Massey v. People

• Decision Date: 20 April 1987
• Docket Number: No. 85SC239,85SC239
• Citation: 736 P.2d 19
• Parties: Donald MASSEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 19

736 P.2d 19

Donald MASSEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 85SC239.

Supreme Court of Colorado.

April 20, 1987.

Rehearing Denied May 11, 1987.

David F. Vela, Colorado State Public Defender, Frances Smylie Brown, Deputy State Public Defender, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter J. Stapp, Asst. Atty. Gen., Denver, for respondent.

ERICKSON, Justice.

We granted certiorari to review People v. Massey, 707 P.2d 1038 (Colo.App.1985), in which the court of appeals held that presentence confinement credit could not be applied to two concurrent sentences imposed by different judges on unrelated charges filed in different counties. We conclude that the record below does not establish that the defendant is entitled to presentence confinement credit, and accordingly remand the case to the court of appeals with directions to affirm the district court's order denying the defendant additional credit for presentence confinement.

I.

On September 15, 1982, the defendant, Donald Massey, was arrested in Mesa County, Colorado on two unrelated warrants from different counties. One of the warrants was issued in Mesa County on two charges involving eight counts of forgery, section 18-5-102 to -104, 8B C.R.S. (1986), and two counts of felony theft, section 18-4-401, 8B C.R.S. (1986). The other warrant was issued in Pitkin County, Colorado, on one count of second-degree forgery, section 18-5-103, 8B C.R.S. (1986). The defendant remained incarcerated in the Mesa County jail on both warrants until March 14, 1983, a total of 181 days. During his confinement in the Mesa County jail, the defendant was transferred periodically to Pitkin County authorities for court appearances in that jurisdiction.

The defendant pleaded guilty to reduced charges in Mesa and Pitkin Counties on March 8 March 14, 1983, respectively, and was sentenced to two-years probation in each county. As a condition of the Pitkin County probation, the defendant was required to reside at the Larimer County Community Corrections Facility, and to pay $165 in court costs and other charges. As a condition of the Mesa County probation, the defendant was required to participate in a work release program, and to pay restitution, court costs, and other charges of $4,469.

On November 21, 1983, the defendant was arrested for violating the conditions of both probationary sentences. Further proceedings were held in each county, and the defendant's probation was revoked in both counties. While revocation proceedings were pending, the defendant was held in the Pitkin County jail from December 19, 1983 to March 5, 1984, a total of seventy-eight days.

On March 5, 1984, the defendant was sentenced by the district judge in Pitkin County to the Department of Corrections for eighteen months, and was granted credit for seventy-eight days of presentence confinement. On March 19, 1984, the defendant was sentenced in the Mesa County District Court to the Department of Corrections for twenty-seven months, with the sentence to run concurrently with the Pitkin County sentence. The district judge in Mesa County granted the defendant 263 days presentence confinement credit, which reflected his seventy-eight days of confinement in the Pitkin County jail and his 181 days of confinement in the Mesa County jail prior to the imposition of the probationary sentences. ¹ Thus, the defendant was granted full credit against the longer of the two concurrent sentences. No appeal was taken from the Mesa County sentence.

On April 6, 1984, the defendant filed a motion under Crim.P. 35(a) ² in the Pitkin County District Court, and requested 181 days of additional presentence confinement credit. ³ The trial court denied the motion, and the defendant appealed. The court of appeals held that presentence confinement credit could not be granted to the defendant where the same period of time was credited against his sentence in Mesa County, and remanded the case to the trial court for a determination of whether the defendant's presentence confinement was credited against the sentence imposed in Mesa County. We granted certiorari, although remanding this case for a further hearing to determine whether the defendant is entitled to additional presentence confinement credit will not benefit the defendant because he apparently has served his term and been released. We have elected to issue an opinion and not dismiss this case as moot because the issue presented in this case is capable of repetition but may evade review. People v. Quinonez, 735 P.2d 159, 161 n. 1 (Colo.1987); Urevich v. Woodard, 667 P.2d 760, 762 (Colo.1983); Goedecke v. Department of Institutions, 198 Colo. 407, 410 n. 5, 603 P.2d 123, 124 n. 5 (1979). ⁴

II.

The Colorado presentence confinement statute, section 16-11-306, 8 C.R.S. (1984 Supp.), provided at all times relevant to this case:

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. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include such finding in the mittimus. Such period of confinement shall be deducted from the sentence by the department of corrections. ⁵

The purpose of section 16-11-306 is to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, are confined longer than their wealthier counterparts. Schubert v. People, 698 P.2d 788 (Colo.1985); In re Rojas, 23 Cal.3d 152, 151 Cal.Rptr. 649, 588 P.2d 789 (1979); Standards for Criminal Justice § 18-4.7, commentary at 18-310 to -311 (1986).

The trial court has no discretion to deny presentence confinement credit to a defendant who is incarcerated for an offense prior to a determination of guilt and the court's imposition of sentence, but the court must not grant credit in excess of that permitted by section 16-11-306. Torand v. People, 698 P.2d 797, 800 (Colo.1985); People v. Chavez, 659 P.2d 1381, 1383-84 (Colo.1983). A defendant is not entitled to duplicative credit, but where concurrent sentences are imposed, periods of presentence confinement may be credited for each charge that was an actual cause of the defendant's incarceration prior to the imposition of the sentence. Schubert v. People, 698 P.2d 788, 795 (Colo.1985). If the defendant is sentenced to a term of probation which is subsequently revoked, periods of presentence incarceration must be credited against the defendant's sentence in accordance with section 16-11-306. People v. Myles, 702 P.2d 292 (Colo.App.1985); State v. Long, 119 Ariz. 327, 580 P.2d 1181 (1978).

In the companion cases of Schubert v. People, 698 P.2d 788 (Colo.1985), and Torand v. People, 698 P.2d 797 (Colo.1985), we considered the application of presentence confinement credit to periods of incarceration connected to multiple charges. In Schubert, the defendant, while incarcerated in the Jefferson County jail on burglary charges, was transferred to the Boulder County jail for possible revocation of a deferred judgment and sentence on charges of felony menacing and carrying a concealed weapon. After being confined for several weeks in the Boulder County jail, the District Court of Boulder County revoked the deferred judgment and sentence and granted the defendant probation on the condition that he be confined in the Boulder County jail on a work release program and later transferred to a community corrections facility. After transfer to the community corrections facility, the defendant escaped, was arrested in California, and was ultimately transferred to the Jefferson County jail on the burglary charges still outstanding in Boulder County District Court. The defendant thereafter pleaded guilty to two counts of attempted second-degree burglary and was sentenced to concurrent sentences of two years on each charge and credited with 154 days of presentence confinement, which represented the period of time that the defendant spent in the Jefferson County jail. The sentencing court refused to credit the defendant with the periods of confinement or detention spent in the Boulder County jail, the Boulder County work release program, or the Boulder community corrections facility. The defendant appealed the sentence to the court of appeals, which affirmed the sentence, and we granted certiorari.

We held in Schubert that section 16-11-306, 8 C.R.S. (1984 Supp.), "requires a sentencing court to credit a defendant with that period of time spent in custody as the result of the charge for which the sentence is imposed or as the result of the conduct on which such charge is based." 698 P.2d at 795. In determining whether a particular period of presentence confinement qualifies for credit, we held that the presentence confinement must be actually caused by the charge or conduct for which the defendant is to be sentenced. We stated that:

While causation in this context does not mean that the charge or conduct for which the sentence is to be imposed must be the exclusive cause of the offender's confinement, it does mean that there must be substantial nexus between such charge or conduct and the period of confinement for which such credit is sought.

698 P.2d at 795. See also Torand, 698 P.2d at 800. In Schubert, we recognized that there is a "substantial nexus" between multiple cases concurrently filed in the same jurisdiction and the defendant's confinement on those charges:

If ... multiple counts or cases are concurrently filed against a defendant in the same jurisdiction, and the defendant remains confined in that jurisdiction on all charges due to his inability to post bail, each charge would appropriately be considered a cause of the defendant's presentence confinement.

698 P.2d at 795.

Because there is a "substantial...