People v. Andrews, 93SC46

• Decision Date: 04 April 1994
• Docket Number: No. 93SC46,93SC46
• Citation: 871 P.2d 1199
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Gerald M. ANDREWS, Respondent.
• Court: Colorado Supreme Court

Page 1199

871 P.2d 1199

The PEOPLE of the State of Colorado, Petitioner, v. Gerald M. ANDREWS, Respondent.

No. 93SC46.

Supreme Court of Colorado,

En Banc.

April 4, 1994.

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russell, First Asst. Atty. Gen., Amy W. Naes, Sp. Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, State Public Defender, Samuel Santistevan, Deputy State Public Defender, Denver, for respondent.

Justice SCOTT delivered the Opinion of the Court.

We granted certiorari to review the decision of the court of appeals in People v. Andrews, 855 P.2d 3 (Colo.App.1992). The court of appeals held that the sentencing enhancement provision in section 18-1-105(9)(a)(V), 8B C.R.S. (1986 and 1992 Supp.) does not apply to the felony of escape, and thus vacated the defendant's enhanced sentence and remanded to the trial court for resentencing. We affirm.

I

In March of 1989, Gerald M. Andrews was committed to the custody of the Department of Corrections to serve concurrent sentences of four and six years for cultivation of marijuana ¹ and second-degree burglary, ² respectively. In May of 1990, Andrews was transferred to a community corrections facility, Alpha Center, Inc. (Alpha). During the morning of July 2, 1990, Alpha staff members were unable to locate Andrews and reported him missing. More than two weeks later, on July 19, Arvada police officers apprehended Andrews and placed him in the Jefferson County Jail. The next morning, July 20, 1990, Andrews was taken to the Denver Parole Office for processing. While his parole officer was completing the necessary paperwork, Andrews bolted from the office and again escaped. However, unlike his earlier escape during which he was at large for several days, this time he was immediately apprehended in a nearby parking lot.

For his first escape, Andrews was charged with class 3 felony escape, pursuant to section 18-8-208(2), 8B C.R.S. (1986) (escape while in custody or confinement following conviction of a felony other than a class 1 or class 2 felony). For his second escape, Andrews was charged with class 4 felony escape, under section 18-8-208(3) (escape while in custody and held for but not convicted of a felony).

In October of 1990, Andrews and the People entered into a plea agreement. Under the terms of the agreement, Andrews pleaded guilty to two counts of class 5 felony attempted escape pursuant to section 18-8-208.1(2), 8B C.R.S. (1986) (attempt to escape "while in custody or confinement and held for or charged with but not convicted of a felony"). In exchange for his guilty pleas, the original escape charges were dropped. At sentencing, however, the district attorney argued that pursuant to the sentence enhancement provision in section 18-1-105(9)(a)(V), 8B C.R.S. (1986 and 1992 Supp.) (commission of a felony while "under confinement ... as a convicted felon, or an escapee from any correctional institution for another felony"), an aggravated sentence should be imposed for Andrews' second escape because he was still considered an "escapee," due to the first escape, at the time he committed the second escape. The trial court agreed, finding that "the law is such that [case number] 1920 is a mandatorily aggravated circumstance due to the double escape situation.... I don't think by law I can avoid the mandatory aggravator in [case number] 1920." Thus, utilizing this "double escape" rationale, the trial court imposed a sentence of two and one-half years for the second escape to run consecutive to a one-year sentence imposed for the first escape, both sentences to run consecutive to Andrews' prior sentences. After imposing the sentence, the trial court stated that but for the mandatory aggravated sentence it would have sentenced Andrews to less than two and one-half years in the second escape. ³

On appeal, Andrews contested the trial court's imposition of an aggravated sentence for his second escape. The court of appeals agreed that the aggravated sentence was improper, vacated the sentence, and remanded the case for resentencing. The court of appeals, in an opinion by Judge Tursi, reasoned that "by the plain and ordinary meaning of the term; an 'escapee' is someone who already has escaped from custody or confinement. Thus an escapee cannot escape." Andrews, 855 P.2d at 5. Additionally, relying on People v. Russell, 703 P.2d 620 (Colo.App.1985), the court of appeals found that the enhancement provision "does not apply to the crime of escape, but rather it applies to other felonies committed while under confinement or to other felonies committed after escape from confinement." Andrews, 855 P.2d at 5. We agree and affirm for the reasons set forth below.

II

Before we examine the relevant provisions, we restate those principles of statutory construction that guide our review.

Legislative intent is the linchpin of statutory construction. Ingram v. Cooper, 698 P.2d 1314 (Colo.1985). To discern legislative intent, a reviewing court should look first 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. To reasonably effectuate the legislative intent, 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. In doing so, criminal statutes are to be construed strictly in favor of the accused. People v. Roybal, 618 P.2d 1121 (Colo.1980).

The statute before us is section 18-1-105(9)(a). ⁴ It provides that if a sentencing court finds the existence of one or more extraordinary aggravating circumstances, that court must sentence the defendant to a term of at least the mid-point in the presumptive range, but the sentence may not be more than twice the maximum term authorized in the presumptive range for the punishment of that class felony. § 18-1-105(9)(a). The extraordinary aggravating circumstance which was held to be present by the trial court is defined in subsection (9)(a)(V) as follows:

(V) The defendant was under confinement, in prison, or in any correctional institution as a convicted felon, or an escapee from any correctional institution as a convicted felon, or an escapee from any correctional institution for another felony at the time of the commission of a felony[.]

§ 18-1-105(9)(a)(V).

The People contend that because the defendant was under confinement as a convicted felon at the time he committed the felony of attempted escape, the sentence enhancement provision applies. ⁵ In rejecting this contention, the court of appeals relied on its prior decision in People v. Russell, 703 P.2d 620 (Colo.App.1985), which presented a factual scenario similar to this case, i.e., the defendant was convicted of escape and received an aggravated range sentence from a judge who indicated that he would have imposed a presumptive range sentence in the absence of the mandatory enhancement provisions of subsection (9)(a)(V). The Russell court held that the defendant's conviction for escape did not trigger the operation of the enhanced sentencing provision. Id. at 622. In reaching this conclusion, the court of appeals examined the legislative sentencing scheme and reasoned that if the aggravator were to apply to the crime of escape, conviction of class 3 felony escape would always require imposition of a sentence in excess of the presumptive range for such class of felonies. ⁶ Id. at 622. The court of appeals held that such a construction would be contrary to legislative intent since it would be tantamount to changing the crime from a class 3 felony to a class 2 felony. Id. Additionally, the court of appeals noted that lawful confinement is an element of the substantive crime of felony escape, and therefore "commission of this element, in and of itself, cannot logically constitute an 'extraordinary aggravating' aspect of the escape." Id. Finally, in concluding that the enhancement provision does not apply to the crime of escape, the court noted that "any other construction of the statute would negate and render mere surplusage the language that 'at the time of the commission of a felony' the perpetrator was an escapee." Id. (citation omitted).

In order to counter the rationale of the court of appeals, the People contend that Russell was legislatively overruled by the 1986 enactment of section 18-1-105(9)(f), 8B C.R.S. (1986). Under that provision, a sentencing court "may consider aggravating circumstances such as serious bodily injury caused to the victim or the use of a weapon in the commission of a crime, notwithstanding the fact that such factors constitute elements of the offense." § 18-1-105(9)(f). Thus, the People deduce that the principle announced in Russell, i.e., that the enhancement provision shall not apply because lawful confinement is an element of the substantive crime of felony escape, is invalidated by statute.

We do not rely, however, on the "same element" rationale of Russell in reaching our conclusion here. Instead, we focus on the overall statutory scheme and the implications of the two interpretations of the sentence enhancement provision which are now before this court. Under the construction advocated by the People, the enhancement provision, subsection (9)(a)(V), would apply automatically to every individual convicted of class 3 felony escape. ⁷ This construction would effectively render meaningless the classification of the felony as class 3, since in each and every case an enhanced sentence would be imposed upon the defendant. ⁸ Such a construction is contrary to the presumption that an entire statute, giving force and effect to all its parts, is intended to be effective. See People v....