People v. Blue

• Decision Date: 20 June 2011
• Docket Number: No. 10CA1254.,10CA1254.
• Citation: 253 P.3d 1273
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellant,v.Tony BLUE, Defendant–Appellee.
• Court: Colorado Court of Appeals

253 P.3d 1273

The PEOPLE of the State of Colorado, Plaintiff–Appellant,

v.Tony BLUE, Defendant–Appellee.

No. 10CA1254.

Colorado Court of Appeals, Div. I.

March 17, 2011.Certiorari Dismissed June 20, 2011.

Daniel H. May, District Attorney, Deborah Pearson, Deputy District Attorney, Brien Cecil, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff–Appellant.Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado; Adam Steigerwald, Deputy State Public Defender, Colorado Springs, Colorado, for Defendant–Appellee.Opinion by Judge TAUBMAN.

The People appeal the trial court's order reducing a charge against defendant, Tony Blue, from one count of attempt to influence a public servant to one count of false reporting to authorities. We reverse and remand.

I. Background

In December 2009, a police officer was dispatched to a public library regarding a man who matched the description of a wanted individual on the Crime Stoppers website. On the sidewalk outside the library, the officer approached Blue and asked, “Excuse me, Mr. Blue, can I have a word with you, please?” Blue replied that he was not Mr. Blue, and told the officer that his name was Tony Mackie. Blue told the officer that he did not have identification.

Shortly thereafter, a second police officer arrived at the library and asked the first officer if he had yet patted down Blue. The first officer responded that “[he] had not patted Mr. Blue down,” and turning to Blue said, “[B]ecause you are Mr. Blue, right?” In response, Blue smiled and said “yes.” After confirming that there was an outstanding warrant for Blue's arrest, the officers arrested him. During a patdown search, the officers found a Colorado driver's license and Social Security card in the name of Tony Blue.

As relevant here, the People charged Blue with one count of attempt to influence a public servant. Blue filed a pretrial motion to dismiss the attempted influence count, arguing that providing a false name to a police officer was “more specifically proscribed by the crime of False Reporting to Authorities.”

On May 7, 2010, the trial court granted Blue's motion to dismiss, and ordered that the attempted influence count, a felony, be reduced to one count of false reporting to authorities, a class three misdemeanor. Seven days later, the People filed a motion to reconsider, which the trial court denied on June 16, 2010. On June 18, 2010, the People filed a notice of interlocutory appeal.

II. Timeliness of the Appeal

Blue contends that this court lacks jurisdiction over this appeal, because the People's notice of interlocutory appeal was not filed within ten days of the trial court's order dismissing the attempted influence count, pursuant to C.A.R. 4.1. We disagree.

A. Standard of Review

Because the underlying facts are not in dispute and the issue is purely one of law, we review the issue of jurisdiction de novo. Medina v. State, 35 P.3d 443, 452 (Colo.2001) (citing Springer v. City & County of Denver, 13 P.3d 794, 799 (Colo.2000)).

B. Analysis

A proceeding is interlocutory if it intervenes between the commencement of and the final decision in a case. People v. Curren, 228 P.3d 253, 256 (Colo.App.2009) (citing People v. Medina, 40 Colo.App. 490, 492, 583 P.2d 293, 296 (1978)). Ordinarily, a prosecution's appeal must be filed in the court of appeals within forty-five days of the date of the order appealed from. C.A.R. 4(b)(2). However, when the prosecution appeals from an order “dismissing one or more but less than all counts of a charging document prior to trial,” as is the case here, then the procedures set forth in C.A.R. 4.1 govern the appeal. C.A.R. 4(b)(3). C.A.R. 4.1(b) requires that “[n]o interlocutory appeal shall be filed after ten days from the entry of the order complained of.”

Here, both C.A.R. 4(b)(3) and 4.1 apply, because the People appeal from a pretrial order dismissing one but fewer than all the counts against Blue.

Relying on People v. Powers, 47 P.3d 686, 689 (Colo.2002), the People assert that their notice of interlocutory appeal is timely, because they had ten days to commence an interlocutory appeal from the date of the trial court's order denying the motion to reconsider. Under Powers, if Colorado criminal rules do not expressly provide for reconsideration, then a reconsideration motion is timely as long as it is filed within the specified time for taking an appeal-here, ten days. See Powers, 47 P.3d at 689; cf. People v. Zhuk, 239 P.3d 437, 439–40 (Colo.2010) (noting that amended C.A.R. 26(a) superseded Powers as to computation of the ten-day period).

People v. Tuffo, 209 P.3d 1226 (Colo.App.2009), is directly on point. There, the division held that “a proper and timely motion for reconsideration suspends the order's finality such that the full time for appealing begins to run only when reconsideration is denied.” Id. at 1229. Thus, the People adhered to that time limit by filing a notice of interlocutory appeal within ten days of the trial court's order denying the motion to reconsider. Accordingly, we conclude the People's interlocutory appeal was timely filed.

III. Dismissal of Attempted Influence Charge

The People contend that the trial court erred in dismissing the attempted influence charge for three reasons: (1) Colorado law allows the People to prosecute Blue for both general (attempt to influence) and specific (false reporting) offenses (although it seeks to prosecute Blue here only on the attempted influence charge); (2) the offense of false reporting to authorities is not part of a comprehensive regulatory scheme intended to replace more general provisions of the criminal code; and (3) prosecution of Blue under the general statute does not violate his right to equal protection under the United States Constitution. We agree with all three contentions.

A. Standard of Review

The interpretation of a statute is a question of law subject to de novo review. People v. Sorrendino, 37 P.3d 501, 503 (Colo.App.2001) (citing Hendricks v. People, 10 P.3d 1231, 1235 (Colo.2000)). We also review de novo an interpretation of a constitutional provision. People v. Clendenin, 232 P.3d 210, 212 (Colo.App.2009).

When interpreting a statute, we look first to the plain language of the statute before invoking alternative canons of statutory construction. People v. Banks, 9 P.3d 1125, 1128 (Colo.2000). To discern the legislative intent, a reviewing court looks at the statute's language and gives statutory words and phrases their plain and ordinary meaning. People v. Davis, 218 P.3d 718, 723 (Colo.App.2008). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” People v. Hill, 228 P.3d 171, 173–74 (Colo.App.2009) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)).

We read the statute as a whole to give “consistent, harmonious and sensible effect to all of its parts,” in accordance with the presumption that the legislature intended the entire statute to be effective. Hill, 228 P.3d at 174 (quoting Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo.2005)). “A statutory interpretation leading to an illogical or absurd result will not be followed.” Frazier v. People, 90 P.3d 807, 811 (Colo.2004). We avoid constructions that are at odds with the legislative scheme. Hill, 228 P.3d at 174 (citing Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006)).

B. General and Specific Offenses

In Colorado, “a single transaction may give rise to the violation of more than one statute.” People v. James, 178 Colo. 401, 404, 497 P.2d 1256, 1257 (1972). “When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense.” § 18–1–408(1), C.R.S.2010. If different enactments define the same conduct as criminal, then the offender may be prosecuted under any one or all of the enactments, subject to certain limitations. § 18–1–408(7), C.R.S.2010. Under section 18–1–408(1)(d), C.R.S.2010, a defendant may not be convicted of more than one offense if “[t] he offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” If a defendant's single transaction gives rise to the violation of more than one statute, then the prosecutor may determine under which statute or statutes to prosecute the defendant. James, 178 Colo. at 404, 497 P.2d at 1258.

As noted, Blue was charged with one count of attempt to influence a public servant, § 18–8–306, C.R.S.2010. The elements of the attempted influence offense are (1) an attempt to influence a public servant; (2) by means of deceit or by threat of violence or economic reprisal; and (3) with the intent to alter or affect the public servant's decision or action. § 18–8–306; People v. Schupper, 140 P.3d 293, 298 (Colo.App.2006).

In his motion to dismiss the attempted influence charge, Blue argued that “his actions are more specifically proscribed by the crime of False Reporting to Authorities, which occurs when an individual ‘knowingly provides false identifying information to law enforcement authorities.’ ” § 18–8–111(1)(d), C.R. S.2010. Relying on section 18–1–408(1)(d), Blue argued that if he were charged with both attempted influence and false reporting, he could only be convicted of one offense, because “[t] he offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”

Section 18–1–408(1)(d) prohibits convictions for two offenses that differ solely by prohibiting general and specific conduct. However, we must read this section in the context of the whole statut...