People v. Scott

• Decision Date: 21 November 2019
• Docket Number: Court of Appeals No. 19CA0976
• Citation: 456 P.3d 97
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Cody Jay SCOTT, Defendant-Appellee.
• Court: Colorado Court of Appeals

456 P.3d 97

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

v.Cody Jay SCOTT, Defendant-Appellee.

Court of Appeals No. 19CA0976

Colorado Court of Appeals, Division III.

Announced November 21, 2019

Daniel P. Rubinstein, District Attorney, George Alan Holley II, Senior Deputy District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee

Opinion by JUDGE WEBB

¶1 This prosecution appeal requires us to decide whether the General Assembly has legislatively overruled People v. Andrews , 871 P.2d 1199 (Colo. 1994), concerning the mandatory minimum sentence for the crime of escape (F3), by its 1995 amendment to section 18-8-208, C.R.S. 2019. Because we conclude that Andrews is still binding authority, we affirm the trial court’s sentence, which it imposed based on Andrews .

I. Background

¶2 Under section 16-12-102(1), C.R.S. 2019, the District Attorney for the 21st Judicial District appeals the four-year sentence (plus mandatory parole) imposed on defendant, Cody Jay Scott, following his guilty plea — without a sentencing concession — to escape, in violation of section 18-8-208(2). Specifically, the District Attorney contends the trial court erred as a matter of law in concluding based on Andrews that the mandatory minimum sentence was four years, under section 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2019, rather than eight years under section 18-1.3-401(8)(a)(IV). Scott concedes preservation.

II. Standard of Review

¶3 The parties agree that we review interpretation of a sentencing statute de novo. See, e.g. , People v. Wylie , 260 P.3d 57, 60 (Colo. App. 2010) ("To the extent defendant’s argument requires us to interpret statutory provisions, we do so de novo."). That review is guided by several familiar principles.

• A court’s principal task when construing a statute is to give effect to the General Assembly’s intent, as determined primarily from the plain language of the statute. Romero v. People , 179 P.3d 984, 986 (Colo. 2007).

• The court construes the statute as a whole in an effort to give consistent, harmonious, and sensible effect to all its parts, and reads words and phrases in context and according to the rules of grammar and common usage. People v. Banuelos-Landa , 109 P.3d 1039, 1041 (Colo. App. 2004).

• If the statutory language is clear and unambiguous, the court does not engage in further statutory analysis, much less consider extrinsic information. Romero , 179 P.3d at 986.

• "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." Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ; see also Klinger v. Adams Cty. Sch. Dist. No. 50 , 130 P.3d 1027, 1031 (Colo. 2006).

• A statutory interpretation leading to an illogical or absurd result will not be adopted, and courts avoid constructions that are at odds with the overall legislative scheme. See People v. Tixier , 207 P.3d 844, 847 (Colo. App. 2008).

III. Law

¶4 The sentencing range for a class 3 felony is four to twelve years. § 18-1.3-401(1)(a)(V)(A.1). But the presence of one or more "extraordinary aggravating circumstances" requires an enhanced minimum sentence of "at least the midpoint in the presumptive range" — which is eight years for a class 3 felony. § 18-1.3-401(8)(a). Relevant here, one such aggravating factor is that "[t]he defendant was under confinement ... or in any correctional institution as a convicted felon, or an escapee ... at the time of the commission of a felony." § 18-1.3-401(8)(a)(IV). And at least on appeal, Scott does not dispute that he "was under confinement or in any correctional institution" when he walked away from a halfway house.

¶5 The first Colorado case to address whether a defendant’s conviction for escape "triggered the operation of this enhanced sentencing provision" was People v. Russell , 703 P.2d 620, 622 (Colo. App. 1985), abrogated on other grounds by People v. Sanchez , 769 P.2d 1064 (Colo. 1989). Unsurprisingly, the Attorney General argued that this enhancement provision applied "because commission of felony escape is a felony committed while under confinement and continued while an escapee." Id.

¶6 The division disagreed. It explained that under this construction, "conviction of the class 3 felony of escape would always require imposition of a sentence in excess of the presumptive range specified for such class of felonies." Id. Instead, the division held that the enhancement provision "does not apply to the crime of escape, but rather it applies to other felonies committed while under confinement or to other felonies committed after escape from confinement." Id.

¶7 Almost a decade later, and without any intervening legislation, our supreme court addressed application of the enhancement provision to escape in Andrews . Again, the Attorney General argued that, "because the defendant was under confinement as a convicted felon at the time he committed the felony of attempted escape, the sentence enhancement provision applies." 871 P.2d at 1201. The supreme court disagreed.

¶8 Echoing Russell , the court explained that, under the Attorney General’s construction, the enhancement provision "would apply automatically to every individual convicted of class 3 felony escape." Id. at 1202. And such a construction was unacceptable because it "would effectively render meaningless the classification of the felony as class 3, since in each and every case an enhanced sentence would be imposed upon the defendant." Id.

¶9 The supreme court went on to hold that "the legislature did not intend to punish escape and attempted escape through application of the enhancement provision ...." Id. at 1203. In doing so, it noted "that since it was decided in 1985, this court has addressed the Russell decision on at least four occasions, and while limiting its application to crimes of escape we have not altered its force." Id. ; see also People v. Phillips , 885 P.2d 359, 360 (Colo. App. 1994) ("According to Andrews ... automatic aggravation of every felony escape conviction would render meaningless the original statutory classification of that crime and that, therefore, it was contrary to the presumption that statutes are intended to be effective in their entirety.").

¶10 Everyone would agree that the Colorado Court of Appeals must follow binding Colorado Supreme Court precedent. See, e.g. , In re Estate of Ramstetter , 2016 COA 81, ¶ 40, 411 P.3d 1043. So, if the story stopped here, under Andrews its ending would be obvious.

¶11 But divisions have sometimes avoided this limitation by holding that because a supreme court decision has been legislatively overruled by the General Assembly, it is no longer binding. See, e.g. , People v. Bondurant , 2012 COA 50, ¶ 75, 296 P.3d 200 ("We agree with other divisions of this court that the 1999 amendments legislatively overruled Cooper with respect to the intent element of burglary.").

¶12 So, do we follow Andrews and affirm or conclude — as the District Attorney argues — that Andrews was overruled when the General Assembly added section 18-8-208(9) and reverse? We conclude that Andrews was not legislatively overruled.

IV. The Continuing Vitality of Andrews in Light of Section 18-8-208(9)

¶13 According to the District Attorney, section 18-1.3-401(8)(a)(IV) mandates an enhanced sentence for escape because the General Assembly "clearly annunciated that it intended for escapes to be aggravated" by adding subsection (9) to section 18-8-208 the year after Andrews was announced. We begin with the plain language of section 18-8-208(9) but discover that it is not so clear.

A. Section 18-8-208(9) is Ambiguous

¶14 When subsection (9) was added, it read: "The minimum sentences provided by sections 18-1-105, 18-1-106, and 18-1-107 respectively, for the violation of the provisions of this section shall be mandatory, and the court shall not grant probation or a suspended sentence ...." Ch. 240, sec. 16, § 18-8-208, 1995 Colo. Sess. Law 1255 (emphasis added). At that time, section 18-1-105(9)(a)(V), C.R.S. 1995, required — as section 18-1.3-401(8)(a)(IV) does now — an enhanced sentence if "[t]he defendant was under confinement ... in any correctional institution as a convicted felon, or an escapee ... at the time of the commission of a felony."¹

¶15 The District Attorney argues that the plain language of section 18-8-208(9) requires an enhanced sentence for escape. Scott responds that section 18-8-208(9) does not address whether an escapee is subject to an enhanced sentence, but "rather what sentencing options are available to the court — specifically, that probation or a suspended sentence are not possibilities because the minimum sentences outlined in the sentencing statutes ... are mandatory."

¶16 To be sure, differing possible interpretations of statutory language do not necessarily mean that the statute is ambiguous. Cf. Klun v. Klun , 2019 CO 46, ¶ 19, 442 P.3d 88 ("The mere fact that the parties may interpret the agreement differently, however, does not alone establish an ambiguity."). But as explained below, both interpretations are reasonable . And "[a] statute is ambiguous if it is susceptible to multiple reasonable interpretations." Carrera v. People , 2019 CO 83, ¶ 18, 449 P.3d 725.

¶17 On the one hand, the General Assembly’s use of the phrase "shall be mandatory" in section 18-8-208(9) after referencing section 18-1-105 could mean that all of section 18-1-105 was mandatory for escape, including the enhanced sentencing provision of section 18-1-105(9)(a)(V). On the other hand, the General Assembly cross-referenced three sentencing statutes generally — those for felonies, misdemeanors, and petty offenses — followed by the language "shall be mandatory, and the court shall not grant...