People v. Snare, 97CA2083.

• Decision Date: 28 October 1999
• Docket Number: No. 97CA2083.,97CA2083.
• Citation: 7 P.3d 1025
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William R. SNARE, Defendant-Appellant.
• Court: Colorado Court of Appeals

7 P.3d 1025

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William R. SNARE, Defendant-Appellant.

No. 97CA2083.

Colorado Court of Appeals, Div. I.

October 28, 1999.

Certiorari Denied August 21, 2000.¹

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Nancy Bauer Egelhoff, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

Defendant, William R. Snare, appeals from the trial court's denial of his Crim. P. 35(c) motion. We affirm and remand.

Pursuant to a plea agreement, defendant pled guilty to one count of possession of a controlled substance (methamphetamine), a class four felony. Under the agreement, the prosecution stipulated that if defendant were sentenced to the Department of Corrections (DOC), his sentence would not exceed six years. In exchange for his plea, the prosecution dismissed the remaining charges against him and charges pending against him in an unrelated case.

The trial court then sentenced defendant to four years in a community corrections facility.

Less than a year after his sentence, defendant was terminated from the community corrections program. The trial court, without a hearing, resentenced defendant to the DOC for a four-year prison term. According to defendant, it was not until after he was sentenced to prison that he learned he would be required to serve a mandatory three-year period of parole upon completion of his prison sentence.

Defendant subsequently filed a pro se Crim. P. 35(c) motion, claiming that the court erred in resentencing him without holding a hearing. He also claimed that the providency court failed to advise him adequately because he was not informed that he would be required to serve a mandatory period of parole if he were sentenced to prison. Defendant further asserted that his sentence of four years imprisonment and three years of parole resulted in a total sentence of seven years and violated the terms of his plea agreement.

The trial court denied the motion without holding a hearing or appointing counsel to represent defendant on the motion.

I.

Section 17-27-105, C.R.S.1999, provides that, after an offender has been rejected from community corrections, a court may resentence such offender without a hearing so long as the sentence does not exceed the sentence originally imposed. In People v. Johnson, 987 P.2d 928 (Colo.App.1999), a division of this court held that, under that statute, a trial court may not impose an aggregate sentence, including the mandatory period of parole, that exceeds the length of the community corrections sentence.

Accordingly, defendant contends that the four-year term of imprisonment to the DOC plus the three-year mandatory period of parole which he now faces exceeds the four-year sentence to community corrections originally imposed, and therefore, that sentence was imposed illegally under § 17-27-105. Defendant also contends that, because he has been sentenced to the custody of the DOC for a total of seven years, the sentence violates the terms of the plea agreement which stipulated a sentence cap of six years.

To the contrary, however, we conclude that the mandatory period of parole is not included in calculating the length of a defendant's term of imprisonment to which he is resentenced, as here, after termination from community corrections. Thus, we disagree that defendant's DOC sentence illegally exceeded his original sentence.

If a court sentences a defendant to the DOC, then jurisdiction over the defendant lies in the executive branch. If the DOC later chooses to transfer the defendant to a community corrections program under § 17-27-105(2)(a), C.R.S.1999, jurisdiction over the defendant remains in the executive branch under § 17-27-105(2)(b), C.R.S.1999 (executive director of DOC to designate staff to maintain jurisdiction over all offenders placed in any community corrections program by order of the executive director or as a condition of parole). Thus, a defendant sentenced to the DOC or transferred by the DOC to community corrections is required to serve the mandatory period of parole which attaches to sentences to the DOC. See § 18-1-105(1)(a)(V)(A) (listing sentence ranges to imprisonment and mandatory periods of parole); Craig v. People, 986 P.2d 951 (Colo. 1999) (mandatory period of parole is a "statutorily prescribed sentence component that attaches automatically to any felony sentence involving imprisonment").

In contrast, if a defendant is directly sentenced to community corrections, jurisdiction remains with the judicial branch because supervision of the defendant lies with the probation department, which is an arm of the judicial branch. Section 17-27-105(1)(f), C.R.S.1999 (probation department has jurisdiction over offenders sentenced directly to community corrections); People v. Harris, 934 P.2d 882 (Colo.App.1997) (sentence to probation keeps a defendant under the direct supervision of the sentencing court). Hence, a sentence to community corrections under those circumstances does not invoke a mandatory period of parole. See Benavidez v. People, 986 P.2d 943 (Colo.1999) (offender directly sentenced to community corrections is not subject to mandatory parole unless rejected from community corrections for violation of rules of community corrections program).

When a defendant is rejected by the community corrections program and, in resentencing, the trial court sentences the defendant to the DOC, jurisdiction over the defendant is transferred from the judicial to the executive branch. The sentence is then subject to a mandatory period of parole, to be administered by the Board of Parole, following discharge of that sentence. See Benavidez v. People, supra; § 17-2-201, C.R.S.1999.

Here, defendant originally was sentenced directly to community corrections, jurisdiction over him remained in the judicial branch, and his direct sentence to community corrections was not subject to a mandatory period of parole. When he was terminated from the community corrections program, and resentenced to DOC, jurisdiction over him was transferred to the executive branch. And, because a sentence to the DOC carries with it a mandatory period of parole, defendant's term of imprisonment then became subject to the mandatory period of parole.

Under § 17-27-105(1)(e), C.R.S.1999, upon resentencing an offender who, as here, has been rejected from community corrections, a trial court may only impose a sentence to the DOC that does not exceed the original sentence to community corrections. However, since the mandatory period of parole is imposed, not by the judicial branch, but by the executive branch, it simply does not fall within the trial court's discretionary sentencing authority. Thus, this statutory limitation can refer only to that which is within the court's actual sentencing power; it cannot affect a statutorily required period of mandatory parole over which the court holds no jurisdiction to alter. Cf. Craig v. People, supra (in context of plea agreements, sentence concessions must be understood as speaking only to the discretionary aspects of sentencing where such accommodations actually could be entertained by the trial court).

In other words, when, as here, the court has sentenced a defendant to community corrections and later resentences the defendant to the DOC under § 17-27-105(1)(e), the period of mandatory parole is not a factor in resentencing defendant. Rather, the allowable number of years to the DOC which a court may impose is the length of the original direct sentence to community corrections. Cf. Craig v. People, supra (a reasonable person would understand that a sentence to the DOC refers only to the imprisonment component of a sentence and does not encompass the mandatory parole period).

Accordingly, we conclude that, the sentence, as set forth in § 17-27-105, refers to the term of imprisonment and does not include the mandatory parole period which follows. Contrary both to defenda...