Colorado’s second-highest court last month interpreted for the first time an ambiguous phrase in a 2019 law, and concluded a man convicted two decades ago for securities fraud was not entitled to have his criminal records sealed.

Lawmakers enacted House Bill 1275 nearly five years ago to increase the availability of records-sealing for people convicted of less serious crimes. The bill established a process for defendants to limit public access to their conviction records based on the severity of the offense.

The legislature also noted some types of convictions are not eligible for sealing at all. The prohibition encompasses, among other things, “sentencing for an offense classified as a class 1, 2, or 3 felony or a level 1 drug felony pursuant to any section of title 18,” which is Colorado’s criminal code.

However, the Court of Appeals noted the last seven words were not entirely clear.

An Arapahoe County jury convicted Brian Victor Prendergast in 2002 of securities fraud and theft. After he served his sentence, paid restitution to his victims and received no further criminal charges, he petitioned to seal his file. Prendergast argued his criminal record was a hindrance to obtaining loans for his small business.

District Court Judge Shay K. Whitaker denied the request, as Prendergast’s class 3 felonies are not eligible for sealing.

Prendergast, representing himself, turned to the Court of Appeals. He noted his securities fraud offenses were not established under title 18. Rather, they were offenses under title 11, designated “financial institutions.”

In light of the legal classification of securities fraud, Prendergast and the Colorado Attorney General’s Office advanced competing interpretations of the “pursuant to any section of title 18” language in HB 1275:

• It means class 3 felonies outside of the criminal code do not fall under the prohibition on sealing; or

• Because the securities fraud law indicates sentencing should be imposed pursuant to title 18, offenses outside the criminal code can still be prohibited from sealing

A three-judge Court of Appeals panel, in reviewing Prendergast’s case, believed there was a third interpretation possible:

• Because the disputed phrase is next to “a level 1 drug felony,” it only describes level 1 drug felonies

Given that the language “is reasonably susceptible of multiple interpretations, we conclude that it is ambiguous,” wrote Judge Christina F. Gomez in the Dec. 19 opinion.

The appellate panel instead looked at the legislative hearings to learn what lawmakers might have intended with the language. Gomez saw evidence that legislators and advocates meant to exclude all class 1, 2 and 3 felonies, plus level 1 drug felonies, from being shielded.

Although there was no explicit explanation for why the reference to title 18 stayed in the bill as enacted, the panel believed the most logical move was to view it as a modifier for the words immediately next to it — “level 1 drug felony.”

“We conclude that this legislative history demonstrates,” Gomez wrote, “the General Assembly intended to exclude all class 1, 2, or 3 felonies from record sealing, regardless of whether they are located in title 18. Accordingly, the phrase ‘pursuant to any section of title 18’ applies only to ‘a level 1 drug felony.'”

Consequently, the panel denied Prendergast’s appeal.

Colorado Politics contacted the sponsors of HB 1275 — then-Sen. Pete Lee, D-Colorado Springs; then-Rep. Mike Weissman, D-Aurora; and Rep. Matt Soper-R Delta — to inquire what they believed the title 18 reference meant. None responded to the inquiry.

The case is People v. Prendergast.