People v. Omar

• Docket Number: Court of Appeals No. 20CA1607
• Decision Date: 09 February 2023
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Yusuf Mawiye OMAR, Defendant-Appellant.
• Court: Colorado Court of Appeals

529 P.3d 626
2023 COA 13 M

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Yusuf Mawiye OMAR, Defendant-Appellant.

Court of Appeals No. 20CA1607

Colorado Court of Appeals, Division III.

Announced February 9, 2023
As Modified on Denial of Rehearing March 30, 2023

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine C. Steefel, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE YUN

¶ 1 Yusuf Mawiye Omar appeals the district court's order revoking his five-year sentence to the Youthful Offender System (YOS) and imposing a previously suspended fifteen-year sentence to the Department of Corrections (DOC).

¶ 2 The YOS statute, section 18-1.3-407(5), C.R.S. 2022, imposes certain procedures and deadlines for revoking a YOS sentence. Addressing a matter of first impression, we conclude that the deadlines set forth in

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section 18-1.3-407(5) are not jurisdictional. Instead, the district court retains jurisdiction over the sentencing proceedings if those deadlines pass, and it has the discretion to remedy the missed deadlines. Under the specific circumstances of this case, however, the district court did not abuse that discretion by refusing to order a remedy. We therefore affirm the district court's order.

I. Background

¶ 3 In March 2019, Omar pleaded guilty in Arapahoe County District Court to one count of aggravated robbery, a class 3 felony, for a crime he had committed in the fall of 2017, when he was eighteen years old. In accordance with his plea agreement, the district court sentenced him to five years in the YOS, with a fifteen-year DOC sentence "suspended upon successful completion of the YOS sentence."

¶ 4 At the YOS, Omar signed a contract agreeing "to actively participate and to meet the specific terms and conditions" of the YOS. The contract also stated Omar's explicit understanding that his YOS sentence could be revoked for (1) failure to actively participate; (2) failure to meet the terms and conditions of his sentence; and (3) serious misconduct, including sexual misconduct and assaulting, menacing, or threatening employees, contract workers, volunteers, or other offenders.

¶ 5 During his first few months at the YOS, Omar was written up for making verbal threats against staff, assaulting another offender, sexual misconduct, and other infractions. As a result, on June 13, 2019, a team of staff at the YOS facility held a "suitability hearing" to determine whether to recommend revoking Omar's YOS sentence. At the end of the hearing, the team found that his actions had violated the terms of his YOS contract and therefore recommended revocation.

¶ 6 The YOS then sent a letter notifying the Arapahoe County District Attorney that Omar had "repeatedly refused to comply with the terms or conditions" of the YOS, thereby "satisfying the requirement for revocation" under section 18-1.3-407(5)(c). In the letter, the YOS asked the district attorney to seek revocation of Omar's YOS sentence and the imposition of his suspended adult sentence. Though the letter is dated July 30, 2019, the deputy executive director of the DOC did not sign the letter until August 12, 2019.

¶ 7 A month and a half later—on September 16, 2019—the People petitioned the district court to revoke Omar's YOS sentence under section 18-1.3-407(5)(c). The court set the matter for a hearing on December 12, 2019, and issued a writ ordering Omar to appear for the hearing and for a status conference on December 2.

¶ 8 Omar filed two motions to dismiss the revocation petition. In his first motion, Omar asked the court to dismiss the petition as a sanction for the People's failure to follow section 18-1.3-407(5)(c) ’s requirement that an offender "shall be transferred, within thirty-five days after the executive director upholds the department's decision [to revoke his YOS sentence], to a county jail." He said that he "continued to be held in the YOS facility in Pueblo until November 25, 2019, well in excess" of the thirty-five days by which he should have been transferred. In his second motion, Omar argued that the district court lacked jurisdiction to revoke his YOS sentence because (1) section 18-1.3-407(5)(c) ’s 126-day deadline for the court to review his YOS sentence ended December 3, 2019 (counting from the day that the letter to the district attorney is dated, July 30, 2019); and (2) the executive director of the DOC had not approved the decision to seek revocation.

¶ 9 The district court addressed those motions at the December 12 hearing, with Omar present. It found that section 18-1.3-407(5)(c) ’s 126-day timeline began sometime after August 12, 2019—the date the deputy executive director signed the letter to the district attorney—and, therefore, that four days remained on the clock. In addition, the court found, "even if I'm incorrect about that time frame, if we are outside of the 126 days, it's not a jurisdictional defect." Ultimately, however, the court dismissed the petition for revocation because the deputy executive director of the DOC—not the executive director himself—had approved the recommendation

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to revoke Omar's YOS sentence. It ordered Omar returned to the YOS facility but allowed the People to re-file the petition based on the same allegations.

¶ 10 Thereafter, on February 13, 2020, the People again petitioned for revocation. The People asked the district court to set a hearing within 126 days of February 4, 2020, the day they asserted that the executive director of the DOC had approved the request to revoke Omar's YOS sentence.¹ The People also asked the court to order Omar transferred to the county jail by March 10. The court set hearings for March 4 and March 9, but Omar was not transferred, so the court vacated those hearings.

¶ 11 The court set another hearing for April 3, 2020. On that day, however, the court continued the matter until June. It explained that, "[d]ue to the unprecedented public health crisis caused by the spread of COVID-19," the Chief Justice of the Colorado Supreme Court had temporarily suspended "certain court operations" and the district's chief judge had "cancelled all court appearances, with an exception for public safety matters."

¶ 12 Omar again moved to dismiss the revocation petition on two separate grounds. First, he argued that he was entitled to dismissal of the petition as a sanction for the failure to transfer him to county jail within thirty-five days of the executive director's February 4, 2020, decision to pursue revocation. Second, he argued that the district court lacked jurisdiction over the petition because more than 126 days had passed since the district attorney was notified that Omar had failed to comply with the terms of his YOS sentence—whether counting from the first letter, in August 2019, or the second letter, in January or February 2020.²

¶ 13 After further pandemic-related delays, the district court finally held Omar's resentencing, with him present, on August 7, 2020. The court began by acknowledging that, despite efforts by the court and the People, "Omar was not brought to court within the 126 days. He also wasn't transported to the county jail within the 35 days that the statute requires." But the court concluded that neither deadline was jurisdictional; rather, "depending on the circumstances," the court had discretion to "determine that ... revocation is not appropriate" and to "issue sanctions." The court then said,

Here we're dealing with a situation that the courts haven't dealt with in over a hundred years. And that is a global pandemic, in which it was—the courts were shut down almost entirely, aside from some—a few matters that were required to be held. The Court was unable to hold any hearings for a period of time during which this 126 days was running, where the Defendant was in a location other than here in the Arapahoe County Jail. We were unable to hold—we hadn't set up any mechanism to hold WebEx hearings, or remote hearings, YOS was not transporting juveniles, DOC was not transporting incarcerated individuals, jails were not [mov]ing individuals from jail to jail, and it was impossible for the Court to hold the hearing within 126 days.

....

I ... can't find that the failure to follow those two timeframes in this particular set of circumstances rises to the level of a violation that requires the Court to issue sanctions against the People.

The District Attorney did everything in their power to try and bring the Defendant to the Arapahoe County Jail; requested writs, writs issued. Those writs weren't followed by YOS.

The court therefore denied Omar's motions to dismiss the petition.

¶ 14 Turning to the merits, Omar did not dispute the factual allegations underlying the petition to revoke his YOS sentence. But defense counsel argued that, because the allegations were so old, the court had "nothing fresh, nothing that bears on who Mr. Omar is now, and how he has acted for the last year"

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and, therefore, that it could not determine that Omar was not suitable to remain in the YOS. Defense counsel suggested that "an appropriate lesser sanction [for the...