People v. Heredia

• Decision Date: 07 November 2005
• Docket Number: No. 04CA0115.,04CA0115.
• Citation: 122 P.3d 1041
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose Albert HEREDIA, Defendant-Appellant.
• Court: Colorado Supreme Court

122 P.3d 1041

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose Albert HEREDIA, Defendant-Appellant.

No. 04CA0115.

Colorado Court of Appeals, Div. II.

May 19, 2005.

As Modified on Denial of Rehearing June 16, 2005.^*

Certiorari Granted November 7, 2005.

John W. Suthers, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

TAUBMAN, J.

Defendant, Jose Albert Heredia, appeals the trial court's order granting the People's Crim. P. 35(a) motion to correct Heredia's sentence to impose consecutive terms of mandatory parole. We vacate the order and remand.

I. Background

In 1999, Heredia was sentenced to three years in the Department of Corrections (DOC) for first degree criminal trespass and a consecutive two years in DOC for possessing a dangerous weapon. The applicable mandatory parole period was two years. Heredia served his time in DOC and was released on parole.

In September 2001, Heredia failed to report to a shelter as required by the terms of his parole. In December 2001, the state charged him with escape from custody, pursuant to §§ 17-27.5-104 and 18-8-208(2), C.R.S.2004, a class three felony.

In August 2001, before Heredia's parole violation, a division of this court held that sentencing a defendant to two periods of mandatory parole violated § 18-1.3-401(1)(a)(V)(E), C.R.S.2004 (formerly § 18-1-105(1)(a)(V)(E)), which governs consecutive sentences, and therefore, the mandatory parole period imposed on an escape charge should be served concurrently with the mandatory parole period remaining on the underlying charge. People v. Luther, 43 P.3d 660 (Colo.App.2001)(Luther I), rev'd, 58 P.3d 1013 (Colo.2002)(Luther II). Certiorari was granted in Luther I on March 18, 2002.

In May 2002, while certiorari was pending in Luther I, Heredia pleaded guilty to attempted escape pursuant to § 18-8-208.1, C.R.S.2004. In the plea agreement, Heredia stipulated to a sentence of one year in DOC with no reconsideration to be served consecutively to any sentence he was currently serving. The offense was a class four felony and carried a mandatory parole period of three years.

Heredia filed a Crim. P. 35(c) motion to amend the mittimus to reflect concurrent mandatory parole terms in compliance with Luther I. In October 2002, the trial court granted the motion and amended the mittimus to direct that Heredia's mandatory parole sentence for the attempted escape charge was to be served concurrently with the remainder of his mandatory parole for the underlying charge. The People did not appeal this modification.

In November 2002, the supreme court reversed the decision in Luther I, holding that a parole revocation reincarceration was not a period of mandatory parole or a sentence that carried parole, and therefore, § 18-1.3-401(1)(a)(V)(E) did not apply. Luther II, supra.

In September 2003, the People filed a Crim. P. 35(a) motion to correct an illegal sentence based upon Luther II. In December 2003, the trial court granted the motion and ordered Heredia to serve his underlying sentence, his mandatory parole revocation period, his sentence for attempted escape, and finally, the period of mandatory parole associated with the attempted escape charge.

Heredia appealed in January 2004, and the following day, he objected in the trial court to its ruling based on Luther II.

II. Jurisdiction

Heredia contends that the trial court lacked jurisdiction to reinstate his original sentence because the modification of his sentence under Luther I was legal, and therefore, the trial court lost jurisdiction because the modification became a final judgment. The People assert that Heredia's sentence based on Luther I became illegal as a result of Luther II, and thus, the trial court was correct in modifying the sentence pursuant to Crim. P. 35(a). We agree with Heredia, but on slightly different grounds.

We first consider and reject the People's assertion that we should not address Heredia's claims because they were not raised in the trial court before Heredia filed his notice of appeal. Jurisdictional issues may be raised at any time, including for the first time on appeal. People v. Torkelson, 22 P.3d 560 (Colo.App.2000)(citing People v. Hinchman, 196 Colo. 526, 589 P.2d 917 (1978)).

"[A] trial court loses jurisdiction upon imposition of a valid sentence except under circumstances specified in Crim. P. 35." People v. Mortensen, 856 P.2d 45, 47 (Colo.App.1993). Thus, we must determine whether Heredia's sentence was valid, and, if so, whether the People are entitled to relief under Crim. P. 35.

A. Validity of Heredia's Sentence

We conclude that under Mortensen, Heredia's sentence was valid.

In Mortensen, the defendant received a deferred judgment and sentence. Subsequently, the deferred judgment and sentence were revoked, and the defendant was resentenced to four years in a community corrections facility. After serving approximately fourteen months in the facility, he was transferred to a nonresidential program. Ultimately, his sentence to community corrections was revoked, and the court resentenced him to four years incarceration.

The defendant spent a total of 468 days in the community corrections program, which included both residential and nonresidential time. He argued that he should be given presentence confinement credit for all 468 days under People v. Hoecher, 804 P.2d 230 (Colo.App.1990)(holding that defendant was entitled to credit for both residential and nonresidential community corrections time), rev'd, 822 P.2d 8 (Colo.1991).

Subsequently, the supreme court reversed Hoecher. The People moved to modify the defendant's sentence, and the trial court granted the motion. The trial court issued an order reducing the defendant's presentence confinement credits from 468 to 198 days.

On appeal, a division of this court concluded that the trial court lost jurisdiction once it imposed a valid sentence, and therefore, the trial court had exceeded its jurisdiction when it modified the defendant's otherwise valid sentence. Mortensen, supra; see also People v. Janke, 852 P.2d 1271 (Colo.App.1992)(where trial court's order granting defendant's Crim. P. 35(c) motion became final, it did not retain jurisdiction to reconsider its ruling based upon subsequent court of appeals decision; trial court's final order could only be amended by motion under C.R.C.P. 59 or 60).

Here, Heredia's underlying convictions for criminal trespass and possession of a dangerous weapon were valid. The People did not assert in their Crim. P. 35(a) motion that Heredia's sentences for the underlying convictions were illegal in any way.

Similarly, neither Heredia nor the People asserted that Heredia's sentence for attempted escape was illegal. As noted, Heredia pleaded guilty to attempted escape pursuant to § 18-8-208.1, a class four felony with a presumptive sentencing range of two to six years and a three-year period of mandatory parole. Section 18-1.3-401(1)(a)(V)(A). Therefore, the mitigated sentence that Heredia stipulated to in his plea agreement, a consecutive one-year term in DOC and three years of mandatory parole, was consistent with his plea and complied with the statutory presumptive sentencing range. See § 18-1.3-401(6), C.R.S.2004 (upon finding extraordinary mitigating circumstances, the court may impose a sentence no less than one-half the minimum term authorized in the presumptive range).

The People argue that the supreme court's holding in Luther II caused Heredia's sentence to become illegal. However, because both the sentences for the underlying convictions and the sentence for attempted escape were valid final sentences, the trial court did not reacquire jurisdiction to modify the sentences upon the announcement of Luther II. See Janke, supra. Consequently, the trial court lost jurisdiction except for those circumstances specified in Crim. P. 35. See Mortensen, supra.

B. Crim. P. 35 Relief

We conclude that the People are not entitled to relief under Crim. P. 35.

The People moved to correct Heredia's sentence pursuant to Crim. P. 35(a), which allows for the correction of an illegal sentence. The version of Crim. P. 35(a) in effect at the time the People's motion was decided provided in part, "The court may correct an illegal sentence at any time . . . ." The current version of Crim. P. 35(a), effective July 1, 2004, provides in part, "The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time. . . ."

However, as we read the People's argument, their Crim. P. 35(a) motion challenged the manner in which Heredia's two sentences were effectuated, rather than the legality of the sentences themselves. To understand the People's argument, a review of the differences between Luther I and Luther II is necessary.

The statutes at issue in the Luther cases were §§ 18-1.3-401(1)(a)(V)(E) and 18-8-208.1(1), C.R.S.2004. Section 18-1.3-401(1)(a)(V)(E) provides: "If an offender is sentenced consecutively for the commission of two or more felony offenses . . . the mandatory period of parole for such offender shall be the mandatory period of parole established for the highest class felony of which such offender has been convicted." (Emphasis added.)

Section 18-8-208.1(1) provides: "If a person, while in custody or confinement following conviction of a felony, knowingly attempts to escape from said custody or confinement, he commits [attempted escape]. The sentence imposed [for attempted escape] shall run consecutively with any sentences being served by the offender." (Emphasis added.)

In Luther, the defendant was serving an eighteen-month term in DOC for a class four felony. The defendant's sentence carried with it a three-year period of mandatory parole. The defendant...