Townsend v. People of State

• Citation: 252 P.3d 1108
• Decision Date: 20 June 2011
• Docket Number: No. 09SC652.,09SC652.
• Parties: Terry TOWNSEND, Petitionerv.The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

252 P.3d 1108

Terry TOWNSEND, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

No. 09SC652.

Supreme Court of Colorado, En Banc.

May 31, 2011.Rehearing Denied June 20, 2011.*

Douglas K. Wilson, Public Defender, Elizabeth Griffin, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.John W. Suthers, Attorney General, Jennifer A. Berman, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.Justice RICE delivered the Opinion of the Court.

Petitioner Terry Townsend appeals the judgment of the court of appeals affirming his conviction for escape by means of failing to remain within the extended terms of his confinement as established under his participation in an intensive supervision program (“ISP”) as a condition of his parole. We agree with the court of appeals that the jury instructions issued by the trial court did not include any reversible error and that the ISP escape statute, section 17–27.5–104, C.R.S. (2010), is not unconstitutionally vague as applied to Townsend. We also conclude that Townsend waived his argument that the statute violates the separation of powers and nondelegation doctrines of the Colorado Constitution. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural Posture

The Colorado State Board of Parole placed Townsend on parole for one year starting November 5, 2004. Townsend's parole agreement required that he serve 180 days of his parole in an ISP under article 17–27.5, C.R.S. (2010).

On November 9, Townsend met with a parole officer to review his parole agreement, and signed several forms certifying, among other things, that he understood all of the conditions and directives of his parole, including required weekly meetings with his parole officer and assigned curfew hours at his residence of record, and that he understood he could be prosecuted for felony escape under sections 17–27.5–104 and 18–8–208, C.R.S. (2010), if he failed to remain within the extended limits on his confinement under the ISP. Because Townsend was homeless, he and the parole officer set his residence of record as the Denver New Genesis homeless shelter. The officer faxed New Genesis the proper paperwork to arrange payment for two weeks of housing for Townsend.

Several days later, Townsend was arrested and jailed on an unrelated charge. On November 16, Townsend's parole officer filed a complaint seeking to revoke Townsend's parole. The new charge was dropped, and at a hearing on March 3, 2005, the parole board dismissed the complaint and reinstated Townsend's parole, restarting the 180–day ISP period. Townsend verbally agreed that he understood the terms of the ISP.

After the parole board hearing, Townsend's parole officer arranged for his release from jail later that day. The officer ordered Townsend to report immediately to the parole office to review his original parole paperwork if he was released during the office's business hours. The officer alternatively ordered Townsend to report that evening to New Genesis and at 8 a.m. the next day to the parole office if he was released after business hours. Townsend signed a form certifying that he understood the requirements that he report to the parole office and/or his residence of record.

Although it is unclear when Townsend was released, he never reported either to the parole office or to New Genesis. On March 15, his parole officer filed another complaint, and on March 24, Townsend was arrested again. The People charged Townsend with class 3 felony escape under section 18–8–208(2). A jury found him guilty, and the trial court sentenced him to five years imprisonment. Townsend appealed to the court of appeals, which affirmed his conviction. We granted Townsend's petition for certiorari review. ¹

II. Analysis

Townsend contends that reversal of his conviction is warranted: (A) because the trial court's jury instructions were erroneous; (B) because section 17–27.5–104 is unconstitutional as applied to him; and (C) because section 17–27.5–104 violates the separation of powers and nondelegation doctrines of the Colorado Constitution. We find these arguments unpersuasive.

A. Jury Instructions

A trial court must correctly instruct the jury on applicable law, but retains substantial discretion over the form and style of jury instructions. Krueger v. Ary, 205 P.3d 1150, 1157 (Colo.2009) (citing Jordan v. Bogner, 844 P.2d 664, 667 (Colo.1993); Montgomery Ward & Co. v. Kerns, 172 Colo. 59, 63–64, 470 P.2d 34, 36–37 (1970)). Accordingly, we review legal conclusions implicit in jury instructions de novo, see Romero v. People, 179 P.3d 984, 986 (Colo.2007), but review issues of form and style for an abuse of discretion, see Krueger, 205 P.3d at 1157.

1. Elements of Escape

Townsend first contends that the trial court's jury instructions failed to set forth all the elements of escape under the combined meaning of sections 18–8–208(2) and 17–27.5–104. We disagree.

The People charged Townsend under section 18–8–208(2), which provides that “[a] person commits a class 3 felony if, while being in custody or confinement ..., he knowingly escapes from said custody or confinement.” Accordingly, the trial court instructed the jury that “[t]he elements of the crime of Escape are ... [t]hat [Townsend] ... was in custody or confinement, and knowingly escaped from custody or confinement.”

The People's specific theory of Townsend's escape rested on section 17–27.5–104, which provides that “[i]f an offender fails to remain within the extended limits on his confinement as established under the [ISP] ..., he shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18–8–208.” Accordingly, the trial court instructed the jury that “ ‘[c]ustody or confinement’ includes the extended limits of confinement as established under the [ISP].”

Read together, these instructions plainly set forth the elements of escape under sections 18–8–208(2) and 17–27.5–104: that Townsend was within the extended limits on his confinement as established under the ISP and that he knowingly escaped from those limits. While the jury instructions did not specifically equate the term “escaped” to the statutory language of “failed to remain,” the plain and ordinary definitions of the terms convey substantially the same legal meaning. Accordingly, we reject Townsend's contention that the instructions did not set forth the elements of escape.

2. Definition of “Extended Limits of Confinement”

Townsend also argues that the trial court's definitional instruction encompassed conduct that did not rise to the level of escape under the meaning of sections 18–8–208(2) and 17–27.5–104. In particular, Townsend contends that the instruction impermissibly allowed the jury to consider parole limitations that are not judicially recognized “extended limits on confinement” as a part of the “custody or confinement” from which he could have escaped.

Townsend first contends that the definitional instruction permitted the jury to convict him for failing to report to a residence of record despite his contentions that he was not subject to ISP when he was released from jail on March 3, 2005, and that he did not have a residence of record at that time in any case. This contention, however, is a thinly veiled attempt to challenge the court of appeals' conclusion that there was sufficient evidence that, on March 3, Townsend was on ISP according to the terms of his original parole agreement, that he was on notice of the terms, and did have a residence of record to which he failed to report. We denied certiorari review of this issue and reject Townsend's attempt to revisit it.

Townsend concedes that a parolee's failure to report to his residence of record constitutes escape under sections 18–8–208(2) and 17–27.5–104 in light of a long line of precedent from the court of appeals, including People v. Sa'ra, 117 P.3d 51, 55 (Colo.App.2004); People v. Smith, 77 P.3d 751, 754–56 (Colo.App.2003); People v. Taylor, 74 P.3d 396, 399–400 (Colo.App.2002); People v. Perea, 74 P.3d 326, 331 (Colo.App.2002); and People v. Williams, 33 P.3d 1187, 1188–89 (Colo.App.2001). Accordingly, we perceive no error in the possibility that he was convicted for escape for failing to report to his residence of record under the terms of the ISP.

Second, Townsend contends that the definitional instruction permitted the jury to convict him for failing to report to his parole officer and establish a residence of record as required under the terms of the ISP, failures which he concedes violate the conditions of his parole but which he contends do not rise to the level of escape under the meaning of sections 18–8–208(2) and 17–27.5–104.

Townsend, however, tendered the portion of the instruction that defined “extended limits of confinement” as “the geographic, time limits [sic] and other established ISP directives placed on the defendant under the [ISP]” (emphasis added). Under the invited error doctrine, we will not review alleged errors in jury instructions drafted and tendered by the defense. People v. Zapata, 779 P.2d 1307, 1308–09 (Colo.1989). Accordingly, we decline to address whether a parolee's failure to report to his parole officer and establish a residence of record constitutes escape under the meaning of sections 18–8–208(2) and 17–27.5–104 because any error in the possibility that Townsend was convicted on that basis is attributable to his tendered jury instruction. ²

3. Definition of “Escape”

Finally, Townsend contends that the trial court's definition of “escape” as “a continuing activity commencing with the conception of the design to escape” could have permitted the jury to convict him for merely thinking about failing to remain within the extended limits on his confinement under the ISP, rather than actually failing to do so. The People, however, alleged that Townsend escaped by failing to remain within the extended...