People v. Kadell

• Citation: 411 P.3d 281
• Decision Date: 05 October 2017
• Docket Number: Court of Appeals No. 13CA2021
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Jay KADELL, Defendant-Appellant.
• Court: Court of Appeals of Colorado

411 P.3d 281

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

v.Roger Jay KADELL, Defendant-Appellant.

Court of Appeals No. 13CA2021

Colorado Court of Appeals, Div. IV.

Announced October 5, 2017

Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE WELLING

¶ 1 The defendant, Roger Jay Kadell, appeals the trial court's imposition of a sentence under the habitual criminal statute. Kadell contends that there is insufficient evidence that he was convicted of three qualifying felonies before his current convictions. We agree and conclude that, as a matter of first impression, for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. Because the prosecution did not present sufficient evidence of this fact at Kadell's sentencing hearing, we reverse Kadell's sentence and remand for further proceedings.

I. Background

¶ 2 A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions: in 1997 for attempted cultivation of marijuana; in 2005 for theft-by-receiving; and in 2006 for aggravated motor vehicle theft. The trial court imposed a sentence of twenty-four years in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony, in accordance with the habitual criminal statute.

II. Analysis

¶ 3 Kadell raises three issues on appeal. First, he contends that the trial court misapplied the habitual criminal statute. Second, he contends the trial court erred by denying a motion to suppress his prior convictions. Finally, Kadell contends the trial court erred by failing to give his sentence an extended proportionality review. We examine each of these issues in turn.

A. Habitual Criminal Finding

¶ 4 Kadell contends that his 1997 conviction for attempted cultivation of marijuana does not count as a felony under the habitual criminal statute. He argues that in 2011, when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants and because the trial court had no evidence of how many plants were involved in the 1997 conviction, that conviction could not have counted as a predicate felony under the habitual criminal statute. We agree.

1. Standard of Review

¶ 5 Kadell frames his argument as a challenge to the sufficiency of the evidence. Ordinarily, a defendant may raise a sufficiency of the evidence claim for the first time on appeal. People v. Garcia , 2012 COA 79, ¶ 35, 296 P.3d 285. But Kadell's argument is no ordinary sufficiency of the evidence of challenge; rather, his claim is premised solely on an interpretation of the habitual criminal statute.

¶ 6 During the habitual phase of trial, Kadell did not raise the statutory interpretation argument he now advances on appeal. Instead, Kadell made a general argument that there was insufficient evidence that he committed any of the prior felonies. Because of this, the People contend that the issue should be reviewed only for plain error. See Hagos v. People , 2012 CO 63, ¶ 18, 288 P.3d 116. Kadell disagrees. The same disagreement divides this court.¹ Compare People v. McCoy , 2015 COA 76M, ¶¶ 21, 36, ––– P.3d –––– (defendant may, for the first time on appeal, argue a sufficiency of the evidence claim which is dependent on an statutory interpretation) (cert. granted in part Oct. 3, 2016), with People v. Heywood , 2014 COA 99, ¶ 38, 357 P.3d 201 (applying plain error standard because "unpreserved sufficiency claim is no different than any other unpreserved error"), and People v. Lacallo , 2014 COA 78, ¶¶ 6, 20, 338 P.3d 442 (applying plain error standard to defendant's statutory argument that was not "even impliedly" raised in trial court). We do not need to stake out a position in this dispute, however, because we conclude that the trial court's decision to count Kadell's 1997 felony conviction as a prior felony under the habitual criminal statute necessitates reversal even on plain error review.

2. Habitual Criminal Statute and Changes in the Law

¶ 7 Before discussing how the trial court's interpretation necessitates reversal, it is helpful to discuss how the habitual criminal statute deals with underlying convictions when there has been a change in law.

¶ 8 Under the habitual criminal statute, every person convicted of a felony who has been three times previously convicted of a felony shall be adjudged a habitual criminal and shall receive a sentence of four times the maximum presumptive range. § 18-1.3-801(2)(a)(I), C.R.S. 2017. Kadell was so adjudicated in this case. The statute contains an exception, however, that "[n]o drug law conviction shall be counted as a prior felony conviction ... unless such prior offense would be a felony if committed in this state at the time of the commission of the new offense." § 18-1.3-801(3).

¶ 9 In 1997, Kadell pleaded guilty to a class 5 felony of attempted cultivation of marijuana. The Colorado statute under which Kadell pleaded guilty in 1997 provided that it was a crime for a person to knowingly "cultivate, grow, produce, process, or manufacture any marihuana or marihuana concentrate," regardless of quantity. § 18-18-406(8), C.R.S. 1997. Attempt to cultivate marijuana was a class 4 or 5 felony depending on whether it was the defendant's first offense under that section. Id. ; see also § 18-2-101(4), C.R.S. 1997 (attempt to commit class 4 felony is a class 5 felony).

¶ 10 In 2011, when Kadell committed the offenses in this case, it was a class 6 felony to attempt to cultivate marijuana "if the offense involv[ed] more than six but fewer than thirty plants." § 18-18-406(7.5)(b), C.R.S. 2011; see also § 18-2-101(4), C.R.S. 2011.² But, in 2011, if the offense involved six or fewer plants, attempted cultivation of marijuana was a class 2 misdemeanor. § 18-18-406(7.5)(a), C.R.S. 2011; see also § 18-2-101(6), C.R.S. 2011 (attempt to commit class 1 misdemeanor is a class 2 misdemeanor). So, in 1997, attempted cultivation of marijuana was a felony no matter how many plants were involved, whereas in 2011 the crime was only a felony if the prosecution proved that the offense involved more than six plants.

¶ 11 The question, from a sufficiency of the evidence standpoint, becomes whether the evidence introduced during the habitual phase of the trial in this case is sufficient to prove that Kadell's 1997 conviction for attempted cultivation of marijuana would still be a felony in 2011, meaning that it involved more than six plants. On this point, the parties agree, and the record supports, that evidence introduced during the habitual phase of trial does not establish that more than six plants were involved in Kadell's 1997 conviction.

3. The Trial Court Erred by Not Applying Section 18-1.3-801(3) to Kadell's 1997 Conviction

¶ 12 We now turn to the People's contention that, given the language of the statute, the exception found in subsection (3) does not apply to Kadell's 1997 conviction.

¶ 13 In interpreting a statute, our primary goals are to discern and give effect to the General Assembly's intent. People v. Shores , 2016 COA 129, ¶ 16, 412 P.3d 894. We look first to the statutory language, giving the words and phrases their plain and ordinary meanings. Id. After doing this, if we determine that the statute is not ambiguous, we enforce it as written and do not resort to other rules of statutory construction. Id. "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." People v. Diaz , 2015 CO 28, ¶ 13, 347 P.3d 621 (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ).

¶ 14 First, the People argue that the section of the statute exempting prior felony drug convictions applies only to out-of-state felony drug convictions. We disagree.

¶ 15 The plain language of the statutory exception at issue here provides that a "drug law conviction" is exempt from counting towards a defendant's prior felony convictions under habitual criminal statute if the underlying drug offense is no longer a felony in Colorado. § 18-1.3-801(3).

¶ 16 Nothing in the plain language of the statute suggests that it applies only to out-of-state convictions. The statute refers broadly to a "drug law conviction" without any apparent limitation as to the state of conviction. Id. The only modifier clarifies that the "drug law conviction" must still be a felony "in this state," meaning that a drug law conviction must be a felony in Colorado, and not necessarily that it must be a felony in the jurisdiction where it arose, at the time the new offense was committed. Id. Because the plain language is clear, we must apply the statute as written and conclude that the exception found in subsection (3) applies to Colorado drug law convictions.

¶ 17 The People also argue that subsection (3) should apply only to out-of-state convictions because other portions of the habitual criminal statute make specific reference to out-of-state convictions. We are not persuaded.

¶ 18 The habitual criminal statute provides generally that qualifying felonies include those crimes that were felonies "under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States," if the crime...