People v. Abdul, 95SC611
| Decision Date | 24 March 1997 |
| Docket Number | No. 95SC611,95SC611 |
| Citation | 935 P.2d 4 |
| Parties | 21 Colorado Journal 417 The PEOPLE of the State of Colorado, Petitioner, v. Markeem ABDUL, Respondent. |
| Court | Colorado Supreme Court |
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Sandra K. Mills, Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner.
David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for Respondent.
We granted certiorari in this case to review People v. Abdul, No. 93CA1893 (Colo.App. July 13, 1995) (), where the court of appeals held that a criminal defendant being resentenced following his termination from a direct placement at community corrections is entitled to a resentencing hearing. In reaching this conclusion, the court of appeals relied on People v. Lippoldt, 902 P.2d 852 (Colo.App.1995), where another division of that court held that a direct placement offender rejected from community corrections had a due process right to representation of counsel at a resentencing hearing.
We find that Lippoldt is not dispositive because it concerned an offender's right to counsel when a trial court grants a discretionary resentencing hearing and did not address whether the offender was entitled to such a hearing. At the time of the offense in this case, the statutes governing community corrections programs did not require the trial court to hold a hearing prior to resentencing a direct placement offender who had been rejected by a community corrections board. See §§ 17-27-103(3), -114(2), 8A C.R.S. (1992 Supp.). Our decision in People v. Wilhite, 817 P.2d 1017 (Colo.1991), established that a defendant has neither a constitutional nor a statutory right to an evidentiary hearing when he is resentenced after termination from community corrections. 817 P.2d at 1021-22. Consistent with Wilhite, we now hold that the defendant in this case had neither a constitutional nor a statutory right to a resentencing hearing after his termination from community corrections. Accordingly, we reverse the decision of the court of appeals.
On January 16, 1992, Markeem Abdul (Abdul) entered a plea of guilty to one count of attempted theft. 1 On March 16, 1992, Abdul was sentenced to a term of four years in community corrections plus one year of post-release supervision. On May 21, 1992, the community corrections board (the Board) rejected Abdul from its program after initial acceptance. According to the Board, Abdul was not reporting to his employer and had failed to account for his time outside of the community corrections facility. Without conducting a hearing, the trial court reviewed the recommendation of the Board along with the original presentence report and determined that Abdul was no longer eligible for placement in community corrections. Without the presence of either Abdul or his attorney, the trial court resentenced Abdul from a term of four years in community corrections to a term of four years in the custody of the department of corrections (DOC).
Abdul subsequently filed a motion for post-conviction relief pursuant to Crim.P. 35(c). Abdul requested that the trial court vacate his amended sentence because he was denied his right to be present with legal counsel at the time of resentencing. The trial court denied Abdul's motion for post-conviction relief stating that "the defendant was rejected after acceptance into the Community Corrections Program; therefore, no evidentiary hearing was required."
The court of appeals, relying on Lippoldt as dispositive of Abdul's claim, reversed the trial court's order. According to the court of appeals, Lippoldt held that "failure to allow the counselled presence of a defendant at a proceeding in which he is resentenced following termination from community corrections violates the defendant's right to due process of law." Abdul, No. 93CA1893, slip op. at 1-2. Thus, the court of appeals directed the trial court to conduct a hearing on the resentencing of Abdul from community corrections to the DOC.
We granted the People's petition for certiorari in Abdul to resolve whether the court of appeals erred in finding People v. Lippoldt, 902 P.2d 852 (Colo.App.1995), dispositive. Because we had also granted certiorari review of the Lippoldt decision, the briefing schedule for this case was held in abeyance pending the resolution of the Lippoldt case. However, on May 6, 1996, Lippoldt was dismissed as moot due to the death of the defendant. See People v. Lippoldt, 915 P.2d 1334 (Colo.1996). Therefore, the issues presented in Lippoldt remain undecided by this court.
As a preliminary matter, we must address whether the certiorari issue in this case is moot. According to Abdul's DOC records, Abdul was discharged from his sentence on March 23, 1995. Therefore, any decision by this court would have no effect on Abdul because he cannot be resentenced.
Generally, a case is moot when a judgment would have no practical effect upon an existing controversy. See People v. Espinoza, 819 P.2d 1120, 1121 (Colo.App.1991). An exception to this general rule is when an otherwise moot matter is capable of repetition, yet evading review. See People v. Brockelman, 933 P.2d 1315, 1318 (Colo.1997); People v. Black, 915 P.2d 1257, 1259 n. 1 (Colo.1996); Massey v. People, 736 P.2d 19, 20 (Colo.1987). Although our decision in this case will have no practical effect on Abdul, we find that the issue of whether a criminal defendant is entitled to a resentencing hearing after rejection from community corrections is an important matter capable of repetition yet evading review. Thus, we will address the issue raised by the petition and decline to dismiss the case as moot.
Community corrections are state-funded community-based programs run by local governmental and private agencies for both the diversion of offenders from correctional facilities and the reintegration of incarcerated offenders into society. See People v. Wilhite, 817 P.2d 1017, 1019 (Colo.1991); Wilson v. People, 747 P.2d 638, 640 (Colo.1988). An offender can be placed in community corrections by: (1) direct placement pursuant to section 17-27-105(1)(a), 8A C.R.S. (1986); (2) transitional placement from a DOC facility pursuant to section 17-27-106(4)(a), 8A C.R.S. (1986); or (3) placement as a condition to probation pursuant to section 16-11-204(2)(c), 8A C.R.S. (1986). See Wilhite, 817 P.2d at 1019; People v. Akin, 783 P.2d 267, 268 (Colo.1989). However, pursuant to section 17-27-103(3), "a community corrections facility is given full authority to 'accept, reject, or reject after acceptance the placement of any offender in its community correctional facility.' " Wilhite, 817 P.2d at 1019 (quoting § 17-27-103(3), 8A C.R.S. (1986)).
In this case, Abdul was placed directly in a community corrections facility and was rejected after initial acceptance. At the time Abdul committed the offense which resulted in his conviction, the procedure for terminating the direct placement of persons in community corrections was described in sections 17-27-103(3) and 17-27-114(1) & (2), 8A C.R.S. (1992 Supp.). Section 17-27-103(3) stated in relevant part:
If an offender is rejected by the corrections board after initial acceptance, the offender shall remain in the facility or program for a reasonable period of time pending the receipt of appropriate orders from the sentencing court or the department for transfer of such offender. The sentencing court is authorized to make appropriate orders for the transfer of such offender to the department and to resentence such offender and impose any sentence which might originally have been imposed without increasing the length of the original sentence. The sentencing court is not required to provide the offender with an evidentiary hearing prior to resentencing.
§ 17-27-103(3), 8A C.R.S. (1992 Supp.) (emphasis added). Section 17-27-114(1) & (2) stated in relevant part:
(1) Where the administrator of a community correctional facility ... has cause to believe that an offender ... has violated any rule of his placement in that facility ... the administrator or other authority shall certify to the appropriate judicial or executive authority the facts which are the basis for his belief and execute a transfer order ... which authorizes ... transport [of] the offender to the county jail ... pending a determination by the appropriate court or executive authorities as to whether or not the offender shall remain in community corrections.
(2) If the sentencing court determines that the offender shall not remain in community corrections, the court is authorized to make appropriate orders for the transfer of such offender from the county jail to a correction facility and to resentence such offender and impose any sentence which might originally have been imposed without increasing the length of the original sentence. The sentencing court is not required to provide the offender with an evidentiary hearing prior to resentencing.
§ 17-27-114(1) & (2), 8A C.R.S. (1992 Supp.) (emphasis added). The underscored language is at issue in this case. 2
Abdul contends that, under the community corrections statute, a distinction can be drawn between an evidentiary hearing and a resentencing hearing. According to Abdul, sections 17-27-103(3) and 17-27-114(2) as quoted above preclude only evidentiary hearings and not the more informal, sentencing-type hearing. Therefore, Abdul argues that the decision of the court of appeals in this case was correct and that due process required that the trial court afford him a hearing before he was resentenced to the DOC. We disagree.
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