Godbold v. District Court In and For Twenty-First Judicial Dist.

• Decision Date: 02 February 1981
• Docket Number: No. 80SA327,TWENTY-FIRST,80SA327
• Citation: 623 P.2d 862
• Parties: Robert Earl GODBOLD, Petitioner, v. The DISTRICT COURT IN AND FOR theJUDICIAL DISTRICT, and Charles A. Buss, One of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 862

623 P.2d 862

Robert Earl GODBOLD, Petitioner, v. The DISTRICT COURT IN AND FOR the TWENTY-FIRST JUDICIAL DISTRICT, and Charles A. Buss, One of the Judges Thereof, Respondents.

No. 80SA327.

Supreme Court of Colorado, En Banc.

Feb. 2, 1981.

Rehearing Denied Feb. 23, 1981.

J. Gregory Walta, Colo. State Public Defender, Harvey M. Palefsky, Deputy State Public Defender, Denver, for petitioner.

Terrance Farina, Dist. Atty., Arthur R. Smith, Chief Deputy Dist. Atty., Grand Junction, for respondents.

ERICKSON, Justice.

Robert Earl Godbold petitioned for a writ of mandamus to compel the district court to grant him credit for 174 days presentence confinement time. Godbold claims that the respondent court's failure to credit his sentence with time spent in presentence confinement violated his constitutional guarantee of equal protection of the laws. He also contends that the equal protection guarantee requires that he be afforded retroactive relief under the provisions of section 16-11-306, C.R.S.1973 (1979 Supp.). We issued a rule to show cause and now discharge the rule.

Godbold was arrested on June 20, 1979, and charged with attempted felony theft ¹ and first-degree assault. ² Shortly thereafter, Godbold was determined to be indigent. The Public Defender's office was appointed to represent him and bail was set in the amount of $5,000. Godbold did not post bail and spent the 174-day period from his arrest until sentence was imposed in confinement. ³

In a trial to the court, Godbold was convicted of attempted felony theft ⁴ and third-degree assault. ⁵ A sentencing hearing was scheduled for November 13, 1979, but was postponed so that a competency examination could be conducted. ⁶ The court found that Godbold was competent to proceed and on December 11, 1979, sentenced him to a term of two to four years for attempted felony theft and a concurrent term of twelve months for third-degree assault. Pursuant to section 16-11-306, C.R.S.1973 (1978 Repl.Vol. 8), ⁷ the sentencing judge stated that he had considered Godbold's presentence confinement, but based upon reports of his misconduct in the jail, denied him credit for the time he spent in presentence confinement. ⁸

The respondent court subsequently denied Godbold's motion for the correction of sentence filed under Crim.P. 35(c)(2)(I) (1979 Supp.), which alleged that the court's refusal to grant him credit for his presentence confinement violated his right to equal protection of the laws. U.S.Const. Amend. XIV, Colo.Const. Art. II, Sec. 25. Godbold then filed an original proceeding in this Court.

Godbold asserts two reasons to support his request for a writ of mandamus. First, he claims that equal protection of the laws requires that a court grant an indigent defendant credit for presentence confinement. However, there is nothing in the record before us to indicate that Godbold was unable to make bail due to indigency. ⁹ Second, he asserts that equal protection of the laws requires that section 16-11-306, C.R.S.1973 (1979 Supp.) be applied retroactively to his sentence.

I.

Godbold urges us to overrule a long line of cases which have held that there is no constitutional right to credit for presentence confinement. See, e. g. Perea v. District Court, Colo., 604 P.2d 25 (1979); People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973); People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971).

He argues that the United States Supreme Court's decisions in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) ¹⁰ and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) ¹¹ require reconsideration of our previous opinions and that we should follow the growing trend which has recognized a constitutional right to credit for presentence confinement. We decline to do so and reaffirm People v. Jones, supra, and its progeny.

Here, the record shows that the sentencing judge considered the presentence confinement and determined that credit should not be given. ¹² Under the provisions of section 16-11-306, C.R.S.1973 (1978 Repl.Vol. 8), the judge was not required to grant credit for presentence confinement.

II.

Godbold argues that equal protection requires that he be afforded retroactive relief under section 16-11-306, C.R.S.1973 (1979 Supp.), which provides that a person who is confined prior to the imposition of sentence is entitled to credit against the term of his sentence for the entire period of such confinement. ¹³ We disagree.

We have concluded that there is no constitutional right to credit for presentence confinement. See People v. Jones, supra. Additionally, section 16-11-306, C.R.S.1973 (1979 Supp.) provides that the act applies to offenses committed on or after July 1, 1979, and notwithstanding any other provision of law or court rule, does not apply to offenses committed prior to that date. See People v. McKenna, Colo., 611 P.2d 574 (1980).

In People v. Johnson, 185 Colo. 285, 523 P.2d 1403 (1974), we addressed the issue of whether Johnson was entitled to be sentenced under the amended provisions of C.R.S.1963, 39-11-306, ¹⁴ which required the sentencing judge to take into consideration a defendant's presentence confinement. C.R.S.1963, 39-11-306, provided that this section was to be applied retroactively. Because no constitutional or statutory requirement dictated that the sentencing judge consider the presentence confinement at the time that Johnson was sentenced, we concluded that:

"To the extent that the statute and its amendment authorizes a court to alter or reduce, after a final conviction, a defendant's sentence to reflect credit for presentence confinement, when such was not constitutionally or statutorily required at the time sentence was imposed, it falls within the principles announced in People v. Herrera (Colo., 516 P.2d 626), and is an unconstitutional infringement on the executive power of commutation." Id. at 287-8, 523 P.2d 1403.

People v. Johnson, supra, is dispositive of the issue before us. Not only does section 16-11-306, C.R.S.1973 (1979 Supp.) provide that its application is not retroactive, but the principle of Johnson mandates that it cannot be applied retroactively.

Accordingly, we discharge the rule to show cause.

DUBOFSKY and QUINN, JJ., dissent.

QUINN, Justice, dissenting:

I respectfully dissent. The prior decisions of this court notwithstanding, the petitioner in this case has a constitutional right under equal protection of the laws, U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25, ¹ to credit for 174 days of presentence confinement on the minimum and maximum terms of his sentence.

I.

Beginning with People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971), this court has held that while sentencing courts should consider the length of presentence confinement, there is no constitutional right to credit for that period of confinement. See, e. g., Perea v. District Court, Colo., 604 P.2d 25 (1979); People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973); section 16-11-306, C.R.S.1973 (1978 Repl.Vol. 8). However, a careful consideration of the holdings of the United States Supreme Court in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), leads inexorably to the conclusion that the denial of credit to an accused, such as petitioner, who is subject to presentence confinement because of financial inability to make bail, ² is a discrimination which deprives him of a basic liberty interest because of poverty and such discrimination is not necessary to the attainment of any compelling governmental interest.

In Williams v. Illinois, supra, the United States Supreme Court held that a convicted indigent defendant could not be held in confinement beyond the statutory maximum term of imprisonment authorized by an Illinois statute because of his failure to pay a fine imposed conjointly with his sentence. The Illinois statute provided that a person who was unable to pay the fine could "work it off" at the rate of five dollars per day by remaining in jail after the expiration of his sentence. The Supreme Court held that the statutory scheme worked an invidious discrimination based solely on economic status:

"On its face the statute extends to all defendants an apparently equal opportunity for limiting confinement to the statutory maximum simply by satisfying a money judgment. In fact, this is an illusory choice for Williams or any indigent who, by definition, is without funds. Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one's ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment." 399 U.S. at 242, 90 S.Ct. at 2023, 26 L.Ed.2d at 593-94.

Tate v. Short, supra, extended the Williams rationale to a "fines only" penalty scheme which nevertheless required incarceration for a sufficient time to satisfy the fine at a per diem rate. The Supreme Court held that the statutory ceiling on the fine amount "cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine." 401 U.S. at 399, 91 S.Ct. at 671, 28 L.Ed.2d at 133-34.

Both Williams and Tate attest to a constitutional prohibition of discriminatory treatment of indigent defendants that has been consistently applied over the years. See, e. g., Douglas v. California, 372 U.S. 353, 83...