People v. Allman
2017 COA 108
| Colo. Ct. App. | 2017Background
- Allman (alias “John Taylor”) lived with an elderly widower ~5 months, gained his trust, then while the victim was on vacation in December 2013 used the victim’s financial information to withdraw funds, open multiple credit accounts and charge >$40,000 in the victim’s name.
- Arrested March 18, 2014 while attempting to buy a car; charged with 12 felonies including theft from an at-risk adult, aggravated motor vehicle theft, eight counts of identity theft (§ 18-5-902(1)(a)), and two forgery counts.
- Jury convicted Allman on all counts. Trial court rejected defense merger/multiplicity objections and imposed consecutive and concurrent terms totaling 15 years DOC plus a consecutive 10-year probation term on one forgery count (with restitution-based early termination).
- On appeal Allman argued (1) the eight identity-theft convictions were multiplicitous because identity theft is a continuing offense when directed at a single victim; and (2) various sentencing errors including required concurrency where convictions relied on identical evidence and illegality/abuse in imposing probation consecutive to incarceration.
- The court reviewed statutory language and precedent de novo for the Double Jeopardy/multiplicity question and for statutory sentencing authority; sentencing discretionary determinations reviewed for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether identity theft under § 18-5-902(1)(a) is a continuing offense (multiplicity/Double Jeopardy) | State: statutory text permits punishment for each discrete unauthorized use of another’s identifying/financial information | Allman: multiple uses of one victim’s identity constitute a single continuing course of conduct so convictions must merge | Held: Not a continuing offense; each discrete unauthorized use is a separate offense, convictions do not merge |
| Whether identity-theft sentences must run concurrently because they were based on identical evidence | State: identity-theft counts were factually distinct (different dates, accounts, cards, charges) | Allman: convictions arise from the same victim and overlapping evidence so sentences should be concurrent | Held: Evidence showed factually distinct acts for each count; concurrent sentences not mandated under § 18-1-408(3) |
| Whether forgery sentences must run concurrently with each other and with identity-theft for the same card | State: forgery counts involved distinct transactions/locations and thus distinct evidence | Allman: same Citibank Visa used, so identical evidence requires concurrency | Held: Forgery convictions were based on different transactions/locations and not identical to the identity-theft count; concurrency not required |
| Whether court exceeded authority/abused discretion by imposing probation consecutive to imprisonment in same case | State: Court has statutory discretion to impose probation for particular offenses and to order it consecutive to incarceration; Trujillo supports such sentencing | Allman: sentencing to both imprisonment and probation in same case is impermissible or at least an abuse | Held: Permitted. Trial court acted within statutory authority and did not abuse discretion; probation consecutive to incarceration for separate counts is allowed (Flenniken does not extend to prohibit this) |
Key Cases Cited
- Woellhaf v. People, 105 P.3d 209 (Colo. 2005) (Double Jeopardy/multiplicity principles; General Assembly can authorize multiple punishments)
- Thoro Products Co. v. People, 70 P.3d 1188 (Colo. 2003) (framework for determining continuing offenses/statute-of-limitations context)
- Juhl v. People, 172 P.3d 896 (Colo. 2007) (mandatory concurrent sentences only when evidence supports no other reasonable inference)
- Muckle v. People, 107 P.3d 380 (Colo. 2005) (mere possibility jury relied on identical evidence insufficient to trigger mandatory concurrency)
- Flenniken v. People, 749 P.2d 395 (Colo. 1988) (trial court may not sentence to both imprisonment and probation for the same single offense)