People v. Prendergast.
2024 COA 127. No. 23CA1917. Sealing of Criminal Conviction and Criminal Justice Records—Records Ineligible for Sealing—Sentencing for Class 1, 2, or 3 Felony or Level 1 Drug Felony Pursuant to Title 18.
December 19, 2024
Prendergast had a start-up company for which he solicited investors. In 2000, Prendergast was charged with one count of theft of over $15,000, a class 3 felony at the time, and 18 counts of securities fraud, a class 3 felony, for allegedly stealing about $85,000 from six investors in his company, misappropriating company funds, and failing to disclose material information to investors. A jury convicted him on the theft count and 12 of the securities fraud counts, and the district court sentenced him to probation. After multiple probation violations, the district court revoked Prendergast’s probation and sentenced him to Department of Corrections’ custody. Prendergast completed his prison term and was released from parole in 2015. He then moved to seal his criminal records in this case. The district court concluded that, under CRS § 24-72-706, class 3 felonies aren’t eligible for sealing, so Prendergast’s class 3 felony theft conviction can’t be sealed; and because courts “cannot separate felonies within a case,” the securities fraud convictions can’t be sealed either.
On appeal, Prendergast argued that § 24-72-706(2)(a)(VI)(J) doesn’t preclude the sealing of his convictions for securities fraud because the statute establishing that offense is located in Title 11, and subsection (J) applies only to class 3 felonies established by statutes in Title 18. The court of appeals first concluded that subsection (J) is reasonably susceptible of multiple interpretations and is thus ambiguous. Analyzing the legislative history, the court concluded that in adding subsection (J), the General Assembly intended to exclude all class 1, 2, or 3 felonies from being sealed, regardless of whether they are located in Title 18, as well as level 1 drug felonies under any section of title 18. Therefore, Prendergast’s class 3 felony securities fraud convictions under CRS § 11-51-501(1)(b)–(c) are not eligible for sealing.
Prendergast also argued that his class 3 felony theft conviction is eligible for sealing because 2013 legislation reclassified the crime he committed from a class 3 to a class 4 or 5 felony. Amendments to the theft statute apply retroactively only to convictions that weren’t final at the time of their enactment. Here, Prendergast’s theft conviction was final long before the 2013 legislation. Accordingly, Prendergast’s theft conviction remains a class 3 felony ineligible for sealing. And because all of Prendergast’s convictions are ineligible for sealing, the district court did not err by denying his motion to seal.
The order was affirmed.