People v. Subjack

• Decision Date: 08 February 2021
• Docket Number: Supreme Court Case No. 20SA283,Supreme Court Case No. 20SA262
• Citation: 480 P.3d 114
• Parties: In Re: The PEOPLE of the State of Colorado, Plaintiff, v. David SUBJACK, Defendant In Re: The People of the State of Colorado, Plaintiff, v. Darryl Lewis Lynch, Defendant
• Court: Colorado Supreme Court

480 P.3d 114

In Re: The PEOPLE of the State of Colorado, Plaintiff,

v. David SUBJACK, Defendant

In Re: The People of the State of Colorado, Plaintiff,

v.Darryl Lewis Lynch, Defendant

Supreme Court Case No. 20SA262

Supreme Court Case No. 20SA283

Supreme Court of Colorado.

February 8, 2021

Attorneys for Plaintiff: Kaitlin B. Turner, District Attorney, Eleventh Judicial District Aaron F. Pembleton, Deputy District Attorney Cañon City, Colorado

Attorneys for Defendant David Subjack: Megan A. Ring, Public Defender Kyle Robert Nettleblad, Deputy Public Defender Salida, Colorado

Attorneys for Defendant Darryl Lewis Lynch: CS Law, PLLC Carrie E. Skahan Colorado Springs, Colorado

Attorneys for Respondent the Honorable Ramsey Lama: Philip J. Weiser, Attorney General Grant T. Sullivan, Assistant Solicitor General Denver, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 In these two original proceedings pursuant to C.A.R. 21, we address whether a criminal defendant who is unable to post bond on a class 4 felony charge is "in custody" and therefore entitled to a preliminary hearing on that charge under section 16-5-301(1)(b)(II), C.R.S. (2020), and Crim. P. 7(h)(1), even if that defendant is also in custody for separate, unrelated offenses.

¶2 While serving sentences in the Department of Corrections ("DOC") for unrelated offenses, David Subjack and Darryl Lynch were each arrested and charged with possession of contraband in the first degree, which is a class 4 felony. In both cases, the court set cash-only bonds, which neither defendant posted. Subjack and Lynch each requested a preliminary hearing pursuant to section 16-5-301(1)(b)(II) ("Any defendant accused of a class 4, 5, or 6 felony ... may demand and shall receive a preliminary hearing ... if the defendant is in custody for the offense for which the preliminary hearing is requested.") and Crim. P. 7(h)(1) (same). The district court denied their requests, reasoning that the current charges did not form the "primary basis" of their custody.

¶3 We issued a rule to show cause in each case. We conclude that, under the facts of these cases, Subjack and Lynch are "in custody for the offense for which the preliminary hearing is requested" for purposes of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1) and are therefore entitled to a preliminary hearing on the current charges. In so concluding, we reject the "primary basis" approach articulated in People v. Taylor , 104 P.3d 269 (Colo. App. 2004), and People v. Pena , 250 P.3d 592 (Colo. App. 2009), and relied upon by the district court in these cases. Accordingly, we make the rule to show cause in each case absolute and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶4 These original proceedings arise from two unrelated cases pending before the same district court judge in the Fremont County District Court.

¶5 Subjack and Lynch are in the custody of the DOC serving sentences at the Colorado State Penitentiary. In separate incidents, correctional officers discovered each inmate in possession of a dangerous instrument. Both were charged with possession of contraband in the first degree, in violation of section 18-8-204.1(1), (3), C.R.S. (2020), which is a class 4 felony. In Case No. 2020CR54, Subjack's bond was set at $10,000 cash-only, and in Case No. 2020CR228, Lynch's bond was set at $5,000 cash-only. Neither posted bond.

A. People v. Subjack

¶6 Subjack requested a preliminary hearing on the contraband charge. On April 20, 2020, the court set the case for preliminary hearing. On June 1, 2020, however, the district court granted the People's request for a continuance. At that time, the People also orally requested that the court vacate any future preliminary hearing, arguing that under Taylor and Pena , Subjack was not entitled to a preliminary hearing because the offense charged was not the "primary basis" for his custodial status. See Taylor , 104 P.3d at 272 ; Pena , 250 P.3d at 594–96.

¶7 In response, Subjack argued that Taylor and Pena were incorrectly decided and that section 16-5-301(1)(b)(II) does not limit the availability of a preliminary hearing to cases serving as the "primary basis" or having a "substantial nexus" to an individual's confinement. Subjack reasoned that, in the absence of all other cases and sentences, he was unable to post bond and thus was "in custody" for the offense for which the preliminary hearing was requested.

¶8 On June 13, 2020, the district court ruled that, under the court of appeals’ decisions in Taylor and Pena , Subjack was not entitled to a preliminary hearing. The court observed that Subjack was entitled to a preliminary hearing under the statute only if he was "in custody for the offense for which a preliminary hearing is requested." But the court reasoned that the current charge was not the "primary basis" of Subjack's confinement:

Applying the holdings of Pena and Taylor , I do not find that the Defendant is in custody for purposes of demanding or requesting a preliminary hearing. The Defendant is in the custody of the Department of Corrections. Even were the Defendant to post bond, it would have no effect on his in-custody status. ... Even were the [c]ourt to proceed to preliminary hearing today and find no probable cause for the offense charged, he would still remain in custody. At most, Mr. Subjack is concurrently held in Fremont and DOC custodies. But this Fremont County [c]ase is certainly not the primary basis of the Defendant's custodial status, where, here, the Defendant is serving a sentence in DOC.

Subjack filed a motion to reconsider, which the district court denied.

B. People v. Lynch

¶9 Lynch similarly requested a preliminary hearing on his contraband charge, which a magistrate granted. The People moved to vacate the preliminary hearing, however, arguing that Lynch was not entitled to a preliminary hearing under Taylor and Pena because "[a]t all time[s] during the proceedings, [he] will be in the primary custody of DOC."

The magistrate denied this motion, reasoning, "The Defendant has not posted bond and he cannot be released from his DOC sentence in the meantime without posting bond. This Defendant is, therefore, held in custody on this case."

¶10 The People petitioned the district court for review. The district court vacated the magistrate's ruling and granted the People's motion to vacate the preliminary hearing. The court took issue with the magistrate's reasoning, observing that "[p]osting bond in this case would have no practical effect on the Defendant's release from his DOC sentence." It then concluded that the present case was not the "primary basis" for Lynch's custodial status and that, under Taylor and Pena , Lynch was not entitled to a preliminary hearing.

¶11 Subjack and Lynch filed separate petitions invoking our original jurisdiction under C.A.R. 21. We issued a rule to show cause in each case and now make the rule in each case absolute.

II. Original Jurisdiction

¶12 Whether to exercise our original jurisdiction pursuant to C.A.R. 21 is within our sole discretion. C.A.R. 21(a)(1) ("Relief under this rule ... is a matter wholly within the discretion of the supreme court."). In exercising our discretion, we are mindful that such relief "is extraordinary in nature," id. , and "is limited in both purpose and availability," People v. Lucy , 2020 CO 68, ¶ 11, 467 P.3d 332, 335 (quoting People v. Rosas , 2020 CO 22, ¶ 19, 459 P.3d 540, 545 ). In light of this narrow scope, "we have exercised our jurisdiction pursuant to C.A.R. 21 when an appellate remedy would be inadequate, when a party may otherwise suffer irreparable harm, or when a petition raises ‘issues of significant public importance that we have not yet considered.’ " People v. Rowell , 2019 CO 104, ¶ 9, 453 P.3d 1156, 1159 (citations omitted) (quoting Wesp v. Everson , 33 P.3d 191, 194 (Colo. 2001) ).

¶13 We exercise our original jurisdiction in this case because the interpretation of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1) raises an issue of first impression that is of significant public importance. Moreover, ordinary appellate processes are inadequate here given that the relief Subjack and Lynch seek—a preliminary hearing on the charges against them—will be moot after trial. See People v. Tafoya , 2019 CO 13, ¶ 15, 434 P.3d 1193, 1195.

III. Standard of Review

¶14 The interpretation of a statute or rule is a question of law that we review de novo. Lucy , ¶ 19, 467 P.3d at 336. "In construing a statute, our primary purpose is to ascertain and give effect to the legislature's intent." McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379, 389 (citing Doubleday v. People , 2016 CO 3, ¶ 19, 364 P.3d 193, 196 ). In so doing, we first look to the plain language of the statute, reading the "words and phrases in context ... according to the rules of grammar and common usage." Id. We must construe the statute as a whole to give "consistent, harmonious, and sensible effect to all of its parts." Id. at ¶ 38, 442 P.3d at 389. If the plain language is unambiguous, we apply the statute as written. Id. Similarly, when construing our rules of criminal procedure, "[w]e employ the same interpretive rules applicable to statutory construction." People v. Steen , 2014 CO 9, ¶ 10, 318 P.3d 487, 490 (citing Kazadi v. People , 2012 CO 73, ¶ 11, 291 P.3d 16, 20 ).

IV. Analysis

¶15 In Colorado, a person charged with a class 4, 5, or 6 felony is not automatically entitled to a preliminary hearing unless the felony charged requires mandatory sentencing, is a crime of violence, or is a sexual offense. See § 16-5-301(1)(a), (1)(b)(I) ; see also § 18-1-404(1), (2)(a), C.R.S. (2020). However, "[a]ny defendant accused of a class 4, 5, or 6 felony ... who is not otherwise entitled to a preliminary hearing ... may demand and shall receive a preliminary hearing ... if the defendant is in custody for the offense for which the preliminary hearing is requested ." § 16-5-301(1)(b)(II) ...