People v. Reyes, Court of Appeals No. 14CA1549

• Citation: 409 P.3d 501
• Decision Date: 30 June 2016
• Docket Number: Court of Appeals No. 14CA1549
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Tony James REYES, Defendant–Appellant.
• Court: Court of Appeals of Colorado

409 P.3d 501

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

v.Tony James REYES, Defendant–Appellant.

Court of Appeals No. 14CA1549

Colorado Court of Appeals, Div. VII.

Announced June 30, 2016

Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE LICHTENSTEIN

¶ 1 Defendant, Tony James Reyes, asks us to decide whether a district court can set a resentencing hearing sua sponte and impose an increased sentence after an offender is terminated from a community corrections program. Because we conclude that it can, we affirm his sentence.

I. Background

¶ 2 Reyes was charged with second degree burglary, a class 3 felony, and misdemeanor theft. Pursuant to his plea agreement, he pleaded guilty to the theft count and received a two-year deferred sentence for second degree burglary. The district court imposed a two-year probationary sentence, with a suspended jail term.

¶ 3 Near the end of those two years, his probation officer filed a revocation complaint. In a new plea agreement, Reyes admitted to violating the terms of his probation and agreed to a sentence with a cap of eight years in the custody of the Department of Corrections. The district court resentenced him to four years in community corrections.

¶ 4 Reyes was subsequently terminated from the community corrections program for violating its policies. Reyes appeared before a different judge for resentencing. The judge questioned whether the original four-year community corrections sentence imposed by the previous judge was sufficient, and noted that, by statute, the court could set a resentencing hearing if it wanted to impose a higher sentence to the custody of the Department of Corrections.

¶ 5 Defense counsel objected, asserting that the court was not statutorily authorized to set a hearing sua sponte, and also argued that the court was treating his client differently from "hundreds of other defendants." The court disagreed, and after holding a resentencing hearing it imposed a five-year sentence in the custody of the Department of Corrections.

¶ 6 Reyes raises four contentions on appeal. First, he argues that the court lacked statutory authority under the community corrections statute to set a resentencing hearing sua sponte. Second, he contends that the court violated separation of powers principles when it set the hearing despite the fact that the prosecution never requested one. Third, he asserts that the court violated his right to equal protection when it singled him out for a sua sponte resentencing hearing just because it disagreed with the previous judge's sentence. Finally, he claims the court abused its discretion when it set a resentencing hearing for that same reason. We discuss and reject each contention in turn.

II. Court's Statutory Authority to Set Resentencing Hearing Sua Sponte

¶ 7 Reyes contends that the court lacked the statutory authority to set a resentencing hearing without a request from one of the parties. We disagree with Reyes's contention because the statutes governing the resentencing of an offender after a termination from community corrections do not condition the court's authority to set a hearing on a request from one of the parties, and we will not read such a requirement into them.

A. Standard of Review and Relevant Law

¶ 8 Statutory interpretation is a question of law that we review de novo. Romero v. People , 179 P.3d 984, 986 (Colo.2007). Our main goal when interpreting any statute is to give effect to the General Assembly's intent. Id. To do so, we start by looking at the statute's plain language. Id. "When a statute is part of a complex of sentencing prescriptions, the entire scheme should be construed to give consistent, harmonious, and sensible effect to all its parts." People in Interest of J.S.R. , 2014 COA 98, ¶ 13, 338 P.3d 1088 (quoting A.S. v. People , 2013 CO 63, ¶ 11, 312 P.3d 168 ).

¶ 9 Section 18–1.3–301, C.R.S. 2015, governs the district court's authority over community corrections sentences. Subsection (1)(e) addresses the court's authority to resentence an offender who has been terminated from a community corrections program. It provides that, if an offender is rejected from a community corrections program after he or she was initially accepted, "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." § 18–1.3–301(1)(e).

¶ 10 In Romero , our supreme court was asked to resolve whether this language authorized a court to increase an offender's sentence if it held a resentencing hearing, or whether the language simply authorized a court to convert a community corrections sentence to an equivalent (or shorter) Department of Corrections sentence without having to hold a hearing. The Romero court construed the plain language of subsection (1)(e) to mean that the district court can increase an offender's sentence so long as it holds a resentencing hearing. Romero , 179 P.3d at 986–87. It found support for this construction in another subsection of the community corrections statute, section 18–1.3–301(1)(h)(I), which gives the sentencing court authority "to modify" a community corrections sentence "in the same manner as if the offender had been placed on probation." The court determined that it "must look to what sentence [a defendant] could have been given had he violated a condition of probation rather than a condition of his community corrections sentence." Romero , 179 P.3d at 987. In this inquiry, the supreme court concluded that it must apply section 16–11–206(5), C.R.S. 2015, of the probation revocation statute, because that subsection governs the resentencing of an offender who has violated a condition of probation. Id. And, under section 16–11–206(5), a court may impose any sentence "which might originally have been imposed or granted."

B. Discussion

¶ 11 Reyes does not dispute that Romero permits a court to increase a sentence after holding a hearing, but contends that the court can hold a resentencing hearing only if the prosecutor or defendant requests it. He reasons that because subsection (1)(h) of the community corrections statute allows the court "to modify" a community corrections sentence in the same manner as a probation sentence, we ought to look to the probation modification statute, section 18–1.3–204(4)(a), C.R.S. 2015, which, he contends, does not permit a court to set a resentencing hearing sua sponte. The probation modification statute states in pertinent part:

For good cause shown and after notice to the defendant, the district attorney, and the probation officer, and after a hearing if the defendant or the district attorney requests it , the judge may reduce or increase the term of probation or alter the conditions or impose new conditions.

Id. (emphasis added). Reyes concludes, from this highlighted language, that the court can hold a resentencing hearing only if the prosecutor or the defendant requests it. We are not persuaded that the probation modification statute applies here.

¶ 12 When the supreme court in Romero construed subsection (1)(h) of the community corrections statute, it first "look[ed] to the facts of the case at hand to determine which provision of the probation statute would apply." See 179 P.3d at 987 n. 3. It then determined that a resentencing on a termination from community corrections is analogous to resentencing on a probation revocation, and therefore it was required to limit its review to the probation revocation sentencing statute to determine if a sentencing court has authority to increase the sentence. See id.

¶ 13 We are bound to follow this limit placed by our supreme court. We may not, therefore, apply the resentencing provisions of the probation modification statute because a "modification of probation is not analogous to a probation revocation proceeding." People v. Hotle , 216 P.3d 68, 70 (Colo.App.2008) (stating that a modification of probation occurs "prior to the commencement of revocation proceedings and provides a defendant with another opportunity to complete his probation without having it revoked").

¶ 14 Accordingly, we conclude that section 16–11–206(5), and not the modification statute in section 18–1.3–204(4)(a), applies to the resentencing here. See Romero , 179 P.3d at 987–88 ; see also People v. Griego , 207 P.3d 870, 871 (Colo.App.2008) (looking to the probation revocation statute when offender was terminated from community corrections).

¶ 15 Section 16–11–206(5) provides in pertinent part, "If probation is revoked, the court may then impose any sentence or grant any probation pursuant to the provisions if this part 2 which might originally have been imposed or granted." Id.

¶ 16 The plain language of this resentencing provision in section 16–11–206(5) does not state, much less suggest, that the prosecutor or defendant must request a resentencing hearing before the court can hold one. See id.

¶ 17 Reading section 16–11–206(5) together with section 18–1.3–301(1)(e), we perceive no legislative intent in either statute to restrict the court's ability to set a resentencing hearing only if the prosecutor or the defendant requests it. See Carruthers v. Carrier Access Corp. , 251 P.3d 1199, 1204 (Colo.App.2010) ("[W]e will not interpret a statute to mean that which it does not express. Nor will we add or substitute language in an otherwise clear statute.") (citations omitted). As a result, we conclude that section 18–1.3–301(1)(e) does not condition a district court's authority to set a resentencing hearing on a request from one of the parties.

¶ 18 Our conclusion is consistent with the legislative purpose underlying section 18–1.3–301(1)(e). In Romero , the supreme court noted that "it is reasonable that...