People v. French

• Decision Date: 25 January 2007
• Docket Number: No. 03CA2477.,03CA2477.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Oscar FRENCH, Defendant-Appellant.
• Court: Colorado Court of Appeals

165 P.3d 836

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Oscar FRENCH, Defendant-Appellant.

No. 03CA2477.

Colorado Court of Appeals, Div. III.

January 25, 2007.

Certiorari Denied June 4, 2007.

John W. Suthers, Attorney General, Cheryl Hone Canaday, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Priscilla J. Gartner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Oscar French, appeals the judgment of conviction entered upon jury verdicts finding him guilty of reckless vehicular homicide and leaving the scene of an accident involving death, both class four felonies. Defendant also appeals the aggravated range sentence imposed upon his vehicular homicide conviction. In an earlier decision, we affirmed the judgment of conviction and sentence. People v. French, 141 P.3d 856 (Colo.App.2005). However, on certiorari review, the supreme court vacated that judgment and remanded the case for reconsideration in light of People v. Huber, 139 P.3d 628 (Colo.2006), and People v. Isaacks, 133 P.3d 1190 (Colo.2006). We ordered supplemental briefing on the issue, and upon reconsideration, we again affirm.

The facts of the case and our disposition of defendant's first two arguments are contained in our prior opinion, which we reaffirm here without further recitation or analysis. See People v. French, supra, 141 P.3d at 856-60. We address only defendant's third argument, which concerns his sentence in the aggravated range.

I. Aggravated Range Sentence

Defendant asserts the trial court deprived him of his Sixth Amendment and due process rights to a jury trial by impermissibly imposing an aggravated range sentence. We disagree.

Generally, a trial court has broad discretion in sentencing decisions, and its determination will not be overturned on appeal absent an abuse of discretion. People v. Watkins, 684 P.2d 234, 239 (Colo.1984); Triggs v. People, 197 Colo. 229, 231, 591 P.2d 1024, 1025 (1979). However, our review of constitutional challenges to sentencing determinations is de novo. Lopez v. People, 113 P.3d 713, 720 (Colo.2005).

Vehicular homicide is a class four felony, see § 18-3-106(1)(a), (c), C.R.S.2006, which carries a presumptive range sentence of two to six years. Section 18-1.3-401(1)(a)(V)(A), C.R.S.2006. However, the court may impose a sentence of up to twice the maximum term authorized in the presumptive range if it finds extraordinary aggravating circumstances, see § 18-1.3-401(6), C.R.S.2006, or if "[a]t the time of the commission of the felony, the defendant was charged with or was on bond for a felony in a previous case and the defendant was convicted of any felony in the previous case." Section 18-1.3-401(9)(a), C.R.S.2006.

The trial court sentenced defendant to twelve years on the vehicular homicide count, or twice the maximum term authorized in the presumptive range. It based this sentence in part on its finding of extraordinary aggravating circumstances, including defendant's "reckless driving for thirty miles or more, the dozens of people that [he] put in harm's way . . . [and] the harm to [other drivers involved in the accident], not to mention the death of [the victim]." The trial court also aggravated defendant's sentence because he was on bond for a felony at the time of commission of the instant offense and pleaded guilty to that felony before sentencing in this case.

A. Conviction for On-Bond Offense

Defendant first asserts the trial court erred in enhancing his sentence pursuant to § 18-1.3-401(9)(a) because he had not yet been "convicted" of the felony for which he had pleaded guilty and was on bond when the trial court sentenced him here. In essence, he asserts that, because he had not yet been sentenced for the on-bond offense, no "conviction" had entered. We disagree.

Interpretation of statutes is a question of law that we review de novo. Robles v. People, 811 P.2d 804, 806 (Colo.1991); People v. Terry, 791 P.2d 374, 376 (Colo.1990).

A court's responsibility in interpreting a statute is to ascertain and give effect to the intent of the General Assembly. People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002); Martin v. People, 27 P.3d 846, 851 (Colo.2001). If the language of the statute is unambiguous and does not conflict with other provisions, its plain meaning must be given effect. But if the language is ambiguous or in conflict with other provisions, the court may look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme to discern its meaning. People v. Luther, supra; Martin v. People, supra. If possible, the statute should be interpreted so as to give consistent, harmonious, and logical effect to all its parts. People v. Cooper, 27 P.3d 348, 354 (Colo.2001); People v. Dist. Court, 713 P.2d 918, 921 (Colo.1986). But the statute should not be interpreted so as to produce an absurd result. Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187, 1192 (Colo.1996).

The supreme court has not defined the term "convicted" as used in § 18-1.3-401(9)(a). See People v. Chavez, 764 P.2d 356, 357 n. 2 (Colo.1988) ("We express no opinion as to the correctness of this interpretation [whether a guilty plea constitutes a conviction for purposes of § 18-1.3-401(9)(a) ], noting that the word `conviction' has been variously construed by this court."); see also People v. Roberts, 865 P.2d 938, 940 (Colo.App.1993)("The meaning of `conviction' may vary depending upon the statute in which it is used and the issue in the particular case.").

Defendant cites Crim. P. 32(c) in support of his contention that a conviction necessarily includes the imposition of a sentence. Crim. P. 32(c) states, "A judgment of conviction shall consist of a recital of the plea, the verdict or findings, the sentence, the finding of the amount of presentence confinement, and costs, if any are assessed against the defendant."

However, courts have distinguished between a "conviction" and a "judgment of conviction" when to do so would effectuate the General Assembly's intent in enacting a statute. See People v. Roberts, supra, 865 P.2d at 940.

In Roberts, the defendant pleaded guilty to possession of a controlled substance and was ordered to participate in a drug treatment program. The court also ordered her to surrender her driver's license and pay a victim compensation fee. The defendant appealed the additional conditions, asserting that the statutes authorizing the conditions required that they be imposed upon a "conviction." A division of this court rejected the defendant's narrow interpretation, reasoning that the term "conviction" has a less formal and technical meaning than the definition contained in Crim. P. 32(c). People v. Roberts, supra, 865 P.2d at 940 (citing People v. Allaire, 843 P.2d 38, 40 (Colo.App.1992)). "In its general and popular sense, and frequently in its ordinary legal sense, the term `conviction' means the establishment of guilt by a verdict or plea independent of a judgment and sentence." People v. Roberts, supra, 865 P.2d at 940.

In a related context, a court's acceptance of a guilty plea under a deferred sentencing statute constitutes a conviction for purposes of the Double Jeopardy Clause, even though formal entry of judgment and sentencing have not yet occurred. See Jeffrey v. Dist. Court, 626 P.2d 631, 635 n. 4 (Colo.1981).

Similarly, a court's acceptance of a guilty plea and granting of a deferred sentence constitute a conviction for purposes of the bail bond statute. Hafelfinger v. Dist. Court, 674 P.2d 375, 378 (Colo.1984). In Hafelfinger, the supreme court distinguished a guilty plea from a mere admission or extrajudicial confession, in terms of its purpose and effect: "Like a verdict of a jury [a guilty plea] is conclusive. . . . [T]he court has nothing to do but give judgment and sentence." Hafelfinger v. Dist. Court, supra, 674 P.2d at 377 (quoting Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113, 103 S.Ct. 986, 992, 74 L.Ed.2d 845 (1983)).

Looking to the other subparts of § 18-1.3-401(9), we note that § 18-1.3-401(9)(b), C.R.S.2006, authorizes an aggravated sentence if "[a]t the time of the commission of the felony, the defendant was on bond for having pled guilty to a lesser offense when the original offense charged was a felony." It would lead to an absurd result if a defendant who pleaded guilty to a misdemeanor was exposed to an aggravated sentence, but a defendant who pleaded guilty to a felony was not. See People v. Huber, supra (prior misdemeanor conviction may be used to aggravate sentence).

Finally, we note that the General Assembly's intent in enacting enhanced sentencing statutes is to punish more severely defendants who have shown a propensity toward repeated criminal acts. People v. Anderson, 784 P.2d 802, 804-05 (Colo.App. 1989).

Thus, what is critical for purposes of § 18-1.3-401(9)(a) is the fact of the defendant's guilt of a prior felony. As in the contexts of deferred sentencing, the Double Jeopardy Clause, and the bail bond statute, the punishment received for the prior criminal act is irrelevant. We therefore conclude that a guilty plea constitutes a conviction within the meaning of § 18-1.3-401(9)(a).

Here, at defendant's sentencing, the fact of his guilt of a prior felony had already been determined by his guilty plea in the Arapahoe County case. Accordingly, he had been "convicted" within the meaning of § 18-1.3-401(9)(a).

B. Prior Conviction

Defendant nevertheless contends that his conviction for the on-bond offense is a subsequent conviction, not a prior one. We disagree. The "conviction" for the previous on-bond offense, as we have interpreted that term, occurred before defendant was sentenced in this case. Hence, it is truly a "prior" conviction. See Lopez v. People, supra (because conviction on another...