People v. Pennington

• Citation: 481 P.3d 1186
• Decision Date: 28 January 2021
• Docket Number: Court of Appeals No. 20CA1116
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Emily Marie PENNINGTON, Defendant-Appellee.
• Court: Court of Appeals of Colorado

481 P.3d 1186

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

v.Emily Marie PENNINGTON, Defendant-Appellee.

Court of Appeals No. 20CA1116

Colorado Court of Appeals, Division IV.

Announced January 28, 2021

Clifford E. Riedel, District Attorney, Erin E. Butler, Deputy District Attorney, David P. Vandenberg, Second Assistant District Attorney, Fort Collins, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee

Opinion by JUDGE TERRY

¶ 1 This appeal involves a new twist on the issue decided in People v. Gregory , 2020 COA 162, 479 P.3d 76. There, a division of this court held that newly amended section 18-8-208(11), C.R.S. 2020, which originated as part of the Prison Population Reduction and Management Act (the Prison Reduction Act), H.B. 20-1019, 72d Gen. Assemb., 2d Reg. Sess., 2020 Colo. Sess. Laws 23, applies retroactively to cases being prosecuted as of the effective date of the new statute.

¶ 2 In this case, the prosecution appeals the district court's order of June 19, 2020, that sua sponte amended the charge against defendant, Emily Marie Pennington, from felony escape under section 18-8-208, C.R.S. 2019, to a charge of unauthorized absence under a provision of the Prison Reduction Act, section 18-8-208.2, C.R.S. 2020, and effectively dismissed the escape charge. According to the prosecution, the court's order violated the separation of governmental powers and improperly applied the 2020 statute retroactively to Pennington.

¶ 3 We conclude that the district court did not err by retroactively applying H.B. 20-1019 to Pennington. But we conclude that the district court did err by amending Pennington's charge to a charge under the 2020 statute, because that action violated the separation of powers.

¶ 4 As a result, we affirm the court's order dismissing the escape charge against Pennington, but we reverse the court's amendment of the charge to one under the 2020 statute, and remand for further proceedings.

I. Background

¶ 5 Pennington was sentenced to concurrent terms in Larimer County Community Corrections for two drug felonies. According to the prosecution, on February 14, 2020, Pennington left the Community Corrections facility and never returned. Pennington was later arrested in April and charged with escape, a class 3 felony.

¶ 6 While Pennington was still at large, on March 6, 2020, Governor Jared Polis signed H.B. 20-1019 into law. As relevant here, the enactment redefined felony escape so that the act of leaving and failing to return to a community corrections facility is no longer an escape and instead constitutes the new misdemeanor offense of unauthorized absence. § 18-8-208(11), C.R.S. 2020; § 18-8-208.2, C.R.S. 2020.

¶ 7 After her arrest, Pennington moved to dismiss the felony escape charge, arguing that she was entitled to retroactive application of the Prison Reduction Act and that consequently she could only be charged with unauthorized absence. Though the district court denied dismissal of the case, it ruled that H.B. 20-1019 should be applied retroactively, and as a result, the court amended the escape charge to a charge of unauthorized absence under the 2020 statute.

II. Retroactive Application of H.B. 20-1019

¶ 8 The prosecution argues that the district court erred by applying H.B. 20-1019 retroactively. We disagree.

A. Legal Standards for Retroactive Application

¶ 9 Statutes are generally presumed to operate prospectively. § 2-4-202, C.R.S. 2020; see also § 2-4-303, C.R.S. 2020 ("The [amendment] of any statute or part of a statute ... shall not have the effect to release, extinguish, alter, modify, or change ... any penalty, forfeiture, or liability ... which shall have been incurred under such statute, unless the repealing, revising, amending, or consolidating act so expressly provides ...."). But if a statute is silent as to whether it applies only prospectively, a defendant may seek retroactive application if she benefits from a significant change in the law. People v. Stellabotte , 2018 CO 66, ¶ 3, 421 P.3d 174.

¶ 10 In Stellabotte , our supreme court held that "ameliorative, amendatory legislation applies retroactively to non-final convictions under section 18-1-410(1)(f), unless the amendment contains language indicating it applies only prospectively." Id. ; see also § 18-1-410(1)(f)(I), C.R.S. 2020 (a defendant may request postconviction relief if "there has been significant change in the law, applied to the applicant's conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard"). Stellabotte also reaffirmed a long line of cases that retroactively applied legislative changes when a criminal defendant stood to benefit from those amendments. Stellabotte , ¶ 26 ; see, e.g. , Glazier v. People , 193 Colo. 268, 269, 565 P.2d 935, 936 (1977) ("As we have repeatedly held, a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction."); People v. Thomas , 185 Colo. 395, 398, 525 P.2d 1136, 1138 (1974) (the district court erred by failing to retroactively apply a legislative change that mitigated the penalties for attempted burglary).

¶ 11 However, in cases where a legislative amendment has substantially changed the elements or definition of a crime, Colorado courts have held that such legislation does not apply retroactively. See People v. Marlott , 191 Colo. 304, 308-09, 552 P.2d 491, 494 (1976) (refusing to retroactively apply an amended definition of assault because the elements of the offense had been substantially changed from those in the statute under which the defendant had originally been charged); People v. Ellis , 41 Colo. App. 271, 274, 589 P.2d 494, 496 (1978) (refusing to retroactively apply an amended homicide statute because the new statute was considerably altered from the statute under which the defendant was originally charged).

B. Discussion

¶ 12 We conclude that the legislative changes in H.B. 20-1019 should be applied retroactively to Pennington's case. The parties agree, as do we, that H.B. 20-1019 does not contain language indicating that it applies only prospectively. See Stellabotte , ¶ 3 (legislation does not apply retroactively if the legislation says that it applies only prospectively); see also Gregory , ¶ 50 (H.B. 20-1019 does not specify that the unauthorized absence provision only applies prospectively). We further conclude that because H.B. 20-1019's legislative changes are plainly ameliorative in nature, Pennington is entitled to the benefit of those changes.

¶ 13 Before the General Assembly enacted H.B. 20-1019, leaving and failing to return to a community corrections facility constituted escape under section 18-8-208, C.R.S. 2019. Under that 2019 statute, Pennington's actions in this case would have resulted in a class 3 felony escape charge, an offense punishable by up to twelve years in jail.

¶ 14 H.B. 20-1019 changed the type of conduct for which a defendant could be charged with escape. As enacted, the statute now provides that a person serving a direct sentence to community corrections is "not in custody or confinement for purposes of" the statute. § 18-8-208(11), C.R.S. 2020. And leaving and failing to return to a community corrections facility is no longer an escape. Id. Instead, such conduct is now an unauthorized absence under section 18-8-208.2, C.R.S. 2020; cf. Gregory , ¶¶ 7-8 (discussing unauthorized absence offense under section 18-8-208.2(1)(b), which addresses removal of or tampering with an electronic monitoring device).

¶ 15 In Pennington's case, if the new statute were to apply, a charge of unauthorized absence would be a class 3 misdemeanor punishable by no more than six months in jail. § 18-8-208.2(2)(b) ; § 18-1.3-501, C.R.S. 2020.

¶ 16 As relevant here, H.B. 20-1019 reduced the penalty and level of offense for certain walkaways from correctional facilities by redefining custody and confinement to remove certain conduct from the crime of escape and instead categorizing such conduct under the lesser crime of unauthorized absence. Gregory , ¶¶ 37-38. Such changes are plainly ameliorative in nature. Stellabotte , ¶ 3 ; Gregory , ¶¶ 37-38 (the unauthorized absence provision in H.B. 20-1019 was ameliorative because it mitigated the penalty for the defendant's conduct). And they are exactly the types of legislative changes that Stellabotte held are entitled to retroactive application. Stellabotte , ¶ 3 ("ameliorative, amendatory legislation applies retroactively" unless the statute says to the contrary).

¶ 17 Thus, applying the reasoning of Stellabotte , we conclude that H.B. 20-1019 applies retroactively, and that Pennington is entitled to the benefit of its legislative changes. See Gregory , ¶ 6.

¶ 18 We also reject the prosecution's argument that H.B. 20-1019 cannot apply retroactively because it creates a new offense. The Gregory division held that H.B. 20-1019 applies retroactively, even though it creates a new offense, because the legislative changes effectuated by the new enactment benefit the defendant. Id. at ¶ 41. We agree with that division's reasoning and apply it here.

¶ 19 The prosecution's citation to Marlott does not change our conclusion. It is true that in Marlott , our supreme court held that the assault statute under the new criminal code could not apply retroactively because "where, as here, the new Criminal Code changes the elements of the crimes, there can be no measure by which to determine whether the standards of punishment have increased or decreased because the crimes are no longer the same." Marlott , 191 Colo. at 308-09, 552 P.2d at 494 (footnote omitted).

¶ 20 But Pennington's case is distinguishable from the facts of Marlott . Unlike the circumstances in that case, H.B. 20-1019 did not overhaul the entire criminal code. And unlike the legislative change...