People v. Martin, 98CA0764.

• Decision Date: 13 May 1999
• Docket Number: No. 98CA0764.,98CA0764.
• Citation: 987 P.2d 919
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Vance E. MARTIN, Defendant-Appellant.
• Court: Colorado Court of Appeals

987 P.2d 919

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Vance E. MARTIN, Defendant-Appellant.

No. 98CA0764.

Colorado Court of Appeals, Division V.

May 13, 1999.

As Modified on Denial of Rehearing July 1, 1999.

Certiorari Granted November 1, 1999.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Dawn M. Weber, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Nancy J. Lichtenstein, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, Vance E. Martin, appeals the trial court's order denying his Crim. P. 35(c) motion for post-conviction relief. We affirm.

Pursuant to a plea agreement, defendant entered a plea of guilty to one count of sexual assault on a child by one in a position of trust. Defendant's admission was for an act committed between July 1 and July 31, 1993.

In exchange for the guilty plea, the prosecutor dismissed all remaining charges. The plea agreement also provided that defendant would not be sentenced in the aggravated range or pursuant to the Sex Offenders Act, § 16-13-201, et seq., C.R.S.1998.

The trial court sentenced defendant to a six-year prison term. However, it suspended the sentence and imposed a conditional sentence of five years on probation.

Approximately eighteen months later, defendant violated the conditions of his probation. Following a revocation hearing, the trial court revoked defendant's probation, but it then reinstated the sentence on the condition that defendant serve ninety days in the county jail, with work release granted.

After his release, defendant again violated the conditions of his probation. This time, the parties reached a new plea agreement whereby defendant admitted the most recent probation violation, and the prosecutor agreed to recommend that defendant be sentenced to four years in the Department of Corrections (DOC). The trial court accepted the plea and immediately sentenced defendant to a four-year prison term. It also imposed a five-year term of mandatory parole, pursuant to § 18-1-105(1)(a)(V)(C), as then in effect. See Colo.Sess. Laws 1993, ch. 322, § 18-1-105(1)(a)(V)(C) at 1998.

In defendant's Crim. P. 35(c) motion, he asserted that he had not been advised he would be required to serve a term of mandatory parole and that its addition resulted in a total sentence in excess of the four-year sentence to which he had agreed. In addition, defendant claimed that counsel's failure to advise him of mandatory parole constituted ineffective assistance of counsel, and he raised several other constitutional claims. As a remedy, defendant sought to have his total sentence, including parole, reduced to four years, to comport with the terms of the most recent plea agreement.

Without holding a hearing, the trial court denied defendant's motion. This appeal followed.

I.

Defendant first contends that because he was convicted of a sex offense, he was subject only to discretionary parole under § 17-2-201(5)(a), C.R.S.1998, rather than mandatory parole under § 18-1-105(1)(a)(V), C.R.S. 1998. We disagree.

A.

At the outset, we note that because defendant did not raise the same legal issue in the Crim. P. 35(c) proceedings, we would ordinarily not review it on appeal. Nevertheless, in arguing on appeal that the imposition of mandatory parole was illegal, his challenge is in the nature of a motion under Crim. P. 35(a). Because a court pursuant to Crim. P. 35(a) may correct an illegal sentence at any time, and because defendant raises a question involving fundamental rights, we elect to address the merits of the argument. See Mulkey v. Sullivan, 753 P.2d 1226 (Colo.1988)

; Armstrong v. People, 701 P.2d 17 (Colo.1985).

B.

At the time of defendant's conviction, the statutory provision on which he now relies, § 17-2-201(5)(a), provided in pertinent part:

As to any person sentenced for conviction of ... a sex offense ... the [state parole board] has the sole power to grant or refuse to grant parole and to fix the condition thereof and has full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court or five years, whichever is less.

See Colo.Sess. Laws 1979, ch. 157, § 17-2-201(5)(a) at 667 (emphasis added).

In contrast, § 18-1-105(1)(a)(V)(C), specifically applied to sex offenders and provided as follows:

Notwithstanding sub-subparagraph (A) of this subparagraph (V) [which applies to felonies committed on or after July 1, 1993], the mandatory period of parole for a person convicted of a felony offense pursuant to part 4 of article 3 of this title, or part 3 of article 6 of this title, shall be five years. (emphasis added)

See Colo.Sess. Laws 1993, ch. 322, § 18-1-105(1)(a)(V)(C), at 1982.

Nothing in the language of § 17-2-201(5)(a), § 18-1-105(1)(a)(V)(C), or any other statutory provision then in effect expressly excludes application to defendant's sentence of either § 17-2-201(5)(a) or § 18-1-105(1)(a)(V)(C). Thus, we must determine whether both can be applied and given effect or, if not, which must control.

C.

The cardinal rule in interpreting statutes is to ascertain and give effect to what appears to be the legislative intent, or purpose. If the language is ambiguous or different provisions appear to conflict, we may consider other factors, such as legislative history, the former law, the consequences of a particular construction, and the object sought to be obtained. See § 2-4-203, C.R.S.1998; Henderson v. RSI, Inc., 824 P.2d 91 (Colo. App.1991).

We must presume that the General Assembly selected the language used in a statute with the intent that the entire statute be effective. See § 2-4-201, C.R.S.1998; People v. Armstrong, 919 P.2d 826 (Colo.App. 1995). Likewise, we must strive to construe a statutory scheme in a manner that gives harmonious and sensible effect to all of its parts, consistent with the overall legislative intent. Wilczynski v. People, 891 P.2d 998 (Colo.1995); A.B. Hirschfeld Press, Inc. v. Denver, 806 P.2d 917 (Colo.1991); see also Bynum v. Kautzky, 784 P.2d 735 (Colo.1989)

(if possible, we must try to reconcile statutes governing the same subject).

When conflict between two statutory provisions is irreconcilable, we may employ additional rules of statutory construction. For example, if a general provision conflicts with a more specific provision, the more specific provision prevails as an exception to the more general provision, unless the general provision is later adopted and "the manifest intent is that the general provision prevail." Section 2-4-205, C.R.S.1998. In addition, if irreconcilable statutes are enacted in different legislative sessions, the statute prevails that is latest in its effective date. Section 2-4-206, C.R.S.1998. Finally, and perhaps most importantly here, in interpreting a comprehensive legislative scheme, we must construe each separate statutory provision to further, not defeat, the overall legislative intent. A.B. Hirschfeld Press, Inc. v. Denver, supra; Henderson v. RSI, Inc., supra.

D.

Section 17-2-201(5)(a) was enacted in 1979, well before the General Assembly created mandatory parole. See Colo. Sess. Laws 1979, ch. 157, § 17-2-201(5)(a) at 667. In contrast, § 18-1-105(1)(a)(V)(C) was enacted in 1993 with other mandatory parole provisions as part of House Bill 93-1302 which was entitled "An Act Concerning the Restructuring of the Criminal Justice System in the State of Colorado." See Colo. Sess. Laws 1993, ch. 322, at 1975-92 (the 1993 Act).

The 1993 Act includes changes to the sentencing and parole statutes, as well as to statutes defining substantive crimes. Of relevance here, the term of parole is statutorily specified and made mandatory. See Colo. Sess. Laws 1993, ch. 322, §§ 18-1-105(1)(a)(V)(B) through (D). Mandatory parole cannot be waived or suspended by the trial court. In addition, unlike discretionary parole under § 17-2-201(5)(a), the term of mandatory parole under the 1993 Act is not in lieu of, or limited to, the remainder of the term of incarceration. Instead, it is in addition to the term of incarceration. Indeed, when an offender is not discharged to parole supervision during the term of incarceration, the term of mandatory parole does not even commence until the sentence of incarceration has been fully discharged. See § 17-22.5-403(7), C.R.S. 1998, and Colo.Sess. Laws 1993, ch. 322, §§ 18-1-105(1)(a)(V)(B) and 18-1-105(1)(a)(V)(D); People v. Barth, 981 P.2d 1102 (Colo.App. 1999).

Under the 1993 Act, if the parole board determines that an offender has been sufficiently rehabilitated and reintegrated into society and can no longer benefit from parole supervision, the board has discretion to "discharge" the offender during the term of mandatory parole. See Colo.Sess. Laws 1993, ch. 322, § 18-1-105(1)(a)(V)(B); People v. Mayes, 981 P.2d 1106 (Colo.App.1999). Nevertheless, like the trial court, the parole board does not have authority to waive or suspend mandatory parole as an initial matter. Further, the board does not have authority, at least initially, to set the term of mandatory parole. See Colo.Sess. Laws 1993, ch. 322, §§ 18-1-105(1)(a)(V)(B) and 18-1-105(1)(a)(V)(D). Its role is therefore more limited under the 1993 Act than under § 17-2-201(5)(a).

It might be argued that § 17-2-201(5)(a) and §§ 18-1-105(1)(a)(V)(A) through (C) can nevertheless be given effect and reconciled by construing § 17-2-201(5)(a) to give the parole board discretion over parole when an offender is released to parole supervision before the sentence of incarceration has been fully served. That discretion would include setting the length of the term of parole during the remaining term of the prison sentence. In contrast, §§ 18-1-105(1)(a)(V)(A) through (C) could be construed to remove that discretion when the term of mandatory parole commences,...