People v. Carrillo

Decision Date17 January 2013
Docket NumberNo. 10CA2188.,10CA2188.
PartiesThe PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Jess Andrew CARRILLO, Defendant–Appellant.
CourtColorado Court of Appeals

OPINION TEXT STARTS HERE

John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for PlaintiffAppellee.

Douglas K. Wilson, Colorado State Public Defender, Seth Johnson, Deputy State Public Defender, Pueblo, Colorado, for DefendantAppellant.

Opinion by Judge CASEBOLT.

¶ 1 Defendant, Jess Andrew Carrillo, appeals the sentence imposed upon the judgment of conviction entered following his guilty plea to misdemeanor unlawful sexual contact. He asserts that the trial court erred when it ruled that, under section 18–1.3–405, C.R.S.2012, he was only entitled to nineteen days of presentence confinement credit (PSCC) against his misdemeanor sentence. Instead, he contends that the court was required under section 18–1.3–509, C.R.S.2012, to give him credit for all 274 days he spent in presentence confinement. We disagree and affirm.

I. Background

¶ 2 While defendant was on parole for another offense, police arrested him on suspicion of sexual assault and other offenses and booked him into the Pueblo County Jail. Unable to post bond, he remained there pending disposition of the charges.

¶ 3 Pursuant to a plea agreement, on August 24, 2010, defendant pleaded guilty to misdemeanor unlawful sexual contact and the court sentenced him to one year in the county jail. At the sentencing hearing, applying section 18–1.3–405, the trial court ruled that defendant was entitled to nineteen days of PSCC. The court concluded that defendant was not entitled to PSCC for the entire period of his presentence confinement because all but the last nineteen days of that period must be applied to his parole sentence and not the pending charge. Because defendant's parole had been discharged on August 5, 2010, and he was sentenced on August 24, 2010, the court concluded that he should receive nineteen days of PSCC toward his misdemeanor sentence.

¶ 4 This appeal followed. The trial court granted a personal recognizance bond, and defendant was released pending appeal.

II. Presentence Confinement Credit

¶ 5 Defendant contends that the trial court erred in awarding him only nineteen days of PSCC. Specifically, he asserts that, in determining PSCC for a misdemeanor conviction, section 18–1.3–509 controls, not section 18–1.3–405, and he was therefore entitled to credit for all 274 days of presentence confinement even though he was on parole during most of that time. The People contend that defendant failed to preserve this issue in the trial court because he did not mention section 18–1.3–509.

¶ 6 We agree that defendant did not preserve the issue. Accordingly, plain error is the standard of review. Applying that standard and construing the applicable statutory provisions, we conclude that defendant is not entitled to credit for time served while on parole.

A. Preservation of the Issue

¶ 7 Defendant failed to cite section 18–1.3–509 at his sentencing hearing. Because the issue on appeal turns on the meaning of a statute never cited to the trial court, see Novak v. Craven, 195 P.3d 1115, 1119–20 (Colo.App.2008) (a party must provide the court with at least some notice of the existence of a legislative provision that is essential to his or her case), we will apply plain error review. See People v. Vigil, 127 P.3d 916, 929–30 (Colo.2006).

¶ 8 “Plain” in this context is synonymous with “clear” or “obvious.” Lehnert v. People, 244 P.3d 1180, 1185 (Colo.2010). Plain error is error that is so clear-cut, so obvious, that a competent trial judge should be able to avoid it without benefit of objection. People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Plain error requires reversal if, after a review of the entire record, a court can conclude with fair assurance that the error so undermined the fundamental fairness of the proceeding itself as to cast serious doubt on the reliability of the judgment of conviction. Lehnert, 244 P.3d at 1185;People v. Miller, 113 P.3d 743, 748 (Colo.2005).

B. Statutory Interpretation

¶ 9 Where, as here, we must interpret statutory provisions, we review de novo. People v. Disher, 224 P.3d 254, 256 (Colo.2010); Bostelman v. People, 162 P.3d 686, 689–90 (Colo.2007).

¶ 10 “In construing a statute, the intent of the legislature is to be ascertained and given effect whenever possible.” People v. Swain, 959 P.2d 426, 429 (Colo.1998). To determine the legislature's intent, we first look to the plain language of the statute. Bostelman, 162 P.3d at 690. Then,

[i]f that intent is not clear from the language of the statute alone, or if the statute appears to conflict with other statutes, various intrinsic and extrinsic aids to statutory construction may resolve the ambiguity. Particularly, when a statute is clearly part of a comprehensive regulatory scheme, the scheme should be construed to give consistent, harmonious, and sensible effect to all its parts.

Shipley v. People, 45 P.3d 1277, 1278 (Colo.2002) (citations omitted).

¶ 11 When the legislature enacts a statute, we presume that it intended a just and reasonable result, and we will not follow a statutory construction that defeats legislative intent. § 2–4–201(1), C.R.S.2012; Kauntz v. HCA–Healthone, LLC, 174 P.3d 813, 816 (Colo.App.2007).

¶ 12 Moreover, if the statute is “ambiguous or silent regarding the matter at issue, we interpret the statute to comport with the legislature's objectives.” Buckley v. Chilcutt, 968 P.2d 112, 117 (Colo.1998).

¶ 13 [W]hen a statute is susceptible of more than one reasonable interpretation, a court must look beyond the language of the statute and consider other factors ....” People v. Sorrendino, 37 P.3d 501, 503 (Colo.App.2001). Statutes concerning the same subject matter must be construed in pari materia to ascertain legislative intent and to avoid inconsistencies. Martinez v. People, 69 P.3d 1029, 1033 (Colo.2003). In other words, such statutes should be construed together and reconciled if possible, so as to give effect to each statute. M.S. v. People, 812 P.2d 632, 637 (Colo.1991).

¶ 14 Also, if the statute is ambiguous, a court may consider the end sought to be achieved, the state of the law before the enactment, the statute's legislative history, and the consequences of a particular construction. § 2–4–203, C.R.S.2012; State v. Nieto, 993 P.2d 493, 502 (Colo.2000).

If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.

§ 2–4–205, C.R.S.2012; see Jenkins v. Panama Canal Ry. Co., 208 P.3d 238, 241–42 (Colo.2009) (when statutes are irreconcilable, the specific provision prevails over the general provision). “If statutes ... are irreconcilable, the statute prevails which is latest in its effective date.” § 2–4–206, C.R.S.2012; see Jenkins, 208 P.3d at 242.

¶ 15 Finally, [i]f, after having employed the various aids to statutory construction, we are still unable to discern controlling legislative intent, the rule of lenity requires that we construe the statute favorably to the accused.” Sorrendino, 37 P.3d at 503–04.

C. Law and Application
1. Plain Language, Ambiguity, and Conflict

¶ 16 We start by reviewing the plain language of the statutes at issue. Section 18–1.3–509, titled “Credit for time served on misdemeanor offenses,” provides:

A person who is confined for a misdemeanor offense prior to the imposition of a sentence for the misdemeanor offense shall be entitled to credit against the term of his or her sentence for the entire period of the confinement. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include the finding in the mittimus. The period of confinement shall be deducted from the offender's sentence by the county jail.

¶ 17 Section 18–1.3–405, titled “Credit for presentence confinement,” states in pertinent part:

A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include such finding in the mittimus. The period of confinement shall be deducted from the sentence by the department of corrections.... If a defendant is serving a sentence or is on parole for a previous offense when he or she commits a new offense and he or she continues to serve the sentence for the previous offense while charges on the new offense are pending, the credit given for presentence confinement under this section shall be granted against the sentence the defendant is currently serving for the previous offense and shall not be granted against the sentence for the new offense.

¶ 18 Here, the first sentence of section 18–1.3–509 states that a person confined for a misdemeanor offense prior to sentencing for that offense must be given credit against his sentence for the entire period of his presentence confinement. This language is substantially identical to the first sentence of section 18–1.3–405, except that the latter provision simply uses the term “offense.” Furthermore, the second and third sentences of both statutes are substantively the same, except that section 18–1.3–509 refers to the county jail whereas section 18–1.3–405 refers to the Department of Corrections.

¶ 19 However, the last sentence of section 18–1.3–405 addresses the calculation of...

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