People v. Jenkins

• Decision Date: 23 May 2013
• Docket Number: Court of Appeals No. 11CA0624
• Citation: 305 P.3d 420
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Joshua J. JENKINS, Defendant–Appellant.
• Court: Colorado Court of Appeals

305 P.3d 420

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Joshua J. JENKINS, Defendant–Appellant.

Court of Appeals No. 11CA0624

Colorado Court of Appeals, Div. VI.

Announced May 23, 2013

Mesa County District Court No. 08CR1556. Honorable Richard T. Gurley, Judge. ORDER AFFIRMED.

John W. Suthers, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Joshua J. Jenkins, Pro Se.

Opinion by JUDGE BERNARD

¶ 1 This appeal presents a question about the sentencing authority of a court in a criminal case. Can the court sentence a defendant who has been convicted of a felony to an indeterminate probationary term of ten years to life, even if the defendant is not a sex offender who has been convicted of a sex offense subject to sentencing under the Sex Offender Lifetime Supervision Act (SOLSA)? We conclude that, under the circumstances here, the answer to this question is “yes.” Therefore, because this answer means that the trial court did not impose an illegal probationary term when it sentenced defendant, Joshua J. Jenkins, we affirm the trial court's order denying defendant's Crim. P. 35(a) motion.

I. Background

¶ 2 Defendant was charged in three separate cases with having committed various felonies. In 2009, as part of a plea agreement, he pled guilty to charges in two of the cases. In the first one, he pled guilty to a drug-related felony, and the court sentenced him to prison for five years.

¶ 3 This appeal concerns the second case. Defendant pled guilty to one count of sexual exploitation of a child, which was a class four felony. The court sentenced him to an indeterminate term of ten years to life of sex offender specific probation. The court ordered that the probation sentence was to be served consecutively to the prison sentence in the drug case.

¶ 4 Defendant filed a notice of appeal in this case, but he later withdrew it so that he could file a Crim. P. 35(a) motion to “challeng[e] an illegal sentence.”

¶ 5 In February 2010, defendant filed a pro se Crim. P. 35(a) motion alleging that the indeterminate probationary term in this case was illegal. The court denied the motion on its merits in March 2010. In doing so, the court adopted the reasoning in the prosecution's written response to defendant's motion. Apparently relying on section 18–1.3–1004(2)(a), C.R.S.2012 (subsection 1004(2)(a)), the prosecution argued that, because defendant was a sex offender, the court was authorized to sentence him to an indeterminate probation sentence from ten years to life.

¶ 6 Defendant filed an untimely notice of appeal, and a motions division of this court dismissed the appeal with prejudice.

¶ 7 Defendant filed a second pro se Crim. P. 35(a) motion in November 2010. In it, he conceded that many of the arguments in the second motion were “the same” as those raised in the first motion. The trial court denied the second motion on its merits in November 2011. However, the court relied on a different statute in its decision than the prosecution had cited as support for its opposition to defendant's first Crim. P. 35(a) motion. Referring to the statute that describes a court's probationary power, section 18–1.3–202(1), C.R.S.2012 (subsection 202(1)), the trial court stated that it was “authorized to impose an indeterminate sentence” because “[t] he statute places no limitations on the duration of probation in felony cases and expressly provides that the length of probation may exceed the maximum period of incarceration authorized for the offense classification.”

¶ 8 Defendant then filed this appeal.

II. Multiple Crim. P. 35(a) Motions

¶ 9 We recognize that this appeal is from the trial court's decision to deny defendant's secondCrim. P. 35(a) motion, which raises the same issue as the first Crim. P. 35(a) motion. Although the state has an important interest in the finality of criminal convictions, see People v. Wiedemer, 852 P.2d 424, 434 (Colo.1993), we conclude that this appeal should not be barred, see People v. Tolbert, 216 P.3d 1, 4–6 (Colo.App.2007). Crim. P. 35(a) does not contain language, similar to the language in Crim. P. 35(c)(3)(VI), that bars relief for certain claims that were “raised and resolved in a prior postconviction proceeding.” See People v. Roy, 252 P.3d 24, 28 (Colo.App.2010); Tolbert, 216 P.3d at 4.

III. Defendant's Probation Sentence Is Legal

A. General Principles and Standards of Review

¶ 10 We note initially that the length of a sentence to probation is not ordinarily subject to appellate review “unless probation is granted contrary to the provisions of this title.” § 18–1.3–104(1)(a), C.R.S.2012. However, as the quoted language indicates, where, as here, a defendant contends that “a court has exceeded its statutory authority” in imposing a probationary sentence, appellate review is warranted. People v. Rossman, 140 P.3d 172, 174 (Colo.App.2006).

¶ 11 An illegal sentence is one that is not authorized by law, meaning that it is inconsistent with the sentencing scheme established by the legislature. People v. Wenzinger, 155 P.3d 415, 418 (Colo.App.2006). Claims that a sentence was not authorized by law may be raised at any time. People v. Bowerman, 258 P.3d 314, 316 (Colo.App.2010). Whether the trial court correctly determined the statutorily authorized sentencing range is an issue of law that we review de novo. People v. Everett, 250 P.3d 649, 663 (Colo.App.2010).

¶ 12 Our inquiry here also requires us to interpret statutes, which is an issue that we also review de novo. People v. Garcia, 113 P.3d 775, 780 (Colo.2005). When interpreting statutes, our focus is to give effect to the legislature's intent. Romero v. People, 179 P.3d 984, 986 (Colo.2007). To determine this intent, we first look to the plain language of the statute, see id., and we give that language its common meaning, Hastie v. Huber, 211 P.3d 739, 741 (Colo.App.2009). If the statute's language is clear and unambiguous, we do not need to engage in additional analysis. Romero, 179 P.3d at 986.

B. Analysis

¶ 13 The prosecution contends that the indeterminate probationary term is a legal sentence, and it bases this contention on two statutory pillars: subsection 1004(2)(a) and subsection 202(1). We conclude that, although the first pillar does not support the prosecution's contention, the second pillar does.

1. Subsection 1004(2)(a)

¶ 14 SOLSA establishes a lifetime supervision scheme for sex offenders who meet its definitions. § 18–1.3–1001, C.R.S.2012 (“The general assembly ... declares that a program under which sex offenders may receive treatment and supervision for the rest of their lives, if necessary, is necessary for the safety, health, and welfare of the state.”). Part of this sentencing scheme includes indeterminate sentencing, which is different from the scheme governing sentencing in other types of cases. SOLSA

creates specific sentencing provisions for a specific type of felony—sexual offenses—whereas the general sentencing provisions in § 18–1.3–401 create presumptive ranges that apply to general classes of felonies. The sentencing provisions of [SOLSA] therefore supplant the presumptive ranges in § 18–1.3–401, and the appropriate sentence for a sex offense is determined by [SOLSA] rather than by the general sentencing statute.

People v. Larson, 97 P.3d 246, 252 (Colo.App.2004).

¶ 15 An example of SOLSA's indeterminate sentencing scheme appears in section 18–1.3–1004(1)(a), C.R.S.2012. This statute states that courts shall sentence sex offenders to prison “for an indeterminate term of at least the minimum of the presumptive range specified in section 18–1.3–401 for the level of offense committed and a maximum of the sex offender's natural life.”

¶ 16 Subsection 1004(2)(a) addresses probationary sentences in SOLSA cases, stating that, as pertinent here, the trial court

based on consideration of the evaluation conducted pursuant to section 16–11.7–104 ... and the factors specified in section 18–1.3–203, may sentence a sex offender to probation for an indeterminate period of at least ten years for a class 4 felony ... and a maximum of the sex offender's natural life.

¶ 17 The question here is whether defendant is a “sex offender” who could be sentenced to probation under subsection 1004(a)(2). We conclude that he is not.

¶ 18 One way in which defendant could have been classified as a sex offender is found in section 18–1.3–1003(4), C.R.S.2012. That statute states that a “sex offender” is a person who “pleads guilty ... to a sex offense.” The term “sex offense” is defined to be any offense that is listed in section 18–1.3–1003(5), C.R.S.2012. The crime to which defendant pled guilty—sexual exploitation of a child under section 18–6–403, C.R.S.2012—does not appear in this list.

¶ 19 At the time defendant was sentenced, there was another way in which he could have been classified as a sex offender. There was additional language, which stated that the term “[s]ex offender also means any person sentenced as a sex offender pursuant to section 18–1.3–1004(4).” Ch. 318, sec. 2, § 18–1.3–1003(4), 2002 Colo. Sess. Laws 1436–37. This additional language was deleted by legislative amendment in June 2012. Ch. 268, sec. 23, 2012 Colo. Sess. Laws 1402.

¶ 20 Section 18–1.3–1004(4) was also repealed in June 2012. Ch. 268, sec. 14, 2012 Colo. Sess. Laws 1397. However, when defendant was sentenced, it set out a two-part test to determine whether an offender fell within its coverage. Ch. 318, sec. 2, § 18–1.3–1004(4)(a), 2002 Colo. Sess. Laws 1436–37. First, the offender had to be convicted of one of several crimes, which included “[s]exual exploitation of children, as described in section 18–6–403.” Ch. 318, sec. 2, § 18–1.3–1004(4)(b)(II), 2002 Colo. Sess. Laws 1437. Defendant obviously satisfied this criterion.

¶ 21 But defendant did not satisfy the second criterion. Former section 18–1.3–1004(4)(a) also required that (1) an offender undergo a sex offender evaluation...