Peo v. Amonette

19CA1778 Peo v Amonette 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1778

Garfield County District Court No. 10CR402

Honorable James B. Boyd, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Phillip Michael Amonette,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE WELLING

Fox and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 7, 2021

Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Phillip Michael Amonette, Pro Se

1

¶ 1

Defendant, Phillip Michael Amonette, appeals the district

court’s order denying his “Motion to Re-Hear Motion for Return of

Property.” We affirm.

I. Background

¶ 2

A jury found Amonette guilty of first degree assault of a peace

officer and criminal mischief. People v. Amonette, slip op. at 2

(Colo. App. No. 12CA2329, Mar. 31, 2016) (not published pursuant

to C.A.R. 35(f)). The charges stemmed from evidence that Amonette

shot a police officer who had responded to a domestic dispute

between Amonette and his girlfriend. Id. at 1. The trial court

sentenced him to twenty-nine years in prison on September 25,

2012. A division of this court affirmed the judgment of conviction

on direct appeal. Id.

¶ 3

Nearly seven years later, Amonette filed a motion requesting

that property “taken upon his arrest” be returned to his “next of

kin.” He listed the property as (1) a Leatherman SuperTool with

case; (2) a Zippo brand lighter with case; (3) a Bic lighter with silver

and turquoise case; (4) a small Kershaw pocket knife; (5) a leather

belt; (6) a pair of leather work boots; and (7) a “‘small amount of

currency’ (in bills) and change.” In his motion and reply in support

2

of his motion, he argued that the court had ancillary jurisdiction to

consider his request under People v. Hargrave, 179 P.3d 226 (Colo.

App. 2007).

¶ 4

The prosecution responded, relying on People v. Chavez, 2018

COA 139, and People v. Wiedemer, 692 P.2d 327 (Colo. App. 1984),

for the proposition that the court lacked jurisdiction to consider

Amonette’s motion because it was filed after he was sentenced. The

prosecution further asserted that, even if the district court declined

to follow Chavez and Wiedemer, it lacked authority under Hargrave

because “[t]here is a dispute as to whether the property is subject to

return,” and resolving that inquiry would involve substantial new

factfinding proceedings. See Hargrave, 179 P.3d at 229-30

(describing the limited nature of the proceedings).

¶ 5

Relying on Chavez and Wiedemer, the district court concluded

that it lacked jurisdiction to rule on Amonette’s motion. Amonette

filed a “Motion to Re-Hear Motion for Return of Property.” The

district court denied this motion too, concluding that its “original

order correctly applied the law.” Amonette appeals from the denial

of this second motion.

3

II. Jurisdiction

¶ 6

Divisions of this court have differed on whether a district court

retains jurisdiction in a criminal case to consider a motion for

return of property after sentencing.

¶ 7

In Wiedemer, the division held that “[a] trial court loses

jurisdiction upon imposition of a valid sentence except under the

circumstances specified in Crim. P. 35.” 692 P.2dat 329. Thus,

the division concluded, the trial court lacked jurisdiction to

consider the defendant’s motion for return of property after

sentencing because such a motion is not cognizable under Crim. P.

35 and “[t]he rule does not embrace ancillary proceedings.” Id.; see

also People v. Galves, 955 P.2d 582, 583 (Colo. App. 1997) (“A final

judgment includes, among other things, entry of a judgment of

conviction and imposition of sentence. Following the entry of a final

judgment, the court retains subject matter jurisdiction only over

matters that may be raised pursuant to Crim. P. 35.”).

¶ 8

In Chavez, another division followed the reasoning in

Wiedemer and concluded that the trial court lacked jurisdiction to

consider the defendant’s motion for return of property after

sentencing. Chavez, ¶¶ 12-13. The division stated that “once a

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valid sentence is imposed, apart from the limited claims described

in Crim. P. 35, a criminal court has no further jurisdiction.” Id. at

¶ 13 (citation omitted).

¶ 9

Conversely, in Hargrave, another division concluded that a

trial court may have ancillary jurisdiction to consider a motion for

return of property after sentencing if a four-part test is met. 179

P.3d at 229-30. The test requires, among other things, that “the

ancillary matter can be determined without a substantial new

factfinding proceeding.” Id.

¶ 10

Amonette asks us to follow Hargrave and conclude that the

trial court had ancillary jurisdiction to rule on his motion for return

of property filed nearly seven years after sentencing. We agree with

the reasoning in Chavez and Wiedemer and conclude that the

district court did not have jurisdiction to consider Amonette’s

motion.

¶ 11

First, Hargrave requires a court to engage in a multi-part test

to determine its jurisdiction. We agree with Chavez that it is

“cumbersome and anomalous to condition a court’s subject matter

jurisdiction on multi-part factual inquiries.” Chavez, ¶ 13 n.4.

Likewise, we agree that, because Colorado district courts are courts

5

of general jurisdiction, “there is no need to borrow the federal

court’s use of ancillary jurisdiction” as Hargrave did. Id. at ¶ 11

n.3.

¶ 12

But even assuming, without deciding, that we should follow

Hargrave instead of Wiedemer and Chavez, we cannot say that the

court erred in concluding that it lacked jurisdiction.

¶ 13

Unlike Hargrave, the prosecution here did not confess

Amonette’s motion. See 179 P.3d at 230. Rather, the prosecution

disputed whether the property was subject to return and asserted

that substantial new factfinding would be required. And, given the

age of the case, we are hard pressed to conclude that the parties

had “mutually shared knowledge” of the pertinent circumstances of

the case. Id. That is, because the case was seven years old, we

cannot conclude — as the Hargrave division did — that ancillary

proceedings would be “perfunctory,” “straightforward,” or “brief.”

179 P.3d at 230.

¶ 14

Finally, the supreme court’s recent decision in Strepka v.

People, 2021 CO 58, doesn’t persuade us otherwise. Strepka

answered “a different and much narrower question” than the one

posed in Chavez, Wiedemer, and Hargrave — namely, “How does a

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person, whose property was unlawfully obtained by the government,

get that property back after all the charges against him or her are

dismissed?” Strepka, ¶ 17 (emphasis added). The supreme court’s

jurisdictional analysis is directly tied to the time provided to appeal

the merits of the case, holding that “trial courts retain jurisdiction

to address motions for return of property under Crim. P. 41(e) so

long as such motions are filed before the appeal deadline expires.”

Id. at ¶ 26. Here, the deadline to appeal expired years before

Amonette filed his motion seeking return of his property.

¶ 15

Accordingly, we affirm the district court’s determination that it

lacked jurisdiction to consider Amonette’s motion. Notwithstanding

our conclusion, Amonette isn’t without a remedy: he may file a civil

action to seek the return of his property, although “we express no

opinion regarding the elements, available defenses, or merits of any

such claim.” Chavez, ¶ 14 n.5; see also People v. Rautenkranz, 641

P.2d 317, 318 (Colo. App. 1982).

III. Conclusion

¶ 16

The order is affirmed.

JUDGE FOX and JUDGE JOHNSON concur.