People v. Madison , 436 P.3d 544 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 3, 2018
2018COA62
No. 16CA0192 People v. Madison — Crimes — Theft; Criminal
Law — Sentencing — Restitution
Pursuant to an agreement between the defendant and the
prosecution in a theft case, the defendant was permitted to take
possession of the stolen property if he paid restitution to the victims
within a contractual period of time. The defendant did not pay the
restitution and, five years later, the sheriff’s office moved for an
order authorizing it to destroy the stolen property. Defendant
objected, but the court granted the motion.
On appeal, the defendant argues that he had an ownership
interest in the stolen property based on the Uniform Commercial
Code (UCC) and conversion principles. A division of the court of
appeals concludes that the disposition of the stolen property is
governed by the agreement, not by the UCC or conversion
principles, and that the agreement allowed the sheriff’s office to
destroy the stolen property when defendant did not pay restitution
within the contractual period of time.
COLORADO COURT OF APPEALS 2018COA61
Court of Appeals No. 16CA0192
Jefferson County District Court No. 09CR1101
Honorable Todd L. Vriesman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Edward Madison,
Defendant-Appellant.
ORDER AFFIRMED
Division I
Opinion by JUDGE HARRIS
Taubman and Márquez*, JJ., concur
Announced May 3, 2018
Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, Edward Madison, appeals the district court’s order
granting the Jefferson County sheriff’s office’s motion to destroy
evidence associated with Madison’s theft conviction. We affirm.
I. Background
¶2 Between March 2007 and April 2009, Madison stole scores of
bottles of expensive wine from multiple liquor stores in Jefferson
County. The prosecution charged him with three counts of theft
($1000 to $20,000), all class 4 felonies, in violation of section 18-4-
401(1), C.R.S. 2017.
¶3 In April 2010, Madison pleaded guilty to an added count of
attempted theft, a class 6 felony. In exchange, the prosecution
agreed to a sentence of “probation with restitution.”
¶4 The court sentenced Madison to a two-year term of probation.
As for the restitution, the liquor stores declined to accept the wine
recovered from Madison’s home because the method of storage
could not be confirmed, and therefore the wine was unmarketable.
Instead, the stores sought reimbursement for the retail value of the
wine. Accordingly, the court ordered restitution in the amount of
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$16,514.1 Police had seized $7000 during the search of Madison’s
home and that money was distributed to the victims, leaving a
restitution balance of $9514.
¶5 Contemporaneously with the plea agreement, Madison and the
prosecution entered into an “Evidence Disposition Agreement”
(Agreement). The Agreement provided in relevant part:
 “Law enforcement may dispose of all evidence on the
attached log except” sixty-seven bottles of wine recovered
by police which would be returned to “defendant when
restitution [was] paid.”
 “Law enforcement shall release” the sixty-seven bottles of
wine to the defendant or his lawyer “when restitution
[was] paid,” but the wine had to be requested “within 90
days” of the date of the Agreement.
 “Defendant understands that the agency may dispose of
these items if they are not picked up within 90 days,
unless other arrangements are made.”
1That figure included $5600 to a prospective third-party buyer who
had agreed to purchase some of the wine. But after the prospective
buyer sent Madison the money, Madison failed to send him the
wine.
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 “The defendant waives any right to further notification
before the disposition for the items authorized above.”
 “Any disposition will be according to the law enforcement
agency’s procedures and protocols, which may include
returning property to the rightful owner or destruction.”
¶6 Madison did not pay the outstanding restitution or request the
wine within ninety days.
¶7 Nearly two years later, in January 2012, Madison’s probation
officer filed a complaint to revoke his probation, alleging that
Madison had pleaded guilty to shoplifting in April 2011. In
addition, though Madison’s two-year probationary sentence was set
to expire a few months later, Madison still owed $7740 in
restitution.
¶8 The court revoked Madison’s probation, resentenced him to a
one-year term of probation, and reimposed the restitution
obligation.
¶9 In May 2015, five years after Madison signed the Agreement,
the sheriff’s office moved for an order authorizing the destruction of
the wine. Madison objected, contending that — although he still
owed $7540 in restitution — he should be permitted to take
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possession of the wine and sell it, then apply the proceeds to his
restitution balance. Madison argued that he had “a claim to
ownership” of the wine based on the Uniform Commercial Code
(UCC) and conversion principles. The court granted the motion, but
stayed its order.
¶ 10 On appeal, Madison reasserts his argument that he has an
ownership interest in the wine. As a result, he contends, the court
should have either permitted him to sell the wine or ordered the
sheriff’s office to sell it, with any proceeds applied to his restitution
obligation. We conclude that disposition of the wine is governed by
the Agreement, not by the UCC or conversion principles, and that
the Agreement expressly provides for the destruction of the wine
under these circumstances.
II. Discussion
A. Disposition of the Evidence is Governed by The Evidence
Disposition Agreement
¶ 11 Madison does not dispute that he entered into the Agreement
with the prosecution. Thus, we look to the Agreement to determine
whether it specifically allows law enforcement officials to destroy or
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otherwise dispose of the wine and whether it provides for an offset
against Madison’s restitution obligation.
¶ 12 The Agreement between Madison and the prosecution is, like
Madison’s related plea agreement, a contract. See People v.
Johnson, 999 P.2d 825, 829 (Colo. 2000); see also McCary v. People,
874 P.2d 394, 400 (Colo. 1994) (holding that a defendant is bound
by her agreement to pay restitution). So we apply contract
interpretation principles to construe the Agreement. Johnson, 999
P.2d at 829. In doing so, we seek to effectuate the intent of the
parties, focusing on “the meaning a reasonable person would have
attached to the agreement under the circumstances.” Id.
¶ 13 The meaning of the Agreement is a question of law that we
review de novo. Id.
¶ 14 Pursuant to the plain language of the Agreement, Madison
could recover the stolen wine from law enforcement officials (1)
“when restitution [was] paid” and (2) if the wine was “picked up
within ninety days.” We conclude that the only reasonable
interpretation of the Agreement is that Madison had to both pay the
restitution and pick up the wine within ninety days.
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¶ 15 If Madison did not pay restitution and pick up the wine before
the deadline, the Agreement expressly provided that “law
enforcement” (i.e., the sheriff’s office) could “dispose of the items”
without further notice to Madison. And the “disposition” of the wine
could “include . . . destruction.”
¶ 16 Madison did not pay restitution or pick up the wine within
ninety days. At that point, under the plain and ordinary meaning of
the Agreement’s terms, the sheriff’s office had the right (without
seeking approval from the court or notifying Madison) to dispose of
the wine. See People v. Barton, 174 P.3d 786, 789 (Colo. 2008) (a
plea agreement is interpreted according to the plain and ordinary
meaning of its terms). Further, no provision in the Agreement gave
Madison the right to determine the particular disposition of the
wine or to demand that any proceeds from the disposition be
distributed to the victims and then applied to reduce his restitution
balance. See, e.g., Janicek v. Obsideo, LLC, 271 P.3d 1133, 1138
(Colo. App. 2011) (in interpreting a contract, the court may not
rewrite or restructure the parties’ agreement).
¶ 17 Thus, the Agreement unambiguously gave the prosecution (or
the sheriff’s office) the right to dispose of the wine in May 2015.
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When the terms of the plea agreement or similar contract are
unambiguous, we ordinarily enforce the terms as written. See Craig
v. People, 986 P.2d 951, 961 (Colo. 1999); see also United States v.
Jordan, 509 F.3d 191, 195 (4th Cir. 2007) (“If the plea agreement is
unambiguous as a matter of law, and there is no evidence of
governmental overreaching, we should interpret and enforce the
agreement accordingly.”).
¶ 18 Still, Madison says that by failing to promptly exercise its right
to destroy the wine, the prosecution either modified the Agreement
or waived any right to enforce the ninety-day deadline. We are not
persuaded.
¶ 19 As for the purported modification, Madison does not explain
when the Agreement was modified or identify any new rights or
obligations of the parties based on the modification. We therefore
need not address this contention. See People v. Diefenderfer, 784
P.2d 741, 752 (Colo. 1989) (Appellant must “inform a reviewing
court both as to the specific errors relied upon and as to the
grounds, supporting facts and authorities therefor.”).
¶ 20 As for the prosecution’s alleged waiver, we acknowledge that a
party may waive a contract provision where the party is “entitled to
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assert a particular right, knows the right exists, but intentionally
abandons that right.” Tarco, Inc. v. Conifer Metro. Dist., 2013 COA
60, ¶ 33 (citation omitted); see also Dep’t of Health v. Donahue, 690
P.2d 243, 247 (Colo. 1984) (Conduct implying an intent to waive
must be “free from ambiguity and clearly manifest the intention not
to assert the benefit.”).
¶ 21 However, the circumstances of this case do not fit squarely
within the doctrine of waiver. The purpose of the waiver doctrine is
“to prevent the waiving party from lulling the other party into a
belief that strict compliance with a contractual duty will not be
required and then either suing for noncompliance or demanding
compliance for the purpose of avoiding the transaction.” 13
Williston on Contracts § 39:15, Westlaw (4th ed. database updated
May 2017) (footnote omitted). Here, the prosecution neither sued
Madison for noncompliance nor demanded compliance as a way to
avoid the Agreement. More importantly, Madison has not alleged,
and there is no evidence in the record, that the sheriff’s office or the
prosecution “lulled” him into a belief that law enforcement officials
would store the wine indefinitely on the off chance that he might
someday fulfill his restitution obligation.
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¶ 22 In any event, even if the prosecution waived the initial
ninety-day deadline, and implicitly extended the deadline by five
years (a deadline Madison still failed to meet), a new deadline was
set at the hearing on Madison’s objection to the motion to destroy
evidence. See State of Fla., Dep’t of Ins. v. United States, 81 F.3d
1093, 1096-97 (Fed. Cir. 1996) (nonbreaching party does not waive
a deadline if it sets a new deadline for performance “so that the
parties will understand when performance is required”). In August
2015, the court essentially re-extended the deadline for an
additional thirty days, explaining that if Madison paid the
restitution by September 2015 (now, a full sixty-five months after
he agreed to pay restitution), he could reap the benefit of the
expired Agreement. But Madison did not pay the restitution.
¶ 23 Under these circumstances, we cannot conclude that the
prosecution intentionally abandoned any deadline for collecting the
restitution and implicitly agreed to store the wine forever.
¶ 24 Accordingly, we must enforce the unambiguous terms of the
Agreement. And because Madison failed to satisfy the conditions
precedent to his recovery of the wine, he is not entitled to take
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possession of the wine or to otherwise dictate the terms of its
disposition.2
B. The Agreement Did Not Give Madison an Ownership Interest in
the Wine and an Ownership Interest Is Not Conferred by Any
Statute or Legal Principle
¶ 25 We reject Madison’s contention that, notwithstanding his
failure to satisfy its requirements, the Agreement gave him an
ownership interest in the wine, as did various statutes or legal
principles.
¶ 26 Though it almost goes without saying, we emphasize, as a
preliminary matter, that “one who steals or converts property to his
own use does not thereby acquire title thereto.” Stewart v. People,
193 Colo. 399, 400, 566 P.2d 1069, 1070 (1977) (quoting Trustee
Company v. Aetna Co., 135 Colo. 236, 310 P.2d 727 (1957)); see
also West v. Roberts, 143 P.3d 1037, 1044 (Colo. 2006) (“A thief has
2 Although Madison has no right to determine the disposition of the
property, if, in accordance with its “procedures and protocols,” the
sheriff’s office sells the wine and if it distributes the sale proceeds to
the victims (because they have not otherwise been compensated for
the loss — from, for example, the proceeds of an insurance policy),
Madison is entitled to a setoff against the balance of his restitution
obligation. § 18-1.3-603(3)(b)(II), C.R.S. 2017; People v. Stanley,
2017 COA 121, ¶ 20 (noting the restitution statute does not permit
double recovery by the victim).
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no title and can pass none, not even to a buyer in the ordinary
course.”). With that elementary principle in mind, we turn to
Madison’s arguments.
¶ 27 First, Madison says that the Agreement “effectively became a
sales contract” because “the parties agreed that Madison could
obtain the property,” and “Madison therefore had rights to that
property.” As we have discussed, Madison had a right to obtain the
property upon the satisfaction of certain conditions precedent. He
did not satisfy those conditions and therefore he did not obtain any
right to the wine.
¶ 28 Second, Madison argues that the UCC gave him an ownership
interest in the wine. Madison says that, pursuant to section 4-2-
401(2), C.R.S. 2017, he “bec[a]me a buyer of the goods via his
restitution order” and that “title passed to Madison upon [the]
delivery” of the wine to the sheriff’s office.
¶ 29 Section 4-2-401 has no application to this case. That
provision explains when title to goods passes from a seller to a
buyer under a contract for sale — “[u]nless otherwise explicitly
agreed, title passes to the buyer at the time and place at which the
seller completes his performance” — and notes that any reservation
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by the seller of the title is limited to a reservation of a security
interest. § 4-2-401(2).
¶ 30 Setting aside the fact that the victims are not “sellers” because
they relinquished their right to the property by seeking
reimbursement from Madison; and setting aside the fact that
Madison is not a “buyer” within the meaning of the UCC, see § 4-1-
201(9), C.R.S. 2017; and, finally, setting aside the fact that even
under the UCC, title does not transfer until the seller has delivered
the goods to the buyer (which did not occur here), the parties had
“otherwise explicitly agreed” in the Agreement that Madison’s right
to ownership of the wine was contingent on payment of restitution
within ninety days. By its own terms, section 4-2-401(2) cannot
override the parties’ agreement.
¶ 31 Third, the existence of a judgment lien did not give Madison an
ownership interest in the wine. We agree that an order for
restitution “is a final civil judgment in favor of the state and any
victim,” § 18-1.3-603(4)(a)(1), C.R.S. 2017, and that the order
therefore “creates a lien by operation of law against the defendant’s
personal property and any interest that the defendant may have in
any personal property,” § 18-1.3-603(b)(II)(c). But the wine was not
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Madison’s personal property, at least not until he paid for it by
fulfilling his restitution obligation.
¶ 32 And finally, Madison did not obtain a property interest in the
wine under principles of conversion. He contends that “a ‘judicial
sale’ was effected pursuant to 4-2-401(2), C.R.S. 2017, passing title
to him, when the theft [victims] opted to receive restitution for full
value.” Section 4-2-401(2) has nothing to do with judicial sales.
Instead, as Madison noted in the district court, a “de facto” judicial
sale is a remedy for the tort of conversion:
In conversion the measure of damages is the
full value of the chattel, at the time and place
of the tort. When the defendant satisfies the
judgment in the action for conversion, title to
the chattel passes to him, so that he is in
effect required to buy it at a forced judicial
sale.
Restatement (Second) of Torts § 222A cmt. c. (Am. Law Inst. 1965).
Under conversion principles, title to the wine was not transferred to
Madison when the victims sought restitution; rather, ownership
would have transferred to Madison only if he had paid for the wine,
and thereby reimbursed the victims for their loss. But he did not.
III. Conclusion
¶ 33 The order is affirmed.
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JUDGE TAUBMAN and JUDGE MÁRQUEZ concur.
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