Peo v. Strepka

16CA0348 Peo v Strepka 01-06-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 16CA0348

City and County of Denver District Court No. 15CR328

Honorable Ann B. Frick, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mark Strepka,

Defendant-Appellant.

ORDER REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE HARRIS

Fox and Tow, JJ., concur

Prior Opinion Announced April 2, 2020, Reversed in 20SC401

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

Announced January 6, 2022

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

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark D. Evans, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

This case returns to us on remand after reversal by the

supreme court. In People v. Strepka, (Colo. App. No. 16CA0348,

Apr. 2, 2020) (not published pursuant to C.A.R. 35(e)) (Strepka I), a

division of this court vacated the trial court’s order denying the

motion of defendant, Mark Strepka, for return of his property,

reasoning that the trial court had lost jurisdiction to rule on the

motion after the felony charges against Strepka were dismissed.

The supreme court granted Strepka’s petition for certiorari review

and reversed. See Strepka v. People, 2021 CO 58 (Strepka II). The

court held that a trial court retains jurisdiction to resolve a motion

for return of unlawfully obtained property after it dismisses a case

as long as the motion is filed before the appeal period expires. Id. at

¶ 26. Under that standard, Strepka’s motion was timely. See id. at

¶¶ 5, 28. We therefore proceed with the appeal on the merits.

¶ 2

The facts of the case are detailed in Strepka I and Strepka II so

we provide only a brief summary. During a traffic stop, police

officers searched Strepka’s car and seized methamphetamine and

two firearms. At the time of the stop, Strepka had at least four

prior felony convictions. The People charged him with possession of

2

a controlled substance and possession of a weapon by a previous

offender.

¶ 3

The trial court granted Strepka’s motion to suppress the drugs

and firearms and then granted the prosecution’s motion to dismiss

the charges. Strepka later filed a motion for the return of certain

property seized during the traffic stop, including the firearms. He

argued that the guns should be returned to him or a suitable third

party. The trial court granted the motion in part but denied it with

respect to the firearms based on Strepka’s status as a convicted

felon.

¶ 4

Though the prosecution objected to Strepka’s motion in the

trial court, on appeal, the People stipulate that Strepka is entitled to

have the firearms sold (with the proceeds paid to him) or transferred

to a suitable third party. In changing course, the People rely on

Henderson v. United States, 575 U.S. 622 (2015). In Henderson, the

defendant lawfully possessed firearms but was required to

surrender them after he was charged with a felony to which he

ultimately pleaded guilty. Id. at 624. After serving his sentence,

the defendant sought an order from the federal district court

directing law enforcement to transfer the guns to a third party who

3

had agreed to buy them. The district court denied the request. Id.

at 624-25. On appeal, the Supreme Court held that because federal

law prohibits possession, but not ownership, of a firearm by a

convicted felon, the defendant had a right to sell or transfer his

firearms as long as the district court was persuaded that the

defendant would not retain control over the firearms. Id. at 630-31.

¶ 5

While we are not bound by the parties’ stipulations on

questions of law or mixed questions of law and fact, see Bar 70

Enters., Inc. v. Tosco Corp., 703 P.2d 1297, 1306 (Colo. 1985), we

are mindful of the party presentation principle. That principle

generally requires courts to rely on the parties to frame the issues

to be decided, on the theory that “the parties know what is best for

them, and are responsible for advancing the facts and arguments

entitling them to relief.” Greenlaw v. United States, 554 U.S. 237,

244 (2008) (quoting Castro v. United States, 540 U.S. 375, 386

(2003)).

¶ 6

Accordingly, we need not decide here whether Henderson

compels the result to which the People have stipulated on appeal.1

1 In their answer brief, the People describe Henderson v. United

States, 575 U.S. 622 (2015), as a case addressing “the appropriate

4

The People have not offered any argument in opposition to Strepka’s

position, and we will not develop one on their behalf.

¶ 7

The trial court’s order denying Strepka’s motion for return of

the firearms is reversed. The case is remanded for further

proceedings to allow the trial court to transfer the firearms in a

manner that precludes Strepka from retaining control over them.

JUDGE FOX and JUDGE TOW concur.

disposition of firearms that were unlawfully seized.” The firearms in

that case were not seized unlawfully, however. The case involved a

defendant who lawfully possessed firearms but was required to

“surrender all his firearms as a condition of his release on bail”

after he was charged with the felony offense of distributing

marijuana. Id. at 624.