutes the offense of 9 “theft.” Unless a theft is committed from the person of another (by means other

than those constituting robbery), its categorization as either petty offense theft, a

particular class of misdemeanor, or a particular class of felony is made contingent

upon the value of the thing involved. § 18-4-401(2), C.R.S. (2019). In addition,

with regard to the crime of theft as it existed at the time of Roberts, we held that

multiple thefts (other than theft from a person or thefts for which the defendant

has already been placed in jeopardy), committed by the same person within a six-

month period, of things with an aggregate value in the felony range, constituted a

single crime of theft, the classification of which was determined by the aggregate

value of all of the things involved.

.

¶14 Immediately following our holding in Roberts, the legislature amended the

theft statute, effective May 11, 2009, by, in pertinent part, removing the language

upon which we relied to find that multiple acts of theft committed by the same

person within a six-month period constituted a single crime, and instead

articulating two sets of circumstances in which a prosecutor would be permitted,

but not required, to aggregate thefts for purposes of defining a single crime. Ch.

244, sec. 2, § 18-4-401,

, 1099–1100. The first permits

aggregation “when a person commits theft twice or more within a period of six

months,” and the second permits aggregation “when a person commits theft twice

10 or more against the same person pursuant to one scheme or course of conduct.”

Id.; § 18-4-401(4)(a), (b).

¶15 Because the thefts charged in a single count in this case spanned the effective

dates of both the old and new statutes, the appellate court concluded that there

was insufficient evidence to enter judgment for a single theft of over $20,000 under

either statute, and it therefore vacated the jury’s guilty verdict as to class 3 felony

theft. Finding, however, that the evidence was sufficient to convict of four

separate aggregated thefts, all amounting to class 4 felonies, it ordered that the

trial court, on remand, enter judgment of conviction on each of those thefts. Only

the validity of the appellate court’s remand order is before us on certiorari.

¶16 Under both the pre- and post-Roberts theft statutes, separate crimes of theft

could be aggregated to constitute a single theft of greater value only as prescribed

by statute. See § 18-4-401(4); 2009 Colo. Sess. Laws at 1099–1100. Whether before

or after the amendment, and whether based on commission within a six-month

period or commission against the same person pursuant to one scheme or course

of conduct, conviction of an aggregated theft clearly required the finding of an

additional element not required for conviction of a single act of theft. The jury was

not instructed with regard to any such additional element, and the prosecution

would not have been entitled to such an instruction had it requested one. See

Garcia, 940 P.2d at 363–64. Therefore, none of the lesser theft offenses substituted 11 by the court of appeals was a lesser included offense of the charged theft, see Reyna-

Abarca, ¶ 64,

, or its equivalent, see Garcia, 940 P.2d at 363–64, nor

did the appellate court suggest anything of the kind.

¶17 Rather, the court of appeals held that the three, six-month, time-limited

thefts, and the one theft committed as a single course of conduct against the same

person, were implicit in the jury’s “findings” based on pre-trial discovery, the

complaint, and the evidence presented at trial. The court of appeals effectively

reasoned that the defendant was adequately protected, notwithstanding the

failure of the prosecution to charge thefts limited to six-month aggregations or

those committed as a single course of conduct against the same person, because

the complaint alleged theft over the entire period from January 1, 2008 to January

31, 2011; the defendant was on notice from pre-trial discovery that the Social

Security Administration was alleging thirty-seven consecutive instances of

overpayment; and the evidence at trial included nothing that would lead a juror

to conclude that the alleged acts of theft occurred on some occasions but not on

others.

¶18 While overwhelming evidence of an omitted element may well demonstrate

harmless constitutional error with regard to a jury verdict, imputing guilt for an

uncharged crime or directing a verdict of guilt for a charged one would simply

violate the defendant’s constitutional right to a jury trial. See Sullivan,

277; Sanchez, ¶ 13,

. We have never held, and it is clearly not the

case, that conviction of a lesser non-included offense may be entered in lieu of an

overturned jury conviction, as long as overwhelming evidence of the non-included

elements was presented at trial. Unlike a lesser included offense, the elements of

which are a subset of and are therefore necessarily included in the charged offense,

a defendant has not necessarily been put on notice by the charge that he must also

defend against the lesser non-included offense, and the jury’s verdict of guilt as to

the charged offense does not necessarily reflect its conviction of the lesser non-

included offense.

¶19 In the absence of assurance as to both of these conditions, a criminal

defendant is deprived of his constitutional right to a jury trial of the charges

brought against him. The court of appeals therefore erred in expanding the class

of lesser offense that may be entered in lieu of a successfully challenged conviction

for a greater offense.

IV.

¶20 Because no theft offense requiring the aggregation of two or more separate

instances of theft, whether that aggregation were to be based on commission

within a period of six months or on commission as a single course of conduct, was

a lesser included offense of the class 3 felony of which Halaseh was actually

charged and convicted, no such offense was implicitly found by the jury, and 13 therefore none could be entered in lieu of the reversed conviction, without

depriving the defendant of his right to a jury trial. The remand order of the court

of appeals is therefore disapproved, and the case is remanded with directions to

simply reverse the conviction for class 3 felony theft.

14