McCarty v. People

Decision Date16 May 1994
Docket NumberNo. 92SC782,92SC782
Citation874 P.2d 394
PartiesJeanette McCARTY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

David F. Vela, State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russell, First Asst. Atty. Gen., A. William Bonner Asst. Atty. Gen., Crim. Enforcement Section, Denver, for respondent.

Justice SCOTT delivered the Opinion of the Court.

We granted Jeanette McCarty's petition for certiorari to review the court of appeals' judgment in People v. McCarty, 851 P.2d 181 (Colo.App.1992), upholding the trial court's resentencing of McCarty to probation and reimposition of the requirement that McCarty pay restitution. We conclude that after revocation of probation, a trial court may immediately resentence a defendant without holding a new sentencing hearing and may reimpose restitution in accordance with a plea agreement, without making a factual finding that the defendant has the ability to pay. We therefore affirm the judgment of the court of appeals.

I

In May of 1985, Jeanette McCarty pleaded guilty to charges of theft pursuant to section 18-4-401, 8B C.R.S. (1986). Consistent with her plea agreement, McCarty was granted a two-year deferred judgment conditioned upon her agreement to pay restitution in the amount of $29,165.00 and to "report to [her] probation officer as directed." 1

Almost two years later, on April 8, 1987, Robert J. Shopnitz, McCarty's probation officer, filed a petition to revoke the deferred judgment. The petition alleged that McCarty violated the terms of the deferred judgment by failing both to make restitution and to report to Shopnitz as directed. Subsequently, McCarty was apprehended and brought before the trial court where she was advised of her rights and released pending a hearing on the petition. On April 19, 1988, Shopnitz requested a continuance, asserting that McCarty had agreed to begin making payments of at least $300 per month towards restitution. On Shopnitz's motion, the matter was continued for three months.

On July 22, 1988, McCarty again appeared before the trial court. Accompanied by her attorney, she admitted violating the terms and conditions of her deferred judgment. As a consequence, the trial court revoked the deferred judgment, entered a judgment of conviction on the theft charge, and sentenced McCarty to probation for a period of five years. The court conditioned McCarty's probation on the payment of "restitution in the amount ... previously ordered on deferred judgment" and on her compliance with terms of supervision determined by the probation department. 2

In June of 1991, Shopnitz filed a petition with the court to revoke McCarty's probation. In his petition, Shopnitz asserted that McCarty failed to pay restitution, 3 failed to notify the probation department of her change of address, and failed to report monthly to the probation department as required. As a result, an arrest warrant was issued and McCarty was apprehended and brought before the trial court on the morning of July 9, 1991. The court determined that McCarty was indigent, appointed a public defender to represent her, and set the matter for hearing later that morning. Before the hearing began, defense counsel filed a written motion to disqualify the trial court judge pursuant to Crim.P. 21, contending that "the court is prejudiced as to this case, the defendant and defense counsel." The motion was based in part on the court's refusal to grant a continuance to allow counsel to investigate McCarty's financial condition. This motion was denied. 4

At the hearing, Shopnitz testified that he was McCarty's probation officer since 1985, that McCarty understood the terms and conditions of both her deferred judgment and probation, and that McCarty had failed to report to him as required since 1991. Based on this testimony, the trial court found that McCarty had violated the conditions of her probation by failing to report to the probation department as required. The court thus revoked McCarty's five-year probation and resentenced her to probation for a term of sixteen years, nunc pro tunc to the date of the initial deferred judgment in 1985. The court also reimposed the requirement that she pay restitution as previously agreed.

Defense counsel argued against the reimposition of restitution, contending that the court was first obligated to find that McCarty was capable of making such payment before imposing restitution. The court responded as follows:

Given enough time, anybody's got the ability to make restitution. So what I'm going to do is, I'm going to give her the maximum amount of time possible. And there's no point in kidding ourselves that this lady's going to be able to pay $5,000 in a year. But I want to give her every opportunity to make amends for what she did. I went through the presentence report and this is the only time she's ever gotten in trouble. It just seems that we're dealing with a lot of money here in an unrealistic period of time. So I'm going to regrant her probation. This was a Class 3 felony. The outside of the presumptive range is 16 years. So I'm going to put her on probation for a period of 16 years, dating back to the date of her original revocation of her deferred judgment.... All other orders remain in full force and effect, and she'll be discharged.

On appeal, McCarty argued that the trial court erred in reimposing its order requiring her to pay restitution without first making a specific finding regarding her ability to pay. The court of appeals disagreed, finding reliance on the language of section 16-11-206, 8A C.R.S. (1986), that the General Assembly "intended not to allow the presentation of additional evidence concerning the offender's ability to pay restitution before resentencing." McCarty, 851 P.2d at 184. Additionally, the court held that a new sentencing hearing is not required on resentencing after revocation of probation. Id.

We granted certiorari to determine whether a new sentencing hearing is required on resentencing after revocation of probation, and whether the trial court may reimpose a requirement of restitution, without factual findings of a present ability to pay. 5

II

Before examining these issues in detail, we repeat the familiar principles of statutory construction which guide our review.

In construing a statute, our central purpose is to ascertain and give effect to the intent of the legislature. People v. Wiedemer, 852 P.2d 424, 428 (Colo.1993). To discern the legislative intent, a reviewing court should look to the language of the statute, and the words and phrases used therein should be given effect according to their plain and ordinary meaning. People v. District Court, 713 P.2d 918, 921 (Colo.1986). If the language is clear and the intent appears with reasonable certainty, there is no need to resort to the rules of statutory construction. Id. A statute must be read and considered as a whole and should be interpreted so as to give consistent, harmonious, and sensible effect to all its parts. Id. Finally, we must avoid constructions that would defeat an obvious purpose of a statute when that purpose is shown clearly on the statute's face. Wiedemer, 852 P.2d at 428.

A

We first examine the question of whether McCarty was entitled to a second hearing upon resentencing following revocation of her probation. McCarty argues that section 16-11-206(5), 8A C.R.S. (1986), requires that a court provide a defendant with a new sentencing hearing upon resentencing after revocation of probation. Section 16-11-206(5) states as follows:

If the court determines that a violation of a condition of probation has been committed, it shall, within five days after the said hearing, either revoke or continue the probation. If probation is revoked, the court may then impose any sentence or grant any probation pursuant to the provisions of this part 2 which might originally have been imposed or granted.

This language neither explicitly nor implicitly provides for a new sentencing hearing prior to resentencing after revocation of probation. The statute states that if probation is revoked, the court may "then" grant any probation which might originally have been granted. § 16-11-206(5). Colorado Rule of Criminal Procedure 32(f)(5) holds similarly that "[i]n the event probation is revoked, the court may then impose any sentence, including probation which might originally have been imposed or granted." (emphasis added). The use of the word "then" in both of these provisions indicates the legislative intent that the sentencing court be authorized to impose a new sentence immediately upon finding that a defendant has violated a condition of probation.

McCarty, however, contends that our decision in Wilson v. People, 747 P.2d 638 (Colo.1987), mandates a new sentencing hearing prior to resentencing, even in the absence of express language. In Wilson, we interpreted section 17-27-114(2), 8A C.R.S. (1986), in conjunction with section 17-27-103(3), 8A C.R.S. (1986), to require a hearing before revocation of a defendant's placement in community corrections. 6 Id. at 642-43. We found that although section 17-27-114 7 "does not explicitly require a hearing, ... the need for a hearing of some sort is implicit in the language of the statute." Id. at 641.

With regard to resentencing after revocation of the defendant's placement in community corrections, we held that "the defendant should have the opportunity to present evidence of any such facts and circumstances in mitigation and to argue the relevance of such information with respect to the sentence to be imposed." Id. at 643. We did not, however, indicate that this "mitigation phase" need be completely separate or distinct from the revocation phase of such a hearing....

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