People v. Cooper

• Decision Date: 25 June 2001
• Docket Number: No. 00SC499, No. 00SC588., No. 00SC587, No. 00SC474
• Citation: 27 P.3d 348
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. David COOPER, Respondent. The People of the State of Colorado, Petitioner, v. Joseph A. Rula, Respondent. The People of the State of Colorado, Petitioner, v. Franklin R. Joshua, Respondent. The People of the State of Colorado, Petitioner, v. Alfred Rodriguez, Respondent.
• Court: Colorado Supreme Court

27 P.3d 348

The PEOPLE of the State of Colorado, Petitioner, v. David COOPER, Respondent.

The People of the State of Colorado, Petitioner, v. Joseph A. Rula, Respondent.

The People of the State of Colorado, Petitioner, v. Franklin R. Joshua, Respondent.

The People of the State of Colorado, Petitioner, v. Alfred Rodriguez, Respondent.

Nos. 00SC474, 00SC499, 00SCSC588.

Supreme Court of Colorado, En Banc.

June 25, 2001.

Ken Salazar, Attorney General, John J. Krause, First Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, CO, Attorneys for Petitioner.

David S. Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Jonathan D. Rosen, Denver, CO, Attorneys for Respondent.

Joseph A. Rula, Respondent, pro se.

Justice MARTINEZ delivered the Opinion of the Court.

These four cases, which we have consolidated here, present a question of the extension of the issue we resolved in Martin v. People, 27 P.3d 846 (2001). We granted certiorari in all four of these cases to determine whether the court of appeals correctly concluded that the statutory scheme and legislative intent require that parole for sex offenders convicted of offenses committed between July 1, 1996, and November 1, 1998, is discretionary under the provisions in sections 17-2-201(5)(a.5) and 18-1-105(1)(a)(V)(C).¹ Our inquiry focuses on two distinct statutory schemes of parole, and specifically, the changes enacted by the General Assembly to sections 18-1-105(1), 6 C.R.S. (2000), 17-2-201(5), 6 C.R.S. (2000), and 18-1-105(1)(a)(V)(C), in 1993, 1996, and 1998.

Despite some changes to the statutes considered in Martin, we arrive at the same resolution of these cases as we did in Martin. Specifically, we conclude that the exact same language in sections 17-2-201(5)(a) and (5)(a.5) has the identical meaning. Therefore, we hold that, under the statutes in effect when the defendants here were sentenced, a person convicted of a sexual offense committed after July 1, 1996, but before November 1, 1998, is subject to a period of discretionary parole, no longer than the remainder of the maximum sentence of incarceration imposed by the court. Accordingly, we affirm the judgment of the court of appeals in each of these four cases reversing the trial courts' denial of the defendants' Crim. P. 35(c) motions.

I.

The specific facts of these four cases are not necessarily essential to the determination of the issues presented because the court of appeals concluded in each case that the defendant was not subject to mandatory parole. However, the cases do share some facts central to our analysis. To begin, in each of the four cases, the crime committed is a sexual offense, classifiable under section 17-2-201(5)(a.5), which occurred between July 1, 1996, and November 1, 1998. Additionally, in each case, the defendant appealed a trial court ruling denying a Crim. P. 35(c) motion for post-conviction relief. In Rula, Joshua, and Rodriguez, the defendants' Crim. P. 35(c) motions claimed that the sentencing court never adequately advised them that their sentences to the Department of Corrections (DOC) would be followed by a period of mandatory parole. Moreover, in Joshua and Rodriguez, as well as in Cooper, the defendants' motions claimed that the periods of mandatory parole imposed by the DOC were in violation of their plea agreements. We note that, in Cooper, no advisement concerning parole was ever given to the defendant, either orally or in writing. In Rula, Joshua, and Rodriguez, the trial court did advise the defendants, either orally or in writing, of the possibility of a period of parole, however, we do not reach the issue of the sufficiency of those advisements.

We further note that, in none of the cases did the trial court address whether the defendant was subject to discretionary or mandatory parole. Nor did the trial court in any of the cases explicitly sentence the defendant to a period of mandatory parole. In both Rula and Rodriguez, the trial court did, on the mittimus, refer to parole to be set as required by law and included a statutory citation not useful to distinguishing between mandatory and discretionary parole.

For all of these cases, in the time period between the original trial court rulings and the court of appeals' rulings, this court issued its decision in both Craig v. People, 986 P.2d 951 (Colo.1999), and Benavidez v. People, 986 P.2d 943 (Colo.1999). In both of those cases, we held that a plea entered into without an adequate advisement of the direct consequence of mandatory parole is constitutionally infirm and subject to withdrawal unless such infirmity is harmless, or can be rendered harmless by a modified legal sentence. Craig, 986 P.2d at 957. In each of the four cases here, the court of appeals held that it was not necessary for the trial court to advise the defendant of mandatory parole because the defendant was not subject to mandatory parole under section 18-1-105(1)(a)(V). Instead, the court of appeals held, these defendants were all subject to discretionary parole under sections 17-2-201(5)(a.5) and 18-1-105(1)(a)(V)(C).² People v. Cooper, 8 P.3d 554, 557-58 (Colo.App. 2000); People v. Rula, No. 99CA1522, slip op. at 2 (Colo.App. Mar. 16, 2000); People v. Joshua, No. 99CA0712, slip op. at 2 (Colo.App. Apr. 27, 2000); People v. Rodriguez, No. 99CA0764, slip op. at 2-3 (Colo.App. July 13, 2000). It is that holding that the People now appeal.

Notwithstanding the marginal analytical utility, we now describe the facts of each case to assist in distinguishing one from another.

A.

Defendant David Cooper (Cooper) pleaded guilty in January 1998 to sexual assault in the second degree in violation of section 18-3-403(1)(b), 6 C.R.S. (2000), an offense committed on July 28, 1996. Cooper was initially charged with sexual assault in the first degree, attempted first degree assault, and crime of violence. Additionally, three charges of habitual criminal were added against Cooper in November 1996. In June 1997, the district court found Cooper incompetent to proceed and ordered him to the Colorado Mental Health Institute. In October 1997, the district court found that Cooper had been restored to competency and proceeded with the trial.

Cooper entered into an oral plea bargain which stipulated a five-year DOC sentence, with no mention of parole. Pursuant to that plea bargain, Cooper pleaded guilty to second degree sexual assault. Throughout the entire plea bargain and sentencing process, Cooper was never advised, either in writing or orally, of any mandatory parole period. At sentencing, the trial court sentenced him to five years in DOC.

Cooper filed a Crim. P. 35(c) motion for post-conviction relief alleging that he was denied sufficient good time credit and that the imposition of a five year mandatory period of parole by the DOC violated his plea agreement. In a minute order dated August 3, 1998, the trial court granted Cooper's good time credit, but denied his mandatory parole claim. Cooper appealed, and the court of appeals ruled that, under sections 17-2-201(5)(a.5), 6 C.R.S. (2000), and 18-1-105(1)(a)(V)(C), 6 C.R.S. (2000), the period of parole could not exceed the remainder of Cooper's sentence at the time of his parole from prison. The court of appeals also held that the legislature excepted sex offenders who committed crimes between July 1, 1996, and November 1, 1998, from the mandatory parole requirements of section 18-1-105(1)(a)(V), and instead meant for such offenders to receive discretionary parole under sections 17-2-201(5)(a.5) and 18-1-105(1)(a)(V)(C). Accordingly, the court of appeals held that Cooper, as a sex offender, was subject to discretionary, not mandatory, parole. Cooper, 8 P.3d at 557-58. The People now appeal that decision.

B.

Defendant Joseph A. Rula (Rula) pleaded guilty in June 1997, to one count of sexual assault on a child, in violation of section 18-3-405(1), 6 C.R.S. (2000), an offense committed on November 3, 1996. Rula was initially charged with two counts of sexual assault on a child by a person in a position of trust, one count of indecent exposure, and three counts of indecent exposure to a child.

Rula entered into a plea bargain in which the People agreed to drop the original six counts against him. The plea agreement did not include any sentencing agreement, though the plea petition that he signed did advise him that any sentence he received would carry with it a five-year period of parole. Pursuant to the plea agreement, Rula pleaded guilty to sexual assault of a child, and the trial court, without ever discussing parole, sentenced him to eight years in the DOC. On the mittimus, the trial judge marked a box stating, "plus any term of parole authorized by section 17-22.5-303, C.R.S.," but made no other comments regarding parole.³

Rula filed a Crim. P. 35(c) motion for post-conviction relief, asserting that neither the providency nor the sentencing court advised him that his sentence to the DOC would be followed by a five-year period of parole. The trial court denied his motion, and the court of appeals affirmed, reasoning that, because Rula's parole period is discretionary and not a direct consequence of his plea, the trial court was not obliged to advise him of it. Accordingly, the court of appeals further held that Rula, as a sex offender, was subject to discretionary parole under sections 17-2-201(5)(a.5) and 18-1-105(1)(a)(V)(C). Rula, No. 99CA1522, slip op. at 2 (citing Cooper, 8 P.3d 554). The People now appeal that decision.

C.

Defendant Franklin R. Joshua (Joshua) pleaded guilty in March 1997, to one count of sexual assault on a child in violation of section 18-3-405(1), 6 C.R.S. (2000), an offense committed on November 24, 1996. Joshua was initially charged with sexual assault on a child, sexual assault in the second degree, two counts of sexual assault in the third degree, assault in the third degree, and crime of...