People v. Gregory
| Decision Date | 12 November 2020 |
| Docket Number | Court of Appeals No. 20CA0856 |
| Citation | 479 P.3d 76 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jesse GREGORY, Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Daniel P. Rubenstein, District Attorney, Kraig R. Hamit, Deputy District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee
Opinion by JUDGE LIPINSKY
¶ 1 On March 6, 2020, Governor Jared Polis signed into law a bill that, among other provisions, substantially reduced the penalty for a person's unauthorized removal of an electronic monitoring device while on parole in an intensive supervision program (ISP parole). Under House Bill 20-1019, the Prison Population Reduction and Management Act (the Prison Reduction Act), the unauthorized removal of an electronic monitoring device while on ISP parole no longer constitutes felony escape, with a sentencing range of four to twelve years in prison. Rather, the Prison Reduction Act provides that a person on ISP parole who removes an electronic monitoring device "without permission and with the intent to avoid arrest, prosecution, monitoring or other legal process" commits the new crime of "unauthorized absence." Ch. 9, sec. 10, § 18-8-208.2(1)(b), 2020 Colo. Sess. Laws 27-28.
¶ 2 Unauthorized absence is a class 3 misdemeanor with a maximum sentence of six months in county jail, unless the person is serving a sentence for certain offenses, which the parties stipulated do not apply here. Id. § 18-8-208.2(2)(b), 2020 Colo. Sess. Laws at 27-28.
¶ 3 Defendant, Jesse Gregory, allegedly removed his electronic monitoring device without authorization while on ISP parole. Gregory faced prosecution for felony escape on the date the governor signed the Prison Reduction Act into law.
¶ 4 It makes a significant difference whether a defendant is charged with felony escape or the new crime of unauthorized absence — even more so in this case, because, together with the escape count, the prosecution charged Gregory with habitual criminal sentencing enhancers and sought a forty-eight-year sentence. Thus, for Gregory, retroactive application of the unauthorized absence provision of the Prison Reduction Act means the difference between a prison sentence of forty-eight years and a maximum jail sentence of six months.
¶ 5 The district court agreed with Gregory that the new crime of unauthorized absence applied to him and dismissed the felony escape and habitual criminal charges. The court remanded the case to county court for further proceedings as a misdemeanor unauthorized absence case. The prosecution appealed.
¶ 6 We agree with the district court that the unauthorized absence provision applies retroactively to cases being prosecuted as of the effective date of the new statute, and thus applies to Gregory.
¶ 7 The Prison Reduction Act amended, among other statutes, section 18-8-208(11), C.R.S. 2019, to state that, "[i]f a person ... is participating in a[n] ... intensive supervision program ... then the person is not in custody or confinement" for purposes of the escape statute. Ch. 9, sec. 8, § 18-8-208(11), 2020 Colo. Sess. Laws 26-27. Before the enactment of the Prison Reduction Act, a person on ISP parole was deemed to be "in custody or confinement" for purposes of the escape statute. See § 17-27.5-104(1), C.R.S. 2019 (); § 18-8-208(2) ().
¶ 8 The Prison Reduction Act defines the crime of authorized absence as "knowingly ... [r]emov[ing] or tamper[ing] with an electronic monitoring device required by the supervising agency to be worn by the person in order to monitor his or her location, without permission and with the intent to avoid arrest, prosecution, monitoring or other legal process." Ch. 9, sec. 9, § 18-8-208.2(1)(b), 2020 Colo. Sess. Laws 27-28.
¶ 9 Because, under the amended version of section 18-8-208(11), a person on ISP parole is not considered to be "in custody or confinement," such a person who removes an electronic monitoring device without permission to avoid monitoring commits the crime of unauthorized absence, and not felony escape. Id.
¶ 10 The prosecution alleges that, while Gregory was on ISP parole, he removed his electronic monitoring device and left his residence of record without permission. According to the prosecution, law enforcement authorities could not find Gregory for fifteen months. Once the authorities located Gregory, he was arrested and charged with felony escape and habitual criminal sentencing enhancers.
¶ 11 Governor Polis signed the Prison Reduction Act into law after Gregory allegedly removed his electronic monitoring device and while Gregory's felony escape charge was pending.
¶ 12 Gregory moved to dismiss the felony escape charge and to remand the case to county court for further proceedings on a misdemeanor unauthorized absence charge. He argued that the General Assembly's reclassification of his alleged conduct applies retroactively.
¶ 13 The prosecution opposed the motion, asserting that, although Gregory's conduct, "if committed after [the enactment of the Prison Reduction Act], [would] constitute the crime of ‘unauthorized absence,’ " the unauthorized absence provision does not apply retroactively because the General Assembly created a new criminal offense instead of reducing the penalties associated with an existing offense. The prosecution argued that People v. Stellabotte , 2018 CO 66, ¶ 3, 421 P.3d 174, 175, which addressed the retroactivity of "ameliorative, amendatory legislation," applies only when the General Assembly reduces the sentencing range of or reclassifies an existing offense and not when the General Assembly creates a new offense.
¶ 14 The district court disagreed with the prosecution's narrow reading of Stellabotte and found that the unauthorized absence provision applies retroactively to Gregory. The court remanded Gregory's case to county court for further proceedings as a misdemeanor unauthorized absence charge. Further, "because [Gregory could] no longer be charged with a felony," the court dismissed the habitual criminal counts. The prosecution filed this interlocutory appeal.
¶ 15 We review de novo a district court's decision to grant a defense motion to dismiss criminal charges, which presents a question of law. People v. Alameno , 193 P.3d 830, 834 (Colo. 2008) ; People v. Collins , 32 P.3d 636, 638 (Colo. App. 2001). This case also "involves questions of statutory interpretation, which we review de novo." Stellabotte , ¶ 10, 421 P.3d at 176.
¶ 16 Sections 2-4-202 and 2-4-303, C.R.S. 2020, create a general presumption that statutes apply prospectively. Section 18-1-410(1)(f)(I), C.R.S. 2020, a section of the Criminal Code, however, provides that a defendant may be entitled to relief if "there has been significant change in the law, applied to the applicant's conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard." Under section 18-1-410(1)(f)(II), an applicant may obtain relief on these grounds unless the applicant "has not sought appeal of a conviction within the time prescribed therefor or if a judgment of conviction has been affirmed upon appeal."
¶ 17 Relying on the identically worded predecessor of section 18-1-410(1)(f), our supreme court held in People v. Thomas that the defendant was entitled to retroactive application of amendatory legislation that lowered the degree of, and thus the maximum penalty for, the charged offense. 185 Colo. 395, 397-98, 525 P.2d 1136, 1137-38 (1974). The defendant in Thomas was charged with attempted burglary. After the defendant's arrest, but before his case went to trial, the General Assembly lowered the degree of, and thus the maximum penalty for, attempted second degree burglary. Id. at 396-97, 525 P.2d at 1137 ; see Ch. 121, sec. 1, §§ 40-2–101(5), 40-4-203, 1971 Colo. Sess. Laws 414-15, 427. In addition, following the defendant's conviction, and while his case was on appeal, the General Assembly amended the savings clause of the criminal code to allow for retroactive application of criminal statutes. See Ch. 152, sec. 2, § 40-1-510(1)(f), 1973 Colo. Sess. Laws 533.
¶ 18 The Thomas court explained that retroactive application of a criminal statute "is especially appropriate where [the] change in the law reducing the sentence intervenes before conviction is had and sentence is imposed ...." Thomas , 185 Colo. at 397-98, 525 P.2d at 1138. Further, the Thomas court noted that "[t]he view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law." Id. at 398, 525...
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People v. Pennington
...Colorado, for Defendant-AppelleeOpinion by JUDGE TERRY¶ 1 This appeal involves a new twist on the issue decided in People v. Gregory , 2020 COA 162, 479 P.3d 76. There, a division of this court held that newly amended section 18-8-208(11), C.R.S. 2020, which originated as part of the Prison......