People v. Clanton, 2015 COA 8 (February 12, 2015) Jones, J. vacating sentence in part
Clanton was convicted of forgery for obtaining unemployment compensation benefits to
which he was not entitled by using a false Social Security number and a fake military
discharge form.
Issue 1: Prosecution under a more general v. more specific statutory prohibition
Defendant argued a prosecution for a general felony forgery charge was inappropriate since
there is a more specific misdemeanor provision covering his alleged conduct. (C.R.S. §
section 8-81-101(1)(a) prohibiting a false statement of material fact, with intent to defraud, to
obtain unemployment compensation benefits. The COA rejected this argument under the
“now familiar principles” established in Bagby.
(1) Whether the [more specific] statute invokes the full extent of the state’s police
powers? Here the legislative declaration in section 8-70-102 did invoke the State’s
police powers but not quite the “full” extent possible.
(2) Whether the specific statute is part of an act creating a comprehensive and thorough
regulatory scheme to control all aspects of a substantive area? “Section 8-81101(1)(a) is part of a comprehensive and thorough regulatory scheme.”
(3) Whether the act carefully defines different types of offenses in detail? It is on this
element that defendant’s position ultimately founders. Section 8-81-101 is the only
penalty provision in the Act, and it creates only three criminal offenses, all
misdemeanors. Section 8-81-101 does not address all criminal activity which may
occur in the unemployment compensation context. Instead, it addresses only certain
specific acts which may occur in the context of an application for benefits.
Considering the above factors the COA concluded that the General Assembly did not intend
to preclude prosecution for forgery where the conduct underlying the charge also arguably
violates section 8-81-101(1)(a) of the Act. Therefore, the state has discretion to charge
defendant with the more serious offense.
Issue 2: Equal Protection Challenge
Defendant argued that there is no intelligible standard by which to differentiate the conduct
proscribed under the forgery statute from that proscribed by section 8-81-101(1)(a), and
therefore charging him under the forgery statute violated his constitutional right to equal
protection of the laws.
The COA denied the claim finding the court looks at the elements of the offenses and not at
the conduct of a particular defendant to determine whether statutes proscribe identical
conduct. Since the forgery statute contains elements that section 8-81-101(1)(a) does not,
the differences between the statutory proscriptions are real and not merely semantic.
Accordingly, the People could charge the defendant with forgery without violating his right
to equal protection of the laws.
Issue 3: Restitution
Defendant contends, the People agree, and the COA concurred that the district court should
not have assessed the fifty percent penalty provided for in section 8-81-101(4)(a)(II) as part
of defendant’s restitution obligation.