     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
                                                         September 20, 2018

                               2018COA139

No. 17CA0782, People v. Chavez — Criminal Law — Sentencing;
Courts and Court Procedures — Jurisdiction of Courts —
Subject Matter Jurisdiction; Criminal Procedure —
Postconviction Remedies

     The division holds that the imposition of a valid sentence ends

a criminal court’s subject matter jurisdiction, subject to the limited

exception of claims brought under Crim. P. 35. Because the

defendant’s motion for return of property is not authorized by Crim.

P. 35, the division holds that the criminal court did not have

jurisdiction to rule on it. In so holding, the division follows the

reasoning of People v. Wiedemer, 692 P.2d 327 (Colo. App. 1984),

and declines to follow People v. Hargrave, 179 P.3d 226 (Colo. App.

2007).
COLORADO COURT OF APPEALS                                     2018COA139


Court of Appeals No. 17CA0782
Pueblo County District Court No. 04CR2139
Honorable Larry C. Schwartz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Loren A. Chavez,

Defendant-Appellant.


                               ORDER VACATED

                                    Division IV
                          Opinion by JUDGE BERGER
                      Loeb, C.J., and Hawthorne, J., concur

                        Announced September 20, 2018


Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Loren A. Chavez, Pro Se
¶1    This case requires us to decide if a criminal court retains

 subject matter jurisdiction over a defendant’s motion, filed years

 after sentence was imposed, for return of property seized in his

 criminal case.

¶2    The criminal court denied defendant’s, Loren A. Chavez’s,

 motion for return of property on the merits and Chavez appeals.

 We hold that the criminal court lacked subject matter jurisdiction

 to decide Chavez’s motion. Accordingly, we vacate the court’s order.

             I.   Relevant Facts and Procedural History

¶3    In 2004, the police obtained a warrant to search Chavez’s

 house as part of an investigation of an alleged sexual assault.

 During that search, police seized evidence that they then used to

 charge Chavez in five separate criminal cases, none of which

 underlie this appeal.

¶4    In the case underlying this appeal, Chavez was charged with

 sexual assault (victim helpless) and second degree kidnapping.

 None of the evidence seized during the search of his house was

 admitted at his trial for sexual assault and kidnapping.




                                   1
¶5    A jury convicted Chavez of both offenses. He appealed, and a

 division of this court affirmed. People v. Chavez, (Colo. No.

 07CA0954, July 2, 2009) (not published pursuant to C.A.R. 35(f)).

¶6    Chavez then attacked his convictions under Crim. P. 35(c),

 claiming that the trial court gave him a defective Curtis advisement

 and thus his waiver of his right to testify was not knowingly and

 voluntarily made. The postconviction court granted relief and

 vacated Chavez’s convictions.

¶7    Instead of standing for retrial, in November 2013 Chavez

 pleaded guilty to both sexual assault and kidnapping and was again

 sentenced for those crimes.

¶8    Three years later, Chavez moved the criminal court for the

 return of the items seized during the search of his house.1 He

 requested the return of, among other things, computers, CDs, and

 VHS tapes, claiming that they contained family photographs and

 other personal items. The prosecution objected, contending that



 1 Chavez filed a motion for return of property in 2010, but, because
 his Crim. P. 35(c) motion was pending, the court denied, without
 prejudice, his motion for return of property. Chavez did not appeal
 that order.

                                   2
  the items requested fell “within the nature of [Chavez’s] conviction”

  and possibly included information regarding the victim in the

  underlying case, as well as the victims of the crimes charged in the

  five other cases. The court denied Chavez’s motion on the merits.

       II.     The Court Did Not Have Jurisdiction Over Chavez’s Motion

¶9           Divisions of this court are split on whether criminal courts

  have jurisdiction over motions for return of property made after a

  defendant has been sentenced.2

¶ 10         In People v. Wiedemer, 692 P.2d 327, 329 (Colo. App. 1984), a

  division of this court held that the imposition of sentence ends a

  criminal court’s subject matter jurisdiction, with the sole exception

  of motions brought under Crim. P. 35. Because a motion for return

  of property is not authorized by Crim. P. 35, the division reasoned

  that criminal courts do not have jurisdiction over such motions


  2 Some courts have applied Crim. P. 41(e) in resolving these cases,
  but, by its express terms, that rule only addresses claims for the
  return of property when the search and seizure were unlawful.
  Chavez does not claim, nor does the record support any claim, that
  the search of Chavez’s home or the seizure of the items at issue
  were unlawful. As noted above, the search and seizure were made
  in accordance with a warrant issued by a judicial officer.
  Accordingly, we conclude that Crim. P. 41(e) has no bearing on the
  question before us.

                                          3
  made after sentencing. Id.; see also People v. Galves, 955 P.2d 582

  (Colo. App. 1997).

¶ 11   A different division held in People v. Hargrave, 179 P.3d 226,

  230 (Colo. App. 2007), that “the [criminal] court has ancillary

  jurisdiction, or inherent power, to entertain defendant’s post-

  sentence motion for return of property.” See also People v.

  Rautenkranz, 641 P.2d 317, 318 (Colo. App. 1982). The division

  relied on the test for ancillary jurisdiction used by federal courts.

  179 P.3d at 229-30.3 Under this test, ancillary jurisdiction attaches

  when

             (1) the ancillary matter arises from the same
             transaction which was the basis of the main
             proceeding, or arises during the course of the
             main matter, or is an integral part of the main
             matter; (2) the ancillary matter can be
             determined without a substantial new
             factfinding proceeding; (3) determination of the

  3 We note that the doctrine of ancillary jurisdiction has particular
  importance in federal courts because federal courts are courts of
  limited jurisdiction, Lobato v. State, 218 P.3d 358, 370 (Colo. 2009),
  and defendants in Chavez’s position might be remediless in the
  federal courts in the absence of ancillary jurisdiction. See United
  States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir. 1987). In
  contrast, Colorado district courts are courts of general jurisdiction.
  Wood v. People, 255 P.3d 1136, 1140 (Colo. 2011). Thus, there is
  no need to borrow the federal court’s use of ancillary jurisdiction.

                                     4
            ancillary matter through an ancillary order
            would not deprive a party of a substantial
            procedural or substantive right; and (4) the
            ancillary matter must be settled to protect the
            integrity of the main proceeding or to insure
            that the disposition in the main proceeding will
            not be frustrated.

  Id. (quoting Morrow v. District of Columbia, 417 F.2d 728, 740 (D.C.

  Cir. 1969)) (emphasis added).

¶ 12   We agree with the Wiedemer division. “[A] final judgment in a

  criminal case does not come until the defendant is acquitted, the

  charges are dismissed, or the defendant is convicted and sentence is

  imposed.” People v. Guatney, 214 P.3d 1049, 1051 (Colo. 2009)

  (emphasis added). “The general rule is that once a trial court enters

  a final judgment in a proceeding, it has no power to take further

  action.” People v. Campbell, 738 P.2d 1179, 1180 (Colo. 1987),

  superseded by statute on other grounds, § 16-12-102, C.R.S. 2017,

  as recognized in People v. Blagg, 2015 CO 2, ¶ 14.

¶ 13   Thus, once a valid sentence is imposed, apart from the limited

  claims described in Crim. P. 35, see Wiedemer, 692 P.2d at 329, a




                                    5
  criminal court has no further jurisdiction. For these reasons, we

  decline to follow Hargrave.4

¶ 14   Even if Hargrave were correct, the criminal court still was

  without jurisdiction. Among the property at issue are two

  computers and numerous CDs, which could contain both property

  subject to return, such as innocuous family photos, as well as (or

  only) contraband not subject to return, such as photos of unlawful

  sexual behavior involving Chavez. Such an inquiry would

  invariably involve “substantial new factfinding proceeding[s].”

  Hargrave, 179 P.3d at 229-30. Thus, even under Hargrave, the

  criminal court lacked jurisdiction to address the merits of Chavez’s

  motion.5




  4 In addition, Hargrave requires the criminal court to engage in a
  multi-part test, quoted above, to determine whether it has
  jurisdiction to entertain a motion for return of property. People v.
  Hargrave, 179 P.3d 226, 230 (Colo. App. 2007). It is cumbersome
  and anomalous to condition a court’s subject matter jurisdiction on
  multi-part factual inquiries.
  5 Our disposition does not necessarily leave Chavez remediless.

  Colorado district courts are courts of general jurisdiction and may
  entertain a civil action seeking equitable relief. Because no such
  claim is before us, we express no opinion regarding the elements,
  available defenses, or merits of any such claim.

                                    6
                             III.     Conclusion

¶ 15   The order denying Chavez’s motion for return of property is

  vacated for lack of jurisdiction.

       CHIEF JUDGE LOEB and JUDGE HAWTHORNE concur.




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