People v. Johnson

• Decision Date: 18 September 2000
• Docket Number: No. 99SC780.,99SC780.
• Citation: 13 P.3d 309
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Mark A. JOHNSON, Respondent.
• Court: Colorado Supreme Court

13 P.3d 309

The PEOPLE of the State of Colorado, Petitioner, v. Mark A. JOHNSON, Respondent.

No. 99SC780.

Supreme Court of Colorado, En Banc.

September 18, 2000.

As Modified on Denial of Rehearing October 10, 2000.¹

Ken Salazar, Attorney General, John J. Krause, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for the Petitioner

David Kaplan, State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, Attorneys for the Respondent

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

In this case, we construe the words "offender's sentence" in section 17-27-105(1)(e), 6 C.R.S. (1999), which permits a court to resentence a felony offender who is rejected after acceptance by a community corrections program. We hold that under this statute, the term "offender's sentence" refers only to the term of imprisonment ordered by the trial court as part of the resentencing and excludes the mandatory period of parole that necessarily follows such imprisonment.

II. FACTS AND PROCEDURAL HISTORY

The defendant, Mark A. Johnson, appealed the trial court's order and addendum order denying his motion for post-conviction relief pursuant to Crim. P. 35(c). The defendant, as part of a plea bargain, pleaded guilty to the sale of marihuana, a class four felony,² in return for dismissal of a similar charge contained in the information. As part of this disposition, the People did not oppose a sentence to a community corrections Work Release program. In addition, the People agreed to a cap of six years if the defendant were sentenced to the Department of Corrections (DOC). The trial court sentenced the defendant to six years in the Larimer County community corrections facility.

Shortly after the imposition of his sentence, the defendant signed out for the work release program and never returned, violating the terms of the program. Thereafter, the defendant was arrested and returned to the court, and the court terminated his placement at the community corrections facility, resentencing him to six years in the DOC.

In his Rule 35(c) motions, the defendant argued that his resentence of six years to the DOC violated his plea agreement because this six-year term carries with it an additional three years of mandatory parole, establishing a total sentence of nine years.³ Since his plea agreement contained a cap of six years, the defendant contended that the nine-year term of the resentence exceeded the cap to which he and the People agreed in the plea bargain. The defendant argued that his second sentence should be reduced to three years incarceration and three years mandatory parole to comply with his plea agreement.

The trial court denied the defendant's motions, ruling that the terms of the defendant's second sentence did not violate the plea agreement. In an addendum order, the trial court ruled that the defendant's second sentence did not violate the resentencing statute, section 17-27-105(1)(e). This statute provides that after rejection by the community corrections program, the court may resentence the offender, but the court may not impose a sentence in excess of the sentence initially opposed upon the offender:

If an offender is rejected after acceptance by a community correction board or a community corrections program, the court may resentence the offender without any further hearing so long as the offender's sentence does not exceed the sentence which was originally imposed upon the offender.

§ 17-27-105(1)(e) (emphasis added).

The court of appeals reversed, holding that the term "sentence" in section 17-27-105(1)(e) refers to the "aggregate sentence" of the offender upon resentencing, or the period of imprisonment imposed plus the required period of mandatory parole. See People v. Johnson, 987 P.2d 928, 931 (Colo.App. 1999). The court of appeals concluded that "by sentencing defendant to a six-year prison term plus the required three-year parole period, the trial court imposed an aggregate sentence of nine years, which impermissibly exceeds defendant's original six-year community corrections sentence, thus violating section 17-27-105(1)(e)." Id. Thus, the court of appeals construed the term "offender's sentence" in the resentencing statute to mean the number of years that the offender will serve in the DOC plus the period of mandatory parole following release from the DOC.

In contrast to Johnson, a different panel of the court of appeals in another case interpreted the words "offender's sentence" of section 17-27-105(1)(e) to refer only to the term of the offender's DOC imprisonment and to exclude the mandatory parole period which follows. See People v. Snare, 7 P.3d 1025, 1027, (Colo.App.1999) (selected for official publication), cert. denied, No. 99SC937 (Colo. Aug. 21, 2000). The Snare court reasoned that because the period of mandatory parole that attaches to a sentence to the DOC is beyond the discretion of the trial court, the mandatory parole period is not part of the "sentence" the trial court imposes within the meaning of the resentencing statute. See id. The Snare court concluded that under the statute a trial court may resentence an offender to imprisonment in the DOC for a number of years equal to the length of time the offender was initially sentenced to spend in community corrections, irrespective of the period of mandatory parole that attaches to the new sentence.

To resolve the conflict between the different panels of the court of appeals in Johnson and Snare, we granted certiorari on this issue.⁴ We adopt the reasoning of the panel in People v. Snare and therefore reverse the judgment in this case and return it to the court of appeals for remand to the district court for further proceedings consistent with this opinion.

III. DISCUSSION

We begin our analysis by noting that this case was decided before we announced our decisions in Craig v. People and Benavidez v. People, both of which address the complex relationship of plea agreements, advisements, and mandatory parole. See 986 P.2d 951 (Colo.1999) (Craig); 986 P.2d 943 (Colo.1999) (Benavidez). In Craig, we held that "[i]n the context of mandatory parole, any plea agreement purporting to eliminate, waive, modify or direct the trial court's application of parole in a way not available under the sentencing law would call for an illegal sentence...." Craig, 986 P.2d at 960. Thus, we identified that mandatory parole is "mandatory" in the sense that a trial court may not alter or modify the parole term. In Benavidez, we stated in obiter dictum that the defendant, who had been sentenced directly to community corrections "would not have been subject to imprisonment (and thus, to mandatory parole) absent an act or failure to act which resulted in his violating the rules . . . of the Community Corrections program." Benavidez, 986 P.2d at 950. Thus, Benavidez recognizes a distinction between sentences of imprisonment (which carry terms of mandatory parole) and sentences directly to community corrections, which do not have terms of mandatory parole.

With these preliminary observations in mind, we examine the relationship between a sentence to community corrections and mandatory parole. A defendant may be placed in a community correction program in one of three ways. First, a trial court may sentence a person directly to community corrections pursuant to section 17-27-105(1). Second, the DOC may refer an offender to community corrections if that person is statutorily eligible for such assignment pursuant to section 17-27-105(2). Third, an offender may serve in community corrections as a condition of probation. See Benz v. People, 5 P.3d 311, 314 (Colo.2000); People v. Wilhite, 817 P.2d 1017, 1019 (Colo.1991).

Whether the sentence of an offender in a community corrections program carries a period of mandatory parole depends on the nature of the sentence. By statute, if the trial court sentences a felony offender to the DOC, then the sentence carries a term of mandatory parole that the offender must serve after release from confinement within the DOC. See § 18-1-105(1)(a)(V)(A), 6 C.R.S. (1999) (defining mandatory parole terms for felony sentences). If pursuant to section 17-27-105(2)(a) the DOC transfers to community corrections an offender originally sentenced to the DOC, then the offender's sentence carries with it the term of mandatory parole imposed by the statute and the offender must serve the period of mandatory parole upon release from community corrections. See Benavidez, 986 P.2d at 950. By contrast, if the trial court sentences an offender directly to community corrections, then the offender is not subject to mandatory parole as part of his sentence. See id.

Because the statute establishes the period of parole, the parole term is "mandatory, in that it may not be waived by the offender or waived or suspended by the trial court." Craig, 986 P.2d at 958 (citing § 18-1-105(1)(a)(V)(B)). Although mandatory parole is part of the overall "sentencing regime," it is a distinct element of sentencing, separate from the terms of imprisonment or length of sentence imposed by the trial court. See id. at 961-62. In a technical sense, the trial court imposes the period of mandatory parole when it sentences an offender to the DOC, but the period of mandatory parole is beyond the discretion of the trial court and, in effect, attaches by operation of section 18-1-105(1)(a)(V)(A). See id. at 958.⁵

Mandatory parole attaches to an offender's sentence any time a trial court sentences the offender to the DOC, whether the sentence is an initial sentence or a resentence. As we explained in Craig, a trial court cannot affect the term of mandatory parole when it sentences an offender to certain terms of confinement or custody within an approved facility. See 986 P.2d at 959. That is, a trial court possesses no authority to modify the period of mandatory parole imposed by operation of section...