People v. Green, s. 85SA279

Decision Date23 March 1987
Docket Number85SA305 and 85SA306,Nos. 85SA279,s. 85SA279
Citation734 P.2d 616
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Ledora GREEN, a/k/a Ledora Stewart, Defendant-Appellee and Cross-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Daniel R. GONZALES, Defendant-Appellee and Cross-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Clifton W. PAIGE, Defendant-Appellee and Cross-Appellant.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for plaintiff-appellant and cross-appellee.

David F. Vela, Colorado State Public Defender Barbara S. Blackman, Chief Appellate Deputy Defender, Denver, for defendants-appellees and cross-appellants.

QUINN, Chief Justice.

These consolidated appeals, filed by the People on a question of law, raise the issue of whether a district court may sentence an adult offender twenty-one years of age or older to the department of corrections for a misdemeanor conviction when the misdemeanor sentence is made expressly consecutive to a previously imposed sentence for a felony conviction. 1 We conclude that Colorado's sentencing scheme does not authorize a court to sentence such an adult offender to the department of corrections for a misdemeanor conviction unless the defendant has already been sentenced to the department for a felony and the misdemeanor sentence is made expressly concurrent with the felony sentence. We accordingly reverse the sentences and remand for further proceedings.

I.

The defendants, Ledora Green, Daniel R. Gonzales, and Clifton W. Paige, were separately charged and convicted of misdemeanor offenses and were sentenced by the Denver District Court to the department of corrections to terms of imprisonment consecutive to previously imposed felony sentences. The defendant Green, who was thirty-three years of age, entered a guilty plea on March 12, 1984, to the charge of issuing a false financial statement, in violation of section 18-5-209, 8B C.R.S. (1986), a class 2 misdemeanor. On May 4, 1984, the district court sentenced her to the department of corrections for a term of six months, plus one year of parole, to be served consecutively to a previously existing felony sentence for second degree assault, § 18-3-203, 8B C.R.S. (1986), a class 4 felony. The defendant Gonzales, then thirty-nine years of age, entered a guilty plea on June 15, 1984, to criminal possession of a second degree forged instrument, § 18-5-106, 8B C.R.S. (1986), a class 1 misdemeanor. He was sentenced on November 14, 1984, to the department of corrections for a term of twenty-four months, to be served consecutively to previously existing felony sentences for felony theft. The defendant Paige, who was then twenty-six years old, entered a guilty plea on September 18, 1984, to possession of more than one ounce but less than eight ounces of marijuana, § 18-18-106(4)(a)(I), 8B C.R.S. (1986), a class one misdemeanor. He was sentenced on October 31, 1984, to seven months in the custody of the department of corrections, to be served consecutively to a previously existing felony sentence for theft, § 18-4-401, 8B C.R.S. (1986), and conspiracy to commit theft, § 18-2-201, 8B C.R.S. (1986). 2

After the imposition of sentences, the People filed motions to correct the sentences pursuant to Crim.P. 35(a). The People's motions alleged that the district court had no authority to sentence an adult misdemeanor offender to the department of corrections unless the sentence was concurrent with a previously imposed felony sentence. The People accordingly requested the district court to amend the mittimus in each case by ordering that the misdemeanor sentence be served in the Denver county jail rather than in a facility under the control of the department of corrections. The defendants, who were represented by the public defender's office in all three cases, joined the People's motion, but suggested that the appropriate remedy was to order that the misdemeanor sentences be served concurrently with the felony sentences.

The district court denied the motions, ruling that section 18-1-106, 8B C.R.S. (1986), precluded the confinement of the defendants in the correctional facilities at Canon City but permitted their confinement at any other correctional facility under the control of the department of corrections. It was the court's view that requiring the defendants to complete their felony sentences in a correctional facility under the department of corrections and then to serve their misdemeanor sentences in the county jail would be "terribly dysfunctional," particularly in light of the lack of rehabilitation programs at the county jail, the disparity in calculating good time between the two correctional systems, and the effect of a misdemeanor detainer on parole eligibility.

Subsequent to the court's ruling, the defendants filed motions to amend the misdemeanor sentences so as to make them concurrent with the prior felony sentences. The district court denied the motion because the misdemeanor sentences were for offenses unrelated to the previously imposed felony sentences.

The People then filed these appeals, and the defendants cross-appealed. The People and the defendants agree that the consecutive sentences imposed in these cases are illegal. The People urge us to reverse the sentences and to remand the cases for resentencing in accordance with applicable law, while the defendants request relief in the form of a remand for the imposition of concurrent sentences on the misdemeanor conviction.

II.

Long-standing principles of Colorado law relating to sentencing, as well as the text and structure of Colorado's present sentencing scheme, provide the framework for our resolution of this case.

A.

Article XVIII, section 4 of the Colorado Constitution, adopted in 1876, states that "[t]he term felony, whenever it may occur in this constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other." Over a hundred years ago this court observed that Colorado's constitutional definition of a felony reflects the view that a penitentiary sentence is a more severe form of punishment than confinement in the county jail and thus should be restricted to the graver forms of criminal conduct, with the county jail being utilized for the less serious offenses. Brooks v. People, 14 Colo. 413, 414, 24 P. 553, 553 (1880).

The determinative consideration in classifying an offense as a felony or misdemeanor has not been whether the offense necessarily requires a sentence to the penitentiary but rather whether the crime can result in such a sentence. The constitutional definition of a felony simply means that "every offense which may be punished by death or imprisonment in the state penitentiary is a felony, even though, on conviction, in the discretion of the court, in a proper case, a lighter penalty might be inflicted." People v. Godding, 55 Colo. 579, 588, 136 P. 1011, 1014 (1913). Colorado case law thus has consistently held that a crime carrying a possible penitentiary sentence is a felony while a crime punishable by fine or imprisonment in the county jail is a misdemeanor, e.g., People v. Enlow, 135 Colo. 249, 263, 310 P.2d 539, 546-47 (1957); Eckhardt v. People, 126 Colo. 18, 26, 247 P.2d 673, 677 (1952); Godding, 55 Colo. at 583-86, 136 P. at 1012-13; Brooks, 14 Colo. at 414, 24 P. at 553, with the result that a court could not sentence a misdemeanor offender to a state penal institution unless such sentence was expressly authorized by statute. Bustamante v. People, 133 Colo. 497, 501-02, 297 P.2d 538, 541 (1956); see also Brooks, 14 Colo. at 415, 24 P. at 553.

Colorado originally maintained only one penal institution, which was the penitentiary located at Canon City, ch. LXXVII, sec. 2015, 1877 Colo.Gen.Laws 684, 686, and required each county with a population of more than 2,000 to establish and maintain an adequate jail, ch. LI, sec. 1388, 1877 Colo. Gen.Laws 518, 518. In 1899 the legislature, recognizing the need for a correctional institution more tailored to the needs of youthful offenders, established a state reformatory at Buena Vista for male persons between the ages of sixteen and thirty who were convicted of a felony or were convicted of a misdemeanor punishable by a term of imprisonment of not less than ninety days. S.B. 169, sec. 14, 1889 Colo.Sess.Laws 418, 420-21. 3 Since a sentence to the reformatory was designed not only for punishment but also for "reformation," S.B. 169, sec. 1, 1889 Colo.Sess.Laws at 418, reformatory sentences were not fixed or limited in duration, although they could not exceed the maximum term of imprisonment applicable to the crime for which the offender was convicted and sentenced. S.B. 169, sec. 15, 1889 Colo.Sess.Laws at 421. An offender sentenced to the reformatory was released when the Board of Penitentiary Commissioners determined that there was a "strong or reasonable probability that any prisoner will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society." S.B. 169, sec. 26, 1889 Colo.Sess.Laws at 425-26. In contrast, a felony offender sentenced to the state penitentiary could not be discharged until he had served his full term. Ch. LXXVII, sec. 2029, 1877 Colo.Gen.Laws 684, 689-90.

B.

The foregoing statutory scheme for sentencing felony offenders to the penitentiary, misdemeanor offenders to the county jail, and youthful offenders, at the discretion of the judge, to the reformatory remained in effect with only minor alterations through 1971. 4 Since then, Colorado's sentencing scheme has undergone frequent legislative revisions in an effort to devise a system responsive to the...

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