People v. Hoecher
| Decision Date | 09 December 1991 |
| Docket Number | Nos. 90SC601,90SC749 and 90SC769,s. 90SC601 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Randolph HOECHER, Respondent. The PEOPLE of the State of Colorado, Petitioner, v. Frank GAMINO, Jr., Respondent. The PEOPLE of the State of Colorado, Petitioner, v. Christopher ANDERSON, Respondent. |
| Court | Colorado Supreme Court |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy
M. Tymkovich, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for petitioner.
David F. Vela, Colorado State Public Defender, Janet Fullmer Youtz, Deputy State Public Defender, Denver, for respondent Hoecher.
David F. Vela, Colorado State Public Defender, Martin J. Gerra, Deputy State Public Defender, Denver, for respondent Gamino.
Robert Justin Driscoll, Denver, for respondent Anderson.
These three cases raise a single issue: whether a defendant who is originally sentenced to a community correctional facility for a definite term, serves part of the sentence as a resident of the facility, is thereafter released from the facility and is permitted to serve the remainder of his sentence as a nonresident, and subsequently violates a rule or condition of the community correctional placement, is entitled upon resentencing to credit for that period of time during which the defendant was serving the remaining part of his sentence as a nonresident of the community correctional facility. In People v. Hoecher, 804 P.2d 230 (Colo.App.1990), People v. Anderson, (Colo.App. No. 89CA1299, August 30, 1990) (not selected for official publication), and People v. Gamino, (Colo.App. No. 89CA1392, October 25, 1990) (not selected for official publication), the court of appeals held that the resentencing court must credit the defendant with that part of the community correctional sentence served on nonresidential status. We granted the People's petition for certiorari in each case, and we now reverse the judgment of the court of appeals. 1
In Hoecher, 804 P.2d 230, the defendant pled guilty to first degree criminal trespass, a class 5 felony, 2 and was sentenced to the Restitution Center in Greeley, Colorado, a community correctional facility, for a term of three years. Hoecher was a resident in the facility from October 27, 1987, to April 28, 1988, when the administrator of the facility permitted him to serve out the remainder of his sentence as a nonresident. Hoecher's nonresidential status was later terminated because he used drugs and alcohol in violation of the terms of his community correctional placement. On November 1, 1988, the district court resentenced Hoecher to the custody of the Department of Corrections for a term of three years. The court gave Hoecher presentence-confinement credit for 461 days, which represented the county-jail time prior to the community correctional sentence, the time served as a resident of the community correctional facility, and the time served in jail between the termination of Hoecher's nonresidential status and the date of resentencing. The court, however, refused to credit Hoecher with the period of time which he served on nonresidential status. Hoecher appealed to the court of appeals, which reversed the sentence, reasoning that the district court's "refusal to give defendant credit for the non-residential time served in community corrections is 'tantamount to increasing his sentence' " in violation of section 17-27-114(2), 8A C.R.S. (1991 Supp.). 804 P.2d at 231 (quoting People v. Kastning, 738 P.2d 807 (Colo.App.1987)). The court of appeals remanded the case to the district court with directions to credit Hoecher with an additional 100 days for time served on nonresidential status.
In Anderson, the defendant pled guilty to criminal impersonation, a class 5 felony, 3 and was sentenced to the Arapahoe County Treatment Center, a community correctional facility, for a term of four years. Anderson remained a resident in the facility from November 23, 1987 to May 6, 1988, when he was placed on nonresidential status. Anderson's nonresidential status was terminated on November 14, 1988, for using illegal drugs, and he was placed in the custody of the Arapahoe County Sheriff's Department pending resentencing by the district court. On January 13, 1989, the court resentenced Anderson to the custody of the Department of Corrections for a term of four years, giving him credit for the time served on residential status in the community correctional facility and in the Arapahoe County Jail but denying credit for the period of time served as a nonresident. Anderson appealed his sentence to the court of appeals, which reversed the sentence, relying on its decision in Hoecher, 804 P.2d 230, and remanded the case to the district court with directions to credit Anderson with the time he served on nonresidential status.
In Gamino, the defendant pled guilty to the class 5 felony of driving a motor vehicle after he had been adjudicated an habitual traffic offender and his license had been revoked. 4 The district court sentenced Gamino to the Larimer County Corrections Department for a period of two years. He served approximately three months of the sentence as a resident of the community correctional facility and then was placed on nonresidential status. As a nonresident, Gamino was required to participate in a rehabilitative program and to report periodically to the community correctional facility, but he failed to do so. Gamino's community correctional placement was terminated, and the district court resentenced him to the Department of Corrections for a term of two years. The court credited Gamino with the time served as a resident of the community correctional facility, but denied credit for approximately 337 days served as a nonresident. Gamino appealed to the court of appeals, which reversed the sentence on the basis of its decision in Hoecher, 804 P.2d 230, and remanded the case to the district court with directions to credit Gamino with the time he served on nonresidential status.
The People petitioned for certiorari in each of the three cases, and we granted the petitions in order to consider whether these defendants were entitled upon resentencing to presentence-confinement credit for that part of the community correctional sentence served as a nonresident. For reasons hereafter discussed, we conclude that the defendants are not entitled to credit for nonresidential time. 5
We begin our analysis with a review of the statutory scheme creating community correctional facilities and programs. §§ 17-27-101 to -116, 8A C.R.S. (1986 & 1991 Supp.). A community correctional facility or program is defined as follows:
[A] community-based or community-oriented facility or program: Which is operated either by a unit of local government, the department [of corrections], a private nonprofit agency or organization, or any corporation, association, or labor organization; which may provide residential accommodations for offenders; and which provides programs and services to aid offenders in obtaining and holding regular employment, in enrolling in and maintaining academic courses, in participating in vocational training programs, in utilizing the resources of the community in meeting their personal and family needs and providing treatment, and in participating in whatever specialized programs exist within the community.
§ 17-27-102(1), 8A C.R.S. (1986). The purpose of sentencing a defendant to a community correctional facility or program is " 'to limit confinement to the extent necessary to assure reasonable supervision while permitting a gradual reintegration of the offender into the society to which the offender would eventually return.' " Wilson v. People, 747 P.2d 638, 640 (Colo.1987) (). Consistent with this purpose, community correctional facilities and programs make use of a variety of different approaches, including halfway houses and work release, in addressing the educational, vocational, and treatment needs of offenders placed in the facility or program by the sentencing court. A community correctional placement thus provides a sentencing court with a sentencing alternative that is more severe than probation, but not as harsh as a sentence to imprisonment in a correctional facility under the control of the Department of Corrections. People ex rel. VanMeveren v. Dist. Court of Larimer County, 195 Colo. 34, 36, 575 P.2d 4, 6 (Colo.1978).
Before a community correctional facility or program is available as a sentencing alternative, the chief probation officer and the local government or nongovernmental agency operating the facility or program must recommend guidelines, subject to the approval of the chief judge of the judicial district and the judicial department, pertaining to the use of the facility or program. § 17-27-105(2)(a), 8A C.R.S. (1986). Section 17-27-103(3), 8A C.R.S. (1991 Supp.), authorizes the corrections board of the local unit of government to establish and enforce standards for the operation of the correctional facility and program and also to develop standards for the conduct of offenders. Such standards can include the criteria by which an offender sentenced to a community correctional facility becomes eligible for release from the facility as a nonresident in order to serve out the remainder of the sentence imposed by the court. In keeping with the basic goal of community correctional placement, a sentencing court is authorized to sentence a nonviolent felony offender to either a residential or nonresidential community correctional facility or program. § 17-27-105(1)(a), 8A C.R.S. (1986). A sentence to a community correctional facility or program, however, is not final until the corrections board of the local governmental unit accepts the offender for...
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