Peo v. Soghigian
23CA1029
| Colo. Ct. App. | Sep 12, 2024
Opinion Summary

Facts

  1. GS Holistic, LLC has been using the “Stündenglass” trademark on various products since 2020 and owns three registered trademarks associated with its goods [lines="24-39"].
  2. GS's products are recognized as high-quality, which allows for higher pricing compared to non-Stündenglass items [lines="42-45"].
  3. Defendants, operating a store called Treehousse Smoke & Vape, marketed and sold counterfeit Stündenglass products that were inferior in quality [lines="53-58"].
  4. GS's investigators found widespread counterfeit sales, with more than 20% of visited stores selling such products [lines="48-50"].
  5. After the Defendants defaulted by not responding to the complaint, GS sought default judgment for statutory damages and a permanent injunction [lines="68-70"].

Issues

  1. Whether the court should grant GS default judgment against the Defendants for trademark infringement and counterfeiting under the Lanham Act [lines="14"].
  2. What amount of statutory damages is appropriate given the circumstances of the case [lines="123-125"].
  3. Whether to issue a permanent injunction against the Defendants to prevent further trademark infringement [lines="191-196"].

Holdings

  1. The court granted GS default judgment, establishing that GS's claims had merit without apparent disputed facts [lines="84-96"].
  2. The court determined that statutory damages of $15,000 were appropriate due to the limited scale of the Defendants' counterfeit sales and sparse evidence of willfulness [lines="182"].
  3. The court issued a permanent injunction against the Defendants, finding that GS suffered irreparable harm and no adequate remedy at law was available for future trademark infringement [lines="209-221"].

OPINION

23CA1029 Peo v Soghigian 09-12-2024
COLORADO COURT OF APPEALS
Court of Appeals Nos. 23CA1029, 23CA1026, 23CA1027 & 23CA1028
El Paso County District Court Nos. 18CR3876, 17CR6882, 17CR7226 &
18CR3868
Honorable David A. Gilbert, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ben Robert Soghigian,
Defendant-Appellant.
ORDER AFFIRMED
Division A
Opinion by CHIEF JUDGE ROMÁN
Bernard* and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 12, 2024
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
K. Andrew Fitzgerald, Alternate Defense Counsel, Grand Junction, 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. 2024.
1
¶ 1 Defendant, Ben Robert Soghigian, appeals the postconviction
court’s order summarily denying his Crim. P. 35(c) motion for an
earned time credit review by the Department of Corrections (DOC).
We affirm.
I. Background
¶ 2 In a global disposition, Soghigian pleaded guilty to (1) forgery,
(2) theft, (3) identity theft and aggravated motor vehicle theft, and
(4) aggravated motor vehicle theft in four cases — in return for the
dismissal of numerous charges and eight other Colorado cases. In
November 2019, the district court sentenced Soghigian to
consecutive prison terms of three years, nine years, one year, and
three years, respectively — an aggregate sentence of sixteen years in
the custody of the DOC — in accordance with the plea agreements.
The court ordered that Soghigian’s sentence would run
concurrently with an eight-year sentence he had already begun
serving in Arizona.
¶ 3 Soghigian remains imprisoned in Arizona. In 2022, he timely
filed a pro se Crim. P. 35(c) petition that was supplemented by
counsel. As relevant here, he claimed that his Colorado sentences
were “illegally imposed” because the DOC had not reviewed his
2
Arizona performance record to calculate his eligibility for any
earned time credits. See §§ 17-22.5-302(3), 17-22.5-405(3), C.R.S.
2023 (“the earned time statutes,” providing that earned time credit
reviews shall be conducted annually); see also Crim. P. 35(c)(2)(I).
He also claimed, as he does on appeal, that the DOC’s failure to
evaluate his eligibility for earned time credit pursuant to section
17-22.5-302 is an as-applied violation of his constitutional right to
equal protection. For relief, Soghigian seeks an order directing the
DOC to comply with the earned time statutes.
¶ 4 The postconviction court denied the motion in a written order.
As we read the order, the court found that Soghigian’s claims were
not cognizable under Crim. P. 35(c) because he substantively
challenges the DOC’s earned time review procedures — not the
“sentence imposed” or the constitutionality of the earned time
statutes. See Crim. P. 35(c)(2)(I), (II); but see People v. Turman, 659
P.2d 1368, 1370-71 (Colo. 1983) (interpreting pre-1979 law and
concluding that a postconviction court has jurisdiction to consider
whether a prisoner’s constitutional rights have been violated by the
application of the earned time statutes). We agree that Soghigian
does not claim that the sentence imposed was unlawful, and we
3
conclude that the proper avenue for his claims is an action against
the DOC.
II. Discussion
¶ 5 In his initial motion, Soghigian claimed that the confinement
portion of his sentence had been fully served — a claim properly
raised under Crim. P. 35(c). See Crim. P. 35(c)(3) (providing that a
defendant may move for postconviction relief when claiming “a right
to be released”). But in his supplemental motion and on appeal, he
abandoned that claim. His remaining claims assert only that (1) the
DOC is violating his statutory right to earned time credit reviews,
and (2) by doing do, the DOC is applying the earned time statutes in
an unconstitutional manner. For three reasons, we conclude that
the proper avenue for these claims is a civil action against the DOC,
not a postconviction claim.
¶ 6 First, earned time credit decisions “lie[] in the discretion of the
DOC . . . .” Verrier v. Colo. Dep’t of Corr., 77 P.3d 875, 878 (Colo.
App. 2003); accord Renneke v. Kautzky, 782 P.2d 343, 344-45
(Colo. 1989); see § 17-22.5-405(3) (the DOC “may grant, withhold,
withdraw, or restore . . . an earned time deduction from the
sentence imposed”). Neither the prosecution nor the district court
4
have a role in reviewing a prisoner’s performance or in calculating,
awarding, or withdrawing earned time credits. The DOC is in the
best position to explain its earned time review procedures and the
rational basis for any disparate treatment of out-of-state prisoners.
And the relief Soghigian seeks is an order directing the DOC to do
something. Accordingly, the DOC is at least a necessary and proper
party to this action. See C.R.C.P. 19.
¶ 7 Second, we disagree that Soghigian stated a claim for relief
under Crim. P. 35(c). “[A] party aggrieved under Crim. P. 35(c) must
claim either a right to be released or to have a judgment of
conviction set aside on one of the grounds enumerated in Crim. P.
35(c)(2).” Naranjo v. Johnson, 770 P.2d 784, 787 (Colo. 1989)
(holding that Crim. P. 35(c) is not an avenue for relief for a
defendant claiming parole eligibility and arguing that the parole
statutes are unconstitutional). But Soghigian abandoned his claim
that he had a right to be released.
¶ 8 He argues that Crim. P. 35(c)(2)(I) encompasses his claims, but
he does not truly allege that his sentence was “imposed in violation
of the Constitution or laws of the United States or the constitution
or laws of this state.” Proper Crim. P. 35(c)(2)(I) sentencing claims
5
concern the sentence imposed by the court, not the DOC’s
administration of a sentence. Compare People v. Kennedy, 2023
COA 83M (reviewing under Crim. P. 35(c)(2)(I) whether a
twenty-nine-year sentence violates the Eighth Amendment), with
Owens v. Carlson, 2022 CO 33, ¶¶ 21, 44 (granting mandamus
relief to a defendant seeking recalculation of his parole eligibility
date). Moreover, earned time credit, like presentence confinement
credit, “is not a component of a sentence.” See People v. Baker,
2019 CO 97M, ¶ 11. Because Soghigian challenges the DOC’s
administration of his earned time credit reviews, he does not raise
cognizable Crim. P. 35(c) claims.
¶ 9 Third, we are persuaded by the divisions of this court holding
that when a defendant challenges the acts or omissions of the DOC,
the defendant’s claim is not cognizable under Crim. P. 35(c) — the
claim must be brought in a civil action against the DOC. See People
v. Carillo, 70 P.3d 529, 530-31 (Colo. App. 2002) (concerning the
DOC’s collection of restitution from the defendant’s inmate bank
account); People v. Huerta, 87 P.3d 266, 267 (Colo. App. 2004)
(contesting the DOC’s application of a parole statute); see also
People v. Melnick, 2019 COA 28, ¶¶ 6-7 (challenging the parole
6
board’s decision not to grant a parole hearing); cf. People v.
Shackelford, 729 P.2d 1016, 1017-18 (Colo. App. 1986) (until the
defendant claims a right to be released, his request to compel the
DOC to recalculate good-time credits is not ripe). Soghigian’s
claims concern the DOC’s inaction under section 17-22.5-302, and
he seeks relief against the DOC. Therefore, his claims are not
cognizable under Crim. P. 35(c). See Carillo, 70 P.3d at 530-31.
¶ 10 Although the cases on which Soghigian relies — People v.
Frank, 30 P.3d 664 (Colo. App. 2000), People v. Maestas, 920 P.2d
875 (Colo. App. 1996), and People v. Alderman, 720 P.2d 1000
(Colo. App. 1986) — reviewed earned time claims in a Crim. P. 35(c)
proceeding, none of those cases address whether postconviction
proceedings are the proper avenue to raise such claims. We found
one case that appears to support Soghigian’s position — Turman —
but that case is factually distinguishable because there, the
defendant sought good time credit for time spent in presentence
confinement. See Shackelford, 729 P.2d at 1018. Here, Soghigian
seeks an earned time credit review for time spent in an out-of-state
prison.
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III. Disposition
¶ 11 The order is affirmed.
JUDGE BERNARD and JUDGE BERGER concur.
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