No. 96CA1108Colorado Court of Appeals.
September 25, 1997 Petition for Writ of Certiorari DENIED. EN BANC April 13, 1998.
Appeal from the District Court of Jefferson County, Honorable Henry E. Nieto, Judge, No. 95CR2246
JUDGMENT AND SENTENCE AFFIRMED
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Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Kim L. Montagriff, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Wade H. Eldridge, P.C., Wade H. Eldridge, Denver, Colorado, for Defendant-Appellant.
Division I
Metzger and Criswell, JJ., concur
Opinion by JUDGE MARQUEZ
[1] Defendant, Theodore Keith Coolidge, appeals the judgment of conviction entered upon his plea of guilty to first degree kidnapping and one count under the violent crime sentencing statute. Defendant contends that his conviction is barred by principles of double jeopardy because the People had brought a prior civil forfeiture action, based on these charges, seeking forfeiture of his home under § 16-13-303(1)(I), C.R.S. 1997. He also contends that imposition of a prison sentence of twenty years, following the forfeiture of his home, constitutes excessive punishment. We affirm. [2] The charges involve defendant’s restraint and assault of the victim over a two-day period. Defendant was initially charged with one count of first degree kidnapping and one count of criminal conspiracy to commit first degree kidnapping, and other counts were added later. [3] The prosecutor then filed a civil complaint pursuant to the public nuisance statute, seeking forfeiture of the defendant’s home. The record indicates defendant entered a confession of judgment in the forfeiture proceeding on March 22, 1996. [4] Defendant ultimately pleaded guilty to first degree kidnapping and mandatory sentencing for violent crime on March 25, 1996, and the other charges were dismissed. [5] On April 30, 1996, defendant filed a motion to dismiss the criminal charges, asserting violations of state and federal prohibitions against double jeopardy and excessive punishment. This appeal followed the denial of that motion. I.
[6] Defendant first contends that the same offenses were the basis of two separate proceedings and that the civil forfeiture of his home pursuant to the Colorado Public Nuisance Act is punishment for purposes of the federal and state double jeopardy clauses. He also asserts that his twenty-year sentence violates the Double Jeopardy Clause of Colo. Const. art. II, 18, that the Double Jeopardy Clause bars successive punishments based on the same offense, and that he had not waived his rights under the Fifth Amendment. We reject these arguments.
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[10] More recently, the United States Supreme Court in United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549(1996) considered the issue whether civil forfeitures constitute punishment for double jeopardy purposes. The Court adopted the two-part test of United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), for determining whether a civil forfeiture constitutes punishment for double jeopardy purposes. The elements of that test are: (1) whether Congress intended the proceeding to be criminal or civil; and (2) whether the proceedings are so punitive in fact as to persuade a court that the forfeiture proceedings may not legitimately be viewed as civil in nature, despite Congress’ intent. [11] We consider an analogous test, premised on the intent of the General Assembly, to be applicable to the Double Jeopardy claims at issue here. [12] The public nuisance statute, 16-13-302, C.R.S. 1997, provides as follows:
[13] Thus, if we apply the first of the two-part test described above, it is clear that the General Assembly intended forfeiture proceedings under the public nuisance statute to be civil. [14] Further, in People v. Milton, supra, the Colorado Supreme Court applied the two-part test of United States v. One Assortment of 89 Firearms, supra, and concluded that a forfeiture action under § 16-13-301, is essentially civil in nature and that its primary purpose is to abate public nuisances. Additionally, it found that nothing in the statutory scheme is so punitive in either purpose or effect as to negate the General Assembly’s expressed intent to treat an action to abate a public nuisance as a civil proceeding. Rather, its sanctions are primarily directed toward achieving the salutary goal of preventing and terminating the harmful use of the property. People v. Milton, supra; People v. Ferrel, 929 P.2d 65It is the policy of the general assembly that every public nuisance shall be restrained, prevented, abated, and perpetually enjoined. . . . The general assembly intends that proceedings under this part 3 be remedial and equitable in nature.
(Colo.App. 1996) (finding nothing in the amended version of the public nuisance statute, 16-13-301, C.R.S. 1997, to warrant a contrary conclusion to that reached by the Milton court). [15] Thus, we conclude that the civil forfeiture proceeding here does not constitute punishment for purposes of double jeopardy analysis. Accordingly, the prosecution of defendant for kidnapping and crime of violence did not violate the Fifth Amendment or Colo. Const. art. II, 18.
II.
[16] Defendant also contends that the value of the property forfeited greatly exceeded the cost of prosecution, and thus, further prosecution and his twenty-year sentence constitute excessive punishment under the Eighth Amendment and Colo. Const. art. II, 20. Specifically, defendant argues that a sentence of twenty years is “excessive and Cruel and Unusual.” We disagree.
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sentencing range for the crime of first degree kidnapping and crime of violence. Further, the authorities cited by defendant do not support the apparent underlying premise of his argument, i.e., that the value of the property forfeited can be added to the sentence for purposes of cruel and unusual punishment analysis. See Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (Excessive Fines Clause); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) (double jeopardy).
[21] In Alexander v. United States, supra, petitioner argued that a forfeiture in addition to his prison term violated the Eighth Amendment either as cruel and unusual punishment or as an excessive fine. However, there, the defendant was subjected to criminal forfeiture as well as a six-year prison sentence. See also United States v. Deninno, 103 F.3d 82 (10th Cir. 1996) (Cruel and Unusual Punishment Clause of the Eighth Amendment does not apply to forfeitures). [22] Accordingly, we reject defendant’s contention and conclude that the twenty-year sentence does not constitute cruel and unusual punishment under either the United States or Colorado Constitution. [23] Because we do not have the civil forfeiture proceeding before us, we do not address any argument based on the Excessive Fines Clause. [24] Accordingly, the judgment and sentence are affirmed. [25] JUDGE METZGER and JUDGE CRISWELL concur.