Fierro v. People

• Citation: 206 P.3d 460
• Decision Date: 27 April 2009
• Docket Number: No. 07SC788.,07SC788.
• Parties: Anna FIERRO, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

206 P.3d 460

Anna FIERRO, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 07SC788.

Supreme Court of Colorado, En Banc.

April 27, 2009.

Douglas K. Wilson, Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

Fierro petitioned for review of the court of appeals' judgment declaring illegal her three-year sentence to community corrections and remanding for imposition of her previously suspended four-year sentence for robbery. Although the sentencing court had initially placed Fierro on probation, it did so by imposing and suspending a prison term. The court of appeals held that because probation was imposed as a condition of a suspended sentence, the sentencing court did not have the option to resentence her to three years in community corrections upon finding a violation, but was instead required to simply reimpose the four-year sentence it had suspended.

Because section 18-1.3-401(11) of the revised statutes must be understood to permit the suspension of a sentence in conjunction with, rather than in contradistinction to, the imposition of a statutorily-prescribed alternative to imprisonment, the sentencing court's resentencing options upon revocation in this case were dictated by the statutory provisions governing revocation of probation. Because section 16-11-206(5) permits, upon revocation of probation, the imposition of any sentence that might originally have been imposed, the judgment of the court of appeals remanding for imposition of Fierro's suspended sentence is reversed, and the case is remanded for consideration of her remaining issues on appeal.

I.

Anna Fierro entered guilty pleas to robbery and attempted felony menacing in December 2000. The district court imposed a sentence of four years in the custody of the department of corrections for robbery and a concurrent term of eighteen months for attempted menacing; however, it immediately suspended both prison sentences on the condition that Fierro successfully complete three years of probation.

In July 2003, the district court revoked Fierro's probation and resentenced her to three years in a community corrections program, but while awaiting admission to that program, she walked away from work release by the Jefferson County jail. After returning about a year and a half later and pleading guilty to escape, Fierro was transferred to the custody of the department of corrections for completion of her three-year community corrections sentence, and in addition, she was sentenced to a consecutive term of one year for escape. She appealed the propriety of her department of corrections sentences to the court of appeals.

Rather than addressing the propriety of the sentencing court's decision to transfer Fierro from community corrections to the department of corrections, however, the appellate court found her 2003, three-year sentence to community corrections to have been illegal from its inception. Because she had been sentenced to probation following the suspension of a prison term, the court of appeals reasoned that upon revocation, the sentencing court was required to execute the previously suspended sentence. Although it affirmed Fierro's consecutive one-year sentence for escape, it therefore remanded for imposition of her concurrent four-year and eighteen-month sentences to the department of corrections for her convictions of robbery and attempted felony menacing.

We granted Fierro's petition for a writ of certiorari, solely to consider whether the court of appeals erred in remanding for imposition of her original prison sentence.

II.

Subject to constitutional limitations not at issue here, it is the prerogative of the legislature to define crimes and prescribe punishments. Shipley v. People, 45 P.3d 1277, 1278 (Colo.2002). In determining available sentencing alternatives, it is therefore the legislature's intent, as expressed in its statutes, with which we must be concerned. Id. If legislative intent is not clear from the language of a statute alone, various intrinsic and extrinsic aids may help resolve any ambiguity in that language. See Frank M. Hall & Co. v. Newsom, 125 P.3d 444, 451 (Colo. 2005). Particularly, when a statute is a component part of a comprehensive regulatory scheme, like the complex of sentencing prescriptions in this jurisdiction, the entire scheme should be construed to give consistent, harmonious, and sensible effect to all of its parts. Shipley, 45 P.3d at 1278; see also Left Hand Ditch Co. v. Hill, 933 P.2d 1, 3 (Colo.1997); Walgreen, Co. v. Charnes, 819 P.2d 1039, 1043 (Colo.1991).

In 1988, the General Assembly re-enacted, almost verbatim, a provision of the pre-Criminal Code and pre-Criminal Procedure Code probation scheme permitting a sentencing court to suspend a prison sentence under specified circumstances. See ch. 116, sec. 5, § 18-1-105(10), 1988 Colo. Sess. Laws 679, 682¹; see also § 39-16-6, C.R.S. (1963). It situated this revived provision in a section of the Criminal Code classifying felonies and providing for the ranges of fines and terms of imprisonment authorized upon conviction. See § 18-1-105, C.R.S. (1988) (Felonies Classified —presumptive penalties). The new subsection made no reference, however, to the more general provisions of the sentencing scheme delineating available sentencing alternatives. See Title 16, Article 11 (Imposition of Sentence).

This newly-revived authorization to suspend a sentence continued to be couched in terms virtually identical to those permitting a sentence to probation,² but otherwise failed to elaborate on the scope or nature of the power. It contained no express limitation on the sentencing court's discretion in granting or imposing conditions for continued suspension; it contained no required findings or process for vacating or terminating a suspension for violation of its conditions; and it contained no suggestion of sentencing options available upon vacating a suspended sentence. The bare bones (if not positively cryptic) nature of the provision has since spawned some two decades of litigation and legislative clarifications.

Although no meaningful legislative history of the provision appears to exist, it was almost certainly attached to other 1988 sentencing amendments in response to several actions taken by this court. In 1983, we declared illegal a felony sentence in which the sentencing court expressly rejected probation in favor of a prison sentence, only to suspend that sentence and order the defendant placed in a work-release program of the Denver County jail, a sentencing alternative statutorily available only as a condition of probation. See People v. Dist. Court, 673 P.2d 991 (Colo.1983). In holding that such a sentence amounted to an impermissible mix of incarceration and probation, we noted that statutory authority to suspend a sentence existed prior to 1972 as a means of imposing probation, but that this power had become unnecessary and was therefore eliminated when probation became a sentencing alternative unto itself. Id.

Three years later, however, we rejected an invitation to limit that holding to attempts by sentencing courts to circumvent legislative sentencing mandates. See People v. Flenniken, 749 P.2d 395 (Colo.1988). In Flenniken, in addition to holding that probation is a distinct and separate sentencing alternative, unlimited by the terms of imprisonment prescribed generally for felony convictions, we found an otherwise valid sentence of probation to be illegal and void ab initio, permitting resentencing, for the reason that the court first announced that it was suspending a sentence of imprisonment. In doing so, we necessarily rejected any interpretation of our holding in District Court as applying solely to using the device of suspension to circumvent statutory sentencing prescriptions, finding instead that it was premised on the absence of any statutory authority permitting a court to suspend the execution of a sentence. We therefore effectively held that suspending a specifically articulated prison sentence, even as a precondition of imposing an otherwise valid sentence of probation, was enough to render the entire sentence illegal.

Our holding in Flenniken became final in February 1988, and by May the legislature had enacted section 18-1-105(10). See 1988 Colo. Sess. Laws 679, 682 (Approved May 29, 1988). Without explanation or any other overt attempt to integrate it into the existing sentencing scheme, the legislature simply reenacted the old formula for granting probation. Courts were therefore left with the question whether restoring this authority was intended merely to re-supply sentencing courts with the missing statutory authority to suspend a prison sentence in the course of imposing probation; or whether the legislature actually intended to grant judges the discretion to depart from its elaborate network of facially mandatory sentencing prescriptions whenever they considered it to be in the best interests of justice, the defendant, and public to do so.

Almost immediately ensued a series of statutory amendments, sometimes in response to the prospect of hybrid sentences, making increasingly clear the intended relationship between suspension of a prison sentence and probation. In 1991, the General Assembly amended subsection (10) by expressly barring suspension of a sentence for any defendant whose prior criminal history would exclude him from a sentence of probation. See ch. 73, sec. 6, § 18-1-105(10), 1991 Colo. Sess. Laws 402, 404-05. One year earlier, it had permitted a waiver of the so-called two-felony rule,³ allowing courts to grant probation to otherwise ineligible defendants upon recommendation by the prosecutor. See ch. 120, sec. 7, § 16-11-201(4), 1990 Colo. Sess. Laws...