author: MANNHEIMER, Judge.

text:
    Manuel Jesús GARAY, Appellant, v. STATE of Alaska, Appellee.
    No. A-7902.
    Court of Appeals of Alaska.
    Aug. 30, 2002.
    Rehearing Denied Sept. 13, 2002.
    Rex Lamont Butler, Anchorage, for Appellant.
    Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In this case, a defense attorney failed to read all of the material that had been disclosed to him by the State. As a consequence, the defendant accepted a plea bargain-entered a plea of no contest to a reduced charge-without full knowledge of the evidence in the case. The overlooked evidence was significant enough that it might reasonably have affected the defense attorney's advice to the defendant or might reasonably have affected the defendant's decision to accept or reject the plea bargain. For this reason, we hold that the defendant should be allowed to withdraw his plea.

In late 1998, Manuel Jesus Garay was indicted for first-degree sexual assault. The Public Defender Agency was appointed to represent him. In early February 1999, Assistant Public Defender Craig S. Howard negotiated a plea agreement with the State on Garay's behalf. Under the terms of this agreement, Garay would plead no contest to a reduced charge of second-degree sexual assault.

Although Garay continued to assert his innocence, Howard urged Garay to accept this agreement: the State's case appeared strong, and Garay faced a presumptive term of 25 years' imprisonment if he was convicted of first-degree sexual assault. (Garay was a third felony offender.) On February lith, Garay ultimately decided to accept the agreement, and his change of plea was calendared for February 17th. But in the meantime, the district attorney's office received an additional police report and witness interviews concerning Garay's case.

The alleged victim of the sexual assault was a woman named D.H. The police had interviewed D.H.'s daughter and one of D.H.'s former boyfriends. D.H.'s daughter told the police that her mother "has a long history of falsely accusing people of ... rape when she is drunk", that her mother often lied and/or hallucinated when she drank or took drugs, and that her mother was vengeful and not trustworthy. D.H.'s former boyfriend told the police that D.H. would drink "to absolute oblivion" and that she becomes "violent and sexually aggressive" when she is drunk. f

Assistant District Attorney Donald R. Kitchen read these materials on February 10th or l1ith. He was aware that Garay was negotiating a plea bargain with the State, and he understood the potential significance of this new information. For this reason, Kitchen immediately sent copies of the police report and the witness statements to Garay's attorney so that the defense attorney would have this information before Garay changed his plea. The documents were received by the Public Defender Agency on February 12th, but Garay's attorney neglected to read them. Five days later, on February 17th, Garay went to court and entered his negotiated plea.

That summer, Garay obtained a new attorney. After the new attorney discovered the police report and witness interviews in the Public Defender Agency's file, Garay asked the superior court to allow him to withdraw his plea. Garay argued that Howard's failure to read the police report and witness interviews constituted ineffective assistance of counsel. The superior court agreed with Garay that "Mr. Howard's failure to review the [police report and witness statements] . amounted to ineffective assistance [of counsel]", but the court concluded that Garay had failed to show any resulting prejudice. For this reason, the court refused to allow Garay to withdraw his plea. Garay now appeals the superior court's decision.

A defendant is entitled to withdraw a previous plea of guilty or no contest if the defendant proves that they received ineffective assistance from the attorney who counseled them to enter the plea. If an attorney is to competently represent a criminal defendant during plea negotiations, the attorney must be familiar with the facts of the case.

This Court has acknowledged that a defense attorney's investigation of the case need not be perfect or exhaustive:

[Gliven an unrestricted budget and freed of any constraints as to probable materiality or accountability, a lawyer might ... cheerfully log{[ ] in many hours looking for the legal equivalent of a needle in a haystack. _... [A] millionaire might retain[ ] counsel to leave not a single stone unturned. However, a defendant is not entitled to perfection but to basic fairness. In the real [world], expenditure of time and effort is dependent on a reasonable indication of materiality.

State v. Jones, 759 P.2d 558, 572 (Alaska App.1988)

But in Garay's case, the issue is not Howard's failure to track down every conceivable witness or hire experts to subject the physical evidence to every conceivable scientific analysis. Rather, the issue is How-ards failure to read documents that were delivered to his in-basket. We agree with the superior court that this amounted to ineffective assistance of counsel.

But Howard's failure to read the police report and the witness interviews does not, standing alone, entitle Garay to withdraw his plea. As explained by our supreme court in Risher v. State, a claim of ineffective assistance of counsel rests on two assertions: first, the defendant must prove that their attorney failed to give them legal assistance within the range of competence expected from criminal law practitioners; and second, the defendant must show that there is a reasonable possibility that the attorney's lack of competence affected the outcome of the proceedings against the defendant.

In Garay's case, the superior court refused to allow Garay to withdraw his plea because the court concluded that Garay had not been prejudiced by Howard's neglect of his case. Here, we part company with the superior court.

It is true that, even without the additional material, there were ways for a defense attorney to attack D.H.'s credibility. As the superior court noted in its decision, D.H. had a "history of criminal charges relating to assault, domestic violence, and theft or dishonesty", and it was also "apparent [that she] had an enormous alcohol problem". But the police report and the witness statements were no mere rehash of this information. According to D.H.'s daughter and D.H.'s former boyfriend, D.H. had a history of lying, of sexual aggression, and of falsely accusing men of rape when she was drunk. This information-both the alleged facts and their source-constituted a new and significant potential avenue of defense for Garay.

The issue is not whether this new information would have led to Garay's aequit-tal if he had gone to trial. Nor is the issue whether Garay might still have decided to accept the State's offer even after he was apprised of this new information. Instead, the issue is whether there is a reasonable possibility that this information would have affected Garay's decision to accept or reject the plea bargain. We clarified this point of law in Arnold v. State, another case in which a defendant sought to withdraw a plea based on proof that their attorney had failed to adequately investigate the case before counseling the defendant to plead guilty:

Had [the defense attorney] fully understood the facts and the applicable law, he may still have advised Arnold to plead no contest. He may not have found anything in the police reports that would have enabled him to challenge the indictment or obtain a more favorable disposition. Indeed, had he looked at the reports and listened to the grand jury testimony, he might have concluded that his client's decision to plead no contest was the only realistic course of action. The point is that [the defense attorney] was obligated to do more than he did{,] regardless of the outcome. Without a fuller understanding of the facts and law, [the attorney] could not meaningfully advise Arnold regarding the case against him. Without such meaningful advice, Arnold could not give an informed consent to a plea of no contest. Consequently, we conclude that the two prongs of the Risher test are satisfied. The first prong, ineffective performance, is established by [the defense attorney's] failure to adequately inform himself regarding the relevant facts and the law. Arnold's resulting inability to knowingly and intelligently evaluate his situation and enter an informed plea establishes prejudice and therefore satisfies the second prong.

Arnold, 685 P.2d 1261, 1267 (Alaska App. 1984).

We reach the same conclusion in Garay's case. The information in the police report and the witness interviews was a significant addition to the information available to the defense. It is possible that some of this new information may ultimately turn out to be inadmissible at trial. It is also possible that, even now, Garay may ultimately decide that it is better to enter a negotiated plea than to risk being convicted of first-degree sexual assault at trial. But, as we clarified in Arnold, the question is whether there is a reasonable possibility that this new information would have affected Howard's advice to Ga-ray or Garay's evaluation of his situation and his decision to accept or reject the State's offer.

According to Howard, Garay always maintained that he was innocent of the charges, and one of the primary reasons Garay accepted the plea bargain was to avoid risking the 25-year presumptive term that would await him if he went to trial and was conviet-ed of first-degree sexual assault. The new information in the police report and accompanying witness interviews augmented the defense case significantly. Under these circumstances, there is at least a reasonable possibility that this new information would have altered Howard's advice to Garay or would have affected Garay's decision to accept or reject the plea bargain. We therefore find that Garay proved both prongs of the Risher test-and that he therefore established the "manifest injustice" that is required under Alaska Criminal Rule 11(h)(2) to allow him to withdraw his plea.

The decision of the superior court is REVERSED. The superior court is directed to allow Garay to withdraw his plea. Proceedings will then recommence on the original indictment.

      . See AS 12.55.125@)(4).

      . See Alaska Criminal Rule 11(h)(2) ("Before sentencing, the trial court shall allow a defendant to withdraw a plea whenever the defendant, upon timely motion, proves that withdrawal is necessary to correct manifest injustice.") and Alaska Criminal Rule 11(b)(4)(A) (defining "manifest injustice" as including instances where "[the defendant was denied the effective assistance of counsel"). _

      . See Arnold v. State, 685 P.2d 1261, 1265 (Alaska App.1984).

      . Quoting United States v. Decoster, 624 F.2d 196, 211 (D.C.Cir.1976) (en banc ).

      . Risher, 523 P.2d 421, 424-25 (Alaska 1974).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Alaska and Thomas J. Phillips, Jr., Petitioners, v. DISTRICT COURT, Respondent.
    No. A-8101.
    Court of Appeals of Alaska.
    Sept. 13, 2002.

      Kim S. Stone, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner State of Alaska.
    Margi A. Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Petitioner Thomas J. Phillips, Jr.
    Robert C. Bundy and Maarten Vermaat, Dorsey & Whitney, LLP, Anchorage, for Respondent.
    Before: MANNHEIMER and STEWART, Judges, and ANDREWS, Superior Court Judge.

       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution.

   OPINION

MANNHEIMER, Judge.

This case is unusual because the State and a criminal defendant find themselves making common cause against a ruling of the district court.

The State charged Thomas J. Phillips, Jr., with the felony of first-degree failure to register as a sex offender, AS 11.56.885(a)(1). A person commits this offense if they fail to register as a sex offender and, additionally, they have a previous conviction for failing to register.

About a month later, the State and Phillips reached a plea agreement. Under the terms of this agreement, Phillips would plead no contest to a misdemeanor: the lesser charge of second-degree failure to register, AS 11.56.840(a). This is the same basic offense, but without the allegation that Phillips had a previous Conviction. The parties further agreed that Phillips would receive a sentence of 12 months' imprisonment with 6 months suspended.

But when the State and Phillips presented this plea agreement to District Court Judge Natalie K. Finn, she refused to accept it. Judge Finn told the parties that she was "unwilling to accept a plea to a misdemeanor when, [under the facts], this is a felony". The judge explained:

The Court: I don't feel [that] it's within the State's discretion to choose to treat [Phillips's offense] as a misdemeanor ... because this is not a misdemeanor; it's a felony, according to the legislature. I'm unwilling to accept a plea to a misdemean- or [when], factually, it is not a misdemean- or; factually, it's a felony. So you need to go back to the drawing boards on this one.... I think it's an elements issue, counsel. If [Phillips] is pleading no contest to [this] charge and [he] has previously been convicted, then, under the ... law [enacted by] the legislature ..., that's a felony. So it's not ... discretionary, from my point of view.

Both the State and Phillips now petition this Court to review and reverse the district court's decision-asking us, in essence, to direct the district court to accept Phillips's plea to the lesser charge of second-degree failure to register even though the State could prove the greater charge.

The district court's response

Before we decide the issue raised by the State and Phillips, we must address the response filed by the attorneys hired by the Alaska Court System to represent the district court. The attorneys for the district court argue that Judge Finn rejected the plea agreement, not because the State lacked legal authority to reduce the charge, but rather because Judge Finn concluded that the proposed sentence of 6 months to serve was inappropriately lenient for a defendant with Phillips's criminal record.

There are two problems with this argument. First, it is inconsistent with Judge Finn's own explanation of why she rejected the plea bargain. Second, if Judge Finn had indeed believed that the flaw in the plea agreement was an overly lenient sentence, she would have followed a different course.

Under Alaska Criminal Rule l1(e)(8), if a judge believes that a proposed plea agreement calls for a sentence that is too lenient, "the court shall inform the parties of this fact[, shall] advise ... the defendant personally in open court that the court [will not be] bound by the agreement[, and shalll afford the defendant the opportunity to withdraw the plea". In other words, if Judge Finn believed that Phillips's proposed sentence of 6 months to serve was unreasonably lenient, she would have warned Phillips that, if he persisted in his plea, she would likely impose a greater sentence, and she would have offered Phillips the opportunity to withdraw his tendered plea of no contest. Instead, Judge Finn told the parties that under no cireumstances would she accept Phillips's plea to a misdemeanor when, factually, his conduct amounted to a felony.

For these reasons, we reject the gloss placed on events by the attorneys representing the district court We agree with the State and Phillips that Judge Finn rejected the plea agreement because she concluded that, as a legal matter, the State was barred from reducing the charge to a misdemeanor.

Judge Finn's ruling was based on the premise that if Phillips indeed had a prior conviction for failing to register as a sex offender, then the State was legally obliged to plead and prove that prior conviction. For the reasons explained in the next section of this opinion, we conclude that this premise is wrong.

The State has the authority to refrain from charging a defendant with the most serious crime that the facts of the case would support

Both the Alaska Supreme Court and this Court have declared that charging decisions are committed to the discretion of the executive branch; so long as these decisions are exercised within constitutional bounds, they are not subject to judicial control or review.

In Public Defender Agency v. Superior Court, the supreme court declared that the executive branch has exclusive authority to decide whether and how to prosecute a case: "the Attorney General cannot be controlled in either his decision of whether to proceed, or in his disposition of the proceeding. The supreme court ruled that the superior court had usurped this executive discretion-thereby violating the doctrine of separation of powers-when the court ordered the Attorney General's office to prosecute a civil action for child support.

In State v. Carlson, the supreme court applied this principle in a criminal case. Over the State's objection, a superior court judge accepted a murder defendant's plea to the lesser offense of manslaughter. The supreme court ruled that even though Alaska Criminal Rule 48(c) gives trial judges the authority to dismiss a criminal case when justice requires, this authority does not include the power to engage in charge bargaining with the defendant. The supreme court concluded that the trial court had, in effect, ordered the district attorney not to prosecute the defendant for murder-thus "usurpfing] the executive function of choosing which charge to initiate."

Subsequent Alaska cases have reaffirmed that the executive branch has broad diseretion to decide whether to initiate criminal charges and, if so, what charges to bring. See Surinma v. Buckalew (noting that prosecutors have wide discretion in deciding whether to institute criminal proceedings); Nao v. State (declaring that "prosecutors have traditionally been vested with wide-ranging discretion as to whether to bring criminal charges and, if so, what charges to bring"); and State v. Jones (holding that Criminal Rule 48(c) does not give courts the authority to "intrude into the executive funetion by choosing which charge to bring against a defendant or which defendant should be prosecuted").

However, none of these cases directly addresses the issue raised in the present appeal. Here, Judge Finn did not purport to substitute her own judgement for the district attorney's judgement concerning what charge to pursue against Phillips. Rather, Judge Finn ruled that the district attorney's office lacked the authority to exercise its discretion in the way contemplated by the plea agreement.

The true issue presented here is * whether the executive branch has the discretion to charge a defendant with a less serious crime than the undisputed facts would support. Although there is no Alaska appellate decision directly on point, other courts are virtually unanimous that the executive branch does have this authority.

In State v. Medina, 349 N.J.Super. 108, 7983 A.2d 68 (2002), the court examined the structure of New Jersey's criminal code-which, like Alaska's criminal code, generally contains one or more lesser offenses related to each serious crime. "The purpose of this structure," the New Jersey court declared, "is to allow the prosecutor to exercise his discretion in determining whether to charge the more serious crime or the lesser-included offense, and to facilitate plea negotiations."

In State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 868, 166 N.W.2d 255 (1969) , the Wisconsin Supreme Court likewise declared that the executive branch need not charge every crime that the facts would support:

There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecttion in all cases where there appears to be a violation of the law[.]

Kurkierewicz, 166 NW at 260.

The Nebraska Supreme Court echoed this view in State v. Blair, 230 Neb. 775, 433 N.W.2d 518 (1988).

There are many offenses which might legitimately be filed either as a misdemeanor or a felony. [But the] prosecutor is not obliged to present all charges which the evidence might support. Nor is it desirable that he prosecute all crimes at the highest degree available.... In exercising discretion in this way, the prosecutor is not neglecting his public duty or discriminating among offenders. The public interest is best served and even-handed justice best dispensed not by a mechanical application of the "letter of the law" but by a flexible and individualized application of its norms through the exercise of the trained discretion of the prosecutor as an administrator of justice.

Blair, 433 N.W.2d at 521.

The Supreme Court of California summed up this legal doctrine in Mitchell v. Superior Court, 49 Cal.3d 1230, 265 Cal.Rptr. 144, 788 P.2d 731 (1989):

[IIn innumerable situations it has been recognized that a prosecutor generally has the discretion to charge a defendant with a "more general" lesser offense even when there is a "more specific" greater offense that might embrace the facts of the case.... Thus, for example, it has never been questioned that a prosecutor may charge a defendant with simple assault when the facts of which the prosecutor is aware would support an assault-with-a-deadly-weapon charge, or that a prosecutor may choose to charge a defendant with "straight" first degree murder even though the facts of the case could support a murder-with-special-cireumstance charge. Although the Legislature presumably would have the power to specify that an individual who commits particular contemptuous conduct must be prosecuted under a particular statute or not at all, there would have to be a clear indication of such legislative intent before it would be appropriate to construe a statute ... to preclude a prosecutor from exercising his traditional discretion to charge a defendant with a less serious offense which the facts also support.

Mitchell, 265 Cal.Rptr. 144, 783 P.2d at 744-45.

This is not to say that Alaska law offers no conceivable support for Judge Finn's ruling. This Court has ruled that, in cases governed by presumptive sentencing, neither the prosecutor nor the sentencing judge has the power to ignore a defendant's undisputed prior felony convictions or the existence of plainly applicable aggravating or mitigating factors.

In Kelly v. State, 663 P.2d 967 (Alaska App.1983), we declared that

[tlhe legislature did not intend the presumptive sentencing provisions of the revised criminal code to be applied optionally, at the discretion of the court or the prosecution. The presumptive sentencing structure is mandatory, and it must be followed when it applies.... Failure to consider prior crimes for presumptive sentencing purposes can be condoned only in those cases where the state, after exercising due diligence, is unable to meet the statutory requirements for proof of a prior conviction.

Kelly, 663 P.2d at 974.

And in Hartley v. State, 653 P.2d 1052 (Alaska App.1982), we applied this same rationale when we held that neither the State nor the sentencing judge has the discretion to ignore plainly applicable aggravating and mitigating factors:

[T]he legislature has established specific guidelines governing sentencing. These guidelines are particularly important in determining presumptive sentences for those previously convicted of felonies. The [legislature's] decision to cireumseribe sentencing discretion was in large part based upon a legislative belief that greater uniformity in sentencing should be sought and unjustified disparity ° eliminated. AS 12.55.005.
To allow the parties to ignore past convictions or aggravating and mitigating factors suggested by the evidence at trial or disclosed in the presentence report ... would be to encourage unjustified disparity in sentencing. We therefore hold that the state has no discretion to suppress evi-denee of past convictions or aggravating or mitigating factors.... We [also] therefore conclude that the trial court has the power sua sponte to alert the parties to possible aggravating and mitigating factors present in the record[,] so long as the parties are given an opportunity to marshal the relevant evidence, pro and con, and make their arguments accordingly.

Hartley, 653 P.2d at 1056.

There is obviously a potential tension between Kelly and Hartley, on the one hand, and the various cases that endorse the executive branch's wide-ranging charging discretion. But we conclude that this is only a seeming conflict.

The principle that underlies our decisions in Kelly and Hartley is our duty to uphold and promote the legislative goal behind Alaska's presumptive sentencing, laws. That goal, as expressed in AS 12.55.005, is the "elimination of unjustified disparity in sen-tencling] and the attainment of reasonable uniformity in sentences". In particular, Alaska's presumptive sentencing laws are designed to ensure that offenders convicted of serious crimes, who have equivalent felony records, will receive equivalent sentences unless there is good reason under AS 12.55.155-1"75 for the sentencing discrepancy.

But though the legislature has clearly expressed its desire to eliminate unjustified disparity in the sentences imposed on similarly situated defendants convicted of the same crime, the legislature has not indicated an intention to abrogate or limit the long-recognized charging discretion of the executive branch-the discretion to decide whether to bring charges against a person who has broken the law and, if so, to decide what those charges will be. Moreover, our supreme court indicated in Public Defender Agency v. Superior Court and State v. Carlson that this charging discretion is inherent in the executive branch's role under the doctrine of separation of powers.

For these reasons, we formally endorse the view of our sibling states: The executive branch has the discretion to charge a defendant with a less serious crime than the facts would support. Likewise, if a defendant is initially charged with the most serious crime that the facts would support, the executive branch has the discretion to reduce the charge to a less serious crime.

Accordingly, we hold that the district court had no authority to reject the plea bargain between the State and Phillips on the basis that the State could have proved a more serious charge against Phillips. The decision of the district court is REVERSED, and the district court is directed to resume its consideration of the proposed plea bargain under Alaska Criminal Rule l1(c).

COATS, Chief Judge, not participating.

      . 534 P.2d 947 (Alaska 1975).

      . Id. at 950.

      . Id. at 951.

      . 555 P.2d 269 (Alaska 1976).

      . Id. at 271-712.

      . Id. at 272.

      . 629 P.2d 969, 973 (Alaska 1981).

      . 953 P.2d 522, 526 (Alaska App.1998).

      . 751 P.2d 1379, 1382 (Alaska App.1988).

      . Id. at 79.

      . Abrogated on other grounds in State v. Kenyon, 85 Wis.2d 36, 270 N.W.2d 160, 164 (1978).


text:
    The PEOPLE of the State of Colorado, Petitioner, v. Jeremiah M. BARNUM, Respondent.
    No. 01SC165.
    Supreme Court of Colorado, En Banc.
    Feb. 12, 2002.
    Robert J. Whitley, Chief Deputy District Attorney, Denver.
    Peter R. Bornstein, Denver.
    Thomas J. Hammond, Denver.
   ORDER OF COURT

Chief Justice Mullarkey, Justice Martinez and Justice Bender are of the opinion that the judgment of the Court of Appeals should be affirmed; whereas Justice Kourlis, Justice Hobbs and Justice Rice are of the opinion that it should be reversed. Justice Coats does not participate.

Since the court is equally divided, the decision of the Court of Appeals is affirmed by operation of law. C.A.R. 85(e).

Justice COATS does not participate.


author: Judge MARQUEZ.

text:
    BAINBRIDGE, INC.; Village Homes of Colorado, Inc., a Colorado corporation; Tradition Concepts, Inc., a Colorado corporation; The Genesee Co./Castle Pines, Inc., a Colorado corporation; High View Homes, LLC, a Colorado limited liability company; South Platte Company, LLC, a Colorado limited liability company; April Corporation, a Colorado corporation; Forest Glen, Inc., a Colorado corporation; Larsen Homes, Ltd., a Colorado corporation; LHL I, Ltd., a Colorado corporation; LHL II, Ltd., a Colorado corporation; and Sattler Homes, Inc., a Colorado corporation, Plaintiffs, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF The COUNTY OF DOUGLAS, STATE OF COLORADO, Defendant-Appellee.
    No. 00CA1435.
    Colorado Court of Appeals, Div. III.
    Aug. 30, 2001.
    Rehearihg Denied Oct. 11, 2001.
    Certiorari Denied Sept. 3, 2002.

      Otten, Johnson, Robinson, Neff & Rago-netti, P.C., Thomas J. Ragonetti, Brad W. Schacht, David P. Hutchinson, Denver, CO, for Plaintiffs-Appellants.
    J. Mark Hannen, Office of the County Attorney, Castle Rock, CO; Mulliken, Gleason, Weiner, Whitney & Jolivet, P.C., Edward A. Gleason, Murray I. Weiner, Colorado Springs, CO, for Defendant-Appellee.

       Justice KOURLIS would grant as to the following issues:
      Whether the respondent, though the imposition of building permit fees, may defray the general governmental expenses of growth by labeling such expenses as "indirect costs" of the building division.
      Whether the respondent, though its imposition of building permit fees, mat recover expenses that are not caused, directly or indirectly, by the issuance of building permits.
      Whether the court of appeals erred in its application of the "inherently unsound"standard by endorsing a methodology for setting building permit fees that is based on the value of construction rather than on the costs of issuing building permits.
      Whether the "inherently unsound" standard applies to the Country's methodology for calculating indirect costs of issuing building permits, and if so, whether a methodology designed to measure the cost impact of growth rather than the cost impact of issuing building permits is inherently unsound.

   Opinion by

Judge MARQUEZ.

In this dispute about building permit fees, plaintiffs, Bainbridge, Inc.; Village Homes of Colorado, Inc.; Tradition Concepts, Inc.; The Genesee Co,/Castle Pines, Inc.; High View Homes, LLC; South Platte Company, LLC; April Corporation; Forest Glen, Inc.; Larsen Homes, Ltd.; LHL I, Ltd.; LHL II, Ltd.; and Sattler Homes, Inc., appeal the trial court's judgment on remand in favor of defendant, the Board of County Commissioners of Douglas County, Colorado. We affirm.

After adopting the 1991 Uniform Building Code, Douglas County imposed upon plaintiffs the code's recommended building permit fees. It did so pursuant to legislative authority, §§ 30-28-114 and 30-28-205(1), C.R.S. 2000, that permits counties to fix a reasonable schedule of fees for the issuance of building permits.

Plaintiffs filed a complaint asserting that these permit fees were illegal because the county building department's revenue exceeded its direct costs. The trial court ruled in the county's favor, concluding that the General Assembly did not intend §§ 80-28-114 and 30-28-205(1) to limit the schedule of fees authorized by those sections to only the direct costs of operating the building department.

Plaintiffs appealed, asserting that, unless the fees collected approximate the direct costs of operating the building department, the fees constituted an unlawful tax in violation of the Colo. Const. art. X, § 8, which mandates uniform property taxation.

In Bainbridge, Inc. v. Board of County Commissioners, 964 P2d 575 (Colo.App. 1998), a division of this court held that: (1) the county's indirect costs of running its building department, including services by other county offices, such as the county manager, the county attorney's office, and other various divisions of the county government, may be calculated in determining the present operational cost and future expansion of the building department, but (2) the fees would constitute unlawful taxes in violation of the Colorado Constitution if they did not generally approximate the overall costs, direct and indirect, of operating the building department. The division remanded the case to the trial court for findings of fact whether the fees charged were approximately required to offset the direct and indirect costs of operating the building department. Bainbridge, Inc. v. Board of County Commussioners, supra, 964 P.2d at 577.

On remand, the district court held an evi-dentiary hearing limited to that issue. In its June 15, 2000, order, the trial court ruled in favor of the county, finding that the building fees charged by the county were approximately required to offset the direct and indirect costs of operating the building department. Plaintiffs appeal only the provisions of this order relating to costs allocated from the county commissioners, county manager, and county attorney, and the engineering and planning departments.

I. Burden of Proof

At the outset, we address plaintiffs' contention that the trial court erred in determining that they were required to prove their ease beyond a reasonable doubt, instead of by a preponderance of the evidence. We disagree.

The district court found that plaintiffs were, in effect, attempting to have the county's resolution ruled unconstitutional, The court thus decided that the burden was beyond a reasonable doubt. See Loup-Miller Construction Co. v. City & County of Denver, 676 P.2d 1170, 1174 (Colo.1984)(the burden is upon the party attacking a legislative act to establish its unconstitutionality beyond a reasonable doubt).

In its June 2000 order, however, the court twice noted that, whether the standard was beyond a reasonable doubt or by a preponderance of the evidence, plaintiffs had failed to overcome the presumption of constitutionality that attaches to a legislative act of the board. The court stated that "even if the burden of proof is by a preponderance of the evidence, this Court's findings do not change."

Consequently, even if the trial court erred in applying the beyond a reasonable doubt standard, any such error was harmless because the court explicitly stated that plaintiffs would lose under either standard. See Poudre Valley Rural Electric Ass'n v. City of Loveland, 807 P.2d 547, 557 (Colo.1991)(judgment entered by the trial court will not be reversed for alleged errors unless those errors are shown to prejudice the substantial rights of the complaining party).

II. Indirect Costs

Plaintiffs contend that the trial court erred on remand in its application of controlling law by concluding that general governmental expenses relating to growth management are recoverable through permit fees charged as indirect costs. We disagree.

Section 80-28-114 states, in pertinent part, that the board of county commissioners "may also fix a reasonable schedule of fees for the issuance of [building] permits." Section 30-28-205(1), C.R.S8.2000, states, in pertinent part, that the "board of county commissioners shall fix a reasonable schedule of fees for the issuance of building permits by [the] county building inspector."

Unlike a tax, a special fee is not designed to raise revenues to defray the general expenses of government, but rather is a charge upon persons or property for the purpose of defraying the cost of a particular governmental service. The amount of a special fee must be reasonably related to the overall cost of the service. Bloom v. City of Fort Collins, 784 P.2d 304, 308 (Colo.1989).

Because the setting of rates and fees is a legislative function that involves many questions of judgment and discretion, an appellate court will not set aside the methodology chosen by the ratemaking authority unless it is inherently unsound. Krupp v. Breckenridge Somitation District, 19 P.3d 687, 694 (Colo.2001).

A determination of reasonableness is a question of fact for the trial court. See American Water Development, Inc. v. City of Alamosa, 874 P.2d 352, 386 (Colo.1994)(reasonableness of attorney fees).

At the remand hearing here, the parties offered conflicting expert testimony on how to determine the building department's indirect costs. We review the trial court's resolution of that conflicting evidence under a highly deferential standard. Determinations of the credibility of witnesses and the weight to be afforded the evidence are issues committed to the sound discretion of the trial court as the trier of fact. Tiger v. Anderson, 976 P.2d 308, 310-11 (Colo.App.1998). Its findings must be accepted on review unless they are so clearly erroneous as not to find support in the record. C.R.C.P. 52; M.D.C./ Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo.1994).

In its June 2000 order, the district court found in favor of the county. After considering all of the evidence, the court specifically found:

[The method for determining indirect costs of the building department as determined by [the county's expert] was both reasonable and appropriate. The fees generated by the building department generally approximate the overall costs of operating the building department. The Court finds the evidence establishes that the fees charged were approximately required to offset the direct and indirect costs of operating the building department.

Ample evidence exists in the record to support the trial court's findings, and we will not disturb them on review. In particular, the trial court's determination that the county's expert was more credible than plaintiffs' expert is well supported, and we will not second-guess it. See M.D.C./Wood, Inc. v. Mortimer, supra.

A. The County's Expert

The indirect costs of the building department were determined through a study performed in 1994 and updated in 1999 by the county's expert, its budget manager. This expert described the mission of the building department as issuing building permits and doing building inspections, plan checks, and reinspections.

Significantly, for a period of four to six months, the expert spent approximately one-half of her time analyzing building department costs. She focused on determining who within the county interacted with the building department and provided it services. She interviewed representatives from various branches of the county government and spoke with all the elected officials and department directors and managers in the county to determine "what their interaction was with the building department" and what percentage of their work focused on growth issues. She described growth as "new construction" and stated that anything that ended up with new people moving into the county was growth.

The expert's study determined the extent to which services rendered by other departments conferred a benefit upon the building department and then allocated certain costs of those departments to the building department. The expert determined that the indirect costs of the building department fell into thirteen categories, including, as relevant here (1) county commissioners/manager/attorney (CCMA), (2) engineering growth management (engineering), and (8) planning/community (planning).

Those three categories, which plaintiffs challenge on appeal, coincidentally account for the largest cost allocations.

The expert's analysis of the CCMA category involved review of a representative sample of the CCMA's weekly scheduled meetings for a six-month period and determination of which meetings related to growth management. She determined that seventy-five percent of the CCMA's time went to growth and new construction. She then allocated half of that amount to the building department and half to the planning department, which contains the building department.

Her analysis of the planning department was based upon research into the portion of the planning department's work that was driven by growth. The expert determined that portion to be eighty percent, based upon her research and communication with the department director. She then multiplied the department's costs by eighty percent and allocated that amount to the building department. Because the building department is part of the planning department, it is not unreasonable to conclude that certain planning department services were conferred upon the building department.

The engineering department analysis involved a determination of what the department was working on and what portion of that work was related to growth. Based upon her research and communication with the department, the expert determined that seventy percent of its work was growth related. She then multiplied its costs by seventy percent and allocated that amount to the building department.

In support of the conclusion by the county's expert, another witness for the county, a Colorado certified public accountant and former chairman of the American Institute of Certified Public Accountants, reviewed the work performed by both parties' experts and described the county's expert's approach as "appropriate," "professional," and "reasonable."

B. Plaintiffs' Expert

Plaintiffs' expert, a certified public accountant, opined that the cost allocation method of the county's expert, in the three contested categories, was not rationally related to the benefit received. He presented five alternative means of analyzing the costs of the building department. All five of plaintiffs' alternatives allocated significantly fewer costs to the building department than the county's theory did.

However, in Alternative I, contrary to the holding in Bainbridge, plaintiffs' expert did not allocate any indirect costs to the building department. In Alternative II, the expert allocated to the building department only limited departmental expenditures from the other departments. In Alternative III, the expert allocated to the building department an amount based on personnel services from the other departments. Alternative IV replicated the county expert's initial report verbatim. The only change plaintiffs' expert made was to omit two categories of indirect costs: CCMA and planning. Finally, the expert's Alternative V was the same as the county expert's, except that it allocated only 8.8 percent of the three disputed categories' costs to the building department. This was based upon the percentage of FTEs (full-time equivalent employees) in the building department, compared to all FTEs in the county.

Further, plaintiffs' expert spent far less time on his analysis than did the county's expert; instead, he copied large portions of her work and then modified it. He did not interview the director of planning, the county engineer, the county commissioners, the county manager, the county attorney, or the head of the building department. Nor did he investigate the working relationship between the engineering and building departments. He did nothing to determine how the county commissioners spent their time. In contrast, the county's expert did all these things.

Additionally, because the studies were performed before the Bainbridge opinion issued, Alternatives I-IV failed to include indirect costs that the division in Bainbridge determined to be allowable.

Because of these and other deficiencies in plaintiffs' expert's opinion, the trial court found that the county's expert's analysis carried more weight.

As the trial court noted, the county presented a "detailed and time consuming analysis," performed by its expert and budget manager, "before any litigation began." This analysis was "not prepared for any purpose of litigation or even in anticipation of litigation."

In our view, the trial court correctly concluded that the county's evidence demonstrated that use of growth management as a component of indirect cost analysis was reasonable and appropriate. See Krupp v. Breckenridge Somitation District, supra. The evidence demonstrated that growth has driven the costs of the building department. Further, the evidence supports the finding that the fees charged by the building department were approximately required to offset the direct and indirect costs of operating that department. Mathematical exactitude is not required. Krupp v. Breckenridge Samitation District, supra, 19 P.3d at 694; Westrac, Inc. v. Walker Field, 812 P.2d 714, 717 (Colo.App. 1991).

We reject plaintiffs' contention that, without the improper allocation of growth costs to the building department, the only conclusion supported by the record is that revenues from permit fees grossly exceed the total costs, including direct and indirect costs, of issuing the permits.

Plaintiffs' counsel conceded at oral argument before this court that growth causes greater activity in the building department. However, plaintiffs have not articulated which particular aspects of this growth should not be allocated to the building department. We also note that the county's expert did not allocate one hundred percent of the costs of growth to the building department. For example, after interviewing officials from the sheriff's and assessor's offices, she did not allocate any growth costs from those departments. Nor did the county's expert allocate all of the CCMA's growth costs to the building department. Instead, after determining that seventy-five percent of the department's time went to growth and new construction, she allocated only fifty percent of that component to the building department.

Thus, we conclude that it was permissible for part of the growth costs to be allocated to the building department as indirect costs. See Bainbridge, Inc. v. Board of County Commissioners, supra, 964 P.2d at 577 (allowing consideration of indirect, " 'overall costs' required to operate [the] department").

III. OMB A-87

Plaintiffs also contend a federal Office of Management and Budget document (OMB A-87) should have controlled the allocation of costs to the building department. We are not persuaded.

Three witnesses for the county testified that the OMB A-87 plan pertained to federal grants and had no application to the cost allocation issue before the trial court on remand. This testimony was sufficient to support the trial court's conclusion that the evidence was clear that costs that may be very appropriate for cost allocation never make it onto the OMB A-87 because of the federal guidelines.

Accordingly, ample evidence in the record supports the trial court's findings, and we will not overturn them. See M.D.C./Wood, Inc. v. Mortimer, supra.

Accordingly, the judgment is affirmed.

Judge JONES and Judge DAILEY concur.


author: Opinion by Judge TAUBMAN.

text:
    Susan L. EDGE, Plaintiff-Appellant, v. DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION OF the STATE OF COLORADO, and Fred Fisher, Executive Director, Defendants-Appellees.
    No. 00CA1469.
    Colorado Court of Appeals, Div. V.
    Aug. 30, 2001.
    Rehearing Denied Oct. 18, 2001.
    Certiorari Denied Sept. 9, 2002.
    Ned Jacekle, University of Colorado, Boulder, CO, for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Robert H. Dodd, Jr., Assistant Attorney General, Denver, CO, for Defendants-Appellees.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.2000.

   Opinion by Judge TAUBMAN.

Plaintiff, Susan L. Edge, appeals a district court judgment affirming an order of defendant, Colorado Department of Revenue, Motor Vehicle Division (Department), canceling her driver's license for failure to give required or correct information in her application to have her license reinstated. We reverse and remand.

The following facts are not disputed. Edge resided in Washington State until 1998. After moving to California, she surrendered her Washington driver's license to obtain a California driver's license. Later, Edge moved to Colorado where she obtained a Colorado driver's license after surrendering her California license. In 1994, a default judgment was entered against her in a Washington civil action involving a motor vehicle accident. Because that judgment had not been satisfied and because Edge did not then have a Washington driver's license, Washington suspended her driving privilege in 1995. The Department was notified of the unsatisfied Washington judgment and suspended her Colorado license under § 427-401, C.R.S.2000 on August 28, 1995. At no time was Edge's Washington driver's license ever suspended or revoked.

In February 1998, Edge applied for and was granted reinstatement of her Colorado license. In the application, she was asked whether she had been licensed in other states and whether such license had ever been denied, suspended, or revoked. Edge did not mention the Washington suspension of her driving privilege. In March 1998, the Department sent Edge an "Order of Cancellation and Denial" indicating that she had failed to give the required or correct information on her application because she failed to disclose Washington's restraint on her driving privilege.

Edge requested and received a hearing at which she argued that she had answered the application truthfully and accurately. Specifically, she noted that only her driving privilege (and not her license) was under restraint in Washington. She also argued that when she completed the application, she was not aware of the Washington restraint.

The hearing officer rejected these arguments and determined that the cancellation was valid based upon Edge's failure to disclose the Washington restraint in her application.

Edge then sought review of the hearing offer's order in the district court. The district court determined that the hearing officer did not err by treating the restraint of a "license" and a "driving privilege" comparably for purposes of disclosure in the application. The court also determined that Edge had adequate notice of the Washington restraint such that her due process rights were not violated.

I.

The Department asserts that this appeal is moot because the hearing officer separately and alternatively canceled Edge's license based upon the Driver License Compact, § 24-60-1101, C.R.$.2000, and she has not appealed from that portion of the order. We disagree.

Initially, we note that the Department's argument is not properly based upon the mootness doctrine. Under that doctrine, a court may decline to render an opinion as to the merits of an appeal if the relief granted by the court would not have a practical effect upon an existing controversy. See Trinidad Sch. Dist. No. 1 v. Lopes, 963 P.2d 1095 (Colo.1998). Here, nothing has transpired since the district court's order that would render a decision on the merits of this appeal moot.

Nor does the record support the Department's assertion that the hearing officer canceled Edge's driver's license based on the compact. Although the hearing officer did, sua sponte, mention that Edge could be denied a license pursuant to the compact, that was not the stated basis for the hearing officer's decision. Indeed, both the initial cancellation order and the minute order from the hearing reference Edge's alleged failure to disclose the Washington restraint as the basis for canceling her license. See § 42-2-122(1)(a), C.R.8.2000 (providing the Department with authority to cancel a license based upon the failure to give the required or correct information in an application). Neither of these documents specifically references the compact.

Furthermore, to deny Edge a license based upon the compact, the Department would have been required to provide her with notice of that basis. See Dep't of Revenue Interstate Driver License Compact Rule A.3, 1 Code Colo. Regs. 204-16. Additionally, the hearing officer would have been required to follow certain procedures that were not followed at the hearing and to make certain findings that are absent here. See Dep't of Revenue Interstate Driver License Compact Rule (B), 1 Code Colo. Regs. 204-16. Finally, the compact was never raised or addressed in the district court.

Under these cireumstances, we decline to consider whether the Department could have canceled Edge's license under the compact.

IL

Edge contends that the Department was without statutory authority to cancel her license because she did not make a false or incorrect statement in her application. She contends that, because the application sought information concerning the suspension or revocation of any prior driver's license, she was not required to disclose Washington's suspension of her driving privilege We agree.

The parties agree that the portion of Edge's license reinstatement application at issue was based on § 42-2-107(2)(a), C.R.S. 2000. That section provides, in pertinent part, as follows:

Every application shall ... state whether the licensee has ever been licensed as a ... driver, and if so, when and by what state ... and whether any such license has ever been denied, suspended, or revoked, the reasons therefor, and the date thereof.

The parties dispute whether this section required Edge to disclose Washington's suspension of her driving privilege.

Our goal in construing statutes is to discern and give effect to the intent of the General Assembly. Colorado Dep't of Revenue v. Woodmen of the World, 919 P.2d 806 (Colo.1996). We look primarily to the language of a statute to determine legislative intent. Jones v. Cox, 828 P.2d 218 (Colo. 1992). Words and phrases should be given effect according to their plain and ordinary meaning, and unless it would lead to an absurd result, a court must not strain to give statutory language anything other than its plain meaning. Farmers Group, Inc. v. 805 P.2d 419 (Colo.1991).

As noted, § 42-2-107(2)(a) requires an applicant to disclose information regarding any prior driver's "license." The General Assembly's use of the word "license" is significant because numerous portions of the Uniform Motor Vehicle Law distinguish a driver's license from a driving privilege. For example, § 42-2-123(1), C.R.S.2000 provides that the "privilege of driving a motor vehicle on the highways of this state given to a nonresident is subject to suspension or revocation by the department in like manner and for like cause as a driver's license may be suspended or revoked." See also §§ 422-134, 42-2-138(1)(a), (8), C.R.S.2000. Indeed, the supreme court has recognized that the General Assembly intended that a distinction be drawn between a driving privilege and a driver's license. See Colorado Dep't of Revenue v. Smith, 640 P.2d 1148 (Colo.1982).

Although other sections of the Uniform Motor Vehicle Law define the term "license" to include a driving privilege, such definitions are expressly limited to those statutory see-tions. See §§ 422-1260@)(d), 42-2-127.7(2)(d), C©.R.$.2000.

In light of this statutory scheme, it is apparent that the General Assembly recognizes a distinction between a driver's license and a driving privilege. It is further apparent that when the General Assembly has intended these terms to be synonymous, it has explicitly so stated. Consequently, in enacting § 42-2-107(2)(a), had the General Assembly intended to require applicants to disclose information concerning nonresident driving privileges, it would have so indicated. See In re Marriage of Gedgaudas, 978 P.2d 677 (Colo.App.1999)(when the General Assembly uses different terms, it is presumed that the terms have different meanings).

In sum, we conclude that § 42-2-107(2)(a) only required Edge to disclose information regarding any prior driver's license. Consequently, her failure to disclose the Washington restraint of her nonresident driving privilege did not render her response false or incorrect. Thus, the Department lacked authority to cancel her license based upon her application response.

Given our conclusion that Edge's application response was neither false nor incorrect, we need not address her remaining contention that the application question at issue was so vague that cancellation of her license amounted to a due process violation.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge KAPELKE and Judge PIERCE , concur.


author: Judge VOGT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Walter O'DELL, Defendant-Appellant.
    No. 00CA1656.
    Colorado Court of Appeals, Div. IV.
    Sept. 27, 2001.
    As Modified on Denial of Rehearing Nov. 8, 2001.
    Certiorari Denied Aug. 26, 2002.

      Ken Salazar, Attorney General, Esteban A. Martinez, Assistant Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge VOGT.

Defendant, Walter O'Dell, appeals the sentences imposed following his plea of guilty to first degree criminal trespass and three counts of felony menacing. We affirm.

Defendant was originally charged with first degree burglary, criminal mischief, first degree criminal trespass, three counts of felony menacing, wiretapping, harassment by stalking, two counts of violation of a restraining order, and resisting arrest. He agreed to plead guilty to the eriminal trespass and felony menacing counts in exchange for dismissal of the remaining charges. The trial court sentenced him to six years in the Department of Corrections (DOC) on the criminal trespass conviction and six years on each of the three menacing convictions, the latter sentences to run concurrently with one another but consecutive to the criminal trespass sentence.

I.

Initially, we reject the People's contention that defendant is precluded under $ 18-1-409(1), C.R.S.2001, from challenging the propriety of the sentences on appeal.

Section 18-1-409(1) provides for appellate review of the propriety of a sentence except in cases where the sentence imposed "is within a range agreed upon by the parties pursuant to a plea agreement." The People argue that this statute bars review of a sentence whenever a defendant is advised at the providency hearing of the range of penalties applicable to the offense to which he or she is pleading guilty. We do not agree.

In interpreting a statute, a reviewing court must determine and give effect to the intent of the General Assembly. To this end, we look first to the statutory language, affording the words their plain and ordinary meaning. Weld County School Dist. RE-12 v. Bymer, 955 P.2d 550 (Colo.1998); People v. Wilson, 972 P.2d 701 (Colo.App.1998).

The plain language of § 18-1-409(1) requires an agreement by the parties to a sentencing range. Here, although defendant was advised of the penalties applicable to the offenses to which he was pleading guilty, there is no indication in the record that his plea agreement included any type of agreed sentencing range or cap. Thus, the § 18-1-409(1) language quoted above does not apply.

In their petition for rehearing on this issue, the People argue that the statutory language is unambiguous, but nevertheless urge us to consider legislative history, not previously presented to us, that they contend supports their construction of the statute. However, because we view the statutory language as plainly and unambiguously supporting the interpretation set forth above, we do not consider the legislative history cited by the People. See People v. Zapotocky, 869 P.2d 1234, 1238 (Colo. 1994)("When the statutory language is clear and unambiguous, the statute must be interpreted as written without resort to interpretive rules and statutory construction").

II.

Defendant contends that the trial court abused its discretion by imposing the maximum aggravated sentence on each count and ordering one sentence to run consecutive to the other three, resulting in a total sentence of twelve years. He also argues that the trial court failed to make adequate findings to support the sentences. We disagree.

A trial court has broad discretion in imposing a sentence. Because of that court's familiarity with the cireumstances of the case, the sentence imposed is to be accorded deference on review and will not be overturned absent a clear abuse of discretion. People v. Fuller, 791 P.2d 702 (Colo.1990).

In exercising sentencing discretion, a trial court must consider the nature of the offense, the character and rehabilitative potential of the offender, the development of respect for the law and the deterrence of crime, and the protection of the public. If the sentence is within the range required by law, is based on appropriate considerations as reflected in the record, and is factually supported by the circumstances of the case, an appellate court must uphold it. People v. Fuller, supra.

As a general rule, when a defendant is convicted of multiple offenses, the sentencing court has discretion to impose consecutive or concurrent sentences. Qureshi v. District Court, 727 P.2d 45 (Colo.1986). Further, because there were multiple vietims involved here, the court could have ordered the felony menacing sentences to run consecutively to one another, as the prosecution requested. See § 18-1-408(8), C.R.S.2001; People v. Laurson, 15 P.3d 791 (Colo.App. 2000).

First degree criminal trespass and felony menacing are class five felonies with a presumptive sentence range of one to three years imprisonment. See §§ 18-1-105(1)(a)(V)(A), 18-3-206, 18-4-502, C.R.S. 2001. A trial court is authorized to impose a sentence of up to six years for each such offense if it finds extraordinary aggravating cireumstances. See § 18-1-105(6), CRS. 2001.

When, as here, a court imposes an aggravated sentence that is not based on a factor set forth in § 18-1-105(9)(a), C.R.S. 2001, the court must make specific findings, supported by evidence in the record of the sentencing hearing or the presentence report, detailing the extraordinary aggravating factors present. See § 18-1-105(7), C.R.S. 2001; People v. Leske, 957 P.2d 1030 (Colo. 1998).

Factors that the court may consider as extraordinary aggravating cireum-stances include unusual aspects of the defendant's character, past conduct, habits, health, and age; the events surrounding the crime; a pattern of conduct indicating whether the defendant is a serious danger to society; past convictions; and the possibility of rehabilitation. The court also may consider facts tending to establish an element of an offense, as long as it relates those facts to the particular defendant and the circumstances of the crime. People v. Leske, supra.

In imposing sentence here, the trial court stated at the outset that it was considering defendant's prior record, the cireum-stances of the crime, the interests and safety of the community, defendant's need for rehabilitation and correction, and the deterrence of crime.

Contrary to defendant's contention, the court recognized, as mitigating factors, his limited criminal history, his serious mental health problems, and the absence of physical injury to the victims. However, it also found that defendant's crimes involved a threat of serious bodily injury to three people who had "opened their lives and hearts" to him, including a thirteen-year-old girl. Having heard testimony that defendant's actions caused the victims ongoing fear and anguish in their everyday lives, the court observed that the crime would be "in the victims' minds for the remainder of their lives."

The court noted that, at the time defendant committed the crimes, he was under a deferred judgment from another state for a violent crime and that, according to the pre-sentence report, he appeared to be at high risk of reoffending. The presentence report had also characterized the risk posed by defendant to the victims as "extremely high."

The court heard evidence regarding defendant's past pattern of abusive conduct. Such evidence could be considered in determining whether defendant was a serious danger to society. See People v. Leskse, supra. Moreover, contrary to defendant's contention, we do not read the sentencing hearing transcript as indicating that the court based its sentence on uncharged and unproven hearsay allegations from other cases.

Weighing the aggravating circumstances against the mitigating factors, the court declined to make all the sentences consecutive, as requested by the prosecution, but nevertheless determined that a substantial and lengthy sentence was required for the protection of the community and, in particular, the victims.

The trial court's findings are sufficient to explain its sentencing decision and are supported by the record. Therefore, that decision will not be reversed on appeal. See People v. Gholston, 26 P.3d 1 (Colo.App.200)(information showing that defendant was a danger to society was sufficient to support aggravated sentence).

The sentences are affirmed.

Judge RULAND and Judge ROTHENBERG concur.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jimmy D. GRAHAM, Defendant Appellant.
    No. 99CA2314.
    Colorado Court of Appeals, Div. I.
    Sept. 27, 2001.
    Rehearing Denied Jan. 31, 2002.

      Certiorari Denied Sept. 9, 2002.

      Ken Salazar, Attorney General, Miles Ma-dorin, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

       Justice MARTINEZ would grant as to the following issue:
      Whether a vehicle search incident to arrest is lawful if the search is commenced once the ar-restee has been transported away from the scene.

   Opinion by

Judge TAUBMAN.

Defendant, Jimmy D. Graham, appeals the judgment of conviction entered upon jury verdicts finding him guilty of possession with intent to distribute 25 to 450 grams of a schedule II controlled substance (methamphetamine), possession of less than an ounce of marijuana, possession of drug paraphernalia, and careless driving. We affirm the judgment of conviction for these offenses, but vacate defendant's convictions for possession of 25 to 450 grams of a schedule II controlled substance and simple possession of a schedule II controlled substance and remand for correction of the mittimus.

I. Motion to Suppress

Defendant first argues that the trial court erred in denying his motion to suppress evi-denee obtained as the result of an allegedly unlawful search. We disagree.

Defendant was driving a tow truck and sideswiped a parked car. A police officer responded to the scene of the accident, contacted defendant, and ran a warrant check. The officer determined that there was a pending warrant for defendant's arrest issued in connection with a traffic case. Upon learning this, the officer called for assistance.

A second officer soon arrived at the scene. A few minutes later, the first officer verified that the warrant was still active and placed defendant under arrest by handcuffing him and putting him in the back seat of a patrol car. The two officers then agreed that the first officer would transport defendant to the police station, located only five blocks away, while the second officer searched the passenger compartment of the tow truck.

At the suppression hearing, the first officer testified that defendant was allowed to call a fellow employee to retrieve the tow truck. Both officers testified that, under the police department's written policy, an inventory search would be conducted, whether the vehicle was impounded or later picked up.

Just as the first officer began to drive the patrol car away from the scene with defendant in the back seat, the second officer opened the door to the tow truck and began his search. Within a few minutes, the second officer looked in the pocket of a jacket draped on the seat of the tow truck and discovered a vial containing a suspected controlled substance. The officer immediately suspended his search and locked the tow truck.

The officers obtained a warrant to search the tow truck and, during the execution of that warrant, discovered a small amount of marijuana, various items of drug paraphernalia, and a large amount of methamphetamine.

In seeking to suppress this evidence, defendant challenged the warrant authorizing the search of the passenger compartment of the tow truck, alleging that it was obtained based on evidence illegally seized during the initial search.

The trial court denied defendant's suppression motion, ruling that the initial search of the passenger compartment of the tow truck was sufficiently contemporaneous to defendant's arrest such that it was a lawful search incident to arrest. The trial court did not determine whether the police had conducted a proper inventory search.

When reviewing a trial court's suppression ruling, we must determine whether the trial court's factual findings are adequately supported by competent evidence in the record. If so, we will not disturb them. People v. Gennings, 808 P.2d 839 (Colo.1991). We must also determine whether the trial court applied the proper legal standard to the facts of the case. People v. Jordan, 891 P.2d 1010 (Colo.1995).

Here, the parties do not dispute that there is ample record support for the trial court's factual findings. Thus, we turn directly to the dispositive question, apparently one of first impression in Colorado, of whether a vehicle search incident to arrest is lawful if the search is commenced as the arrestee is being transported away from the scene.

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution proscribe unreasonable searches and seizures by state officials. Thus, warrantless searches are per se unreasonable unless they fall under a specifically established and well-delineated exception. One such exception is that when the police make a lawful custodial arrest of the occupant or recent occupant of an automobile, the police may conduct a contem- . poraneous search of the passenger compartment of that automobile. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); People v. Savedra, 907 P.2d 596 (Colo.1995).

, The Belton standard was developed in response to the need for a workable, straightforward rule that police could apply in searching an automobile passenger compartment after making a custodial arrest of an occupant or recent occupant of that automobile. In setting out the rule, the Court noted that the police were confused about what parts of the automobile were in the actual reach of an arrestee under the [former] standard. Belton cere-ated a "bright line rule" defining the passenger compartment of an automobile as being within the hypothetical immediate control of an occupant or recent occupant of the vehicle. The passenger compartment is within the Belton zone even where the arrestee is away from the vehicle and safely within police custody at the time of the search.

People v. Savedra, supra, 907 P.2d at 598 & n. 1 (citations omitted). The Savedra court stressed that Belton applied to both occupants and recent occupants of vehicles. It noted that the temporal proximity between the police encounter and the defendant's presence in the vehicle is the main factor the court must consider in determining whether a person is a recent occupant of a vehicle under Belton. People v. Savedra, supra, at 599.

In People v. H.J., 981 P.2d 1177 (Colo. 1997), the supreme court applied this search warrant exception where a passenger in a vehicle was arrested pursuant to an outstanding arrest warrant issued in connection with a traffic case. The passenger was in custody at the scene when the officer searched the vehicle. The supreme court concluded that the passenger's location at the time of the search was irrelevant, explaining that "(tlhe authority to search the passenger compartment incident to arrest is automatic, and does not depend upon the specific facts of each case." People v. H.J., supra, 931 P.2d at 1183.

Likewise, in People v. Daverin, 967 P.2d 629 (Colo.1998), the court held that this exception applied where, at the time of the search, a passenger in the vehicle had been arrested on an outstanding warrant and was handcuffed and seated in a patrol car at the scene.

Because the arrestees in H.J. and Daverin were both kept in custody at the seene while the passenger compartments of the vehicles were searched, the supreme court did not have to determine whether the continued presence of the arrestee at the scene of the vehicle search is a necessary element of the exception.

Other courts have confronted this question and have reached differing conclusions. For example, in United States v. Lugo, 978 F.2d 631, 634 (10th Cir.1992), the Tenth Circuit invalidated a vehicle passenger compartment search that was initiated after the arrestee was taken into custody and driven from the scene. The court concluded that Belton was inapplicable once the defendant was no longer present at the scene because "there was obviously no threat that he might reach in his vehicle and grab a weapon or destroy evidence. Thus, the rationale for a search incident to arrest had evaporated." United States v. Lugo, supra, 978 F.2d at 685.

Although we agree with this rationale of the Lugo court, we are compelled by the supreme court's opinions in Savedra, H.J., and Daverin, discussed above, to conclude, as have other federal courts, that a vehicle search incident to arrest is lawful even if the search is commenced as the arrestee is being transported away from the area. Here, as in Lugo, there was no possibility that defendant could obtain a weapon or destroy evidence onee he was in the police car, and thus, the very bases for a search incident to arrest appear not to have been present. Nevertheless, as noted, the supreme court cases have emphasized the importance of the temporal proximity between the police encounter and the defendant's presence in the vehicle, irrespective of the defendant's location at the time of the vehicle search.

Thus, in United States v. Doward, 41 F.3d 789 (1st Cir.1994), the court reasoned that the passenger compartment search exception was applicable where the arrestee was present in custody at the scene when the three-minute search began, even though he was then transported from the scene approximately thirty seconds before the search was concluded. The court explained its analysis of "the temporal and spatial limits of the bright-line rule announced in Belton " as follows:

[The Belton Court's opinion stressed that its bright-line rule was designed to foster both privacy and law enforcement interests: "The protection of the Fourth and Fourteenth Amendments can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement," especially since police officers engaged in an arrest on the highway have "only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront."
The Belton Court explicitly predicated its bright-line rule on "the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach in order to grab a weapon or evidentiary [item]." Against this pragmatic framework the Court articulated its bright-line rule: "we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile," and "examine the contents of any [open or closed] containers found within the passenger compartment...."
We think Belton leaves no doubt that post hoe analyses like those presently urged by Doward are precluded. The Bel-ton majority's cireumspect use of the discrete phrase "contemporaneous incident of that arrest," rather than the less expansive phrase "contemporaneous with that arrest"-as Doward would have us read it-plainly implies a greater temporal leeway between the custodial arrest and the search than Doward advocates. Moreover, the temporal limitation urged by Doward would undermine Belton's bright-line rule by requiring courts to second-guess the security assessments made by law enforcement officers at the seene.

Doward, supra, 41 F.3d at 792-98 (citations, internal quotations, footnote, and emphasis omitted); see United States v. McLaughlin, 170 F.3d 889 (9th Cir.1999)(following Doward and concluding that a search of the passenger compartment of an automobile that commenced five minutes after the defendant has been arrested and removed from the scene qualified as a search incident to arrest under Belton ). ~

In our view, the approach outlined in Do-ward is persuasive and more consistent with the supreme court's pragmatic analysis in People v. H.J., supra, and People v. Daverin, supra. Accordingly, following Doward here, we uphold the trial court's denial of defendant's suppression motion based on its conclusion that the search of the passenger compartment of the tow truck was lawfully conducted as a contemporaneous incident of defendant's arrest, even though defendant was not present at the seene during most of the search. Because defendant was present when this search began and was only a short distance away from the seene of the search when it was concluded a few minutes later, the facts of this case do not require us to "consider whether the time span between an automobile-related arrest and the initiation of a warrantless search of the passenger compartment might become so protracted as to raise judicial eyebrows in an exceptional case.". Doward, supra, 41 F.3d at 798 n. 3.

II. Sequestration of Witnesses

Defendant next contends the trial court erred by denying his motion for a new trial based on an alleged violation of the court's witness sequestration order. We are not persuaded.

Matters relating to the sequestration of witnesses and violations of sequestration orders are within the trial court's sound discretion. Absent an abuse of discretion, the decision not to impose sanctions will be upheld. People v. DeBoer, 829 P.2d 447, 449 (Colo.App.1991).

Here, prior to trial, the court entered a sequestration order prohibiting the revelation of "testimony of witnesses who have testified to those who have not."

During trial, the defense called the manager of the tow truck company to testify primarily about who, other than defendant, had had access to the tow truck in the days prior to defendant's arrest. In direct examination, counsel asked the manager whether, immediately prior to testifying, he had spoken in the hallway with the detective who was serving as the prosecution's advisory witness. The manager stated that he and the detective had spoken about the manager's methamphetamine conviction.

After trial, defendant filed a motion for a new trial in which he alleged, as relevant here:

The testimony of the defendant's witnesses was adversely affected by the prosecution and its advisory witness, [the detective]. Apparently, ... an investigator and father of the defendant ... heard [the detective] pressure [the manager of the tow truck company), a witness, about his testimony and suggested a greater jail sentence for his recent drug conviction, if he failed to cooperate with the prosecution. [The tow truck manager] is a convicted drug offender regarding [sic] methamphetamines.

The prosecution's response included an affidavit from the detective, stating that he had spoken with the manager about the manager's methamphetamine case pending in federal court and the substance of his anticipated testimony in this case. The detective stated that he did not pressure the manager regarding his testimony, though he admitted that he had told the manager that he might want to await a trial court ruling before divulging the factual cireumstances of his federal case.

At the hearing on his motion for a new trial, defendant did not present any evidence to support his allegations,. The trial court thus denied the motion, relying on the detective's affidavit and finding that his actions did not constitute a violation of the court's sequestration order because he had not divulged to the manager the substance of any other witness' testimony.

We perceive no abuse of discretion in the trial court's ruling. Although we view the detective's actions as imprudent, there is no evidence in the record that he violated the sequestration order. Moreover, the record indicates that defendant did not raise the issue of the alleged violation during trial, even though he was then clearly aware of the conversation between the detective and the tow truck manager. Finally, we note that defendant failed to produce any evidence to support his post-trial allegations of coercion and resulting prejudice.

III. Sentencing

Defendant contends the trial court misinterpreted the applicable felony sentencing provisions. We agree in part and vacate two of defendant's convictions.

The jury returned a verdict finding that defendant unlawfully possessed 25 to 450 grams of a schedule II controlled substance with intent to distribute. In two separate verdicts, the jury also found defendant guilty of possession of 25 to 450 grams of a schedule II controlled substance and simple possession of a schedule II controlled substance.

The trial court entered the following judgments and sentences to the Department of Corrections (DOC): (1) eight years for possession of 25 to 450 grams of a schedule II controlled substance with intent to distribute; (2) six years, to be served concurrently, for possession of 25 to 450 grams of a schedule II controlled substance; and (8) six years, to be served concurrently, for possession of a schedule II controlled substance.

On appeal, defendant contends, the People concede, and we agree that the trial court erred by entering a judgment of conviction and imposing a separate sentence upon a finding of a sentence limiting factor that the trial court misperceived as a separate substantive offense.

The controlled substances statute provides, in relevant part, as follows:

(1D)(@) ... [It is unlawful for any person knowingly to ... possess, or to possess with intent to ... distribute a controlled substance....
(2) ... [Alny person who violates any of the provisions of subsection (1) of this seetion:
(a) In the case of a controlled substance listed in schedule I or II of part 2 of this article, commits:
(I) A class 3 felony; except that a person commits a class 4 felony if such violation is based on the possession of a controlled substance listed in schedule II unless otherwise provided in paragraph (a) of subsection (8) of this section; ...
(3)(a) ... [Alny person convicted pursuant to paragraph (a) of subsection (2) of this section for knowingly ... possessing, or possessing with intent to ... distribute ... an amount that is or has been represented to be:
(I) At least twenty-five grams or one ounce but less than four hundred fifty grams of any material, compound, mixture, or preparation that contains a schedule I or schedule II controlled substance ... shall be sentenced to the department of corrections for at least the minimum term of incarceration in the presumptive range provided for such offense in section 18-1-105(1)(a) ....

Section 18-18-405, C.R.8.2001.

Under $ 1818-405, the jury's finding that defendant possessed 25 to 450 grams of a schedule II controlled substance is the basis for limiting the trial court's sentencing discretion; it is not the basis for a separate substantive conviction. See People v. Salcedo, 985 P.2d 7 (Colo.App.1998)(vacating the defendant's substantive conviction and sentence for possession of 28 grams or more of cocaine), rev'd-on other-grounds, 999 P.2d 833 (Colo.2000). Thus, the separate judgment of conviction for this "offense" must be vacated. However, the jury's finding regarding the amount possessed remains operative insofar as it relates to defendant's substantive conviction and the resulting limitation of the trial court's sentencing discretion.

Although defendant's separate convictions for possession of a schedule II controlled substance with intent to distribute and simple possession of a schedule II controlled substance could enter if they were based on different evidence, the People concede that defendant's convictions in this case were based on identical evidence. Thus, only one conviction may enter. See People v. Johnson, 987 P.2d 855, 860-61 (Colo.App.1998).

In determining which conviction to vacate, we must seek to give maximum effect to the jury's resolution of the issues. People v. Johnson, supra. Therefore, we vacate defendant's conviction for simple possession and maintain his conviction for possession with intent to distribute because the latter is an extraordinary risk crime, as discussed below, with a greater upper end of the presumptive range supporting defendant's eight-year sentence.

Possession of a schedule II controlled substance with intent to distribute is a class three felony. Section 18-18-405(@)(a)(D), C.R.S.2001. Typically, the presumptive sentencing range for a class three felony is four to twelve years imprisonment. Section 18-1-105(1)(a)(V)(A), C.R.S.2001. However, because possession of a controlled substance with intent to distribute is an "extraordinary risk" crime, the maximum sentence in the presumptive range is increased to sixteen years. Section 18-1-105(9.7)(a), (b)(XD, C.R.S.2001. Where the amount possessed was 25 to 450 grams, the defendant must be sentenced to the minimum sentence in the presumptive range. Thus, the applicable sentencing range in this case is four to sixteen years.

The record establishes that the trial court correctly understood the applicable sentencing range and imposed a sentence within that range. Thus, there is no need for resentenc-ing.

The judgment is vacated as to the convie-tions for possession of 25 to 450 grams of a schedule II controlled substance and simple possession of a schedule II controlled substance, and the case is remanded with directions to amend the mittimus to reflect a conviction for possession of a schedule II controlled substance with intent to distribute and a corresponding eight-year sentence to the custody of the DOC. In all other respects, the judgment is affirmed.

METZGER and NEY, JJ., concur.


author: Judge NIETO.

text:
    OCMULGEE PROPERTIES INC., a Georgia corporation, Plaintiff-Appellant, v. Ross D. JEFFERY, Defendant-Appellee.
    No. 00CA1593.
    Colorado Court of Appeals, Div. V.
    Oct. 11, 2001.
    Certiorari Denied Sept. 3, 2002.

      Goluba & Goluba, P.C., Nicholas W. Golu-ba, Jr., Glenwood Springs, CO, for Plaintiff-Appellant.
    Brownstein Hyatt & Farber, P.C., James Lochhead, Andrew Lawrence Spielman, Denver, CO, for Defendant-Appellee.
   Opinion by

Judge NIETO.

Plaintiff, Ocmulgee Properties Inc., appeals a judgment quieting title to a parcel of real property in defendant, Ross D. Jeffery. We reverse and remand with directions.

Plaintiff commenced this action to quiet its title based on adverse possession. Defendant counterclaimed to quiet title based on his record ownership.

The matter was tried to the court based on the parties' stipulation. The stipulation set forth facts and provided that "Plaintiff is the owner of the disputed property by virtue of adverse possession of more than eighteen years unless, as a matter of law, such adverse possession was interrupted by the following events": (1) defendant's predecessor in title successfully applied to the board of county commissioners to subdivide certain property, including the disputed property, and for an exemption from county subdivision regulations; and (2) plaintiff's predecessor in interest received notice of the application as required by the county regulations, but did not appear at the public hearing on the application and did not object to it. The parties also stipulated that the only issue presented in the case was: "Whether the period of adverse possession of Plaintiff and its predecessors in interest was, as a matter of law, interrupted as a result of the events recounted above...."

The trial court found that the successful application was "an exercise of dominion consistent with that of an average landowner asserting exclusive ownership and control." The court also found that pursuit of the application by the record owner was so vital and fundamental to the future use and development of the property that, as a matter of law, it constituted an exercise of control over the property sufficient to interrupt plaintiff's adverse possession. The court then concluded that plaintiffs period of adverse possession had been interrupted by the application and quieted title in defendant.

Plaintiff contends that the trial court erred by concluding that the application and the notice provided to its predecessor in interest constituted, as a matter of law, an interruption of the period of adverse possession. We agree.

Here, because the controlling facts are stipulated and therefore undisputed, the legal effect of those facts is a question of law. The appellate court is not bound by the trial court's conclusions of law, and hence our review is de novo. Lakeview Associates, Ltd. v. Maes, 907 P.2d 580 (Colo.1995).

It is the character of the claimant's possession under a claim of right that gives rise to title by adverse possession. The possession must be "actual, adverse, hostile, under claim of right, exclusive and uninterrupted for the statutory period." Smith v. Hayden, 772 P2d 47, 52 (Colo.1989). Therefore, where the claimant has been in possession for the required period, the ree-ord owner must show an interruption of some aspect of the possession to defeat the claim; mere assertion of a claim of record ownership is not sufficient. Indeed, the claimant's recognition of the owner's record title while claimant remains in possession strengthens the adverse possession claim. Schoenherr v. Campbell, 172 Colo. 306, 472 P.2d 139 (1970). '

"To disrupt the adverse possession claim, the record owner must assert a claim to the land or perform an act that would reinstate him in possession." Bushey v. Seven Lakes Reservoir Co., 37 Colo.App. 106, 109, 545 P.2d 158, 161 (1975). See also 16 Richard R. Powell, Powell on Real Property § 91.07[2] (1999)(owner can interrupt claimant's adverse possession by obtaining a judgment against claimant or by openly entering the property with intent to take possession and effectively exclude the claimant); 4 Herbert T. Tiffany, The Law of Real Property § 1161 (8d ed. 2000)(adverse possession is interrupted by the owner's entry on the land for the purpose of taking possession or by legal action to recover possession).

The question of whether a record owner's successful application to subdivide property and for an exemption from county subdivision regulations constitutes an exercise of control over property sufficient to disrupt the period of adverse possession by a claimant in actual possession of the property is an issue of first impression in Colorado.

"The very essence of adverse possession is that the possession must be hostile, not only against the true owner, but against the world as well." Lovejoy v. School District No. 46, 129 Colo. 306, 311, 269 P.2d 1067, 1069 (1954). It is actual possession of the property in a manner hostile to the record owner's right to possession that leads to title by adverse possession. The doctrine of adverse possession recognizes the record owner's right to exercise dominion over the property, but holds that the right is lost if a claimant adversely possesses the property for the required time. See § 3841-101, C.R.8.2001.

Here, the proceedings on the application before the county commissioners, standing alone, did not dispossess plaintiff, nor did they constitute an entry on the land sufficient to reinstate the record owner in possession. The proceedings did not constitute legal action to regain possession of the land or the equivalent of such an action. Given the parties' stipulation that plaintiff remained in possession of the land, the proceedings did not result in an ejectment of plaintiff or its predecessors in interest. Thus, acts of the record owner that did not include re-entry upon the land with intent to possess it and did not constitute legal action to retake possession of it were insufficient to interrupt the period of adverse possession of plaintiff who continued in actual, hostile possession of the property.

Accordingly, we conclude that the record owner's successful application for exemption from county subdivision regulations did not interrupt plaintiff's period of adverse possession, and the trial court erred in concluding otherwise.

To support the trial court's conclusion, defendant relies on the following statement in 4 Tiffany, supra, § 1141: "In the same vein, acts of the record owner with respect to the premises indicative of ownership, but not of possession, impair the exclusiveness of adverse possession." Tiffany, in turn, cites C & F Realty Corp. v. Mershon, 81 NM. 169, 464 P.2d 899 (1969) to support the statement. We do not find the statement in § 1141 persuasive, because C & F Realty does not support the proposition. There the court held that a record owner's placement of "for sale" signs on his property did not impair the exclusiveness of a claimant's adverse possession. See also 4 Tiffany, supra, §§ 1160 ("Statements and requests of a landowner, claiming land adversely possessed by another, do not suffice to interrupt the continuity of the adverse possession."), 1161 (the record owner can assert his right to the land by entry onto the land or by legal action to recover possession).

Defendant also relies on dictum in Mann v. La Salle National Bank, 205 Ill.App.3d 304, 150 Ill.Dec. 230, 562 N.E.2d 1033 (1990) to support the trial court's conclusion. In Mann, the court held in favor of the record owner, finding that the requisite period of adverse possession had not run. However, in dictum, the court also stated. that the record owner's application for a zoning variance was an act of dominion that interrupted the period of adverse possession. Inasmuch as the opinion is not grounded on the application for variance, we do not find Mann persuasive and decline to follow it.

Defendant also argues that the failure of plaintiff's predecessor to object to the application after receiving notice of the proceedings amounted to recognition of defendant's predecessor's title and right to exelusive control of the disputed property. Be that as it may, such recognition would not interrupt the adverse possession.

"A recognition of record title does not demonstrate an intent not to possess adversely." Schoenherr v. Campbell, supra, 172 Colo. at 309, 472 P.2d at 141; see Smith v. Hayden, supra (even if an adverse possession claimant had conceded the ownership of the record title holder, that concession did not negate the claimant's intent to adversely possess the disputed property).

Here, plaintiff's actual possession of the property was not disrupted, and even if plaintiff's predecessor recognized that defendant's predecessor was asserting ownership of the disputed property, that fact, standing alone, does not demonstrate that plaintiff ceased to adversely possess the property. The parties stipulated that plaintiff and its predecessors actually occupied and used the property throughout the eighteen-year period under a claim of right and in a manner hostile to the rights of the record owner. Under these cireumstances, recognition of the record owner's title would strengthen, not disrupt, the adverse possession claim. See Schoenherr v. Campbell, supra.

Accordingly, the judgment is reversed, and the case is remanded to the trial court with directions to enter a decree quieting title in plaintiff.

Judge TAUBMAN and Judge KAPELKE concur.