v. Lavadie

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
March 5, 2020

2020COA37

No. 18CA1308, People v. Lavadie — Constitutional Law — Sixth
Amendment — Right to Self-Representation

Defendant contends that the trial court violated his

constitutional right to represent himself when it forced him to

proceed to trial with appointed counsel over his numerous

objections. When defendant first requested to represent himself,

the trial court attempted to give the advisement required by People

v. Arguello, 772 P.2d 87, 94-95 (Colo. 1989). But defendant’s

unresponsive answers to the court’s questions during that

advisement made it difficult, if not impossible, for the court to

ascertain whether his waiver of his right to counsel was knowing

and intelligent. So, the court appointed counsel and refused to

entertain defendant’s subsequent requests to represent himself.

Defendant contends that was error.
A division of the court of appeals, addressing an issue of first

impression in Colorado, lays out what a trial court should do when

a defendant, through his conduct, frustrates a trial court’s efforts to

properly advise him of his constitutional rights before being allowed

to proceed pro se. The division holds that, before a trial court can

conclude a defendant will not be permitted to represent himself

based on failure to cooperate with an Arguello advisement, it must

advise the defendant that the possible consequences of refusing to

answer the court’s questions, offering nonsensical responses to

those questions, or generally refusing to acknowledge the court’s

jurisdiction will be a denial of his request to represent himself, the

appointment of counsel against his wishes, and a barrier to the

court entertaining a subsequent request to represent himself.

Applying that holding to this case, the division concludes that,

because the trial court terminated the advisement, appointed

counsel over his continuing objection, and refused to entertain a

subsequent request to proceed pro se without such a warning, the

trial court violated his right to self-representation. Therefore, the

division reverses the convictions and remands the case for a new

trial.
COLORADO COURT OF APPEALS 2020COA37

Court of Appeals No. 18CA1308
Mesa County District Court No. 17CR828
Honorable Lance P. Timbreza, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Paul Alex Lavadie,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE WELLING
Furman and Pawar, JJ., concur

Announced March 5, 2020

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury found defendant, Paul Alex Lavadie, guilty of felony

menacing with a real or simulated weapon, aggravated robbery as a

crime of violence, and misdemeanor theft. He now appeals those

convictions, contending that the trial court violated his

constitutional right to represent himself when it forced him to

proceed to trial with appointed alternate defense counsel (ADC) over

his numerous objections.

¶2 While it may not be uncommon that a defendant who insists

on self-representation also poses communication challenges, we

have found no Colorado cases directly addressing what a trial court

should do when a defendant, through his conduct, frustrates a trial

court’s efforts to properly advise him of his constitutional rights

before being allowed to proceed pro se. Addressing this issue of

first impression, we recognize that such a situation places the trial

court in an unenviable predicament because either depriving a

defendant of his constitutional right to represent himself or allowing

him to represent himself without a valid waiver of his right to

counsel results in structural error requiring reversal. While we are

sympathetic to the court’s plight in dealing with a difficult

defendant, we now hold that, before denying uncooperative or

1
obstreperous defendants the right to represent themselves, the trial

court must advise them that their continued failure to appropriately

answer the court’s questions will result in the court finding that the

waiver of their right to counsel is unknowing and unintelligent,

appointing an attorney to represent them against their wishes, and

potentially declining to entertain a subsequent request to proceed

without counsel. Applying that holding to this case, we conclude

that, because the trial court without giving such a warning

terminated the advisement, appointed counsel over his continuing

objection, and refused to consider his subsequent requests to

proceed pro se, the trial court violated Lavadie’s right to

self-representation. Therefore, we reverse his convictions and

remand the case for a new trial.

I. Background

¶3 Stemming from an incident during which Lavadie took a cell

phone from one of the victims while holding an open pocket knife

and a rock, he was charged by information with the following

felonies: (1) aggravated robbery; (2) two counts of menacing; and (3)

theft from a person, in violation of section 18-4-401(5), C.R.S. 2019.

2
¶4 At his first court appearance after his arrest, Lavadie rejected

the trial court’s offer to appoint an attorney to represent him. And,

at the beginning of the preliminary hearing roughly two weeks later,

the trial court asked Lavadie if he wanted an attorney to represent

him. Lavadie responded, “I wish not to enter into the corporation

by any means.”

¶5 The court then attempted to conduct an advisement pursuant

to People v. Arguello, 772 P.2d 87, 94-95 (Colo. 1989), and the

following exchange occurred:

[COURT]: Mr. Lavadie, I do need to have a
discussion with you about your decision to
represent yourself and so I have some
questions for you. First of all, do you
understand that you have the right to be
represented by an attorney?

[LAVADIE]: No, I do not understand anything.

[COURT]: All right. Do you understand that if
you cannot afford an attorney, one will be
appointed to represent you at no cost to you?

[LAVADIE]: I would not like to enter into the
corporation.

[COURT]: All right.

[LAVADIE]: For any reason.

3
[COURT]: Do you understand I will appoint an
attorney if you want an attorney to represent
you?

[LAVADIE]: I, I, [Judge], I don’t mean an- -,
any disrespect. I wish not to participate with
the established corporation that is a
half-truth, which makes it a whole lie.

[COURT]: All right, and that’s an important
answer to that question. And so I understand
you don’t want to participate, but I have to ask
you these questions, and once I have answers
to these, we can be done with this. Do you
understand that, Mr. Lavadie?

[LAVADIE]: Yes, sir.

[COURT]: All right. Do you understand that
there are charges against you that carry
the . . . penalties that we’ve discussed
previously? Those include robbery, menacing,
two counts of menacing, and theft from a
person?

[LAVADIE]: First of all, Your Honor, I have not
been given a discovery, okay, and that’s my,
my right, okay.

[COURT]: And we can have a discussion about
discovery in just a minute. I just want to -

[LAVADIE]: Okay.

....

[COURT]: Okay. And do you understand the
potential penalties that you can face for those
counts include a sentence of 2 to 6 years in
the Department of Corrections, up to 12 years

4
in the aggravated range, 3 years of parole, a
fine of [$]2,000 to $500,000.00?

[LAVADIE]: That’s all corporation. I do not do
corporation.

[COURT]: Okay. And do you, Mr. Lavadie, tell
me about, you just cited some law to me which
was, it’s a, some law on point. Do you have
any legal training?

[LAVADIE]: I’ve been doing this for a little
while, Your Honor, and I wish not to do it any
longer, or, [Judge]. I –

[COURT]: And when you say this, what is
this?

[LAVADIE]: I’ve been brought before the
judgment seat of man pretty much all my life
since I was 14 years old. I’m now 47. I have a
lot of experience of the persuasive words and
the flattery speech that is meant to beguile the
minds of the innocent, and I wish not to
participate with it anymore.

....

[COURT]: Did you graduate high school?

[LAVADIE]: No, I was dismissed.

....

[COURT]: Okay. How long ago was that? Do
you recall that?

[LAVADIE]: I don’t.

[COURT]: Okay. Are you under the influence
of any drugs, medications, alcohol, anything
5
impacting your ability to understand what
we’re doing here today?

[LAVADIE]: No, [Judge].

[COURT]: Do you understand that criminal
law is a complicated area and that an attorney
trained in the field could be a great help in
preparing and representing your defense?

[LAVADIE]: You, you’re trying, I, I wish not to
enter into any part of the corporation
whatsoever.

....

[COURT]: All right, let, let me ask you this,
Mr. Lavadie. Do you understand that even if
you don’t want an attorney to represent you, I
can appoint advisory counsel to help you, and
they could help you do such things as get
discovery- -

[LAVADIE]: - Excuse me, [Judge]. This
lawyering craft that was created only to
represent the corporation, which does not have
my best interest at hand, I wish not to
participate with, so I would ask you, [Judge],
to please, please don’t offer me this no more.

....

[COURT]: - so, you, let me just ask you so we
can complete this, this advisement. Do you
wish to have an attorney?

[LAVADIE]: I wish not to at all enter into the
corporation.

6
¶6 After that discussion, the trial court made the following

findings:

[B]ased upon the record and the advisement
given pursuant to Arguello, the Court finds,
based upon information provided by the
Defendant, he did come in and at least
provided the Court with a cite to authority that
was relevant and applicable, so he does have
at least a minimal understanding of the law,
however, he indicates that he’s not
participating in the proceeding and he
questions the authority and jurisdiction of the
Court, he indicates he doesn’t wish to
participate, he hasn’t demonstrated that he
can sufficiently answer any of the
requirements for the Court to make a finding
pursuant to Arguello that he is competent to
represent himself, and for those reasons, the
Court will appoint a public defender to
represent Mr. Lavadie.

¶7 When the court said that it would continue the preliminary

hearing because Lavadie would require the representation of an

attorney, Lavadie interjected, “Did I do something wrong[?]” The

court did not acknowledge that remark, and went on to discuss

with the prosecutor a new date for the preliminary hearing.

¶8 At the next court date, while represented by appointed

counsel, Lavadie was held in contempt for not sitting down and was

removed from the courtroom. His counsel told the court that

7
Lavadie did not want to be represented by him and that he believed

that presented a conflict of interest.

¶9 At the next hearing, Lavadie appeared with his newly

appointed ADC because the public defender had withdrawn, but

Lavadie insisted from the outset that the ADC was not his attorney.

The ADC then addressed the court telling it that Lavadie had told

him

to ask the Court to dismiss [him] from the case
as his representation. He wants to be self
represented in his -- in this case. He’s made it
pretty clear to me that he wants to represent
himself. That he has some different ideas than
I do as far as the case goes. He talks about if
he has me representing him then he’ll become
. . . part of the corporation and end up giving
up his liberty and freedom to represent himself
in this case.

¶ 10 After discussions with the ADC and prosecutor regarding the

requirements for a knowing and intelligent waiver of the right to

counsel, the court said:

Well for the purpose of both People [v.] Davis
and Arguello, I believe the Court does have to
find that based upon the totality of the
circumstances there’s a demonstration of a
knowing and intelligent waiver of the right to
be represented by an attorney. Thus
indicating also that one is able and knowing,

8
voluntary and intelligent way to exercise the
right to self-representation.

That requires the understanding of the nature
of the charges, the statutory offenses included
with them, the range of liable punishments
they’re under, possible defenses to the
charges, circumstances and mitigation thereof
and all the other facts essential to a broad
understanding of the whole matter.

Part of that is an understanding of the
jurisdiction of this Court, the applicable
validity of the rules of law that govern the
proceedings in this matter as well as the
substantive both procedural and substantive
law that governs the case and that’s what the
Defendant is lacking in terms of being able to
knowingly and intelligently represent himself
in this case.

And so the Court previously made those
findings on the record and I find nothing new
today to indicate that anything has changed
with regard to the ability -- the ability of the
Defendant to represent himself.

And so the Court can’t -- doesn’t make any
change in the Arguello determination it
previously made when it appointed [ADC] as
Counsel.

¶ 11 At two of the subsequent hearings, and again on the first day

of the trial, Lavadie persisted in his desire to represent himself. The

court, however, did not readdress the issue; Lavadie was ultimately

represented throughout his trial by ADC.

9
¶ 12 Although the court entered a judgment of acquittal on the

felony theft from a person count, the jury found Lavadie guilty of

aggravated robbery, felony menacing counts, and misdemeanor

theft.

II. Trial Court Improperly Denied Defendant His Sixth
Amendment Right to Self-Representation

¶ 13 Lavadie contends that the trial court violated his Sixth

Amendment right to self-representation when it forced him to be

represented by counsel despite his repeated and unequivocal

requests to represent himself. We agree.

A. Standard of Review

¶ 14 Whether a trial court properly denied a defendant’s right to

self-representation poses a question of law we review de novo.

People v. Abdu, 215 P.3d 1265, 1267 (Colo. App. 2009). If we

conclude that a trial court denied a defendant’s right to

self-representation, structural error results, and we must reverse.

See People v. Waller, 2016 COA 115, ¶ 23 (stating that structural

error, and not harmless error analysis, applies to the denial of the

right to self-representation).

10
B. Constitutional Right to Self-Representation

¶ 15 The Sixth Amendment to the United States Constitution, as

well as the Colorado Constitution guarantee the right of a criminal

defendant to represent himself at trial. See Faretta v. California,

422 U.S. 806, 818 (1975) (“The Sixth Amendment does not provide

merely that a defense shall be made for the accused; it grants to the

accused personally the right to make his defense.”); see also Colo.

Const. art. II, § 16 (“[T]he accused shall have the right to appear

and defend in person.”).

¶ 16 “The right of self-representation . . . is personal to the

defendant and may not be abridged by compelling a defendant to

accept a lawyer when he desires to represent himself.” People v.

Romero, 694 P.2d 1256, 1264 (Colo. 1985); see also People v.

Johnson, 2015 COA 54, ¶ 16.

¶ 17 Because waiving the right to counsel and opting to proceed pro

se implicates constitutional rights, the trial court must ensure that

the defendant has knowingly, intelligently, and voluntarily

relinquished the right to counsel in favor of proceeding pro se. See

Arguello, 772 P.2d at 93. Indeed, “a trial court’s ability to force

11
counsel upon an unwilling defendant is limited.” Reliford v. People,

195 Colo. 549, 552, 579 P.2d 1145, 1147 (1978).

¶ 18 When a defendant asserts a violation of his right to

self-representation, appellate courts generally consider whether the

trial court appointed counsel despite the defendant’s unequivocal

waiver of his right to counsel. See People v. West, 2019 COA 131,

¶¶ 18-19. Even if a defendant properly invokes the right to self-

representation, however, the defendant must still show that he

“knowingly and intelligently” relinquishes the benefits of

representation by counsel. Faretta, 422 U.S. at 835; Arguello, 772

P.2d at 93; see also Ronquillo v. People, 2017 CO 99, ¶ 32.

¶ 19 “The trial court should conduct a thorough and comprehensive

inquiry on the record to determine whether the defendant is aware

of the nature of the charges, the range of allowable punishments,

possible defenses, and the risks of proceeding pro se.” Johnson,

¶ 17 (citing United States v. Willie, 941 F.2d 1384, 1388 (10th Cir.

1991)).

¶ 20 While the Supreme Court “has not ‘prescribed any formula or

script to be read to a defendant who states that he elects to proceed

without counsel[,]’ . . . ‘[t]he information a defendant must possess

12
in order to make an intelligent election . . . will depend on a range of

case-specific factors, including the defendant’s education or

sophistication, the complex or easily grasped nature of the charge,

and the stage of the proceeding.” United States v. Hansen, 929 F.3d

1238, 1251 (10th Cir. 2019) (quoting Iowa v. Tovar, 541 U.S. 77, 88

(2004)); see also Arguello, 772 P.2d at 95 (the validity of the waiver

must be determined on the basis of the particular facts and

circumstances of each case, including the background, experience,

and conduct of the defendant).

C. Analysis

¶ 21 Here, the record reveals that, throughout the proceedings,

Lavadie consistently indicated that he did not want an attorney and

wanted to represent himself. He never wavered from that position.

Thus, the trial court properly attempted to ascertain whether his

waiver of his right to counsel was knowing and intelligent by trying

to conduct an Arguello advisement.

¶ 22 Throughout that advisement, however, Lavadie repeatedly gave

unresponsive answers to the court’s questions, insisting that he

“did not do corporation” or “did not want to enter into the

corporation,” thereby conveying his refusal to participate in the

13
proceeding. Faced with Lavadie’s unresponsiveness, the trial court

told him, “I understand you don’t want to participate, but I have to

ask you these questions, and once I have answers to these, we can

be done with this. Do you understand that, Mr. Lavadie?” But,

despite affirmatively indicating that he understood, Lavadie’s

remaining answers to the court did not convey that he understood

the right he was waiving. The trial court ended the advisement

finding that it could not conclude he was “competent to represent

himself,” 1 and appointed a public defender to represent him.

1 Although the trial court used the word “competent” in its findings,
this case is not about Lavadie’s competence to stand trial. True,
there is a close correlation between a defendant’s competence to
stand trial and his or her competence to waive the right to counsel.
See, e.g., United States v. Herrera-Martinez, 985 F.2d 298, 302 (6th
Cir. 1993) (“[T]he fact that the district court found that Appellant
was competent to stand trial is not conclusive as to whether she
was competent to waive her right to counsel.”); United States v.
McDowell, 814 F.2d 245, 250 (6th Cir. 1987) (recognizing “that the
degree of competency required to waive counsel is ‘vaguely higher’
than the competency required to stand trial”), abrogated by Godinez
v. Moran, 509 U.S. 389 (1993); People v. Davis, 2015 CO 36M,
¶¶ 16-17 (discussing the relationship between competence to stand
trial and competence to waive counsel); People v. Rawson, 97 P.3d
315, 322 (Colo. App. 2004) (holding that a finding that defendant is
competent to stand trial “is not a substitute for the level of inquiry
and degree of competence necessary for a valid waiver of counsel”).
But Lavadie did not contend in the trial court, and does not
contends on appeal, that he was not competent to stand trial or
that the court erred by failing to explore the issue further than it
14
¶ 23 We begin by noting that “[t]he right of self-representation is

not a license to abuse the dignity of the courtroom.” Faretta, 422

U.S. at 834 n.46. And, a trial court faced with an obstreperous,

uncooperative, or recalcitrant defendant may terminate

self-representation if he deliberately engages in such behavior. See

id. The same holds true for invoking the right in the first instance.

¶ 24 The Supreme Court has also recognized that an “obstreperous

defendant” could be removed from the courtroom “until he promises

to conduct himself properly.” Illinois v. Allen, 397 U.S. 337, 343-44

(1970). It follows then, that a defendant who behaves in such a

manner waives his right to proceed pro se, and the court can

appoint counsel to act in his stead while he is removed from the

courtroom. See Faretta, 422 U.S. at 834 n.46. The refusal to

provide answers to questions during an advisement is similar to a

refusal to attend proceedings, and the court may treat it as a waiver

of the right to self-representation. United States v. Pryor, 842 F.3d

441, 450 (6th Cir. 2016).

did. Thus, in this opinion we are neither analyzing the relationship
between competency to stand trial and competence to waive the
right to counsel nor whether or when a defendant may satisfy the
former but not the latter.
15
¶ 25 However, as recognized in Justice Brennan’s concurrence in

Allen, 397 U.S. at 350, “no action against an unruly defendant is

permissible except after he has been fully and fairly informed that

his conduct is wrong and intolerable, and warned of the possible

consequences of continued misbehavior.” That is what was lacking

here.

¶ 26 While Allen involved a defendant who was removed from the

courtroom during his trial because he engaged in disorderly and

disruptive speech and conduct such that it was difficult or nearly

impossible to conduct the trial, see id. at 338 (majority opinion), we

conclude that the requirement that a defendant be fully and fairly

informed that his continued uncooperative conduct will have

possible consequences applies equally to an advisement regarding a

defendant’s waiver of his right to counsel where the defendant

provides non-responsive answers or otherwise refuses to

acknowledge the trial court’s jurisdiction. Cf. Pryor, 842 F.3d at

450 (holding that because the magistrate expressly warned the

defendant that his failure to answer the questions posed by the

court during the Faretta advisement would result in counsel being

appointed for him, the court did not violate the defendant’s

16
constitutional right to self-representation when it appointed counsel

for him after he continued to provide non-responsive answers).

¶ 27 Indeed, we find the Sixth Circuit Court of Appeals’ analysis in

Pryor instructive. There, in the trial court proceedings, the

magistrate judge, after attempting “to have the [defendant]

expressly state he wished to represent himself, clearly warned [him]

that failure to respond to the question would result in the

appointment of . . . [an] attorney.” Id. at 450. The Sixth Circuit, in

deciding that the appointment of counsel against the defendant’s

will in that case did not violate his constitutional right to

self-representation, explained that

[c]ourts dealing with defendants seeking to
represent themselves face a dilemma: the
potential for an unconstitutional denial of the
right to counsel if the right to
self-representation is too quickly provided or
reversal for unconstitutional denial of the right
to self-representation if the right to counsel is
too vigorously shielded. The method that our
court has devised to avoid the predicament is
to provide an opportunity for defendants to
indicate their desire to waive the right to
counsel and then to undertake a thorough
review of the detriments and disadvantages
that accompany such a waiver. Where the
defendant through his own actions does not
permit the court to ascertain whether a waiver
is knowing or voluntary, or even if he means to

17
waive at all, he cannot use the court’s failure
to acknowledge the waiver later to take a
mulligan and try his case again if he loses.
This is not to say that an obstreperous
defendant has forever waived his right to
self-representation; on the contrary, where “he
promises to conduct himself properly,” the
court should reinvestigate the invocation.

Id. at 451 (quoting Allen, 397 U.S. at 344).

¶ 28 Here, like the defendant in Pryor, Lavadie’s behavior made it

difficult, if not impossible, for the court to ascertain whether his

waiver of his right to counsel was knowing and intelligent. Indeed,

the trial court here did a yeoman’s job of endeavoring to have

Lavadie demonstrate that his waiver was knowing and intelligent

while maintaining admirable control. However, unlike the

magistrate judge in Pryor, the trial court here did not expressly tell

Lavadie that his failure to provide responsive answers to the

questions would result in an attorney being appointed to represent

him. Cf. Arguello, 772 P.2d at 97 (“[B]efore a reviewing court can

find a valid implied waiver based on conduct, there must be ample,

unequivocal evidence in the record that the defendant was advised

properly in advance of the consequences of his actions.”). We find

that distinction dispositive.

18
¶ 29 Even though the trial court told Lavadie that it needed to

finish the Arguello questions in order to move on, it is clear that

Lavadie was unaware that his failure to answer the questions would

result in an attorney being appointed for him against his wishes.

Importantly, when the court continued the hearing to appoint

counsel, Lavadie asked, “[d]id I do something wrong?” The court

should have answered that question with “yes,” followed by an

explanation that his refusal to give appropriate answers to the

advisement questions would result in the court denying his request

to represent himself, appointing counsel for him, and refusing to

entertain a future request to proceed pro se.

¶ 30 We acknowledge the difficulty trial courts face in dealing with

such defendants; still, we hold that, before a trial court can

conclude a defendant will not be permitted to represent himself

based on obstreperous or uncooperative conduct, it must advise the

defendant that one possible consequence of refusing to answer the

court’s questions, offering nonsensical responses to those

questions, or generally refusing to acknowledge the court’s

jurisdiction will be a denial of his request to represent himself, the

appointment of counsel against his wishes, and a barrier to the

19
court entertaining a subsequent request to represent himself. Id.

(noting the importance of “adequately explaining to [the defendant]

the potential consequences of his behavior” before imposing a

forfeiture of a right based on such behavior). But even when such

an advisement is given, the court should still reinvestigate its

decision to appoint counsel for a defendant against his wishes if, at

a subsequent hearing, the defendant indicates that he is willing to

engage in an appropriate dialogue with the court and properly

conduct himself. Pryor, 842 F.3d at 451.

¶ 31 Applying that rule to this case, we conclude that the trial court

violated Lavadie’s constitutional right to represent himself because

it (1) failed to expressly warn him before terminating the advisement

and appointing counsel that his continued refusal to answer the

court’s questions would result in the court appointing counsel for

him and declining to entertain a subsequent request to represent

himself; and (2) did not allow Lavadie an opportunity to indicate he

would engage in an appropriate dialogue with the court when

Lavadie reasserted at subsequent hearings that he wanted to

represent himself. See Allen, 397 U.S. at 344, 350; Pryor, 842 F.3d

at 450-51.

20
¶ 32 Accordingly, because a violation of the right of

self-representation constitutes structural error, Lavadie’s

convictions must be reversed and the case remanded for a new trial.

See Waller, ¶ 23.

III. Remand Proceedings

¶ 33 We note that Lavadie was tried on one count of aggravated

robbery, a class four felony; two counts of menacing, both class five

felonies; and one count of theft from a person, a class five felony.

At the conclusion of the prosecution’s case, Lavadie, through

counsel, sought a judgment of acquittal on the theft from a person

count, section 18-4-401(5), because elements of that crime include

the victim being unaware of the theft and that the theft was not

accomplished through force, threats, or intimidation, and because

the evidence at trial did not support such a charge. The trial court

agreed and granted Lavadie’s motion for judgment of acquittal on

that count. See People v. Delgado, 2019 CO 82, ¶ 2 (holding that

because convictions on both theft from a person and robbery are

mutually exclusive, a defendant cannot be convicted of both).

¶ 34 In response, the prosecution requested that the jury be

instructed on misdemeanor theft under section 18-4-401(1) and

21
(2)(d), where the misdemeanor classification is based on the value of

the item taken. Because the information charging Lavadie

referenced both subsections (1) and (5) of the theft statute, the

court granted the prosecution’s request. And, as relevant here, the

jury returned a guilty verdict on the misdemeanor theft count,

finding that the value of the item taken was between $300 and

$749.

¶ 35 At the sentencing hearing, the court initially entered a

conviction and sentence for the felony theft from a person count;

but after the prosecution reminded the court that it had entered a

judgment of acquittal on that count, the court reversed itself and

did not enter a conviction or sentence on the felony theft charge.

However, it appears that the court and the parties overlooked the

jury’s guilty verdict on the misdemeanor theft count and a

judgment of conviction and sentence were not entered for that

count.

¶ 36 On remand, Lavadie’s new trial can encompass the aggravated

robbery, menacing, and misdemeanor theft counts that the jury

found him guilty of in the first trial. However, because the court

entered a judgment of acquittal on the felony theft from a person

22
count, he cannot be retried for that count. See People v. Porter,

2015 CO 34, ¶ 9 (the Double Jeopardy Clauses of the United States

and Colorado Constitutions prevent a second prosecution for the

same offense after an acquittal).

IV. Conclusion

¶ 37 The judgment of conviction is reversed, and the case is

remanded for a new trial consistent with the views expressed in this

opinion.

JUDGE FURMAN and JUDGE PAWAR concur.

23