People v. Garcia, No. 99CA2360.

• Docket Nº: No. 99CA2360.
• Citation: 64 P.3d 857
• Case Date: January 17, 2002
• Court: Court of Appeals of Colorado

64 P.3d 857

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Zachariah GARCIA, Defendant-Appellant

No. 99CA2360.

Colorado Court of Appeals, Div. I.

January 17, 2002.

Certiorari Denied March 10, 2003.¹

64 P.3d 859

Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee

Brenda M. Sauro, LLC, Brenda M. Sauro, Littleton, CO, for Defendant-Appellant.

Opinion by Judge METZGER.

Defendant, Zachariah Garcia, appeals the judgment of conviction entered on a jury verdict finding him guilty of escape. He also appeals the sentence imposed. We affirm.

Defendant was discharged from the Department of Corrections (DOC) in August 1998, after serving the full two and one-half years of his sentence to imprisonment. Pursuant to § 18-1-105, C.R.S.2001, defendant was then placed on mandatory parole for two years. As a condition of his parole, the parole board ordered defendant to complete 120 days in an Intensive Supervision Program (ISP).

Before beginning his period of parole, defendant signed a Parole Agreement/Order, which stated in relevant part:

64 P.3d 860

Parolee will abide by all conditions of parole set forth in this agreement and any additional conditions and directives set forth by Parole Officer, consistent with the laws of the State of Colorado. Any violation of this agreement and/or any conditions thereof, can lead to the revocation of parole.

Defendant also signed two documents listing the "additional conditions and directives" of his parole. One document, entitled "Directive Intensive Supervision Program Englewood Parole," provided:

I. You are restricted to the Denver Metropolitan Area and may not leave this area without the knowledge and consent of your Parole Officer.

II. You are directed to report in person to your Parole Officer each Wednesday. . . .

The other document, entitled "Intensive Supervision Program," contained the acknowledgement:

I therefore, clearly understand that should I leave my designated residence of record [in Englewood] for my ISP confinement, for an excess of 24 hours, I am therefore, liable for prosecution, conviction, and punishment for Felony Escape, C.R.S.: 17-27.5-104 and C.R.S.: 18-8-208.

Defendant failed to report to his parole officer after November 1, 1998. He was apprehended on December 5, 1998, in another city, later convicted of felony escape, and sentenced to five years in DOC consecutive to the sentence he was already serving, plus five years of mandatory parole.

I.

Defendant argues the trial court erred in determining that the ISP statute, § 17-27.5-104, C.R.S.2001, and the escape statute, § 18-8-208(2), C.R.S.2001, apply to mandatory parolees. We find no error.

A.

First, we reject defendant's argument the parole board does not have the authority to place mandatory parolees in an ISP program.

Interpretation of a statute is a question of law, which we review de novo. See Hendricks v. People, 10 P.3d 1231 (Colo. 2000).

When construing a statute, we must ascertain and give effect to the intent of the General Assembly. Thus, we must read the statute as a whole and interpret it so as to give a consistent, harmonious, and sensible effect to all its parts. See Charnes v. Boom, 766 P.2d 665 (Colo.1988). Further, in construing a statute, we must avoid an interpretation that leads to an absurd result. See State v. Nieto, 993 P.2d 493 (Colo.2000).

In interpreting a comprehensive statutory scheme such as the parole statutes, see Charnes v. Boom, supra, we must construe each provision to effectuate the overall legislative intent. A.B. Hirschfeld Press, Inc. v. City & County of Denver, 806 P.2d 917 (Colo. 1991).

As explained in the Hearing on H.B. 93-1302 before the House Judiciary Committee, 59th General Assembly, 1st Regular Session (Feb. 16, 1993), a significant element of the legislative intent underlying the mandatory parole statutes is to ensure postincarceration supervision of offenders who are released after completion of their entire sentence to incarceration.

Section 17-27.5-106, C.R.S.2001, authorizes the parole board to supervise parolees through the use of ISPs: "An offender who is granted parole or whose parole is modified may be required by the state board of parole, as a condition of such parole, to participate in an intensive supervision program as defined by this article. . . ."

Defendant contends the phrase "granted parole" in § 17-27.5-106 is synonymous with "granted early release." Therefore, he argues, § 17-27.5-106 applies only to discretionary parolees released before completion of their sentence to imprisonment, and not to mandatory parolees, like himself, who have discharged their sentence to imprisonment. We do not agree.

In 1993, the General Assembly adopted mandatory parole for convicted felons. See Colo. Sess. Laws 1993, ch. 322, § 18-1-105(1)(a)(V) at 1981-83. The supreme court

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has described the effect of this legislation as follows

Under the new scheme of mandatory parole, the legislature adopted section 18-1-105(1)(a)(V), which detailed the length of mandatory periods of parole for felons, basing the length of the parole periods on the class of felony for which the individual was convicted. Accordingly, the length of prison terms and parole terms became separate components of the penalty imposed by the court. Each penalty included not only a determinate sentence of imprisonment, but also a pre-determined period of parole.

This new scheme of pre-determined, or mandatory, parole eliminated the authority of the state board of parole to determine the length of parole terms for most offenders.

Martin v. People, 27 P.3d 846, 850 (Colo. 2001) (citation omitted).

The mandatory parole statute, § 18-1-105(1)(a)(V)(D), C.R.S.2001, provides, in relevant part:

When an offender is released by the state board of parole or released because the offender's sentence was discharged pursuant to law, the mandatory period of parole shall be served by such offender.

The only practical way to interpret the phrase "granted parole" in § 17-27.5-106 and to give all parts of the statutory scheme dealing with parole a sensible and harmonious effect, is to construe the term to mean "placed on parole" or "paroled."

Section 17-2-201, C.R.S.2001, establishes the state parole board. Section 17-2-201(9)(b), C.R.S.2001, mandates certain procedures for revoking parole. Section 17-22.5-403(8)(a), C.R.S.2001, requires the parole board to provide parole supervision and assistance and authorizes the parole board to continue, modify, or revoke parole when an offender violates a condition of parole. Section 17-2-201(5)(f), C.R.S.2001, sets forth the conditions of parole each parolee must agree to and sign.

Unless the term "grant parole" is construed to apply to all parolees, these provisions would become meaningless, and the state parole board would have no authority to supervise or penalize mandatory parolees. This would lead to the absurd result that mandatory parolees would not be subject to supervision while discretionary parolees would. That result would directly contravene the legislative intent underlying the mandatory parole scheme. Therefore, we construe the term "granted parole" in § 17-27.5-106 to include both mandatory and discretionary parole.

B.

We reject defendant's argument that mandatory parolees are not in the custody or confinement of the DOC for purposes of...