People v. Banks, 99SC225.

• Decision Date: 18 September 2000
• Docket Number: No. 99SC225.,99SC225.
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Thomas L. BANKS, Respondent.
• Court: Colorado Supreme Court

9 P.3d 1125

The PEOPLE of the State of Colorado, Petitioner, v. Thomas L. BANKS, Respondent.

No. 99SC225.

Supreme Court of Colorado, En Banc.

September 18, 2000.

As Modified on Denial of Rehearing October 10, 2000.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, Julia A. Thomas, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Petitioner.

David Kaplan, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari in this case to determine whether the crime of second degree assault on a peace officer, section 18-3-203(1)(c), 6 C.R.S. (1999), which directs that sentencing shall occur under section 16-11-309, 6 C.R.S. (1999), see § 18-3-203(2)(c), 6 C.R.S. (1999), invokes extraordinary risk sentencing under section 18-1-105(9.7)(b)(XII), 6 C.R.S. (1999) as a "crime of violence as defined in section 16-11-309."¹ The definition of a "crime of violence" in regard to second degree assault is contained in section 16-11-309(2)(a)(I)(A), (B), and (II)(C). Under these provisions, a crime of violence involves: (1) use, or possession and threatened use, of a deadly weapon, or (2) serious bodily injury or death to any other person except another participant.

In this case, Thomas L. Banks (Banks) was charged with and convicted of causing bodily injury, not serious bodily injury, to the police officer. There was no charge of use, or possession and threatened use, of a deadly weapon.² Thus, the trial court incorrectly invoked the extraordinary risk sentencing provision of section 18-1-105(9.7)(b)(XII) to increase the presumptive range set forth in section 16-11-309(1)(a). Accordingly, we affirm the judgment of the court of appeals.

I.

During an arrest on an outstanding warrant, Banks became violent, biting Officer Heather Wood, breaking the skin on her arm and causing bruising, and kicking Officer Gene Sharla in the chest. A jury convicted Banks of second degree assault on Officer Wood,³ and third degree assault and resisting arrest⁴ in regard to Officer Sharla.

The trial court imposed a five-year sentence on conviction for the second degree assault.⁵ In sentencing Banks, it applied both the crime of violence statute, see § 16-11-309, and the extraordinary risk statute, see § 18-1-105(9.7). Explaining its intent to impose the minimum sentence, the court determined itself bound by the extraordinary risk statute to enhance Banks's sentence when calculating the permissible sentencing range:

I am going to impose a sentence of five years in the Department of Corrections; that's minimum, but also the mandatory sentence that I have to impose. It is a crime of violence. It's [an] extraordinary risk crime, and also is a crime against a peace officer. I don't believe that more than that is necessary.

(Emphasis added.)

On appeal, the court of appeals held that the trial court correctly applied crime of violence sentencing, but erred in also applying extraordinary risk sentencing. See People v. Banks, 983 P.2d 102, 106-08 (Colo.App. 1999)

. Its decision, if upheld, would reverse and remand the case to the trial court for resentencing without application of extraordinary risk sentencing. We affirm the judgment of the court of appeals.

II.

We hold that the offense of second degree assault on a peace officer incorporates the crime of violence statute as a sentencing provision in determining the presumptive penalty for this offense. See §§ 18-3-203(1)(c) & (2)(c); XX-XX-XXX(1)(a). The extraordinary risk sentencing provisions of section 18-1-105(9.7)(b)(XII) do not apply in this case, however, because Banks was not charged with and convicted of a "crime of violence, as defined in section 16-11-309." As defined in section 16-11-309(2)(a)(I)(A), (B), and (II)(C), "a crime of violence" conviction involving second degree assault must entail serious bodily injury or death, or using, or possessing and threatening to use, a deadly weapon, in order for extraordinary risk sentencing to apply.

We proceed with our analysis in two stages. First, we examine the offense of second degree assault on a peace officer. See § 18-3-203(1)(c). We conclude that this offense incorporates the mandatory sentencing range set forth in section 16-11-309(1)(a) of the crime of violence statute. See § 18-3-203(2)(c). We then examine the extraordinary risk statute, see § 18-1-105(9.7)(b)(XII), and its potential application in Banks's case to a crime of violence "as defined" in section 16-11-309(2)(a)(I)(A), (B) and (II)(C). We conclude that the trial court incorrectly applied extraordinary risk sentencing in Banks's case.

A. Second Degree Assault on the Police Officer

In interpreting a statute, we endeavor to give effect to the intent of the legislature. See Copeland v. People, 2 P.3D 1283, 1286 (Colo.2000)

. We construe the various statutory provisions as a whole, giving "consistent, harmonious, and sensible effect" to each part whenever possible. Cooper v. People, 973 P.2d 1234, 1239 (Colo.1999). Before invoking alternative canons of statutory construction, we look first to the plain and ordinary meaning of the words the General Assembly has chosen to utilize. See State v. Nieto, 993 P.2d 493, 500 (Colo.2000). We determine that we can give effect to the plain language of the applicable statutes in this case.

Section 18-3-203(1) defines the offense of second degree assault on a peace officer:

(1) A person commits the crime of assault in the second degree if: . . .

(c) With intent to prevent one whom he or she knows, or should know, to be a peace officer or firefighter from performing a lawful duty, he or she intentionally causes bodily injury to any person.

Section 18-3-203(2)(b) states that assault in the second degree is a class four felony where a heat of passion affirmative defense does not apply.⁶ Regarding sentencing, section 18-3-203(2)(c) further provides:

(c) If a defendant is convicted of assault in the second degree pursuant to paragraph. . . (c) . . . of subsection (1) . . . the court shall sentence the defendant in accordance with the provisions of section 16-11-309, C.R.S.

Thus, while the elements comprising second degree assault on a peace officer are located in section 18-3-203(1)(c), the actual sentencing range is determined by reference to section 16-11-309(1)(a).

In 1988, the General Assembly amended the sections of the code dealing with crimes against peace officers and firefighters. The legislative declaration of purpose for the 1988 amendments explained the State of Colorado's interest in increasing the penalties for crimes against peace officers and firefighters:

The general assembly recognizes that protection of peace officers and firemen from crime is a major concern of our state because society depends on peace officers and firemen for protection against crime and other dangers and because peace officers and firemen are disproportionately damaged by crime because their duty to protect society often places them in dangerous circumstances. Society as a whole benefits from affording special protection to peace officers and firemen because such protection deters crimes against them and allows them to better serve and protect our state. The general assembly therefore finds that the penalties for assaults on peace officers and firemen should be more severe than the penalties for assaults on other members of society.

Ch. 125, sec. 1, 1988 Colo. Sess. Laws 716 (emphasis added) (codified as amended at § 18-3-107(5), 6 C.R.S. (1999)).

Accordingly, the Assembly amended section 18-3-203(2)(c) to add the offense of second degree assault on a peace officer to the list of offenses that "shall" receive the more severe range of punishment available under the sentencing provisions of section 16-11-309(1). See ch. 125, sec. 1, § 18-3-203, 1988 Colo. Sess. Laws 716, 717-718 (adding section 18-3-203(1)(c) to the list of offenses that "shall" be sentenced under XX-XX-XXX).

Section 16-11-309(1) directs a court, using the statutory sentencing range for the underlying crime, to sentence a defendant to at least half of the presumptive range but not more than twice the maximum. In Banks's case the trial court stated its intent to impose the minimum sentence. The minimum sentence would have been four years—the midpoint of the presumptive range of two to six years for a class 4 felony. See §§ 16-11-309(1)(a); 18-1-105(1)(a)(V)(A). Extraordinary risk sentencing under section 18-1-105(9.7)(a) provides that, for class 4 felonies, the maximum sentence in the presumptive range is increased by two years; thus, the maximum sentence for a class 4 felony is increased to eight years. As the trial court determined, the mid-point "minimum" under section 16-11-309(1)(a), would be five years in Banks's case if extraordinary risk sentencing were applied. We now examine whether the trial court correctly applied extraordinary risk sentencing to Banks's conviction.

B. Extraordinary Risk Sentencing

Section 18-1-105(9.7)(a) provides:

The general assembly hereby finds that certain crimes which are listed in paragraph (b) of this subsection (9.7) present an extraordinary risk of harm to society and therefore, in the interest of public safety . . . for such crimes which constitute class 4 felonies, the maximum sentence in the presumptive range shall be increased by two years . . . .

Section 18-1-105(9.7)(b) then lists the offenses to which extraordinary risk sentencing applies. This listing specifies offenses of sexual assault, incest, child abuse, and burglary, but also includes crimes of violence "as defined in" section 16-11-309:

(b) Crimes which present an extraordinary risk of harm to society shall include the following: . . .

(XII) Any crime of violence, as defined in section 16-11-309 . . .

(Emphasis added.)

The "crime of...