source: Caselaw Access Project

author: Opinion by JUDGE TAUBMAN

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Patrick K. WOOD, Defendant-Appellant.
    Court of Appeals No. 14CA0148
    Colorado Court of Appeals, Division I.
    Announced September 22, 2016 Rehearing Denied December 15, 2016
    Cynthia H. Coffman, Attorney General, John J. Fuerst III, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Adam Mueller, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE TAUBMAN

¶ 1 This is the latest chapter in the efforts of defendant, Patrick K. Wood, to vacate his felony murder conviction and thereby to stand convicted only of second degree murder, aggravated robbery, and menacing.

¶ 2 In 1986, Wood was convicted of felony murder, second degree murder, aggravated robbery, and menacing. For the past ten years, Wood has sought to remove his felony murder conviction, resulting in a long line of decisions. These cases include Wood's successful appeal to the United States Supreme Court on the issue of the timeliness of his federal habeas corpus petition. Following that decision, the Tenth Circuit Court of Appeals conditionally granted Wood's habeas corpus petition, directing that his felony murder conviction would be vacated unless a state court acted within a reasonable time to vacate either his felony murder conviction or his second degree murder conviction. The Tenth Circuit remanded to the federal district court to enter the conditional grant. Following the federal district court's entry of a conditional grant of the habeas corpus petition, the state district court granted the People's request to vacate the second degree murder conviction, rather than the felony murder conviction.

¶ 3 Wood appeals the state district court's vacation of his second degree murder conviction. He contends that the People did not have authority to request that the state district court vacate his second degree murder conviction, nor did the court have the jurisdiction or authority to do so. Although we conclude that the People had the authority to file their request, we conclude that the district court did not have the authority to rule on it. Accordingly, we vacate the state district court's order. We remand with instructions for the state district court to vacate Wood's felony murder conviction and correct the mittimus accordingly, leaving in place the second degree murder, aggravated robbery, and menacing convictions.

I. Background

¶ 4 In 1986, while attempting to rob a pizza delivery store, Wood shot and killed an assistant store manager. After a bench trial, the court convicted Wood of first degree felony murder, second degree murder, aggravated robbery, and two counts of menacing. The court merged the second degree murder and aggravated robbery convictions into the felony murder conviction and imposed a life sentence.

¶ 5 A division of this court affirmed Wood's conviction in an unpublished opinion. See People v. Wood (Colo. App. No. 87CA0273, May 4, 1989) (not published pursuant to C.A.R. 35(f) ).

¶ 6 In 1995, following his direct appeal, Wood filed a pro se Crim. P. 35(c) motion in the Adams County District Court challenging his felony murder conviction. The district court, however, never acted on the motion. He filed another Crim. P. 35(c) motion in 2004, alleging that the prohibition against double jeopardy was violated because he was convicted of both felony murder and second degree murder of the same victim. The trial court denied his motion under Crim. P. 35(c)(3)(VII), asserting that "each and every one of the grounds asserted could have been presented in an appeal pursued by [Wood] after his conviction."

¶ 7 Wood appealed the denial of his Crim. P. 35(c) motion to a division of our court. The division affirmed, concluding that his challenge to his second degree murder conviction was time barred and his challenge to his felony murder conviction was barred because it could have been raised on direct appeal. People v. Wood , (Colo. App. No. 04CA2252, 2006 WL 2171645, Aug. 3, 2006) (not published pursuant to C.A.R. 35(f) ). The supreme court denied certiorari. Wood v. People , (Colo. No. 06SC703, 2007 WL 315512, Feb. 5, 2007) (unpublished order).

¶ 8 In 2008, Wood filed a second habeas corpus petition, only challenging his felony murder conviction. He contended that convicting him of both felony murder and second degree murder of the same victim violated his right to be free from double jeopardy. Wood v. Milyard , No. CIV.A. 08-CV-00247-W, 2009 WL 1973531, at *1 (D. Colo. July 6, 2009), aff'd , 403 Fed.Appx. 335 (10th Cir. 2010), rev'd and remanded , 566 U.S. 463, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012). The Colorado Attorney General did not challenge the timeliness of Wood's habeas corpus petition. After dismissing some claims for failure to exhaust state remedies, the court denied Wood's double jeopardy claim. Id. at *6. Wood appealed.

¶ 9 The Tenth Circuit Court of Appeals directed the parties to brief whether the statute of limitations barred Wood's petition. The Attorney General argued that Wood's petition was untimely. Wood , 403 Fed.Appx. at 336-37. The Tenth Circuit agreed with the Attorney General and denied habeas corpus relief. Wood filed a petition for certiorari, which the United States Supreme Court granted. The Court held that the Attorney General had forfeited its statute of limitations defense and remanded the case to the Tenth Circuit to consider the merits of Wood's appeal. Wood , 566 U.S. at 466-69, 132 S.Ct. at 1830-31.

¶ 10 On remand, the Tenth Circuit held that the Double Jeopardy Clause precluded the imposition of two convictions for a single murder, notwithstanding that the district court had merged the convictions for sentencing purposes. Wood v. Milyard , 721 F.3d 1190, 1194-98 (10th Cir. 2013) ("Double jeopardy doctrine prohibits cumulative punishments the legislature hasn't authorized. And it's long since settled that a conviction, even a conviction without a corresponding sentence, amounts to a punishment for purposes of federal double jeopardy analysis."). The Tenth Circuit ordered the federal district court to grant Wood conditional habeas corpus relief and vacate the felony murder conviction, unless the Adams County District Court corrected the double jeopardy error by vacating "either of the two murder convictions":

Because vacating either murder conviction will suffice to remedy Mr. Wood's double jeopardy complaint, the most equitable result in this case would be one that permits the elimination of his lesser, second degree murder conviction-or at least permits the Colorado courts that tried him to choose which conviction will go. Toward that end, we think the appropriate way forward is to remand this case to the district court with instructions to grant the writ of habeas corpus conditionally. It should vacate the first degree murder conviction Mr. Wood challenges in federal court and over which we have the power of review if and only if no state court vacates either of the two murder convictions within a reasonable time.

Id. at 1197. On remand, the federal district court entered a conditional habeas corpus writ with similar instructions for the Adams County District Court. See Wood v. Milyard , No. 08-CV-00247-WYD, 2014 WL 321075, at *2 (D. Colo. Jan. 29, 2014).

¶ 11 The People then filed the motion for resentencing at issue here in the Adams County District Court. At the resentencing hearing, the People told the court:

The Order [from the federal district court] requires that the Court to [sic] do a resentencing of the Defendant.... [T]he Opinion is requiring that the Prosecutor make a selection between Felony Murder and Second Degree Murder at the re-sentencing hearing.

¶ 12 The People did not request that Wood be resentenced, but requested that the court vacate the second degree murder conviction. The district court subsequently vacated the second degree murder and aggravated robbery convictions and issued an amended mittimus which, contrary to its order, still contained the second degree murder and aggravated robbery convictions, albeit with a note that they were vacated. Thereafter, the federal district court vacated the conditional habeas corpus petition. Wood , 2014 WL 321075, at *2.

¶ 13 On appeal, Wood contends that the Adams County District Court erred in vacating his second degree murder conviction rather than his felony murder conviction for three reasons: (1) the People had no authority to file the "Motion for Resentencing"; (2) the district court lacked jurisdiction and authority to vacate the second degree murder conviction; and (3) equity dictated that the district court should have vacated the felony murder conviction under the verdict maximization doctrine and the doctrine of laches. In the alternative, Wood contends that if the People had authority to request and the district court had jurisdiction and authority to vacate the second degree murder conviction, we must remand to the district court because the district court entered the mittimus incorrectly.

¶ 14 Following oral arguments, we asked for supplemental briefs on (1) how People v. Spykstra , 234 P.3d 662 (Colo. 2010), and People in Interest of E.G. , 2016 CO 19, 368 P.3d 946, apply to either the People's ability to file the motion for resentencing or the district court's authority to decide the People's motion; (2) whether section 13-1-115, C.R.S. 2016, grants the district court authority or ancillary jurisdiction; (3) whether section 20-1-102, C.R.S. 2016, provides authority for the People's motion for resentencing; and (4) whether the district court had inherent authority to hear this case.

¶ 15 We conclude that the People had authority to file the motion "to resentence." We also conclude that the district court had subject matter jurisdiction over the motion. However, we conclude that the district court did not have authority to rule on the motion and, therefore, it erred in vacating Wood's second degree murder conviction. Thus, we do not address Wood's contention that equity dictated that the court should have vacated the felony murder conviction, or his contention that we should remand for the district court to remove the second degree murder and aggravated robbery convictions from his mittimus.

II. People's Authority to File the "Motion for Resentencing"

¶ 16 Wood contends that the People had no authority to file their motion for resentencing. We conclude that the People had authority to file their motion.

A. Standard of Review

¶ 17 Whether the People had the authority to file a motion before the district court is a question of standing. See generally People v. Brothers , 2013 CO 31, ¶ 8, 308 P.3d 1213, 1215 (holding that whether the district attorney could move to quash third-party subpoenas was a question of standing). Standing is a question of law that we review de novo. Spykstra , 234 P.3d at 666.

B. Applicable Law

¶ 18 In relation to the People's authority, we asked the parties to discuss how two cases- Spykstra and E.G. -apply to the People's ability to file their motion and to the district court's authority to decide the People's motion. We conclude that Spykstra addresses the People's authority to act and E.G. addresses a district court's authority to act. We discuss E.G. in detail in Part III.C.1.

¶ 19 In Spykstra , the district court denied the People's motion to quash two subpoenas duces tecum served by the defendant on the parents of the victim in a child sexual assault case. 234 P.3d at 667. The supreme court held the People had authority to move to quash the subpoenas because they had general authority to act and no statute prohibited them from filing such a motion. Id. Further, the limited exceptions to a district attorney's general authority to appear on behalf of the State-such as disqualification and express legislative limitation-did not apply. Id.

¶ 20 The court concluded that a district attorney has the general authority to appear and participate in proceedings to which the People are a party under section 20-1-102(1). Id. The court further held that only a specific statute or rule can limit the People's general authority.

C. Analysis

¶ 21 First, we must address the substance of the People's motion. While the People titled their motion a "motion for resentencing," we do not necessarily consider it as such. See People v. Collier , 151 P.3d 668, 670 (Colo. App. 2006) (holding that the substance of a motion controls its designation). At the hearing on the motion for resentencing, the People did not request that the court resentence Wood. Rather, they requested that the court vacate Wood's second degree murder conviction. The People also argue that their motion was simply a motion to alert the state district court to the federal district court's conditional grant of habeas corpus. Therefore, we consider the People's motion to have been seeking two different objectives: (1) to notify the state district court about the federal district court's conditional grant of habeas relief and (2) to request the state district court to vacate the felony murder conviction. We address whether the People had authority to file a motion seeking this relief.

1. Notification to State District Court

¶ 22 To the extent the People's motion was a motion to notify, we start from the premise that the People had general authority under section 20-1-102. The limited exceptions to a district attorney's general authority to appear on behalf of the State do not apply here.

¶ 23 Recognizing that there is no formal mechanism in Colorado for the People to alert a state court of a federal court's conditional grant of a habeas corpus petition, we nevertheless conclude that no statute or rule in Colorado prohibits such a motion by the People.

¶ 24 From a practical perspective, the People need a mechanism to alert a state court that a federal court has granted a conditional habeas corpus petition. If the People do not have such a mechanism, and only defendants do, defendants, in some cases, will have an incentive not to notify the state court about the conditional grant of the habeas corpus petition. Then, the state court could unknowingly fail to consider a conditional habeas corpus grant, and a defendant could force the outcome he or she desires.

¶ 25 The Third Circuit considered this quandary in Gibbs v. Frank , 500 F.3d 202, 209 (3d Cir. 2007). There, the federal district court executed a conditional writ directing the state court to retry the defendant within 120 days or release him. Id. After the district court issued the writ, several weeks passed before Gibbs' counsel notified the state court of the conditional writ. The Third Circuit noted:

The interests of comity strongly counsel that the issuance of a conditional writ of habeas corpus by a federal court be conveyed promptly to the state trial court that must rectify the constitutional deprivation. In future conditional writ cases, we believe that it is appropriate for the State or Commonwealth to bear the burden of informing state courts about the necessity of a retrial promptly after the conditional writ is issued.

Id. at 209 n.6.

¶ 26 Therefore, we conclude that the People had authority to file their motion insofar as they sought to notify the state district court of the federal district court's conditional grant of habeas corpus relief.

2. Effort to Vacate a Conviction

¶ 27 Applying Spykstra , we start from the premise that the People had the general authority under section 20-1-102 to appear and participate in proceedings in which they are a party. Like in Spykstra , the limited exceptions to a district attorney's general authority to appear do not apply. No district attorney disqualification rule is involved in this case, see § 20-1-107(2), C.R.S. 2016, and the General Assembly has not authorized a different body to prosecute this action, see Harris v. Jefferson Cty.Court , 808 P.2d 364, 365 (Colo. App. 1991) ("[W]hen the General Assembly authorizes a different body to prosecute a particular type of action, then the district attorney is without authority to act.").

¶ 28 Wood contends that Crim. P. 35(c) prohibits the People from filing their motion. However, we address this contention below in the context of whether Crim. P. 35(c) provides the trial court with authority to act in the circumstances presented here.

¶ 29 Therefore, we conclude that the People had authority to file a motion requesting that the state district court vacate Wood's convictions.

III. District Court's Subject Matter Jurisdiction and Authority

¶ 30 Wood next contends that the state district court lacked subject matter jurisdiction and authority to vacate the second degree murder conviction. Although we have concluded the People had authority to move for the court to vacate Wood's second degree murder conviction, we still must address whether the court had authority to vacate the conviction. We conclude that the court had subject matter jurisdiction, but agree with Wood that it lacked authority to vacate his second degree murder conviction. We address each issue in turn.

A. Standard of Review

¶ 31 We review jurisdictional matters de novo. People v. Efferson , 122 P.3d 1038, 1040 (Colo. App. 2005).

B. Jurisdiction

1. Applicable Law

¶ 32 Subject matter jurisdiction is "defined only as a court's power to resolve a dispute in which it renders judgment." Associated Gov'ts of Nw. Colo. v. Colo. Pub. Utils. Comm'n , 2012 CO 28, ¶ 30, 275 P.3d 646, 652. A court has subject matter jurisdiction if the case is one of the types of cases that the court has been empowered to entertain by the sovereign from which the court derives its authority. Wood v. People , 255 P.3d 1136, 1140 (Colo. 2011).

¶ 33 The state district court relied on article VI, section 1 of the Colorado Constitution and section 13-1-115 of the Colorado statutes in concluding that it had jurisdiction over Wood's case. Colorado Constitution article VI, section 1 provides:

The judicial power of the state shall be vested in a supreme court, district courts, a probate court in the city and county of Denver, a juvenile court in the city and county of Denver, county courts, and such other courts or judicial officers with jurisdiction inferior to the supreme court, as the general assembly may, from time to time establish; provided, however, that nothing herein contained shall be construed to restrict or diminish the powers of home rule cities and towns granted under article XX, section 6 of this constitution to create municipal and police courts.

¶ 34 The Colorado Constitution vests district courts with general subject matter jurisdiction in criminal cases:

The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.

Colo. Const. art. VI, § 9 (1).

2. Analysis

¶ 35 While Wood initially contended that the district court did not have subject matter jurisdiction, at oral argument he conceded that the court had subject matter jurisdiction under article VI, sections 1 and 9 of the Colorado Constitution. Therefore, we need not address this issue further.

C. Authority

¶ 36 Wood contends that the district court had no authority to vacate his second degree murder conviction and that Crim. P. 35(c) does not provide the requisite authority. The People, however, contend that the trial court had authority pursuant to section 13-1-115, ancillary jurisdiction, and inherent authority. We address each contention in turn.

1. Law

¶ 37 As previously discussed, we conclude that E.G. outlines the approach we must follow in determining whether the court had authority. In E.G. , ¶ 4, 368 P.3d at 948, the district court denied a defense motion to allow counsel to access a house where the victims had been sexually assaulted in order to "view and photograph the crime scene," which the defense filed when the homeowner refused access. The district court concluded that it did not have authority over the motion, reasoning "that it had not seen 'any Colorado law, statutory or case law that indicate[d]' that the court had any authority to order the requested access." Id.

¶ 38 The supreme court affirmed. The court concluded that it could find no constitutional provision, statute, or rule that provided the district court with authority to grant such access without the homeowner's consent. Id. at ¶¶ 30-32, 368 P.3d at 954. Therefore, the court concluded that district court had no authority to issue such an order. Id.

¶ 39 We conclude that E.G. stands for the principle that a court has authority to proceed only if there is express constitutional, statutory, or rule-based authority addressing the particular circumstances before it. See generally People v. Madden , 2015 CO 69, ¶ 7, 364 P.3d 866, 868 (trial court may not order refund of costs, fees, or restitution following a criminal trial without statutory authority to do so); People v. Nelson , 2015 CO 68, ¶ 1, 362 P.3d 1070, 1070 (same).

2. Section 13-1-115

¶ 40 The People argue that such an interpretation would be inconsistent with section 13-1-115, which encompasses circumstances that fall within a district court's constitutionally granted general and original jurisdiction to manage criminal cases, and that no statutory provision contradicts section 13-1-115. We disagree.

¶ 41 As relevant here, section 13-1-115 provides:

The courts have power to issue all writs necessary and proper to the complete exercise of the power conferred on them by the constitution and laws of this state.

¶ 42 We conclude that section 13-1-115 provides no authority here. The People did not ask the court to issue a writ; rather, they requested that the court vacate Wood's second degree murder conviction.

¶ 43 Wood argues that the federal court order granting conditional habeas corpus relief did not compel the state district court to act. The People argued below, and imply on appeal, that the state district court was required to consider the matter. We agree with Wood.

¶ 44 The conditional grants of habeas corpus relief by the Tenth Circuit and the federal district court did not require the state district court to act. If it did nothing, Wood's mittimus would be corrected by the federal district court removing his felony murder conviction and the double jeopardy violations would be remedied. Significantly, neither federal court addressed whether the conditional grant would give the state district court authority to vacate Wood's conviction. Nor did the state district court address its authority to proceed in its order. No Colorado statute, rule, or case provides guidance on this issue.

¶ 45 However, three federal circuit courts of appeal decisions have determined that a federal court cannot remand a habeas corpus action to a state district court, nor could a federal court compel a state court to act under a conditional grant of habeas corpus relief. This precedent indicates that if a federal court does not have authority to issue a conditional grant of habeas corpus relief, it may not compel a state court to act in response to a conditional grant of such relief. See Billiot v. Puckett , 135 F.3d 311, 316 n.5 (5th Cir. 1998) ("If the writ is granted, or even conditionally granted, the state, pursuant to available state procedures , may then take whatever action it deems necessary, including reinitiating state court proceedings ... although the case may ultimately find its way back to the state courts ... [it] is by no means 'remanded' to the state courts."); see also Hardcastle v. Horn , 368 F.3d 246, 261 (3d Cir. 2004) (Federal courts lack authority to "remand a habeas corpus petition to a state court."); Rose v. Lee , 252 F.3d 676, 688 n.11 (4th Cir. 2001) ("[W]e do not believe that a federal habeas court can remand a case to a state habeas court.").

¶ 46 Therefore, we conclude that section 13-1-115 conferred no authority on the state district court to act in these circumstances. We further conclude that the federal court orders did not enable the state district court to act based on the authority of section 13-1-115.

3. Ancillary Jurisdiction

¶ 47 Ancillary jurisdiction allows a court to decide certain matters related to the principal proceeding. Nelson , ¶ 67, 362 P.3d at 1081. The doctrine of ancillary jurisdiction is a doctrine of inherent power that "exists because without it the court could neither effectively dispose of the principal case nor do complete justice in the premises." People v. Hargrave , 179 P.3d 226, 229 (Colo. App. 2007) (quoting Morrow v. District of Columbia , 417 F.2d 728, 738 n.36 (D.C. Cir. 1969) ). Although the doctrine of ancillary jurisdiction frequently arises in federal courts, it has also been applied in certain circumstances in state court proceedings. Id. Accordingly, the Hargrave division adopted the Morrow court's four-part test to determine whether a court has ancillary jurisdiction:

(1) the ancillary matter arises from the same transaction which was the basis of the main proceeding, or arises during the course of the main matter, or is an integral part of the main matter;
(2) the ancillary matter can be determined without a substantial new factfinding proceeding;
(3) determination of the ancillary matter through an ancillary order would not deprive a party of a substantial procedural or substantive right; and
(4) the ancillary matter must be settled to protect the integrity of the main proceeding or to insure that the disposition in the main proceeding will not be frustrated.

Id. at 229-30 (quoting Morrow , 417 F.2d at 740 ).

¶ 48 We conclude that the Hargrave test is not satisfied here. First, the "main matter" is Wood's federal petition for a writ of habeas corpus. Wood filed that petition in federal court under federal law, and the petition was never before the state district court. Therefore, the People's "motion for resentencing" arises from the federal writ, and any ancillary jurisdiction undoubtedly exists in the federal court, not the state district court.

¶ 49 Second, the People contend that no new factfinding is necessary, as maximizing the sentence is a question of law. Again, we disagree. The state district court would need to conduct additional factfinding to determine whether the doctrine of laches precluded the People from challenging the second degree murder conviction twenty-six years later, particularly because the state district court did not consider Wood's laches argument. See Keller Cattle Co. v. Allison , 55 P.3d 257, 260 (Colo. App. 2002) ("Whether the elements of laches have been established is a question of fact."). Further, the People's unclean hands argument would also require additional factfinding.

¶ 50 Third, we conclude that executing the People's motion would deprive Wood of substantial rights. If we affirm the district court's order vacating the second degree murder conviction, Wood will remain convicted of felony murder even though he only litigated that conviction and prevailed on a constitutional challenge to that conviction in federal court. The People do not contend that it was improper for Wood to seek habeas corpus relief regarding only one of his convictions.

¶ 51 Fourth, the state district court should have-and could have-vacated the felony murder conviction to protect the integrity of Wood's successful federal habeas corpus petition.

¶ 52 Moreover, at the time of trial, the law was settled that no defendant could suffer two murder convictions for the killing of a single person. People v. Bartowsheski , 661 P.2d 235 (Colo. 1983) ; People v. Lowe , 660 P.2d 1261 (Colo. 1983), abrogated on other grounds by Callis v. People , 692 P.2d 1045 (Colo. 1984). The People had ample notice and opportunity to correct the double jeopardy error before this point. Immediately following trial, the People could have asked to vacate the second degree murder conviction or, in lieu of that, could have filed a cross-appeal to Wood's direct appeal. However, the People did neither.

¶ 53 Therefore, we conclude that the district court did not have ancillary jurisdiction to vacate Wood's second degree murder conviction.

4. Inherent Authority

¶ 54 We further conclude that the state district court did not have inherent authority to grant the People's motion.

¶ 55 The judiciary has inherent authority to use all powers reasonably required to protect the efficient function, dignity, independence, and integrity of the court and judicial process. People v. Aleem , 149 P.3d 765, 774 (Colo. 2007).

¶ 56 The People contend that even if we assume the state district court erred by merging the murder convictions and imposing a single sentence, rather than vacating the second degree murder conviction as the Tenth Circuit Court of Appeals concluded the original sentencing court should have done, the district court had the inherent authority to correct this error. We disagree.

¶ 57 A court's inherent authority is generally limited to matters that are reasonably necessary for the proper functioning of the judiciary. Bd. of Cty. Comm'rs v. Nineteenth Judicial Dist. , 895 P.2d 545, 548 (Colo. 1995). As described above, it was not necessary for the state district court to take any action. If the state district court took no action, the federal district court order provided him with exactly the relief he had sought.

¶ 58 Further, the People point to no case suggesting the state district court possessed the inherent power to vacate the second degree murder conviction at their request, and we have found none suggesting such a power.

¶ 59 Therefore, we conclude that the court did not have inherent authority.

5. Crim. P. 35(c)

¶ 60 Even though the People do not argue that Crim. P. 35(c) provided a basis for the trial court to act, we address its applicability because Wood argues that it did not provide a basis for the trial court's authority. We agree. Crim. P. 35(c) only authorizes the trial court to vacate a conviction for a Crim. P. 35(c) motion filed by a defendant, not the People. See Crim. P. 35(c)(2) ("[E]very person convicted of a crime is entitled as a matter of right to make application for postconviction review upon the grounds hereinafter set forth."). To conclude that the trial court has authority to rule on a Crim. P. 35(c) motion filed by the People would improperly expand the trial court's postconviction authority.

¶ 61 Therefore, we conclude that Crim. P. 35 does not provide the trial court with authority.

6. Maximizing the Jury Verdict

¶ 62 Last, we recognize that in cases like Wood's with double jeopardy violations, "the effect of jury verdicts should be maximized." People v. Glover , 893 P.2d 1311, 1314 (Colo. 1995) (following the court's determination that the defendant could not be convicted of both murder after deliberation and felony murder for murder of single victim, the trial properly entered judgment for conviction of murder after deliberation and the underlying felony to maximize the defendant's sentence).

¶ 63 It is not a foregone conclusion, however, that vacating Wood's second degree murder and aggravated robbery convictions would maximize his sentence. Wood argues that his sentence would have been maximized by vacating the felony murder conviction because then the trial court could have imposed two convictions and two sentences. Further, he contends that when parole eligibility is taken into consideration, he would serve more time if he were sentenced under his second degree murder and aggravated robbery convictions that under his felony murder conviction.

¶ 64 We need not address these contentions because we conclude that the trial court did not have authority to vacate Wood's second degree murder conviction.

IV. Conclusion

¶ 65 Wood's federal habeas corpus petition exclusively challenged his felony murder conviction. Thus, the state district court's authority was limited-just as the federal district court's authority was limited-to consideration of Wood's felony murder conviction. Therefore, we vacate the state district court's order. We remand with instructions for the state district court to vacate Wood's felony murder conviction and correct the mittimus accordingly, leaving the second degree murder, aggravated robbery, and menacing convictions.

JUDGE MILLER and JUDGE FOX concur.

      We attach a chart as Appendix A of these decisions to illustrate the complex path of litigation involving Wood's convictions.

      Wood's first habeas corpus petition was denied for failure to exhaust state remedies. See Wood v. Furlong , No. 94 CV 00219 JLK (D. Colo. March 22, 1995).

      As discussed below, the People incorrectly characterized the Tenth Circuit's mandate and the federal district court's order.

      Courts have treated "ancillary jurisdiction" as a doctrine relating to both jurisdiction and authority. Compare People v. Dalton , 70 P.3d 517, 521 (Colo. App. 2002) (discussing ancillary jurisdiction as a jurisdictional doctrine), with People v. Hargrave , 179 P.3d 226, 229 (Colo. App. 2007) (discussing ancillary jurisdiction as a doctrine relating to authority or "power"), and People v. Nelson , 2015 CO 68, ¶ 67, 362 P.3d 1070, 1081 ("Ancillary jurisdiction gives us that authority."); see also Minto v. Lambert , 870 P.2d 572, 575 (Colo. App. 1993) (describing the inappropriate use of "jurisdiction" and "authority" interchangeably in appellate court decisions). Thus, we address ancillary jurisdiction, while addressing authority, because the People contend that ancillary jurisdiction provided the state district court with authority to vacate Wood's second degree murder conviction.

      Wood also contends that Crim. P. 35(a) provides no authority. Crim. P. 35(a) motions challenge illegal sentences, and, as noted, although the People's motion was a "motion to resentence," it effectively sought to vacate one of Wood's convictions.

      No case explicitly holds that the People cannot bring a Crim. P. 35(c) motion; however, this conclusion is supported by the difference in wording of Crim. P. 35(a) and Crim. P. 35(c). Compare Crim. P. 35(a) ("The court may correct a sentence...."), with Crim. P. 35(c)(1) ("If prior to filing for relief pursuant to this paragraph (1), a person has sought appeal of a conviction within the time prescribed therefor and if judgment on that conviction has not then been affirmed upon appeal, that person may file an application for postconviction review...."); see also Crim. P. 35(c)(2).

      This relief is necessary to return the case to the status quo ante before the People filed their motion for resentencing. Otherwise, the state and federal court proceedings might be in a state of uncertainty since the federal district court vacated its order granting federal habeas corpus relief following the state district court granting the People's motion for resentencing.


author: Opinion by JUDGE FREYRE

text:
    John MEDVED and Debra Medved, Plaintiffs-Appellants, v. State of Colorado, COLORADO DEPARTMENT OF REVENUE; Executive Director of the Colorado Department of Revenue, Defendants-Appellees.
    Court of Appeals No. 15CA1514
    Colorado Court of Appeals, Division V.
    Announced October 20, 2016
    Fox Rothschild LLP, Christopher J. Dawes, Christopher T. Groen, Denver, Colorado, for Plaintiffs-Appellants
    Cynthia H. Coffman, Attorney General, Grant T. Sullivan, Assistant Solicitor General, Denver, Colorado, for Defendant-Appellee
   Opinion by JUDGE FREYRE

¶ 1 In this conservation easement (CE) tax credit case involving both a donor and a transferee, we are asked to decide whose tax claim triggers the four-year statute of limitations under §§ 39-21-107(2) and 39-22-522(7)(i), C.R.S. 2006 , a question left unresolved by another division of this court in Markus v. Brohl , 2014 COA 146, 412 P.3d 647. Plaintiffs, John and Debra Medved (Medveds), appeal the district court's denial of their motion for summary judgment and its finding that defendant, Colorado Department of Revenue (Department), timely filed its notice of deficiency and disallowance. Relying on Markus 's reasoning and holding that § 39-22-522(7)(i), C.R.S. 2006 treats the donor and the transferee as one entity in all matters and that the first tax claim filed triggers the running of the statute of limitations, we reverse the district court's order.

I. Background

¶ 2 On March 30, 2006, the Medveds purchased a CE tax credit on a forty-acre parcel of property located in Jackson County for $104,000 from Whites Corporation (Whites Corp.). The appraised value of the tax credit was $130,000. For tax purposes, Whites Corp. was the CE donor and the Medveds were the CE transferees.

¶ 3 On October 23, 2006, the Medveds filed their 2005 Colorado Individual Tax Return Forms 104 and 1305. They claimed a $130,000 income tax credit based on the CE. Attached to their tax return were numerous documents related to the CE, including the legal description of the property subject to the easement, the identity of the grantor and donor of the easement, the amount of the tax credit claimed, and a copy of the appraisal provided by Whites Corp.

¶ 4 On October 30, 2007, Whites Corp. filed a 2005 Form 112, Colorado State C Corporation Income Tax Return. Whites Corp. claimed a $260,000 income tax credit based on the same CE.

¶ 5 On March 4, 2011, the Department issued a notice of disallowance to Whites Corp. and the Medveds, disallowing the CE tax credit in its entirety. The Medveds appealed directly to the district court and argued that the notice of disallowance was barred by the four-year statute of limitations under § 39-21-107(2), C.R.S. 2006. The Department, relying on the statutory language and a Department of Revenue regulation, argued that the Medveds and Whites Corp. were subject to the same statute of limitations that was triggered when the donor filed its tax return under § 39-22-522(7)(i), C.R.S. 2006.

¶ 6 Interpreting § 39-22-522(7)(i), C.R.S. 2006, the district court found that the donor (Whites Corp.) and the transferee (Medveds) were a single entity; that they were bound as to all issues concerning the tax credit, including the statute of limitations; and that the donor's tax claim triggered the four-year statute of limitations. Therefore, because Whites Corp. filed its tax return on October 30, 2007, the Department's notice of disallowance issued on March 4, 2011, was within the statute of limitations.

II. Conservation Easements

¶ 7 A CE "is a permanent restriction that runs with the land for the purpose of protecting and preserving the land in a predominantly natural, scenic, or open condition." Kowalchik v. Brohl , 2012 COA 25, ¶ 2, 277 P.3d 885 ( Kowalchik I ); see also §§ 38-30.5-101 to - 111, C.R.S. 2016 (establishing the purposes and requirements for CEs). CEs are fashioned to protect qualifying conservation values that exist on the property. §§ 38-30.5-101 to - 111, C.R.S. 2016.

¶ 8 In Colorado, a taxpayer may claim a state income tax credit for a qualifying CE to a government entity or charitable organization, and that credit may be carried forward for up to twenty years. § 39-22-522 (5(a) C.R.S. 2016. Further, the holder of a CE may transfer all or a portion of a CE tax credit to one or more transferees. § 39-22-522(7), C.R.S. 2016. However, only one such transfer is permissible. See Markus , ¶ 23 ("A credit can be transferred only once. A transferee, to whom a credit is transferred, cannot thereafter transfer the credit to another taxpayer." (quoting Dep't of Revenue Reg. 39-22-522(3)(b), 1 Code Colo. Regs. 201-2 (2014) ) ). When a transfer occurs, both the donor and the transferee are "taxpayers" subject to liability for deficiencies, interest, and penalties if the tax credit is disallowed. See Kowalchik II , 2012 COA 49 ¶ 52, 411 P.3d 681.

¶ 9 The Medveds make two arguments. First, they contend that they are not bound by the same statute of limitations as Whites Corp. They argue that the General Assembly "changed" rather than "clarified" the applicability of the statute of limitations when it amended the last sentence of § 39-22-522(7)(i) in 2007 to read: "The transferee shall be subject to the same statute of limitations with respect to the credit as the transferor of the credit." Ch. 290, sec. 3, § 39-22-522, 2007 Colo. Sess. Laws 1230. They argue that this change is prospective and not applicable to them. Second, they contend that under Markus , the "first claim filed by either the donor or transferee" triggers the four-year statute of limitations under § 39-21-107(2), C.R.S. 2006.

¶ 10 In contrast, the Department contends that §§ 39-21-107(2) and 39-22-522(7)(i), C.R.S. 2006, when read together, subject the donor and the transferee to the same four-year statute of limitations. Relying on its internal regulations, the Department contends that Whites Corp., as the donor and tax matters representative (TMR), binds the Medveds, and it construes § 39-22-522(7)(i), C.R.S. 2006, as requiring that the donor's tax claim trigger the statute of limitations. See Dep't of Revenue Reg. 39-22-522(3)(b), 1 Code Colo. Regs. 201-2 (stating that the donor, as the TMR, binds the transferee). It argues that its regulations do not work in reverse and thus, that the Medveds cannot similarly bind Whites Corp. to a different statute of limitations.

¶ 11 We agree with the Department that a donor and transferee are considered a single entity under the statute and are bound by the same statute of limitations. This issue was decided by Markus . See Markus , ¶ 23. We further agree that the 2007 amendment to the last sentence of § 39-22-522(7)(i) clarified rather than changed that requirement, an issue also decided by Markus . See Markus , ¶ 34. However, as explained below, we reject the Department's argument that only the donor's tax claim begins the four-year statute of limitations and conclude, consistent with Markus , that the "entity's" first claim filed, whether it is the donor's or the transferee's, commences this limitations period.

III. Statutory Interpretation

¶ 12 We review a summary judgment de novo. Brodeur v. Am. Home Assurance Co. , 169 P.3d 139, 146 (Colo. 2007). Summary judgment is a drastic remedy and, therefore, is only appropriate where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c) ; Sanchez v. Moosburger , 187 P.3d 1185, 1187 (Colo. App. 2008).

¶ 13 Statutory interpretation is a question of law that we review de novo. Smith v. Exec. Custom Homes , 230 P.3d 1186, 1189 (Colo. 2010). We must adopt a construction that "best effectuates the intent of the General Assembly and the purposes of the legislative scheme." State v. Nieto , 993 P.2d 493, 501 (Colo. 2000). When construing a statute, we look first to the plain language of the statute and give words and phrases their ordinary meanings. Fischbach v. Holzberlein , 215 P.3d 407, 409 (Colo. App. 2009). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ).

¶ 14 If statutory language is clear and unambiguous, there is no need to resort to interpretive rules of statutory construction. Seaman v. Colo. Manufactured Hous. Licensing Bd. , 832 P.2d 1041, 1042 (Colo. App. 1991). But, if a statute is ambiguous, a court may examine its legislative history to discern legislative intent. United Guar. Residential Ins. Co. v. Dimmick , 916 P.2d 638, 641 (Colo. App. 1996). A statute should be construed, wherever possible, "in a manner that gives effect to all its ... policy objectives, and not in a way that renders one or more of its ... goals inoperative." Copeland v. MBNA Am. Bank, N.A. , 907 P.2d 87, 90 (Colo. 1995). A court must avoid any interpretation that leads to an absurd result. Concerned Parents of Pueblo, Inc. v. Gilmore , 47 P.3d 311, 313 (Colo. 2002).

¶ 15 Because the parties agree that § 39-21-107(2), C.R.S. 2016, permits the Department to challenge a taxpayer's filing for a period of four years from the filing date, and because they agree that Markus requires the Department to challenge a CE tax credit within four years from the date the credit is first claimed, we focus our analysis on the meaning of § 39-22-522(7)(i), C.R.S. 2006, and its application to their respective tax filings. The statute provides:

The donor of an easement for which a tax credit ... transferred pursuant to this subsection (7) shall be the [TMR] in all matters with respect to the credit. The [TMR] shall be responsible for representing and binding the transferees with respect to all issues affecting the credit, including, but not limited to, the charitable contribution deduction, the appraisal, notifications and correspondence from and with the department of revenue, audit examinations, assessments or refunds, settlement agreements, and the statute of limitations.

¶ 16 It applies to "income tax years commencing on or after January 1, 2000." § 39-22-522(2), C.R.S. 2006. While the statute's language makes the donor the TMR and states that the TMR and transferee are bound with respect to all issues affecting the credit, it does not specify whether the donor's or the transferee's tax filing claiming the CE credit begins the four-year statute of limitations period. See Markus , ¶ 25 ("Intuitively, it would seem that a tax credit transferee could not 'share' the donor's limitations period if ... the two could be subject to different limitation periods depending on when they filed their tax returns."). Accordingly, we conclude that the plain language of the statute is subject to two possible interpretations and is therefore ambiguous.

¶ 17 Under one view - the view urged by the Department - only the donor, as the TMR, could begin the statute of limitations by filing its first tax claim. In circumstances where a transferee filed a tax claim before the donor, however, the statute of limitations for reviewing the transferee's claim would not begin until the filing of the donor's first tax claim.

¶ 18 Under another view - the view urged by the Medveds, the first tax filing to claim the credit, whether it is the donor's or the transferee's claim, would begin the statute of limitations. See Kowalchik II , ¶ 23 ("The transfer of a CE credit creates a pre-litigation relationship between the TMR and its transferee, in which their interests are closely aligned in upholding the validity of the CE credit and the TMR is motivated to defend the credit."). Because both interpretations are reasonable, we look to the statute's purpose, its legislative history, and to the consequences of particular constructions. Nieto , 993 P.2d at 500-501 ; see also § 2-4-203(1)(a), (c), & (e), C.R.S. 2016.

¶ 19 The CE tax credit statute serves two purposes: "(1) to incentivize donation of CEs for the public welfare; and (2) to provide pecuniary relief for land-rich, cash-poor individuals." Markus , ¶ 27 (citation omitted); see also Jessica E. Jay, Changes to Colorado's Conservation Income Tax Credit Law , 32 Colo. Law. 65, 65 (Feb. 2003) (describing the financial benefits to both donors and transferees of CE tax credits and how such credits provide a source of income to Colorado's land-rich but cash-poor farmers and ranchers). Because, as noted above, the donor and the transferee are subject to liability for any reduction or disallowance of the tax credit, the transferee has an interest in purchasing credits that carry a low risk of disallowance by the Department. See Kowalchik II , ¶ 23 (noting that to avoid this risk, donors and transferees often execute agreements allowing the transferee to seek indemnification from the donor for disallowances by the Department). To allow a transferee's statute of limitations to be tolled until the donor's first claim is filed would create a period of uncertainty and thus, a disincentive for buyers of these credits, contrary to the purpose of the statute. Markus , ¶ 30 ; cf. Sierra Pac. Indus., Inc. v. Bradbury , 2016 COA 132, ¶ 26, 409 P.3d 551 (construing a statute of repose to further the goal of relieving contractors and subcontractors from the prospect of potential indefinite liability for their acts or omissions). Indeed, potentially, a transferee could claim a CE tax credit in the year of transfer, while a donor could wait to claim the credit for a period of up to twenty years. In this scenario, the transferee's statute of limitations would be tolled for twenty years, thereby creating uncertainty about the validity of the credit, which would result in a disincentive for future buyers of CE credits.

¶ 20 This view is supported by the legislative history of § 39-22-522(7)(i), which was discussed in Markus . In 2005, the General Assembly enacted § 39-22-522(7)(i) to "ensure that the Department would have only one taxpayer with whom to address the question of value and validity of the credit" in cases involving both a donor and a transferee. Markus , ¶ 31 (citing Hearing on H.B. 05-1244 before the S. Finance Comm., 65th Gen. Assemb., 1st Sess. (Mar. 17, 2005) (comments of bill sponsor Sen. Jennifer Veiga) ). Consistent with this portion of the legislative history and Markus , we conclude that when a CE tax credit is transferred, the donor and the transferee become a single entity under § 39-22-522(7)(i), C.R.S. 2016, and that the donor becomes the TMR and the taxpayer with whom the Department may address questions concerning the value and the validity of the CE. Indeed, this is consistent with § 39-22-533(7)(d), which requires the donor - who possesses the information about the donation and any credit transfers - to notify the Department of transfers made and their amounts in the year of the transfer. Accordingly, we reject the Medveds' argument that the donor and transferee should be treated separately and are subject to separate statutes of limitations.

¶ 21 In discussing how far back the Department should be able to review the validity of CE credits, Representative Mike May recognized the general four-year statute of limitations and expressed his concern that the Department's review should not "somehow ... [go] on forever." Markus , ¶ 32 (quoting Hearing on H.B. 05-1244 before the H. Finance Comm., 65th Gen. Assemb., 1st Sess. (Feb. 16, 2005) (comments of Rep. Mike May) ). Representative May expressed the view that taxpayers should be "home free" at some point after which they would no longer have to worry about the validity of their credits. Id. (quoting Hearing on H.B. 05-1244 before the H. Finance Comm., 65th Gen. Assemb., 1st Sess. (Feb. 16, 2005) (comments of Rep. Mike May) ).

¶ 22 Based on the statute's purposes and its legislative history, the Markus division concluded the General Assembly did not intend the statute of limitations to restart each time a CE credit was claimed because the Department could potentially disallow a CE credit claimed twenty-four years earlier. Such a result, it reasoned, would contravene the statutory purposes. Id. at ¶ 35.

¶ 23 For similar reasons, we conclude that when the transferee files a tax claim first, the General Assembly did not intend for the donor's tax filing to begin the statute of limitations because a donor could potentially delay claiming the credit and thereby toll the transferee's statute of limitations period for up to twenty years. Such a scenario would undermine the statute's purposes and render an absurd result.

¶ 24 Instead, we believe the General Assembly intended the "entity's" first tax credit claim to begin the four-year statute of limitations period. Since the "entity" consists of both the donor and the transferee under § 39-22-522(7)(i), C.R.S. 2016, the first claim filed (as opposed to the first return filed), by either the donor or the transferee, begins the four-year statute of limitations period. See Markus , ¶ 45. This interpretation comports with the purposes of the statute and its legislative history while providing certainty to both taxpayers and the Department. Taxpayers will know that the statute of limitations will accrue with the filing of the first claim and will have a date certain beyond which they are "home free." Furthermore, the Department will know that the first claim filed permits it to begin reviewing the validity and value of the claimed CE tax credit. See § 39-21-103, C.R.S. 2016 (the Department is obliged to review returns "[a]s soon as practicable.").

¶ 25 We recognize that the Department's regulations state that transferees are bound by the donor's statute of limitations. See Dep't of Revenue Reg. 39-22-522(3)(g)(viii), 1 Code Colo. Regs. 201-2. We further acknowledge our duty to accord due deference to the interpretation of a statute by the agency charged with its enforcement. See Heinicke v. Indus. Claim Appeals Office , 197 P.3d 220, 222 (Colo. App. 2008). However, because an agency's view of the law is advisory and not binding on a court, we are not bound by an agency's interpretation that is inconsistent with the clear language of, or the legislative intent underlying, the statute. Id. For the reasons stated above, we conclude the Department's regulation is inconsistent with the purposes and legislative history of the statute.

¶ 26 We also reject the Department's argument that it would be unable to commence review of the CE tax credit based on the transferee's tax filing because it would not have the donor's "confirming documentation" to match the credits under § 39-22-522(7)(d), C.R.S. 2016. Contrary to this argument, and as noted above, the Department is notified of the CE transfer in the year the transfer is made under the requirements of § 39-22-522(7). Moreover, § 39-22-522(3) requires a taxpayer claiming a CE credit to file a qualified appraisal with the tax return claiming the credit. And, we note that the Medveds provided substantial documentation of the CE, including the appraisal and a property description, with their tax return.

¶ 27 Furthermore, § 39-22-522(3.5) C.R.S. 2016 permits the Department "to [request] additional information from the taxpayer or transferee regarding the appraisal value of the easement, the amount of the credit, and the validity of the credit." Therefore, we conclude that the Department receives sufficient information at the time the donation is made, at the time of any transfer, and with the first claim filed to determine the tax credit's validity and value, irrespective of whether that claim is the donor's or the transferee's. Markus , ¶ 31.

IV. Application

¶ 28 Applying our interpretation of the statute to this case, we conclude that the Department had four years from October 23, 2006 to determine the validity and value of the CE tax credit claimed by the Medveds. Because the Department's notice of disallowance sent on March 4, 2011, was beyond the four-year limitations period, the Department's disallowance is untimely and statutorily barred.

V. Conclusion

¶ 29 We reverse the district court's judgment in favor of the Department and remand to the district court for further proceedings consistent with this opinion.

JUDGE ROMÁN and JUDGE LICHTENSTEIN concur.

      The 2006 version of § 39-22-522(7)(i) is at issue here. The statute was amended in 2007. We reference the 2016 statutes if the sections cited were not altered by the 2007 amendment.

      Alan DeAtley, the individual who formed Whites Corp., was part of a tax credit fraud scheme and was prosecuted criminally. Whites Corp. and the Medveds stipulated to the invalidity of the $130,000 tax credit. Resolution of the statute of limitations issue determines whether penalty payments associated with the disallowance are due.

      The Department's assertion on rehearing that this issue was not briefed or argued by the parties is belied by the Medveds' opening brief which raised this precise issue.

      We reject the Department's argument on rehearing that § 39-22-533(7)(d) prohibits the transferee from claiming a CE credit until the donor's return first claims that credit. The statute requires both the donor and transferee to file a return in the year the donation is made, specifying the amount of the credit transferred. It does not require the donor to actually claim the credit. This distinction is important because the statute of limitations only begins when a CE credit is claimed , not when a transfer is noted on the donor's return. Had the General Assembly intended to begin the statute of limitations on the date the CE was created, it could have done so. The Markus division rejected the Department's similar "year of linkage" argument, and we agree with its analysis and conclusion. See Markus , ¶ 37.

      In reaching this conclusion, and for the reasons set forth in Markus , we also conclude that the 2007 amendment to the last sentence of § 39-22-522(7)(i) clarified that the donor and transferee are subject to the same statute of limitations. See Markus v. Brohl , 2014 COA 146, ¶ 34, 412 P.3d 647.

      Subsequent statutory amendments now require the filing taxpayer to provide substantial documentation with its first tax return claiming a CE credit, including information about how the credit was claimed on the federal tax return; a copy of a certified appraisal; a statement of the purposes of the easement and the protections afforded, including the number of acres subject to the easement, the amount of the credit claimed, and the name of the organization holding the easement; a sworn affidavit from the holder of the easement; and the recorded deed for the CE. See § 39-22-522(3)(a)-(f), (3.6), C.R.S. 2016.


author: Opinion by JUDGE BOORAS

text:
    DENVER CLASSROOM TEACHERS ASSOCIATION, Plaintiff-Appellee and Cross-Appellant, v. SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVER AND STATE OF COLORADO; and Board of Education of School District No. 1 in the County of Denver and State of Colorado, Defendants-Appellants and Cross-Appellees.
    Court of Appeals No. 15CA0965
    Colorado Court of Appeals, Division VII.
    Announced January 12, 2017
    Sharyn E. Dreyer, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant
    Semple, Farrington & Everall, P.C., M. Brent Case, Susanne S. Kim, Denver, Colorado, for Defendants-Appellants and Cross-Appellees
   Opinion by JUDGE BOORAS

¶ 1 The defendants/appellants/cross-appellees in this case are School District No. 1 and the Board of Education of School District No. 1 in the County of Denver and State of Colorado (collectively, the District). The plaintiff/appellee/cross-appellant is the Denver Classroom Teachers Association (DCTA).

¶ 2 The District appeals a jury verdict finding it liable for breaching several collective bargaining agreements (CBAs) and a determination of damages reflected in the final judgment. DCTA cross-appeals the special interrogatories finding that the District did not breach certain CBAs as they pertained to a particular group of teachers. We affirm.

I. Background

¶ 3 The District and DCTA entered into several CBAs and extensions from 2005 to 2015: the 2005-08 CBA, the 2008-11 CBA, the 2011-12 Extension, and the 2012-15 Extension. The extensions adopted most of the CBA provisions with only a few modifications not pertinent to this action.

¶ 4 From the mid-1990s until the 2006-07 school year, the District compensated teachers for attending English Language Acquisition (ELA) training. ELA is a program to train teachers to work more effectively with students who have limited English language proficiency. A federal consent order requires the District to have teachers who are trained to teach such students. After the 2006-07 school year, the District stopped paying teachers for attending the training, although it offered teachers who had already started the training that year a one-time stipend of $500.

¶ 5 DCTA filed a grievance against the District alleging violations of the 2005-08 CBA. The grievance resulted in nonbinding arbitration. The arbitrator issued a recommendation in favor of DCTA, but the school board elected not to adopt the recommendation.

¶ 6 DCTA subsequently filed suit for breach of the 2005-08 and 2008-11 CBAs and the extensions, and the trial court bifurcated the liability and damages portions of the trial. A jury returned verdicts in favor of DCTA for breach of contract, but it held the District not liable in special interrogatories regarding breach for teachers in the Professional Compensation (ProComp) system.

II. Analysis

¶ 7 The District raises three contentions. First, it contends that the CBAs unambiguously do not require extra compensation for ELA training. Next, it asserts that additional evidence pertaining to the CBAs and extensions from 2008 forward shows that the District was not required to compensate teachers for ELA training. Finally, the District contends the trial court erred in failing to limit damages because (1) some of DCTA's damages accrued beyond the statute of limitations and (2) DCTA did not exhaust its administrative remedies for the CBAs and extensions subsequent to 2008.

¶ 8 DCTA cross-appeals, alleging the trial court erred in giving the jury special interrogatories asking it to determine whether teachers in the ProComp system were exempted from the entitlement to extra pay for ELA training.

¶ 9 We address each contention in turn.

III. Legal Principles of Contract Interpretation

¶ 10 Most of the issues raised by the parties involve interpretation of the CBAs. The interpretation of a contract is a question of law that we review de novo. Fed. Deposit Ins. Corp. v. Fisher , 2013 CO 5, ¶ 9, 292 P.3d 934. In determining whether a contractual provision is ambiguous, we examine the language of the contract and construe it in harmony with the plain and generally accepted meaning of the words used. Dorman v. Petrol Aspen, Inc. , 914 P.2d 909, 912 (Colo. 1996).

¶ 11 A provision is ambiguous "if it is fairly susceptible to more than one interpretation." Id. (quoting Fibreglas Fabricators, Inc. v. Kylberg , 799 P.2d 371, 374 (Colo. 1990) ). We may consider extraneous evidence to determine whether a contract is ambiguous. Cheyenne Mountain Sch. Dist. No. 12 v. Thompson , 861 P.2d 711, 715 (Colo. 1993).

¶ 12 If a contract is unambiguous, it cannot be changed by extrinsic evidence. Dorman , 914 P.2d at 911. If it is ambiguous, it must be construed in accordance with the intent of the parties, and we may consider extraneous evidence to determine such intent. Id. at 911-12. Once a contract is determined to be ambiguous, its interpretation becomes an issue of fact. Id.

IV. The CBAs Are Ambiguous Regarding Compensation for ELA Training

¶ 13 The District contends that the CBAs and extensions are unambiguous in their construction and that they do not require the district to pay teachers for ELA training. We do not agree.

¶ 14 The relevant articles of the 2005-08 and 2008-11 CBAs are:

2-7: The parties recognize that the Board has the responsibility and authority to establish policies and regulations for the management of all the operations and activities of the District. All lawful rights and authority of the Board not modified by this Agreement are retained by the Board .
8-1: The contract year shall be one hundred eighty-one (181) days.
8-2: The work week shall be forty (40) hours....
8-1-3: There is an expectation that teachers will attend beyond the contract year for professional development determined by the principal if:
e. teachers attending are paid in accordance with Article 32,
13-2: In order to be considered for a position, a teacher must ... meet all posted requirements for the position....
32-1: In accordance with the provisions for work week and work year found in Articles 8-1 and 8-2, any time a teacher agrees to perform work for the District beyond the work week or work year, that teacher will be compensated as described in this Article.
32-2: Hourly and Daily Rates ... In-Service Education $19.60/hr.

(Emphasis added.)

¶ 15 The District relies on article 2-7, a management rights clause, to support its contention that it retained the right to refuse to pay teachers for ELA training if the contract does not specifically require it. It further contends that because article 13-2 does not specifically require the District to pay teachers for fulfilling a posted job requirement, and because ELA training was a posted job requirement, the District retains the right to refuse pay for ELA training.

¶ 16 The District's assertion fails to consider articles 8-1, 8-2, and 32-1. Articles 8-1 and 8-2 clearly define the number of hours per week and days per year a teacher is required to work, and article 32-1 provides that any time a teacher agrees to perform work beyond the set number, "that teacher will be compensated ." (Emphasis added.) The articles are silent on whether work beyond that number includes training required to fulfill a job requirement, even those requirements posted in the job description.

¶ 17 Because the articles provide for payment for work beyond the forty-hour week, and because the ELA training may fall into that category, the contract is fairly susceptible to being interpreted to require payment for such work. We conclude that the CBAs are ambiguous and the trial court properly let the interpretation go to the jury as a question of fact.

¶ 18 Relying on City & County of Denver v. Denver Firefighters Local No. 858 , 2014 CO 15, ¶ 18, 320 P.3d 354, the District argues that when an agreement contains a management rights clause, the managing entity retains expansive rights. The District's reliance on Denver Firefighters is misplaced, however, because in that case the supreme court determined that the CBA in question unambiguously gave the city the right to draft and implement the disputed terms. Id. at ¶ 11. Here, in contrast, we have concluded that the CBAs are ambiguous regarding payment for ELA training. Therefore, although management rights clauses provide expansive rights under certain circumstances, those circumstances are not present in this case.

V. The CBAs From 2008 Forward Do Not Preclude Extra Compensation for ELA Training

¶ 19 The District contends that additional evidence-pertaining to the CBAs and extensions beginning in 2008-shows unambiguously that it was not required to compensate teachers for ELA training beyond that year. It raises two assertions to support this point: (1) ELA training was a "special condition of employment" under the teacher contract and (2) the parties' bargaining history indicates that any requirement to compensate teachers for ELA training was purposely excluded from the CBAs.

A. Special Condition

¶ 20 Under article 8-1-5 of the CBAs:

Any special conditions regarding the assignment of any teacher will be reduced to writing and become an addendum to the individual's initial employment contract with the District.

¶ 21 The teachers' individual contracts stated in relevant part:

If the teacher is assigned at the time of hire or thereafter to teach within the ELA-S/ELA-E program, in addition to the other provisions of this Contract, this Contract is further conditioned upon the teacher's fulfillment of the following, on a timeline proscribed [sic] by the District: (a) the teacher's successful completion at their sole cost and expense , except to the extent tuition is subsidized at the District's sole discretion, of the current ELA Professional Development Units.

(Emphasis added.)

¶ 22 The District contends that, when read together, these provisions show that teachers, not the District, were responsible for paying for ELA training.

¶ 23 DCTA argues that the District waived this argument by failing to raise it before the trial court. We note that although the District did not cite to an appropriate portion of the record in its opening brief, it raised this issue several times during trial proceedings and thus sufficiently preserved the argument.

¶ 24 The portion of the teachers' contracts that included the ELA training was not, as the District asserts, a "special condition" relating to employment, nor was it memorialized in an "addendum." Webster's Third International Dictionary 2186 (2002) defines "special" as "distinguished by some unusual quality," and "relating to a single thing or class of things." Black's Law Dictionary 1612 (10th ed. 2014) defines it similarly as "[o]f, relating to, or designating a species, kind, or individual thing ... designed for a particular purpose ... unusual; extraordinary."

¶ 25 Here, the provision regarding ELA training was in every new contract starting in 2011. The language was not incorporated as an addendum-"[s]omething to be added, usu. to a document; esp., a supplement," id. at 45-but was incorporated as number 14 out of 20 sections in each contract. The District's interpretation would allow it to avoid any provision of the CBAs by adding language to the teachers' individual contracts and calling it a special condition.

¶ 26 The District claims that "it is undisputed that completing the ELA Training if a teacher is not otherwise 'fully qualified' under the Consent Decree was a 'special condition regarding the assignment' of teachers." The District does not, however, cite to any portion of the record to support this contention.

¶ 27 The CBAs do not define "special condition," and, even in light of additional evidence, the CBAs are ambiguous regarding whether ELA training is a "special condition" regarding assignment of the teacher. The trial court, therefore, properly gave the issue to the jury.

B. Bargaining History

¶ 28 The District contends that because DCTA knew the District was no longer paying teachers for ELA training and failed to specifically incorporate pay into subsequent CBAs, DCTA acquiesced to the practice and the CBAs should be construed accordingly. We do not agree.

¶ 29 The District relies on Salazar v. Butterball , 644 F.3d 1130, 1142 (10th Cir. 2011), for the proposition that when a party fails to negotiate over a pre-existing practice of nonpayment, the party acquiesces to such practice. Here, however, DCTA's position was that the CBAs, as already written, entitled teachers to receive pay for ELA training. Unlike the practice of nonpayment in Butterball -in which it was undisputed that Butterball had never paid employees for a particular activity-DCTA's position was supported by the District's practice until 2008 of paying teachers for ELA training. Id. at 1141. Therefore, there was no need for DCTA to bargain for changes in the CBAs. This position was also supported by the decision of the nonbinding arbitrator, who ruled, in October 2008, that the District had in fact violated the terms of the 2005-08 CBA.

¶ 30 Additionally, the District cites numerous persuasive authorities for the proposition that when a party attempts, but fails, to negotiate for a particular provision, such a provision should not be read into the contract. Those authorities are distinguishable, however, and DCTA asserts just as effectually that the onus was on the District to negotiate for a provision not to pay teachers for ELA training, and that the past practice of payment for ELA training under identical CBAs evidenced the true meaning of the agreements.

¶ 31 Accordingly, the District's contentions are not persuasive as to the ultimate question of whether the CBAs specifically gave the District the authority to refuse pay for ELA training, and the trial court correctly gave that question to the jury for a factual determination.

VI. Statute of Limitations

¶ 32 The District asserts that the trial court erred in not precluding recovery of damages that accrued before October 24, 2007-six years before the case was filed. We do not agree.

¶ 33 We review the trial court's legal conclusions de novo and its factual findings for clear error. Williams v. Crop Prod. Servs., Inc. , 2015 COA 64, ¶ 4, 361 P.3d 1075. The date of accrual of a claim is generally a question of fact, but if the undisputed facts clearly establish the date, the issue may be decided as a matter of law. Id. In Colorado, the statute of limitations for breaching a CBA is six years. § 13-80-103.5, C.R.S. 2016; Carpenters & Millwrights Health Benefit Tr. Fund v. Domestic Insulation Co. , 387 F.Supp. 144, 148 (D. Colo. 1975).

¶ 34 The District stopped paying teachers for ELA training starting with the 2007-08 school year, which began August 13, 2007. DCTA filed its complaint on October 24, 2013. The District contends that the trial court erroneously awarded damages that occurred between August 13 and October 24, 2007, and should have been barred by the statute of limitations.

¶ 35 Although teachers may have begun ELA training before October 24, 2007, there is no evidence in the record of individual classes attended or any payment that was due before the end of the fall semester. There is no evidence of an actionable injury, therefore, until the end of the Fall 2007 semester. Thus we perceive no error in the trial court's decision to award damages for the complete Fall 2007 semester.

VII. Failure to Exhaust Administrative Remedies

¶ 36 Finally, the District contends that DCTA should have been barred from any relief for the 2008-09 school year and beyond because it failed to exhaust administrative remedies for those years. DCTA filed a grievance only for the 2007-08 school year, which was under the 2005-08 CBA.

¶ 37 Exhaustion of remedies is a jurisdictional question. Thomas v. Fed. Deposit Ins. Corp. , 255 P.3d 1073, 1077 (Colo. 2011). An employee must exhaust an available administrative process before filing a breach of contract claim. Jefferson Cty. Sch. Dist. No. R-1 v. Shorey , 826 P.2d 830, 844 (Colo. 1992). We review a trial court's factual determinations for clear error and its legal conclusions de novo. Brown v. Jefferson Cty. Sch. Dist. No. R - 1 , 2012 COA 98, ¶ 9, 297 P.3d 976.

¶ 38 The doctrine of exhaustion of remedies does not apply if it is clear beyond a reasonable doubt that further pursuit of relief would be futile. Thomas , 255 P.3d at 1077. In this case, the trial court made factual findings that DCTA's original grievance led to a nonbinding arbitration decision in its favor, the District rejected that decision, the language of subsequent CBAs did not change, and the practices and parties remained the same.

¶ 39 The District asserts that DCTA was required to file a new grievance for each CBA because the arbitrator may have been different and the members of the school board would have been new. The District also points to numerous facts that would have been different under a new grievance such as different ELA training requirements, the choice of a stipend, and the credit offered for taking ELA training.

¶ 40 Throughout the course of this litigation, however, the District maintained-and still maintains-that none of the CBAs require extra pay for ELA training, despite the supposed changes in circumstances. Furthermore, when presented with the final result of the administrative remedies process, the school board rejected the arbitrator's recommendation. At any point, the board could have decided to pay teachers for ELA training, but it did not.

¶ 41 We therefore affirm the trial court's finding that further efforts by DCTA to achieve payment for ELA training through administrative remedies would have been futile.

VIII. ProComp Agreements

¶ 42 DCTA, in its cross-appeal, contends that the trial court erred in giving the jury special interrogatories to decide whether teachers under the ProComp system were exempt from receiving extra pay for ELA training. We affirm.

¶ 43 We review a trial court's decision to give a jury instruction for an abuse of discretion. Bedor v. Johnson , 2013 CO 4, ¶ 8, 292 P.3d 924. A court abuses its discretion if there is no competent evidence to support the instruction. Id. at ¶ 9.

¶ 44 The trial court gave the jury special interrogatories asking it to determine whether, for each year, teachers under the ProComp agreement were exempt from receiving extra pay for ELA training. The court relied on the following sections of the ProComp agreement:

7.3.1.5 Teachers who complete Professional Development Units in connection with paid district in service shall receive both hourly pay for attending the in[-]service as provided for by the Master Agreement and for base building incentives for completing Professional Development Units as long as their activities meet the criteria for the DPS/DCTA Professional Development Protocol.
7.3.1.6 Teachers who complete district required coursework as part of required district in-service, such as the teacher induction program, teacher in residence program, training for the Literacy Program or training for the English Language Acquisition program, may count their service in those programs toward Professional Development Units as long as their activities meet the criteria for the DPS/DCTA Professional Development Protocol.

(Emphasis added.)

¶ 45 The District argued at trial that the inclusion of ELA courses in section 7.3.1.6 necessarily precluded the courses from being a paid in-service program under section 7.3.1.5. DCTA asserts, and we agree, that section 7.3.1.6 does not specifically state that the programs listed are unpaid. We disagree, however, that the two sections, when read together, along with supporting testimony at trial, do not provide some competent evidence that had the ProComp agreement intended to include ELA as a paid in-service program it would have included it in section 7.3.1.5 or elsewhere in the CBAs.

¶ 46 The presence of ELA training in section 7.3.1.6 coupled with its absence in section 7.3.1.5 could reasonably lead to the conclusion that it was not a paid in-service, and that teachers who agreed to the ProComp system were therefore not entitled to such payment.

¶ 47 Because competent evidence supported the assertion, we conclude that the trial court did not abuse its discretion in allowing the jury to determine whether teachers under the ProComp agreement forfeited their entitlement to compensation for ELA training.

IX. Conclusion

¶ 48 For the foregoing reasons, we affirm the final judgment.

JUDGE TERRY and JUDGE BERGER concur.

      Later CBAs changed the number of days to 184, but this change does not affect our analysis.

      The article number and dollar amount changed in the later CBAs, but again, this does not affect our analysis.

      The District argues that DCTA invited any error regarding the jury instructions. We need not determine whether DCTA preserved its argument because we conclude that the trial court did not err.