author: Judge NIETO.

text:
    LAKESIDE VENTURES, LLC, Plaintiff-Appellant, v. LAKESIDE DEVELOPMENT COMPANY, Ron Worrell, Patricia Worrell, Robert McAtee, and William Lauer, Defendants-Appellees.
    No. 01CA1926.
    Colorado Court of Appeals, Div. V.
    Oct. 10, 2002.
    Rehearing Denied Jan. 16, 2003.
    Certiorari Denied April 28, 2003.

      Gary Lindsay, Durango, Colorado, for Plaintiff-Appellant.
    No Appearance for Defendants-Appellees Lakeside Development Company, Ron Wor-rell, and Patricia Worrell.
    James G. Whitley, P.C., James G. Whitley, for Defendants-Appellees Robert McAtee and William Lauer.
   Opinion by

Judge NIETO.

Plaintiff, Lakeside Ventures, LLC, appeals the order denying its C.R.C.P. 60 motion for relief from a judgment entered in favor of defendants, Lakeside Development Company and its general partners Ron and Patricia Worrell (collectively the Worrells). The Worrells subsequently assigned this judgment to Robert McAtee and William Lauer, who were permitted to join in the case. We affirm in part, reverse in part, and remand with directions.

In 1994, the Worrells sold the property at issue here to an individual and an entity that are not involved in this case, and they received a promissory note in the amount of $258,670 (original note) secured by a deed of trust on the property. The buyer later transferred the property to plaintiff, who assumed the obligation to pay the note. As a result of various concerns about the property, plaintiff ceased making payments on the note and filed an action against the Worrells in 1997. The Worrells answered and asserted a counterclaim for the amount due on the note plus interest, costs, and attorney fees. The Worrells also initiated a separate C.R.C.P. 120 proceeding and a public trustee foreclosure, which actions were stayed pending resolution of the parties' claims in this case.

In 2000, after a bench trial, the court found that the Worrells were entitled to proceed with their foreclosure action and entered judgment in their favor "for the relief requested in the counterclaim," but left the amount of judgment open "for the amount of attorney fees to be awarded." The court also found for plaintiff on one of its claims and ordered that $11,025 be offset against the amount due to the Worrells on the note. The clerk of the court subsequently issued a transcript of judgment to the Worrells in the amount of $313,806.

Before judgment entered, plaintiff conveyed the property to DLMT, LLC, an entity that is not a party to this action. MecAtee and Laver, who are affiliated with DLMT, held a note from DLMT secured by a second deed of trust on the property.

After judgment entered, the Worrells commenced a second public trustee foreclosure proceeding. To avoid a foreclosure sale, DLMT, MeAtee, and Lauer entered into a written agreement with the Worrells (the agreement). Under the agreement, DLMT paid the Worrells $160,000, which it had borrowed from McAtee, and executed a promissory note for $184,751.79 payable to the Wor-rells (DLMT note). They agreed that the DLMT note would be secured by the deed of trust from the original sale in 1994. Under the agreement, the Worrells assigned their interest in the judgment against plaintiff to McAtee and Launer.

McAtee and Lauer then executed on the judgment and collected approximately $50,000 from plaintiff. Plaintiff filed a C.R.C.P. 60 motion for relief from the judgment, requesting that the judgment be vacated and the transcript of the judgment be voided. The trial court denied the motion, and this appeal followed.

The grant or denial of a C.R.C.P. 60 motion lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State Farm Mutual Auto. Ins. Co. v. McMillan, 925 P.2d 785 (Colo.1996). A trial court's decision is an abuse of discretion if it is manifestly arbitrary, unreasonable, or unfair. Guevara v. Foxhoven, 928 P.2d 793 (Colo.App.1996).

L.

Plaintiff contends that the trial court erred in concluding that the judgment included a money judgment on the original note. Plaintiff asserts that the Worrellsg' briefs filed after trial, but before the entry of judgment, demonstrate that they waived and abandoned their counterclaim for a money judgment on that note. We are not persuaded.

The trial court implicitly rejected plaintiff's argument when it found that the Judgment included a judgment on the original note. Our review of the record reveals sufficient evidence to support the trial court's conclusion that the Worrells had not waived or abandoned their counterclaim.

As the trial court noted in its order denying plaintiff's motion, the Worrells' counterclaim specifically prayed for judgment in the amount due on the original note, as well as interest, costs, and attorney fees. In the Worrells' C.R.C.P. 26 disclosures and their opening statement at trial, they asserted the balance due on the original note. They also presented evidence of the amount due on the original note.

The Worrells' briefs, filed after the trial but before judgment entered, stated that they were seeking the right to proceed with a foreclosure sale by the public trustee, but the briefs were silent as to the entry of judgment on the original note. While the Worrells briefs focused on their right to pursue a foreclosure by the public trustee, this argument was made in the context of a trial where plaintiff only sought an offset from the amount due on the note and did not assert that it was not responsible for payment of the note. Also, an outstanding order then stayed the Worrells' foreclosure efforts. Further, the Worrells did not move to modify or withdraw any portion of their counterclaim. They also stated that they had no intention of releasing their right to obtain a judgment on the original note, although they were predominantly concerned with pursuing a foreclosure action at that time.

These facts support a finding that the Worrells did not waive or abandon their counterclaim for judgment on the original note, and thus, the trial court did not abuse its discretion in denying plaintiff's motion on these grounds.

IL.

Plaintiff also contends that the trial court's ruling that the judgment included a money judgment on the original note and a finding that the Worrells were entitled to proceed with their foreclosure action are legally inconsistent and therefore erroneous. Plaintiff argues that the Worrells' initial decision to pursue foreclosure must be considered an election of remedies that bars them from seeking recovery on that note. Again, we disagree.

The doctrine of election of remedies prevents double recovery by requiring a party to make an election when the remedies sought are inconsistent and contradictory. It has no application where a party seeks only one remedy. Singer v. Strauss, 851 P.2d 256 (Colo.App.1993).

Plaintiff has cited no authority, and we are aware of none, that a judgment on a promissory note in favor of the payee necessarily precludes a foreclosure sale by the public trustee on a deed of trust securing the note. The statute governing foreclosure sales, § 38-38-101(1), C.R.S.2002, states that a foreclosure sale is available to an owner of an "evidence of debt" that is secured by a deed of trust. Nothing in the statute expressly precludes a foreclosure sale on a deed of trust where the underlying note has been reduced to a judgment.

Generally, the reduction of a note to judgment merely changes the form of the debt. Initially, the debt is evidenced by the note, but upon judgment the note merges with the judgment, and the debt is then evidenced by the judgment. Ott v. Edwards, 161 Colo. 187, 420 P.2d 837 (1966). The deed of trust then stands as security for the judgment, and the holder can foreclose the deed of trust to pay the judgment. See Hiller v. Matheny, 81 Colo. 459, 256 P. 10 (1927).

"[The holder of a note secured by deed of trust has two remedies: 1. A suit on the debt evidenced by the promissory notes and 2. a specific action against the particular property which has been given as security for the payment of the debt. Upon failure to discharge the obligation, these remedies may be pursued concurrently or consecutively." Foothills Holding Corp. v. Tulsa Rig, Reel & Mfg. Co., 155 Colo. 232, 234-85, 393 P.2d 749, 751 (1964); see also Certified Realty Corp. v. Smith, 198 Colo. 222, 597 P.2d 1043 (1979); Hiller v. Matheny, supra.

Further, the Worrells could not obtain a double recovery because after the original note merged into the judgment, the deed of trust secured the judgment, see Ott, v. Edwards, supra; Hiller v. Matheny, supra, and therefore the proceeds of a foreclosure sale must be applied toward payment of the judgment. Plains Loan, Realty & Investment Co. v. Hood, 46 Colo. 322, 230 P. 1008 (1924); Imperial Mortgage Corp. v. Travelers Indemmity Co., 43 Colo.App. 74, 599 P.2d 276 (1979).

Accordingly, we conclude the remedies are not legally inconsistent, and the Worrells' initial pursuit of foreclosure was not an election of remedies.

IIL

Plaintiff also contends that the judgment on the original note was satisfied, and therefore, under C.R.C.P. 60(b)(4), it was entitled to relief from the judgment. Plaintiff argues that the Worrells received full payment of the judgment under their agreement with DLMT, McAtee, and Lauer. We agree in part and conclude that further proceedings are necessary.

In ruling on the motion, the trial court found that no foreclosure occurred after DLMT, pursuant to the agreement, cured delinquencies on and assumed obligations for the judgment by paying the Worrells $160,000 and giving them a promissory note for $184,751.79. The court also found that the Worrells had assigned their interest in the judgment to McAtee and Lauer. The trial court then denied this part of the motion after declining to address the effect of the agreement on the judgment because DLMT was not a party in this case. However, the court stated that the denial was "without prejudice to reassert" the motion if an independent action adjudicated the agreement's effect on the judgment.

Based on the trial court's findings, the absence of DLMT as a party did not preclude a determination whether the payment and the DLMT note constituted a satisfaction of the judgment. The judgment ereditors, their assignees, and the judgment debtor were before the court, and they are the parties affected by the alleged satisfaction. If DLMT is somehow affected by the court's ruling, it can litigate any claims it may have against these parties in a separate proceeding. Further, the findings of the trial court were sufficient to grant at least partial relief to plaintiff.

A.

When a judgment is satisfied by means other than execution, it is the duty of the judgment creditor to give a satisfaction of judgment, and the court may compel it or may enter satisfaction. C.R.C.P. 58(b); Vento v. Colorado Nat'l Bank, 985 P.2d 48 (Colo.App.1999).

By entering into the agreement, DLMT, as the owner of the encumbered property, recognized that the Worrells had started a second foreclosure proceeding, and to avoid the foreclosure, it sought to cure any delinquencies and assume all obligations on the indebtedness owed to the Worrells. This indebtedness was evidenced by the judgment, the original note having merged into the judgment. See Ott v. Edwards, supra; Hiller v. Matheny, supra. The Worrells agreed to accept the cure of delinquencies and assumption of the obligation, and DLMT paid them $160,000 and gave them a promissory note for $184,751.79.

Thus, as the trial court found, the Worrells received $160,000 to apply toward payment of the judgment, and to the extent of that payment, they were obligated to give a partial satisfaction of the judgment. See C.R.C.P. 58(b).

B.

The effect of the DLMT note on the judgment is governed by § 4-3-3810, C.R.S. 2002, which provides in pertinent part:

(b) Unless otherwise agreed ... if a note . is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and the following rules apply:
(2) In the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid. Payment of the note results in discharge of the obligation to the extent of the payment.

Here, DLMT's note, like the cash payment, was given to the Worrelis pursuant to the agreement to effectuate DLMT"s cure of delinquencies and assumption of obligations on the judgment. Therefore, the DLMT note was "taken for an obligation" as provided in § 4-3-310(b).

Because the agreement contained no provision limiting the effect of the DLMT note on the judgment, upon the Worrells' receipt of that note the judgment was suspended to the extent of the amount of the note, and it remains suspended until the DLMT note is dishonored or paid. If the DLMT note is paid, the judgment will be discharged to the extent of the payment. See § 4-3-310(b)(2).

The agreement further provided that the Worrells would assign the judgment to McA-tee and Lauer. Although the DLMT note suspended the judgment, it did not discharge it, and therefore the Worrells could still assign the judgment. However, McAtee and Lauer cannot execute on the judgment to the extent it has been satisfied or is presently suspended. Therefore, on remand the trial court must determine whether McAtee and Lauer collected funds to which they were not entitled and enter appropriate orders based on that determination.

IV.

Plaintiff also contends that the trial court erred by denying its motion for equitable relief pursuant to C.R.C.P. 60(b)(4). We need not resolve this issue.

C.R.C.P. 60(b)(4) provides for relief from judgment on equitable grounds. The grant or denial of such relief is within the discretion of the trial court and is reviewed on an abuse of discretion standard. Continental Nat'l Bank v. Dolan, 39 Colo.App. 16, 564 P.2d 955 (1977).

The trial court found that "plaintiff has alleged a meritorious claim that third party agreements have affected its rights and obligations ... as a judgment debtor." However, the trial court denied this equitable claim without prejudice after declining to address the effect of the agreement on the judgment because DLMT was not a party in this case.

As we have resolved the issues in part III, the judgment is partly satisfied and partly suspended, and therefore, it is not necessary to resolve issues concerning plaintiff's equitable claim under C.R.C.P. 60(b)(4). However, because the trial court found that plaintiff had "alleged a meritorious claim," and because this equitable issue may again arise if DLMT fails to pay its promissory note to the Worrells, we conclude that before refusing to decide the reasserted claim, the trial court should give plaintiff an opportunity to join DLMT pursuant to C.R.C.P. 19. The court then can decide whether DLMT purchased the property from plaintiff at a discount because of the judgment and, therefore, whether it is inequitable to permit DLMT to hold the property free from foreclosure while persons affiliated with DLMT collect the judgment from plaintiff.

Our resolution of these issues makes it unnecessary for us to consider plaintiff's other contentions.

Accordingly, the order denying plaintiff's C.R.C.P. 60 motion is reversed to the extent it denied satisfaction of the judgment based on the $160,000 payment and to the extent it allowed McAtee and Lauer to execute the judgment while it is suspended. The order is affirmed in all other respects, and the case is remanded for further proceedings.

On remand, pursuant to C.R.C.P. 58, the trial court shall compel the satisfaction or order the entry of satisfaction of the judgment to the extent of the $160,000 paid to the Worrells by DLMT and enter orders to prevent further execution on the judgment while it is suspended. The court shall also conduct further proceedings and take such evidence as is necessary to determine whether MceAtee and Lauer have by execution, garnishment, or otherwise obtained money from plaintiff that, given the state of the judgment, they were not entitled to receive.

Judge MARQUEZ and Judge ROY concur.


source: Caselaw Access Project

author: Judge DAVIDSON.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James C. JOYCE, Defendant-Appellant.
    No. 01CA1352.
    Colorado Court of Appeals, Div. IV.
    Oct. 10, 2002.
    Rehearing Denied Nov. 14, 2002.
    Certiorari Denied May 12, 2008.

      Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Hollis A. Whitson, P.C., Hollis A, Whitson, Eric A. Samler, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge DAVIDSON.

Defendant, James C. Joyce, appeals from a judgment entered on a jury verdict finding him guilty of attempted second degree kidnapping, assault, and false imprisonment. We affirm.

Defendant and his son woke the victim from his sleep, hit him multiple times, and took him from his room, allegedly intending to take the victim to jail. At some point, the victim was handcuffed. The victim broke free and ran out of the apartment. Defendant's son pursued and seized the victim and brought him back to the apartment, at which point police arrived.

Defendant asserted self-defense. However, the trial court refused to allow defendant to argue as an alternative defense that, because he believed the victim had previously been involved in a robbery, he was effecting a citizen's arrest.

L.

Defendant contends that the trial court erred in refusing to allow him to assert an affirmative defense alleging use of physical force necessary to effect an arrest by a private person pursuant to § 18-1-707(7), C.R.S.2002, and in instructing the jury that the defense did not apply as a matter of law because defendant had not witnessed the vie-tim's alleged crime. We disagree.

Section 18-1-707(7) states:

A private person acting on his own account is justified in using reasonable and appropriate physical foree upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence ....

However, § 16-8-201, provides that "A person who is not a peace officer may arrest another person when any crime has been or is being committed by the arrested person in the presence of the person making the arrest."

Defendant does not dispute that the plain language of § 16-8-201 authorizes a private person to arrest another when a crime is committed in his or her presence. Nonetheless, defendant argues, in § 18-1-707(7), the phrase "who has committed an offense in his presence" only applies to the second clause, "to prevent the escape from custody of an arrested person," and does not apply to a person simply effecting an arrest. Thus, he maintains, he was entitled to assert the use of physical force as a defense. We disagree.

The goal in interpreting any statute is to determine and give effect to the intent of the General Assembly by looking first to the language of the statute itself. A statutory scheme must be read as a whole and interpreted so as to give consistent, harmonious, and sensible effect to all its parts. State v. Nieto, 993 P.2d 493 (Colo.2000); People v. Garcia, 64 P.3d 857 (Colo.App.2002). Moreover, when interpreting two statutory see-tions, we must attempt to harmonize them to give effect to their purposes and, if possible, reconcile them so as to uphold the validity of both. Norsby v. Jensen, 916 P.2d 555 (Colo.App.1995).

Here, the two statutes serve related, but different, purposes. On the one hand, § 16-3-201 concerns the authority of a person who is not a peace officer to make an arrest in certain cireumstances. On the other hand, § 18-1-707(7) is part of the article codifying affirmative defenses including, inter alia, the use of physical force. Whereas the former statute explains who can make arrests and under what cireumstances, the latter sets forth when a person lawfully effecting an arrest is permitted to use physical force.

Thus, read in proper context, § 18-1-707 applies to persons otherwise authorized to make arrests, namely peace officers, and, pursuant to § 16-3-201, private persons. Hence, contrary to defendant's contention, an arrest must first be authorized under § 16-3-201 before a private person can use physical force to effect it under § 18-1-707(7). Furthermore, when a person already under arrest has attempted an escape, the second clause of § 18-1-707(7) similarly permits a private person to use physical foree but, again, only when the attempted escape is committed in his or her presence.

Here, defendant concedes that the victim did not commit a crime in his presence. As a result, defendant was not authorized to make an arrest and, therefore, was not justified in using physical force against the victim. Thus, the court did not err by precluding the affirmative defense. Likewise, the court correctly instructed the jury that the defense did not apply.

IL

Defendant next contends that the court erred by admitting certain hearsay statements from two witnesses. Because these arguments are made for the first time on appeal, we review them under a plain error standard. See People v. Fuller, 788 P.2d 741, 747 (Colo.1990)("The appropriate standard for plain error review is whether an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of convietion."). We find no plain error.

During direct examination, an emergency room treating physician testified that the victim told her that he was handcuffed by his assailant. The prosecutor asked for clarification as to whether she wrote down "assailant" or "assailants." She corrected herself, stating that she wrote down "assailants." Defendant argues that this was improper hearsay. We disagree.

Here, the victim's statement was made in response to standard questions designed to elicit facts necessary for medical diagnosis and treatment and was therefore admissible pursuant to CRE 808(4). See People v. Martinez, 18 P.3d 831 (Colo.App.2000)(vietim identified the defendant to emergency medical personnel as the perpetrator).

Moreover, contrary to defendant's argument, whether he personally handcuffed the victim was not dispositive because there was sufficient evidence of defendant's guilt as a complicitor. See People v. Eppens, 979 P.2d 14 (Colo.1999)(evidence of guilt mitigates effect of witness's statement in plain error review).

Defendant also contends that it was plain error to allow the prosecutor to elicit from the arresting officer hearsay statements made by the victim, such as how much the victim had to drink or whether he was a light or heavy sleeper. Defendant asserts that this evidence indicated when the handcuffs were placed on the victim and, therefore, was pivotal to his defense of self-defense. However, this testimony was merely cumulative and could have had little impact on the verdict in light of the extensive testimony given by defendant, defendant's son, the victim, and a witness, as to when the handcuffing occurred.

TIL.

During jury selection, defendant mentioned a publicized incident in which two people were killed trying to stop a crime. Defendant stated that, although it was "tragic," it was also an example of someone trying to effect a legitimate citizen's arrest. In cloging argument, the prosecutor referred to defense counsel's discussion of that incident, stating, "Those are the kinds of things that happen to people when they try to take the law into their own hands. And this outcome is what happened to [the victim] when the defendant and his son took the law into their own hands."

Defendant argues that the prosecutor's statement was prejudicial and constituted reversible error,. We disagree.

Because defendant did not object to the comments during closing argument, we again review for plain error. A prosecutor's misconduct is plain error if it is flagrant or glaringly or tremendously improper. See People v. Constant, 645 P.2d 843 (Colo.1982).

Here, defendant initially discussed the incident during jury selection, casting a citizen's arrest in a positive and heroic light. See People v. Vialpando, 804 P.2d 219 (Colo.App.1990){reviewing court should consider whether defense counsel invited remark). Moreover, because defendant could not use the defense of citizen's arrest, both parties' statements were tangential and could not have prejudiced defendant as to any legitimate issue in the case.

In any event, overwhelming evidence of guilt was presented at trial, including the testimony of defendant's son, his son's girlfriend, and two police officers, as well as defendant's own testimony that he conspired with his son to take the victim to jail. Hence, the prosecutor's remarks had little, if any, effect on the reliability of the judgment of conviction. See People v. Vialpando, supra (plain error only where prosecutorial misconduct affected verdict).

IV.

Defendant contends that his convietion of both attempted second degree kidnapping and false imprisonment violates his right to be free from double jeopardy. In a related argument, defendant also contends for the first time on appeal that the trial court erred in failing to instruct the jury that false imprisonment is a lesser included offense of second degree kidnapping and attempted second degree kidnapping. We disagree with both contentions.

A defendant may not be subject to multiple convictions for the same conduct if one offense is included in the other. See §§ 18-1-408(1)(a), (B)(a), C.R.S.2002. If proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for the purposes of § 18-1-408(B)(a). See People v. Leske, 957 P.2d 1030 (Colo.1998). To determine whether one offense is a lesser included of another, it is necessary to look at the elements of each offense and not at the evidence presented at trial. See People v. Harlan, 8 P.3d 448 (Colo.2000)(applying strict elements test and refusing to review evidence at trial to determine separate evidentiary basis for attempted murder and murder).

A person commits second degree kidnapping if the person knowingly seizes and carries any person from one place to another, without his or her consent, and without lawful justification. Section 18-3-802(1), C.R.S. 2002.

A person commits criminal attempt if, acting with the kind of culpability otherwise required for the commission of an offense, he or she engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, that is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Section 18-2-101(1), C.R.S. 2002.

A person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment. Section 18-3-308(1), C.R.S. 2002.

False imprisonment is a lesser included offense of second degree kidnapping. See People v. Williams, 736 P.2d 1229 (Colo.App.1986); see also People v. Arispe, 191 Colo. 555, 555 P.2d 525 (1976)(transportation of the victim is an element of second degree kidnapping and not of false imprisonment).

Here, however, defendant was not conviet-ed of second degree kidnapping; he was convicted of attempted second degree kidnapping. To prove the attempted offense, the prosecution need not prove every element of second degree kidnapping, but rather, only that defendant possessed the required intent and took a substantial step toward commission of the crime. See § 18-2-101(1); People v. Frysig, 628 P.2d 1004 (Colo.1981)(purpose equivalent to intent); see also People v. Krovars 697 P.2d 378 (Colo.1985)(clarifying Frysig ).

Thus, a prosecutor can prove attempted second degree kidnapping without showing that the victim was actually "seized" or, in other words, falsely imprisoned. For example, a person could commit attempted second degree kidnapping by knowingly making preparations for the abduction and transportation of a victim and then making efforts to Ture that vietim to a place where he or she could be detained. In this example, if the plan were thwarted before the physical abduction of the victim, the person could nevertheless be guilty of attempted second degree kidnapping, but would not have committed false imprisonment. Cf. People v. Griffith, 58 P.3d 1111 (Colo.App.2002)(third degree criminal trespass is not a lesser included offense of attempted first degree eriminal trespass; a defendant can attempt to commit first degree criminal trespass without entering upon the subject premises).

Consequently, because false imprisonment includes an element not present in attempted second degree kidnapping, double jeopardy concerns are not implicated. See People v. Webster, 987 P.2d 836 (Colo.App.1998)(assault does not merge into attempted first degree murder because an element of assault-that defendant inflicted bodily injury-is not an element of attempted first degree murder); of. People v. Arispe, supra (where defendant convicted of attempted kidnapping, instruction on false imprisonment was not required because evidence revealed that if vietim was falsely imprisoned, she was also transported).

For the same reason, the court was not required to instruct the jury that false imprisonment is a lesser included offense of attempted second degree kidnapping. Furthermore, because defendant was not convicted of second degree kidnapping, any failure to instruct the jury that false imprisonment is a lesser included offense of that crime is necessarily harmless.

Judgment affirmed.

Judge VOGT and Judge DAILEY concur.


author: Judge NEY.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dawn M. ANDRACKI, Defendant-Appellant.
    No. 01CA0857.
    Colorado Court of Appeals, Div. III.
    Oct. 24, 2002.
    Rehearing Denied Dec. 19, 2002.
    Certiorari Denied April 28, 2008.

      Ken Salazar, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
   Opinion by

Judge NEY.

Defendant, Dawn M. Andracki, appeals the trial court order denying her Crim. P. 85(a) and (c) motion for postconviction relief, We affirm.

Defendant pleaded guilty to possession of a weapon by a previous offender, a class six felony under § 18-12-1081), (2)(a), C.R.S. 2002, and the information also alleged she was an escapee at the time of the offense. The trial court imposed a sentence of three years to the Department of Corrections (DOC), the maximum aggravated term available under § 18-1.3-401(1)(a)(v)(A), C.R.S. 2002 (formerly codified at § 18-1-105(1)(a)(V)(A), and Colo. Sess. Laws 1989, ch. 148, § 18-1-105(9)(a)(v) at 830).

Defendant subsequently filed a "Motion to Correct Illegal Sentence" pursuant to both Crim. P. 35(a) and (c), in which she contended that her aggravated range sentence was illegally and unconstitutionally imposed because it was based on her status as an escapee from a correctional institution at the time she committed the offense in this case. She argued that she was not charged with this aggravating factor and that § 18-L-105(9)(a)(v) was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). She also argued that her guilty plea was not entered knowingly, voluntary, or intelligently because she was not informed that her escape status had to be proved beyond a reasonable doubt.

The trial court denied the motion.

I.

Defendant contends that the trial court erred in rejecting her argument that she was illegally sentenced in the aggravated range for her offense. We disagree.

When the motion, the files, and the record clearly establish that the defendant is not entitled to relief, a court may deny a Crim. P. 35(c) motion without a hearing. See White v. Denver Dist. Court, 766 P.2d 632, 634 (Colo.1988); People v. Hartkemeyer, 843 P.2d 92, 93 (Colo.App.1992).

In Apprendi, the Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.

Here, defendant argues that the sentence aggravating provision of § 18-1-105(9)(a)(V) violated due process because it did not require that her status as an escapee from a correctional institution be pleaded and proved to a jury beyond a reasonable doubt.

However, this case involved a plea agreement. Although the record does not include any written plea documents, it does reflect that defendant pleaded guilty to count five of the information. That count provided in pertinent part:

[Defendant] did unlawfully, feloniously, and knowingly possess, use, and carry upon her person a firearm subsequent to her conviction ... for committing a felony . and further the defendant ... was an escapee from a correctional institution, to wit, Arapahoe County Residential Center, for another felony offense ... at the time of this offense, [iIn violation of Colorado Revised Statutes, 18-12-1081), and 18-1-105(9).

By pleading guilty to that count defendant admitted the fact that she was an escapee at the time of this offense. See People v. Melillo, 25 P.3d 769 (Colo.2001).

Further, at the providency hearing, defense counsel noted that the sentence would be aggravated because defendant "was in [community corrections] in either Arapahoe or Denver." The trial court confirmed that defendant had read the count to which she was pleading guilty and that she understood that, if she were to go to trial, the prosecution would "have to show that when [she] committed this offense [she was] on an escape status from the [DOC]." Defendant also confirmed her understanding that her sentence could be "a minimum of 15 months and a maximum of three years in the [DOC]."

Moreover, at the sentencing hearing, defense counsel informed the court that defendant would have an escape charge from Arapahoe County because "[slhe was in [community corrections] up in Arapahoe and she walked away, and that's when she picked up these charges." The trial court imposed the maximum sentence of three years in DOC, finding that "[s}he certainly has earned her three years based upon somebody who's only 34 and is now on her fifth or sixth felony."

The record thus reflects that defendant was fully informed by the court that her sentence would be aggravated by her status as an escapee at the time of this offense. The providency hearing transcript, read as a whole, reveals that defendant understood if the case proceeded to trial, the prosecution would have to prove beyond a reasonable doubt that she was an escapee at the time of the commission of the offense.

By pleading guilty to the offense as charged, defendant waived the right to contest the factual basis for that charge and necessarily admitted the elements of that count and her eseape status when she committed the offense. Thus, defendant's admission of the fact necessary to subject her to the sentencing range of fifteen months to three years in DOC is the equivalent of having that fact proved beyond a reasonable doubt. See Patton v. People, 35 P.3d 124, 128 (Colo.2001)(by entering a guilty plea, defendant admits committing the substantive crime or crimes charged). In addition, defendant thus waived the right to insist that the prosecution establish guilt beyond a reasonable doubt. See People v. Schneider, 25 P.3d 755, 759 (Colo.2001).

Consequently, Apprendi v. New Jersey, supra, is inapplicable here. The only "fact" that "increased" defendant's punishment to the aggravated range was her own guilty plea to the elements of the offense as charged, and the enhancing factor as charged included her escape status. See People v. Melillo, supra. Therefore, the sentence imposed by the trial court was not illegal or unconstitutional. See People v. Munkus, 60 P.3d 767 (Colo.App.2002).

Thus, in light of our conclusion that, under the facts here, defendant by her plea of guilty admitted the aggravating factor of her escape status at the time of the commission of the offense, we do not address defendant's constitutional challenge to § 18-1-105(Q)(a)(v). See Kelley v. S. Jeffco Metro. Recreation & Park Dist., 155 Colo. 469, 473, 395 P.2d 210, 212 (1964)(courts will not pass on the constitutionality of a law unless necessary to resolve the cause under consideration).

IL.

Defendant also contends that her plea was not knowingly, voluntarily, and intelligently entered because the trial court did not inform her that the prosecution would have to prove the elements of the crime of escape beyond a reasonable doubt. We do not agree.

Defendant's argument rests on her assertion that her plea advisement was inadequate. However, as discussed, the count to which she pleaded guilty specifically alleged her escape status, and the court confirmed that she understood the prosecution would have to prove that fact. Thus, defendant has not demonstrated that her advisement was inadequate. See Craig v. People, 986 P.2d 951, 966 (Colo.1999)(defendant failed to meet burden of establishing by a preponderance of the evidence that his affirmative waiver on the record was ineffective).

The order is affirmed.

Judge KAPELKE and Judge NIETO concur.


text:
    WESTEC CONSTRUCTION MANAGEMENT COMPANY, Plaintiff and Counterclaim Defendant-Appellee and Cross-Appellant, v. POSTLE ENTERPRISES I, INC., Defendant and Counterclaim Plaintiff-Appellant and Cross-Appellee.
    Nos. 01CA1055, 01CA1632.
    Colorado Court of Appeals, Div. IV.
    Nov. 7, 2002.
    Rehearing Denied Dec. 12, 2002.
    Certiorari Denied April 21, 2008.

      York & Gregory, P.C., Glenn W. Gregory, Denver, Colorado, for Plaintiff and Counterclaim Defendant-Appellee and Cross-Appellant.

      Berg Hill Greenleaf & Ruscitti LLP, Kathleen M. Morgan, George V. Berg, Jr., Heidi C. Potter, Boulder, Colorado, for Defendant and Counterclaim Plaintiff-Appellant and Cross-Appellee.
   Opinion by

Judge DAVIDSON.

In this breach of contract action, defendant, Postle Enterprises I, Inc., appeals from the trial court's judgment on remand determining that it failed to mitigate its damages against plaintiff, Westee Construction Management Company. Westec separately appeals the trial court's awards of post-judgment interest, attorney fees, and costs to Postle, and Postle cross-appeals the caleulation of per diem interest. The two appeals have been consolidated. We affirm in part, reverse in part, and remand.

In 1995, Westee contracted to build a fast-food restaurant for Postle. Although Postle was responsible for the cost of marking the property boundaries under the contract, Westec hired a surveyor to set the property pins. After the foundation was built, Westee discovered that it was in the wrong location and encroached on neighboring property, and Westee stopped construction. Westee disclaimed any liability for the mistake, but the surveyor acknowledged its error.

With minimal involvement from Westec, Postle and the surveyor began discussing possible remedies. Within a few days, the surveyor obtained an estimate from Westee and agreed to pay the cost of demolishing and relocating the foundation, with any consequential damages to be negotiated later. Postle rejected the offer, indicating that it would settle only the entire controversy, including its claims for lost profits, staffing costs, and other damages caused by the delay in completion. The parties also discussed the possibility of acquiring part of the neighboring property, which Postle viewed as the more expedient option.

After the surveyor requested an estimate, Westee sent Postle a change order that increased the contract sum by over $60,000 and the contract time by forty-six days, and Wes-tee indicated that it could commence work on the project the following week if given notice to proceed. Postle did not sign the change order or give Westee notice to proceed, but continued to negotiate with the surveyor.

The following month, Postle's lender notified it that a continued construction stoppage would constitute a default and indicated that if Postle did not reach an agreement with the surveyor and move forward with the demolition and reconstruction, the lender would accelerate the balance of the loan. Postle did not respond, and the property was ultimately foreclosed upon.

Subsequently, Westee redeemed the property, and the surveyor purchased part of the neighboring lot and suggested that Postle allow construction to commenee in the present location and negotiate consequential damages later. Postle rejected the offer, but eventually, after this lawsuit was filed, Wes-tee conveyed the property to Postle, and construction was recommenced. The restaurant was completed approximately twenty-seven months after the date called for in the contract.

Westee sued Postle for payment under the contract, and Postle counterelaimed for breach of contract. Westec's claims for payment were settled before trial. After a bench trial, the court entered judgment for Postle in the amount of $168,371, which primarily represented damages for relocation of the foundation, staffing costs, and lost profits. However, the court refused to award any additional damages to Postle for the twenty-seven-month delay because < Postle failed to give notice to Westee as provided in a provision of the contract.

Postle appealed, and another division of this court determined that the failure to give notice was not a proper basis to limit those damages. The division remanded the case for a determination of whether Postle otherwise failed to mitigate those damages and for an award of prejudgment interest. Westec Constr. Mgmt. Co. v. Postle Ents. I, Inc., (Colo.App. No. 98CA1997, Jan. 27, 2000)(not published pursuant to C.A.R. 835(f))(Westec I).

On remand, the trial court again found that Postle had failed to mitigate its damages and, accordingly, awarded no additional damages. The trial court awarded prejudgment interest and subsequently awarded certain postjudgment costs and attorney fees, as well as postjudgment interest on the prejudgment interest from the date of the original judgment.

Postle appeals from the trial court's determination that it failed to mitigate its damages and the calculation of the per diem amount of postjudgment interest. Westec appeals the award of postjudgment interest on the prejudgment interest and the amount of attorney fees and costs awarded. We reverse those parts of the judgment awarding postjudgment interest prior to the date of the judgment on remand and calculating the per diem amount, and otherwise we affirm.

L.

Postle contends that because allowing demolition and reconstruction of the foundation would have required it to sign Westec's change order, the trial court erred in concluding that Postle failed to mitigate its damages. Postle argues that signing the change order would have required it to abandon a right of action against Westee and, therefore, was not a reasonable mitigation alternative as a matter of law. We disagree.

A party seeking recovery under a contract has a duty to mitigate its damages. La Casa Nino, Inc. v. Plaza Esteban, 762 P.2d 669 (Colo.1988). "The defense of failure to mitigate damages applies when a plaintiff has failed to exercise reasonable care and diligence to minimize or lessen damages occasioned by defendant's conduct." Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1385 (Colo.App.1990).

"A plaintiffs failure to mitigate damages is excused, however, if mitigation would require inordinate or unreasonable measures or if there were reasonable grounds for the failure to mitigate." Fair v. Red Lion Inn, 943 P.2d 431, 437 (Colo.1997). For example, a party "need not accept a modified contract in mitigation of its damages when the modified offer includes abandonment of any right of action for a prior breach as a condition of acceptance." Stanspec Corp. v. Jelco, Inc., 464 F.2d 1184, 1187 (10th Cir.1972).

Ultimately, whether a party made reasonable efforts to mitigate its damages is a determination of fact, which will not be disturbed on appeal unless it is clearly erroneous. See Fair v. Red Lion Inn, supra.

In determining that Postle failed to mitigate its damages, the trial court noted that Postle:

declined to authorize the work to correct the placement of the footings and foundation, declined to accept the offer by [surveyor] to pay for the necessary demolition and reconstruction, declined to accept [surveyor's] offer to preserve the issue of all consequential damages and began negotiations with [surveyor] to purchase the additional lot and demanded resolution of all consequential damages prior to commene-ing the correction of the construction problem. This continued through April of 1996. At that point in time, Postle was estimating its consequential damages in the amount of $385,000 to $485,000. The Court further finds that Postle's estimates at that juncture were based upon estimates only and were not based upon fact nor could they have been until after a determination had been made concerning actual consequential damages or losses sustained as a result of the delays.... The Court finds that Postle delayed the matter to achieve its goal of receiving the conveyance of the lot that the foundation encroached upon.

These findings are supported by the record and are not clearly erroneous. Postle's evidence indicates that its primary concern with the change order was that it believed it should not have to pay for relocating the foundation and could not afford to do so. Although Postle also provided testimony that it objected to extending the contract, Postle did not give Westee any other form of notice to proceed, nor did it negotiate or object to the form of the change order. It also failed to indicate to the surveyor that the change order was the reason for its refusal to give Westee notice to proceed, and it failed to provide requested documentation to the surveyor for its claimed expenses. Westec introduced testimony indicating that it would have begun construction if Postle had orally agreed to accept and use the surveyor's funds to pay Westec for the relocation, that it was concerned only with payment, not with attempting to obtain a waiver from Postle, and that Postle never expressed any concerns about waiving its rights under the contract. Additional testimony indicated that Postle wanted to wait to get the land from the surveyor rather than immediately correct the location of the foundation.

Postle attempts to frame the issue, however, as a question of law, contending that the trial court erroneously rejected the proposition that a party need not accept, as mitigation, a modification offer that is conditioned on the abandonment of a right of action. Postle points to the following language in the court's order:

Throughout the trial, Postle complained that [it] could not accept the offer of [surveyor} to resolve the misplaced foundation issue without a resolution of all the issues because of the potential of waiver of consequential damages. Postle's assertion is an incorrect statement of the law. A damaged party entitled to the benefit of a contract, as Postle was here with Westec, is under a duty to mitigate damages and generally its contract rights are not diminished if cireumstances force Postle to deal with the party in default, namely Westee and/or [surveyor]. Stanspec Corp. v. Jelco, [supra ].

However, we read the order as recognizing that, while a nondefaulting party is not required to accept a modified contract in mitigation of its damages when the offer is conditioned on abandoning a right of action for breach of the original contract, such was not the case here. Reading the ruling in context, we conclude that the trial court applied the correct legal standard, but determined, as a factual matter, that Postle's refusal to authorize the relocation of the foundation without making any effort to do so under terms it considered to be satisfactory was, under the circumstances, unreasonable.

Postle nevertheless argues that, as a matter of law, it had no duty to make such efforts because Westee's request that Postle sign a change order, by definition, required Postle to release its claims. Postle relies on several cases in which the offer was found to be an attempt to settle rather than an attempt to mitigate and was clearly conditioned on a waiver of rights. See Stanspec Corp. v. Jelco, Inc., supra, 464 F.2d at 1187 ("It is clear from the record that Jelco was aware of Stanspec's insistence that rights could not be preserved under the earlier agreement, and because the [later] contract was so conditioned, Jeleo no longer has the rights it claims."); Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 860 (Tex.1999)(testimony confirmed that all of seller's offers were attempts to "settle" and, therefore, "implicitly if not explicitly required [buyer] to release his claims"); Hanna v. Loit, 888 S.W.2d 132 (Tex.App.1994); see also Apex Mining Co. v. Chicago Copper & Chem. Co., 340 F.2d 985, 988 (8th Cir.1965)("The correspondence between the parties reveals that ore was not purchased from appellant because appellant would not waive appellee's right to claim damages for appellant's previous breach of contract.").

Postle is correct that if the proposed change order were an offer to terminate the entire controversy conditioned on a waiver of Postle's rights, then as a matter of law, Pos-tle necessarily would have released its claims if it accepted the offer. However, whether the change order was offered to terminate the controversy or to mitigate damages was an issue of fact. The trial court did not find that the requested change order was a settlement offer, and Postle does not point to any evidence to that effect. Indeed, nothing in the record demonstrates that construction could not commence unless Postle signed the particular change order presented without a reservation of rights. All of Postle's negotiations were with the surveyor, rather than Westec, and, until Westee initiated suit for payment, Postle made no demands against Westec.

In particular, correspondence indicates that Westee was seeking instructions rather than settlement from Postle and that Postle's lender and the surveyor viewed the change order as an effort to mitigate. For instance, Westec's letter accompanying the change order stated: ©

To demolish the work that has been done and rebuild in the proper location would cause a forty-six (46) day delay in the original scheduled turnover date. Our completion date would be May 8, 1996 instead of March 18, 1996. Presently Wes-tee could begin work on February 12, 1996 if given notice to proceed immediately.

A letter from Westee to Postle the day before also stated:

In summary, it was discovered in the afternoon of February 5, 1996 that the developer's surveyor ... set the property corners in the wrong location.... As a result all of the work completed at this point in time is in the wrong place. Westee proceeded to contact [Postle, surveyor,] and the land owner. Currently work has stopped and Westee Construction is waiting for direction from [Postle].

A letter from the surveyor to Postle also indicates that the surveyor viewed the situation as mitigation rather than settlement:

We understand that Westec is prepared to start work on Monday (February 12) to relocate the foundation at a price of $60,657.88, shown in Change Order No.l. As we indicated in our last letter, we recommend that Westee be directed to start that work. [Surveyor] is prepared to pay $60,657.88 for that work and leave consequential costs to be negotiated. We don't believe it is helpful to anyone but the lawyers to delay the reconstruction process while you discuss the question of delay costs with this firm or negotiate to acquire more property from [the neighboring own-erJ. Costs can only increase when you withhold the notice to proceed to Westee. The responsibility for those delays will be yours.

Similarly, a letter to Postle from the attorney representing Postle's lender indicates that the lender did not view continued construction as settlement of any claims:

It is my client's understanding that [surveyor] acknowledged responsibility for the incorrect location of the foundation on February 7, 1996, and that they have continuously recommended that you proceed with the demolition and reconstruction of the foundation at their expense without waiving your right to subsequently pursue a claim for consequential damages, but you have failed and refused to do so.

In turn, Postle did not indicate to its lender, Westec, or the surveyor that it viewed the change order as a settlement of claims against Westec.

Accordingly, the trial court properly did not consider the change order as an offer of settlement requiring Postle to release its claims.

IL.

In its appeal, Westee contends that the trial court lacked authority to award post-judgment interest on the prejudgment interest awarded on remand. Westee also contends that the award of postjudgment attorney fees and costs was improper because Postle's request was not timely and that the attorney fees award should not have exceeded the amount of the judgment. We agree with the first, but disagree with the latter contentions.

The original judgment was entered on August 27, 1998. In its judgment on remand, dated April 27, 2001, the trial court refused to award additional damages and reaffirmed its original judgment. The court granted prejudgment interest on the original judgment. Later, on Postle's motion, the trial court granted postjudgment interest on the prejudgment interest and on the amount of the reaffirmed original judgment, both calculated from the date of the original judgment, August 27, 1998. The court also awarded attorney fees and costs.

A.

Westec contends that, after the trial court was directed to award prejudgment interest on remand, it was without authority to enter an award of postjudgment interest on that amount from the date of the original judgment because C.A.R. 37 prohibits such an award. We agree.

Initially, we note, an award of post-judgment interest may be inappropriate when an appellate court reverses the underlying judgment. See, e.g., Bainbridge, Inc. v. Douglas County Bd. of Comm'rs, 55 P.3d 271 (Colo.App.2002). Here, however, the propriety of the original judgment awarding Postle $168,371 was not an issue in Westec I and was not affected by that appeal. Read in conjunction with the trial court's August 27, 1998 judgment, it is apparent that Westec I reversed that judgment only in part. Westee apparently agrees, having conceded the propriety of postjudgment interest calculated on the original $168,871 award from the date of the 1998 judgment. Thus, we only address the propriety of awarding postjudgment interest on the prejudgment interest.

Pursuant to C.A.R. 87:

If a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the trial court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, the mandate shall contain instructions with respect to allowance of interest.

In the latter case, if the mandate does not contain instructions regarding the award of postjudgment interest from some date pri- or to the entry of the judgment on remand, the trial court lacks jurisdiction to award such interest. See Boryla v. Pash, 17 P.3d 833 (Colo.App.2000). Interest for the period after the entry of the judgment on remand is governed by $ 5-12-102(4), C.R.S.2002.

The issue presented by the parties here is whether the $38,866.76 in prejudgment interest awarded is subject to the first or the second sentence of C.AR. 37. We conclude that it is governed by the second.

Postle relies on cases in which a trial court judgment was reinstated on appeal, see Fassbinder v. Pennsylvania R.R. Co., 233 F.Supp. 574 (W.D.Pa.1964); Brown v. Med. Mut. Liab. Ins. Soc'y, 90 Md.App. 18, 599 A.2d 1201 (1992), or in which an existing trial court judgment was reduced on appeal. See Stewart v. Donges, 20 F.3d 380 (10th Cir.1994); Lowe v. Gen. Motors Corp., 527 F.Supp. 54 (N.D.Ala.1981); Life Ins. Co. v. Johnson, 725 So.2d 934 (Ala.1998); Ginn v. Penobscot Co., 342 A.2d 270 (Me.1975).

Here, in contrast, while the original trial court judgment awarded damages, it did not award prejudgment interest. The division in Westec I reversed that part of the judgment denying prejudgment interest and directed the trial court to make such an award. Thus, the second sentence of C.A.R. 37 is applicable, and because the Westec I mandate directing the award of prejudgment interest did not direct interest on that amount from any date before the entry of the judgment on remand, the trial court lacked jurisdiction to award postjudgment interest on the prejudgment interest for any period before April 27, 2001. See Boryla v. Pash, supra (in the absence of directions in the mandate, the trial court had no jurisdiction to award interest from the date of the original order on costs where the appellate court reversed the trial court's denial of an award of actual costs with directions to enter such an award); cf. Magee v. United States Lines, Inc., 976 F.2d 821 (2d Cir.1992)(where the appellate court vacated that part of the trial court judgment denying an award of prejudgment interest and directed the entry of such an award, the second sentence of Fed. R.App. P. 37 was applicable).

Thus, in such a case, the only way to invest the trial court with suitable jurisdiction is to file a request with the appellate court to amend its mandate. See Boryle v. Pash, swpra. Postle made no such motion, so we need not decide whether postjudgment interest on the prejudgment interest from the date of the original judgment would otherwise be proper. See, e.g., Bancamerica Commercial Corp. v. Mosher Steel of Kansas, Inc., 103 F.3d 80 (10th Cir.1996)(motion to reform the mandate to include an award of postjudgment interest).

B.

Westee next contends that Postle's motion for postjudgment attorney fees and costs was untimely. We disagree.

The trial court's original judgment, entered August 27, 1998, determined that any claim for attorney fees under the contract would be limited, because of Postle's failure to mitigate, to the period from February 5, 1996, when the mislocation of the foundation was discovered, to May 31, 1996. In 1999, the trial court awarded fees for that period. The judgment on remand, entered April 27, 2001, reaffirmed the original judgment. The trial court later granted Postle's motion for postjudgment attorney fees and costs and again denied fees and costs incurred before the final judgment, which it erroneously described as having been entered on April 27, 1998.

We first reject Westec's contention that when the trial court referred to April 27, 1998, it meant April 27, 2001, such that the award of attorney fees should be limited to the $6,230 incurred after the latter date. Postle's motion requested fees and costs from August 3, 1998 to May 8, 2001 in the amount of $115,998.45. The trial court's award of $107,828.37 clearly indicates that it intended to refer to the 1998 judgment.

Westee does not dispute that the contract allows an award of costs for a successful appeal. However, Westee contends that, if the trial court intended to refer to the 1998 judgment, then Postle's motion for attorney fees and costs was untimely because it was filed more than fifteen days after the entry of judgment as required by C.R.C.P. 121 § 1-22(2)(b). We are not persuaded.

C.R.C.P. 121 § 1-22(2)(a) provides, in part: This practice standard applies to requests for attorney fees made at the conclusion of the action .... It also includes awards of fees made to the prevailing party pursuant to a contract or statute where the award is dependent upon the achievement of a successful result in the litigation in which fees are to be awarded and the fees are for services rendered in connection with that litigation. (Emphasis added.)

Here, the "conclusion of the action" for this purpose is the 2001 judgment on remand. Because Postle's motion was filed within fifteen days of that judgment, it was timely.

C.

Westee next contends that any award of postjudgment attorney fees should not have exceeded the difference between Postle's original judgment and its recovery on appeal and remand, that is, the amount of prejudgment interest awarded. We disagree.

The reasonableness of attorney fees is a determination of fact for the trial court that will not be disturbed unless it is clearly erroneous and not supported by the evidence.

In awarding attorney's fees, the trial court may consider, among other factors, the amount in controversy, the length of time required to represent the client effectively, the complexity of the case, the value of the legal services to the client, and the usage in the legal community concerning fees in similar cases. However, no one of these factors is conclusive.

Hartman v. Freedman, 197 Colo. 275, 281, 591 P.2d 1318, 1322 (1979) (citations omitted).

Here, Westee relies on the fact that Postle ultimately received substantially less than it sought on appeal and remand. However, that fact is insufficient to demonstrate that the trial court's finding of reasonableness was clearly erroneous.

IIL.

In its cross-appeal, Postle contends that the trial court erred in its calculation of per diem interest. We agree.

Section 5-12-102(4), provides that, unless otherwise specified in a contract or instrument, interest on a judgment shall accrue at eight percent per annum compounded annually.

The award of postjudgment interest under this section is mandatory rather than discretionary. See Bainbridge, Inc. v. Douglas County Sch. Dist. RE-1, 973 P.2d 684 (Colo.App.1998). Therefore, the per diem postjudgment interest should be calculated at eight percent of the prejudgment interest and awarded only for the period after April 27, 2001.

Given our resolution of the above issues, we need not address the parties' remaining contentions.

Those parts of the judgment awarding postjudgment interest on the prejudgment interest from the date of the 1998 original judgment rather than the 2001 judgment on remand and calculating per diem interest at $1.51 are reversed, and the case is remanded to the trial court for calculation of post-judgment interest on the prejudgment interest consistent with this opinion. In all other respects, the judgment is affirmed.

Judge VOGT and Judge DAILEY, concur.


author: Judge JONES.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert CASS, Defendant-Appellant.
    No. 01CA0932.
    Colorado Court of Appeals, Div. IL.
    Nov. 7, 2002.
    Certiorari Denied April 21, 2008.

      Ken Salazar, Attorney General, Paul Koeh-ler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Law Firm of Douglas S. Joffe, Douglas S. Joffe, Theodore B. Peak, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge JONES.

Defendant, Robert Cass, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of forgery of a commercial check and one count of theft. Defendant also appeals his sentence as an habitual criminal. We affirm.

L.

Defendant first argues that his statutory right to a speedy trial was violated. We disagree.

Under § 18-1-405, C.R.9.2002, a defendant has the right to be brought to trial within six months following a plea of not guilty. However, certain periods of time may be excluded from the time computation for speedy trial purposes.

Two of these statutory exclusions were applied in People v. Madsen, 707 P.2d 344 (Colo.1985). In Madsen, the defendant pleaded guilty after a trial date had been scheduled and subsequently withdrew his guilty plea because the court rejected the parties' sentence stipulation. The supreme court held that the speedy trial period was tolled during the interregnum between the entry and withdrawal of the guilty plea and that a new six-month speedy trial period began to run from the date that the defendant was allowed to withdraw his guilty plea. See People v. Madsen, supra, 707 P.2d at 346-48.

Here, defendant pleaded not guilty on May 16, 2000, and the trial court scheduled a trial for August 21. On August 16, defendant filed a motion to continue the trial date. The court granted defendant's motion and rescheduled the trial for January 16, 2001.

On September 7, 2000, defendant pleaded guilty pursuant to a plea agreement. On that same date, the trial court vacated the scheduled trial date and sentenced defendant in accordance with the parties' agreement.

On November 18, 2000, the trial court granted defendant's motion to withdraw his plea, concluding that a material condition of the plea agreement-that defendant be allowed to serve his sentence in this case concurrently with his sentence in a Montana case-could not be implemented.

At a scheduling conference on December 19, 2000, the trial court proposed setting the trial in March 2001. Defense counsel objected to such a setting, arguing that the proposed date was outside the speedy trial period. The trial court overruled the objection and set the trial for March 28, 2001, explaining that a new six-month speedy trial period had commenced to run on November 13, the date that defendant had been allowed to withdraw his guilty plea. Defendant's trial subsequently commenced on March 28.

We reject defendant's statutory speedy trial claim. The speedy trial statute was not applicable until he withdrew his guilty plea. A new six-month speedy trial period began to run on November 18, 2000, and defendant's March 28, 2001, trial commenced well within that period. See People v. Madsen, supra.

In our view, the fact that defendant was allowed to withdraw his plea because the sentence stipulation contained in the plea bargain could not be implemented is irrelevant for purposes of speedy trial analysis. Occasionally, plea bargains fail because the parties agree to terms that they later realize are either contrary to statute or impossible to implement because of the actions of third parties. Although the possibility that a plea bargain will fail for impossibility of performance is not as clear a contingency as the sentence stipulation requiring trial court approval in Madsen, the effect of a defendant's guilty plea in both scenarios is the same: the scheduled trial date is vacated, and "neither the prosecutor nor the court will take any further steps to ensure that the defendant is brought speedily to trial." People v. Madsen, supra, 707 P.2d at 346. Thus, a defendant who is entitled to withdraw a guilty plea in such cireumstances would gain an unfair advantage if he or she were also entitled to require the prosecution to prepare and try the case before expiration of the remaining balance of the original speedy trial period. Accordingly, we conclude that the facts of this case do not justify departure from the holding of Madsen.

IL

Defendant also argues that his constitutional right to a speedy trial was violated. However, we decline to address this claim because it was not raised in the trial court. See People v. Scialabba, 55 P.3d 207 (Colo.App.2002)(a defendant eannot raise a constitutional speedy trial claim for the first time on appeal).

Defendant presents an alternative claim that trial counsel performed ineffectively by not raising the constitutional speedy trial issue in the trial court. This claim should be presented, if at all, by means of a postconviction motion. See People v. Thomas, 867 P.2d 880, 886 (Colo.1994)(it is preferable that ineffective assistance of counsel claims be brought in Crim. P. 385(c) proceedings).

IIL

Defendant next contends that the trial court erroneously denied him the opportunity both to challenge his prior convictions and to establish justifiable exeuse or exeusable neglect for the untimeliness of such a challenge. In a related claim, defendant argues that the trial court erred by not appointing conflict-free counsel to assist him in challenging his prior convictions. We conclude that defendant's challenge was time barred and that his request for alternative counsel was, therefore, properly denied.

Section 16-5402, C.R.S.2002, provides, as relevant here, that a defendant has three years from the date of conviction in which to commence a collateral attack.

If a defendant's motion for postcon-viction relief is untimely under § 16-5-402, then the trial court may deny the motion without conducting a hearing if the defendant has failed to allege facts that, if true, would establish justifiable excuse or excusable ne-gleet. People v. White, 981 P.2d 624 (Colo.App.1998).

Here, defendant first filed a "motion for appointment of alternate defense counsel to review habitual criminal counts." As grounds for his request, defendant stated that he was represented by a deputy public defender in this case and that he had been represented by another deputy public defender when he was convicted of one of the prior offenses in 1994. The motion did not allege ineffective assistance of prior counsel, although it suggested that such a claim might be raised in the future. The trial court denied the motion, finding that defendant had failed to make specific allegations sufficient to support his request for conflict-free counsel.

Defendant next filed a motion asking the trial court to reconsider its ruling. As additional grounds, defendant alleged that the deputy public defender who had represented him in the 1994 case had told him that the conviction could not be used in the future for purposes of habitual criminal charges. The trial court reaffirmed its earlier ruling.

Defendant then filed a motion challenging the validity of the 1994 conviction. As grounds, defendant alleged that his plea was not voluntary because it was based on the erroneous advice of counsel concerning use of the conviction for habitual criminal charges. The prosecution filed a response asserting that defendant's motion was time barred pursuant to § 16-5-402, because it was filed more than three years after the conviction had entered. The trial court did not rule on the motion, and defendant withdrew it when he entered his guilty plea.

It is unclear from the record whether, after withdrawing his guilty plea, defendant renewed his motion challenging his 1994 conviction. However, it appears that he did so because the trial court addressed the issue during the habitual criminal phase of the trial. Accordingly, we shall presume the issue was preserved.

Neither defendant's motion challenging his prior conviction nor his motion seeking alternative counsel, both filed in 2000, explain why defendant failed to challenge his 1994 convietion before the three-year limitations period of § 16-5-402 expired in 1997. Therefore, we uphold the trial court's finding that defendant's motion was time barred. See People v. White, supra.

Furthermore, because defendant's challenge was time barred and he does not suggest how, despite the fact that he is represented by conflict-free counsel on appeal, the appointment of alternative counsel would have better enabled him to establish justifiable excuse or excusable neglect, we also uphold the trial court's denial of defendant's request for alternative counsel.

The judgment and sentence are affirmed.

Judge CASEBOLT and Judge ROY concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas McNEELY, Defendant-Appellant.
    No. 00CA1187.
    Colorado Court of Appeals.
    Nov. 21, 2002.
    As Modified on Denial of Rehearing March 18, 2008.

      Ken Salazar, Attorney General, Clemmic Parker Engle, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Linda Perkins Cooke, Boulder, Colorado, for Defendant-Appellant.
   Opinion by

Judge JONES.

Defendant, Thomas McNeely, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree burglary, first degree criminal trespass, violation of a restraining order, third degree assault, harassment, criminal mischief, and resisting arrest. He also appeals his sentence as an habitual criminal. We affirm.

I.

Defendant first contends that the trial court erred in denying his motion for mistrial when the prosecution impeached his eredibility with a suppressed conviction. We disagree.

The trial court held a hearing regarding defendant's collateral attack on five prior convictions, which were the basis for charging defendant under the habitual criminal statute, § 18-1.3-801, et seq., C.R.8.2002 (formerly § 16-13-101). The trial court denied defendant's motion as to four of the convictions, but sustained it regarding a conviction for criminal impersonation because defendant had entered his guilty plea and been sentenced outside the presence of counsel.

Defendant chose to testify at trial. During cross-examination, the prosecution impeached him with the four convictions that had survived the collateral attack. Then, over defendant's objection, the prosecution impeached him with his conviction for erimi-nal impersonation. After a hearing outside the jury's presence, the trial court instructed the jury to disregard the testimony regarding criminal impersonation.

Defendant moved for a mistrial. The trial court denied the motion.

A mistrial is a drastic remedy. The trial court has broad discretion to grant or deny a motion for mistrial. A reviewing court will not disturb a trial court's decision absent gross abuse of discretion and prejudice to the defendant. Moreover, a mistrial is warranted only where the prejudice to the defendant cannot be remedied by other means. People v. Abbott, 690 P.2d 1263 (Colo.1984).

A reviewing court may not overturn a conviction if the remaining cireum-stances of the trial rendered the error harmless. Tevilin v. People, 715 P.2d 338 (Colo.1986). For example, "a curative instruction is generally sufficient to overcome an eviden-tiary error, and an instruction is inadequate only when evidence is so prejudicial that, but for its exposure, the jury might not have found the defendant guilty." People v. Gillispie, 767 P.2d 778, 780 (Colo.App.1988). When a jury is instructed to disregard tendered evidence, the reviewing court must presume that it followed the instructions. People v. Goff. 187 Colo. 57, 530 P.2d 512 (1974).

Here, the trial court issued a curative instruction, stating, "[TJhat felony conviction does not exist. So you are to disregard all testimony regarding that alleged conviction because it does not exist." We conclude that this curative instruction remedied any harm that may have resulted from reference to the invalid conviction. See People v. Abbott, supra.

The record shows that defendant was impeached by four valid convictions. We presume that the jurors ignored the invalid conviction as instructed, but considered the valid convictions giving them whatever weight they thought appropriate. Therefore, we conclude that defendant was not unduly prejudiced by the prosecution's improper reference to the invalid conviction because the remaining circumstances of the trial rendered the error harmless.

II.

Defendant next contends that the trial court erred in denying his due process right to a fair trial when it permitted the prosecution to impeach his credibility with a conviction that was pending on direct appeal. We perceive no error.

The Colorado Rules of Evidence do not address this issue. Cf. Fed.R.Evid. 609(e) ("The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible."). Thus, we must look beyond the Colorado Rules of Evidence in our analysis. See People v. Diaz, 985 P.2d 83 (Colo.App.1999).

Defendant asserts that People v. Johnson, 192 Colo. 483, 560 P.2d 465 (1977), and People v. Goff, supra, stand for the proposition that a prior conviction should not be used for impeachment purposes until a judge has determined, through a motion for new trial, that the jury convicted the defendant on competent evidence. He argues that, because a motion for new trial is no longer required as a prerequisite for appeal, final determination of the appeal should constitute the "judicial determination" required before use of the conviction for impeachment. We disagree.

The credibility of any witness may be called into question by showing that the witness has been convicted of a felony. Section 13-90-101, C.R.S.2002. A person is convicted when the trial court enters a judgment of conviction after either a verdict or plea of guilty has been entered. See Swift v. People, 174 Colo. 259, 263, 488 P.2d 80, 82 (1971)(con-viction means, in the "popular sense," a verdict or a plea of guilty); People v. Baca, 44 Colo.App. 167, 610 P.2d 1083 (1980)(defen-dant could be impeached by use of prior conviction where court had accepted guilty plea).

Thus, we hold that when, as here, the trial court has entered a judgment of convietion, the conviction may be used for purposes of impeachment at a later proceeding even if the appeal of that conviction is pending. Moreover, here, the court had not only entered a judgment of conviction, but had also sentenced defendant. See People v. Baca, supra.

This rule of law is supported by the holdings of the courts of a majority of the states that have not adopted a rule of evidence comparable to Fed.R.Evid. 609(e). See J.F. Ghent, Annotation, Permissibility of Impeaching Credibility of Witness by Showing Former Conviction, as Affected by Pendency of Appeal from Conviction or Motion for New Trial, 16 A.L.R.3d 726, 728 (1967 & 2001 Supp.). The rationale expressed by the courts in those states applies here, as well. See, e.g., People v. Bey, 42 Ill.2d 139, 146, 246 N.E.2d 287, 291 (1969)("the judgment of the trial court is still a determination of guilt which stands until it is reversed"); State v. Forsyth, 20 Or.App. 624, 533 P.2d 176 (1975)(the overwhelming majority of judgments of conviction are upheld on appeal); State v. Herman, 93 Wash.2d 590, 611 P.2d 748, 751 (1980)("the presumption of innocence is wiped out and the opposite presumption prevails").

Accordingly, when defendant took the stand as a witness, the trial court did not err in permitting the prosecution to impeach him by referring to another conviction that was pending on appeal.

IIL

Defendant next contends that the trial court erred in denying his motion for a new trial based on juror misconduct. We perceive no error.

When jury misconduct by nondisclosure is first alleged after the trial, the reviewing court will reverse the trial court's denial of a new trial only for an abuse of discretion. People v. Key, 851 P.2d 228 (Colo.App.1992), rev'd in part on other grounds, 865 P.2d 822 (Colo.1994).

Prejudice warranting a new trial may be presumed when a juror deliberately or knowingly conceals important information during jury selection. People v. Espinoza, 669 P.2d 142 (Colo.App.1983), aff'd, 712 P.2d 476 (Colo.1985).

Here, one week after trial, defendant moved for a new trial. He alleged that after trial he had discovered evidence that one of the jurors had known him thirty years earlier. The motion asserted that the juror committed misconduct by not revealing her acquaintanceship with him during voir dire.

During voir dire, the trial court asked the jurors whether any of them knew defendant. No one responded in the affirmative.

At an evidentiary hearing on the motion for new trial, the juror testified that she did not recall knowing defendant. However, defense witnesses testified that defendant had been a friend of the juror's husband at the time and that she knew defendant.

Having considered the testimony, the trial court determined that no intentional deception or nondisclosure on the part of the juror had taken place. We conclude that the trial court did not abuse its discretion in denying defendant a new trial on that basis.

IV.

Defendant also contends that the trial court committed reversible error in failing to conduct a proportionality review of his sentence as an habitual criminal,. We agree that the trial court erred, but conclude that the error does not require reversal.

At the sentencing hearing, the trial court sentenced defendant under the habitual criminal statute, $ 18-1.8-801(f)(1.5), C.R.S. 2002, to forty-eight years for a second degree burglary, a class three felony. The trial court denied defendant's request for a proportionality review, reasoning that a defendant is entitled to a proportionality review only where a life sentence has been imposed and that the principle of proportionality is incorporated in the habitual criminal statute.

While at the time defendant was sentenced it may have been unclear whether a proportionality review was required, during the pendency of this appeal the supreme court clarified the issue.

During sentencing, upon request, a defendant is entitled to an abbreviated proportionality review of his or her sentence under the habitual eriminal statute even if the sentence under review is less than a life term. People v. Deroulet, 48 P.3d 520 (Colo.2002).

"[AJn abbreviated proportionality review consists of a comparison of two sub-parts, the gravity of the offense and the harshness of the penalty, to discern whether an inference of gross disproportionality is raised." People v. Deroulet, supra, 48 P.3d at 527 (citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)(Kennedy, J., concurring)). When conducting an abbreviated proportionality review under the habitual criminal statute, a reviewing court must serutinize all the offenses in question to determine "whether in combination they are so lacking in gravity or seriousness" as to suggest the habitual erimi-nal sentence is grossly disproportionate. People v. Deroulet, supra, 48 P.3d at 524-25 (quoting People v. Gaskins, 825 P.2d 30, 36 (Colo.1992); People v. Mershon, 874 P.2d 1025, 1031 (Colo.1994)).

A court determines whether a crime is grave or serious "by considering the harm caused or threatened to the victim or to society and the culpability of the offender." People v. Deroulet, supra, 48 P.3d at 524. Certain crimes are per se grave and serious for purposes of proportionality review. "Specifically, the crimes of aggravated robbery, robbery, burglary, accessory to first-degree murder, and narcotic-related crimes are all 'grave or serious' for the purposes of proportionality review." People v. Deroulet, supra, 48 P.3d at 524.

The court in Derowlet stated that, in almost every case, "the abbreviated proportionality review will result in a finding that the sentence is constitutionally proportionate, thereby preserving the primacy of the General Assembly in crafting sentencing schemes." People v. Deroulet, supra, 48 P.3d at 526; see also Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (1988)(great deference is due legislative determinations about sentencing, but courts have authority to conduct proportionality reviews if guided by objective principles).

When the sentence does not raise an inference of gross disproportionality, it may stand. If, and only if, an inference of gross disproportionality is raised, must the "abbreviated" proportionality review be followed by an "extended" proportionality review. People v. Deroulet, supra, 48 P.3d at 526-27 (citing Harmelin v. Michigan, supra, and Alvarez v. People, 797 P.2d 374, 40 (Colo.1990).

"[Nlo remand is necessary in cases where an extended proportionality review is unnecessary; in such cases an appellate court may conduct an abbreviated proportionality review." People v. Deroulet, supra, 48 P.3d at 524.

Thus, here, we conduct our own review.

Defendant's conviction for second degree burglary is the current crime, which triggered his adjudication as an habitual criminal. The trial court determined that defendant's prior convictions were for two drug-related offenses and for two traffic-related offenses.

Among these convictions, the current conviction for burglary and the two prior convictions for drug-related offenses are per se grave and serious crimes under People v. Deroulet, supra, 48 P.3d 524. At least one of the prior convictions for traffic-related offenses, habitual offender driving after revocation is a class six felony and is based on prior major violations of traffic laws. See People v. Deroulet, supra, 48 P.3d at 524 (stating that the court determines whether an offense is grave or serious by "considering the harm caused or threatened to the victim or to society").

Thus, when we consider, in combination, the gravity and seriousness of defendant's current conviction for robbery, his two prior drug-related convictions, and his two traffic-related convictions, and weigh them against his current sentence of forty-cight years in prison, we conclude that no inference of gross disproportionality is raised, especially considering the deference that is due legislative determinations regarding sentencing schemes. See Solem v. Helm, supra.

Accordingly, the trial court's failure to conduct the review is harmless error.

v.

Defendant finally contends that the trial court erred in sentencing him as an habitual criminal. We disagree.

The trial court held an habitual eriminal hearing in a previous case, involving the same victim, in which defendant was conviet-ed of burglary, assault, criminal mischief, and violation of a restraining order. The parties agreed that the results of that hearing would apply to any convictions on the charges in this case. The trial court found that defendant had been convicted of four felonies within the previous ten years and held that he would be subject to habitual criminal sentencing,

Defendant asserts that he is entitled to the benefit of amendatory legislation in 1999 that reduced driving with a revoked license from a felony to a misdemeanor. He argues that those convictions are now exeluded from consideration in establishing habitual criminal status and that he is, thus, being denied equal protection of the law. We disagree.

The record reveals that defendant did not raise an equal protection claim in the trial court. "An issue is not properly preserved for appellate review if, as here, it is not presented to the trial court and is raised for the first time on appeal." People v. Lesney, 855 P.2d 1364, 1366 (Colo.1993). For a defendant to fairly present a constitutional claim, the court must "surely be alerted" to the constitutional argument. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d 865, 868 (1995).

Although defendant asserts that he implicitly raised the equal protection argument, because he did not do so expressly, we do not consider it here.

The judgment and sentence are affirmed.

Judge DAVIDSON and Judge KAPELKE concur.