People v. Garcia
| Decision Date | 25 April 2002 |
| Docket Number | No. 01CA0188.,01CA0188. |
| Citation | 55 P.3d 243 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carol GARCIA, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge WEBB.
Defendant, Carol Garcia, appeals from the sentence imposed following her guilty plea to theft and unauthorized use of a financial transaction device. We dismiss the appeal in part and affirm the sentence.
Pursuant to a plea bargain, defendant pleaded guilty to theft and unauthorized use of a financial transaction device in exchange for the dismissal of other charges against her. The plea agreement provided for a sentencing cap of twelve years. Defendant also agreed to pay restitution of $136,053 plus accrued finance charges on several credit card accounts.
The trial court sentenced defendant to concurrent terms of twelve years in the Department of Corrections (DOC) for the two counts, with a five-year period of mandatory parole. The court further ordered her to pay $138,777.10 in restitution.
Defendant contends that the trial court abused its discretion by emphasizing punishment to the exclusion of other sentencing objectives and refusing to consider a community corrections sentence. The People contend that defendant's appeal is barred by § 18-1-409(1), C.R.S.2001, and, therefore, is not properly before us. We agree with the People and dismiss this part of the appeal.
As applicable here, § 18-1-409(1) provides for appellate review of the propriety of a sentence except in cases where the sentence imposed is "within a range agreed upon by the parties pursuant to a plea agreement." Here, defendant seeks review of the propriety of a sentence imposed within the limits for which she bargained. Under § 18-1-409(1), she is precluded from doing so. See People v. O'Dell, 53 P.3d 655 (Colo.App. No. 00CA1656, 2001 WL 1135646, Sept. 27, 2001). Accordingly, this portion of the appeal is dismissed.
Defendant also contends that the trial court erred in imposing a twelve-percent interest rate on the amount of restitution it ordered her to pay. Specifically, she argues that the court violated her right to protection against ex post facto application of the law by imposing the twelve-percent interest rate under § 16-18.5-103, C.R.S.2001. Alternatively, she argues that the rule of lenity requires that the interest rate be set at eight percent. We disagree.
Section 16-18.5-103 provides in pertinent part:
(Emphasis supplied.)
Where a law either imposes punishment for an act that was not a crime when it was committed or makes the punishment for a crime more onerous than it was when the crime was committed, the law violates the constitutional prohibitions against ex post facto laws. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); People v. Woodward, 11 P.3d 1090 (Colo.2000).
A statute is not rendered unconstitutional as an ex post facto law merely because some of the facts upon which it operates occurred before the adoption of the statute. See People v. McCreadie, 938 P.2d 528 (Colo. 1997); People v. Bowring, 902 P.2d 911 (Colo.App.1995)(even though one of the incidents relied on by prosecution to prove pattern sexual abuse may have occurred before effective date of statute, there was no ex post facto violation where the triggering act occurred after the statute's effective date).
Defendant first argues that because the offenses to which she pleaded guilty were all committed before the effective date of § 16-18.5-103, the court could not impose the twelve-percent interest rate provided under the statute. We do not agree.
In construing a statute, we give effect to the intent of the General Assembly by looking first to the language of the statute. The words and phrases used are to be read in context and accorded their plain meaning. Vega v. People, 893 P.2d 107 (Colo.1995).
Section 16-18.5-103 expressly provides that interest is to be calculated at twelve percent for every order of conviction of a felony. The enabling legislation further provides that § 16-18.5-103 shall apply to "orders for convictions entered on or after the applicable effective date of this act," here September 1, 2000. Colo. Sess. Laws 2000, ch. 232, sec. 25 at 1053.
Although the offenses to which defendant pleaded guilty were committed between January 1, 1996, and April 13, 2000, the order of conviction was entered on October 6, 2000, when defendant entered her plea and the trial court accepted it. See § 16-18.5-102(2), C.R.S.2001 (). Thus, the triggering event under the plain language of the statute is the entry of the order of conviction, here on October 6, 2000. The applicable interest rate for an order of restitution is the one in effect at that time, twelve percent.
Nevertheless, defendant argues that the court erred in imposing the twelve-percent interest rate because it illegally increased the punishment to which she was subject at the time the offenses were committed and therefore violated the prohibition against ex post facto legislation. For purposes of an ex post facto analysis, we must look at the date the offense was completed, not the date of conviction. Even from that perspective, however, we are not persuaded that the prohibition against ex post facto legislation was violated.
Generally, the right to interest is created and regulated by statute. Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067 (1953). Interest represents just compensation for use of money rightfully belonging to someone else. Stone v. Currigan, 138 Colo. 442, 334 P.2d 740 (1959).
Restitution is intended to make the victim whole. People v. Engel, 746 P.2d 60 (Colo. App.1987). Although historically an award of interest was not to be included in an order of restitution, People v. Engel, supra, courts have since recognized circumstances where including interest in restitution is appropriate. See People v. Acosta, 860 P.2d 1376 (Colo.App.1993); Valenzuela v. People, 893 P.2d 97 (Colo.1995)( that court has discretionary power to make victim whole).
We conclude that the imposition of a twelve-percent interest rate from the date of the order of conviction properly recognizes that, if restitution is not paid immediately, then victims are...
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