People v. Terry

Decision Date14 May 1990
Docket NumberNo. 88SA259,88SA259
Citation791 P.2d 374
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Alonzo TERRY, Defendant-Appellee.
CourtColorado Supreme Court

James F. Smith, Adams County Dist. Atty., and Michael J. Milne and Peter A. Stumpf, Deputy Dist. Attys., Brighton, for plaintiff-appellant.

Craig L. Truman, P.C., Craig L. Truman, Denver, for defendant-appellee.

Justice VOLLACK delivered the Opinion of the Court.

The People appeal 1 the Adams County District Court's sentence of the defendant Alonzo Terry to a term of probation following his conviction of second degree assault by the use of a deadly weapon. The district court ruled that the defendant was not subject to section 16-11-309, 8A C.R.S. (1986), requiring mandatory sentencing for violent crimes, because the court had dismissed the People's mandatory sentencing count prior to the sentencing hearing. We reverse and remand for resentencing.

I.

On November 2, 1987, the defendant drove to the home of Stephen Meyer. During a quarrel, the defendant threw a bucket of gasoline on Meyer and threatened to light the gasoline. When Meyer fled, the defendant fired a gun two times at him.

The defendant was charged with attempted first degree murder, §§ 18-2-101(1) and 18-3-102(1)(a), 8B C.R.S. (1986), second degree assault, § 18-3-203(1)(b), 8B C.R.S. (1986), and commission of a violent crime, § 16-11-309, 8A C.R.S. (1986). Following a bench trial, the district court judge found the defendant not guilty of attempted first degree murder and guilty of second degree assault with the use of a deadly weapon. After finding the defendant guilty of second degree assault with the use of a deadly weapon, the court granted the prosecutor's motion to dismiss the violent crimes count.

At the sentencing hearing the prosecutor argued that section 18-3-203, upon which the defendant was convicted, required that the district court impose a violent crimes sentence on the defendant pursuant to section 16-11-309, even though the court granted the prosecutor's motion to dismiss the violent crimes count. The court ruled that the defendant was not subject to section 16-11-309 after the dismissal of the violent crimes count, and sentenced him to eight years of probation with a condition of probation that he serve sixty days in the county jail.

II.

The issue before the court is whether section 18-3-203 required that the trial court impose a sentence as provided in section 16-11-309 even though the section 16-11-309 count was dismissed prior to sentencing. We conclude that the court was required to impose sentence under section 16-11-309.

Subsection 18-3-203(1)(b) provides that a person commits second degree assault if "[w]ith intent to cause bodily injury to another person, he causes or attempts to cause such injury to any person by means of a deadly weapon." Subsection 18-3-203(2)(c) provides that if a person is convicted of second degree assault by the use of a deadly weapon, "the court shall sentence the defendant in accordance with the provisions of section 16-11-309."

Section 16-11-309 provides in relevant part:

(1)(a) [A]ny person convicted of a crime of violence shall be sentenced ... to a term of incarceration greater than the maximum in the presumptive range, 2 but not more than twice the maximum term ... without suspension.

....

(2)(a)(I) "Crime of violence" means a crime in which the defendant used, or possessed and threatened the use of, a deadly weapon during the commission or attempted commission of ... a crime of murder, first or second degree assault, kidnapping, sexual assault, robbery, first degree arson, first or second degree burglary, escape, or criminal extortion....

....

(4) In any case in which the accused is charged with a crime of violence as defined in subsection (2)(a)(I) of this section, the indictment or information shall so allege in a separate count, even though the use or threatened use of such deadly weapon or infliction of such serious bodily injury or death is not an essential element of the crime charged.

Subsection 16-11-309(5) provides in relevant part that, in a trial to the court, the court shall make a specific finding as to whether the accused did or did not use, or possessed and threatened to use, a deadly weapon during the commission of such crime.... If the ... court finds that the accused used, or possessed and threatened the use of, such deadly weapon or that such injury or death was caused by the accused, the penalty provisions of this section shall be applicable.

A.

The principles guiding judicial interpretation of statutes are well settled. Interpretation of statutes is a question of law, and appellate courts need not defer to the trial court's interpretation. See Silverstein v. Sisters of Charity of Leavenworth Health Servs. Corp., 43 Colo.App. 446, 449, 614 P.2d 891, 893 (1979), cert. denied (1980). The first goal of a court in construing a statute is to ascertain and give effect to the intent of the General Assembly. People v. District Court, Second Judicial Dist., 713 P.2d 918, 921 (Colo.1986). Constructions that defeat the obvious legislative intent should be avoided. Id. To determine the legislative intent, courts look first to the statutory language. Id.

If the statutory language lends itself to alternative constructions and its intended scope is unclear, a court may apply other rules of statutory construction and look to pertinent legislative history to determine which alternative construction is in accordance with the objective sought to be achieved by the legislation. See Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo.1989); see also § 2-4-203(1)(c), 1B C.R.S. (1980) (authorizing courts construing ambiguous statute to consider factors including legislative objective of statute, circumstances under which statute was enacted, legislative history, former statutory provisions, law concerning same or similar subjects, and consequences of a particular construction). Courts should attempt to give effect to all parts of a statute, and constructions that would render meaningless a part of the statute should be avoided. See District Court, 713 P.2d at 921.

B.

The parties' dispute focuses on the mandatory language of subsection 18-3-203(2)(c) and subsections 16-11-309(4) and (5). The defendant argues, and the trial court concluded, that subsections 16-11-309(4) and (5) require that the prosecutor plead and prove that the defendant committed a violent crime and was thus subject to section 16-11-309's sentencing provisions. The People assert that subsection 18-3-203(2)(c) required that the trial court sentence the defendant under subsection 16-11-309(1).

Because they concern the same subject matter--sentencing--subsections 16-11-309(4) and (5) and subsection 18-3-203(2)(c) must be construed together and harmonized to effectuate the legislature's intent. See People v. Low, 732 P.2d 622, 629 n. 10 (Colo.1987). In attempting to construe the subsections together, we conclude that, in operation, the language in the subsections is ambiguous--that is, it is susceptible to reasonable, alternative interpretations. See Griffin, 775 P.2d at 559.

Subsection 18-3-203(2)(c) may be interpreted to require mandatory sentencing as provided for in section 16-11-309, leaving no room for a trial court to impose a sentence under the typical sentencing scheme provided for in section 18-1-105, 8B C.R.S. (Supp.1989). On the other hand, subsections (4) and (5) of section 16-11-309 may be interpreted to require that a prosecutor charge, maintain, and prevail on, a mandatory crimes count in order for a court to impose a mandatory sentence under subsection 16-11-309(1), even if subsection 18-3-203(2)(c) specifically requires mandatory sentencing.

Because the subsections in operation are ambiguous we find it necessary to look beyond the statutory language and resort to other rules of statutory construction, including review of legislative history. Application of those rules demonstrates that the legislature intended that subsection 18-3-203(2)(c) require the imposition of a mandatory crimes sentence as provided for in subsection 16-11-309(1).

At the outset we note that the trial court's construction of subsections 16-11-309(4) and (5) and subsection 18-3-203(2)(c) renders subsection 18-3-203(2)(c) meaningless. The court in effect concluded that subsections 16-11-309(4) and (5) exclusively govern whether subsection 18-3-203(2)(c)'s sentencing mandate can be carried out. Under such an interpretation, however, subsection 18-3-203(2)(c) has no effect because it provides no sentencing authority to a trial court other than that which subsections 16-11-309(4) and (5) impart. We cannot countenance such a construction, which would render subsection 18-3-203(2)(c) meaningless. See District Court, 713 P.2d at 921.

Moreover, we must assume that the legislature, by amending subsection 18-3-203(2)(c), intended to change the law concerning sentencing for second degree assault by the use of a deadly weapon. People v. Hale, 654 P.2d 849, 851 (Colo.1982). The trial court's construction of subsection 18-3-203(2)(c), however, fails to reflect any change in the sentencing provisions of section 18-3-203.

Subsection 18-3-203(2)(c)'s legislative history also demonstrates that the trial court erroneously interpreted subsection 18-3-203(2)(c) and subsections 16-11-309(4) and (5). In 1986 the legislature enacted an omnibus bill amending nine criminal statutes, including section 18-3-203. 3 1986 Colo.Sess.Laws 776-78. The legislature amended the nine statutes to read that a defendant convicted under any of the statutes "shall be sentenced by the court in accordance with the provisions of section 16-11-309." Id. Importantly, each of the statutes contains elements of bodily injury or use of a deadly weapon, the same elements necessary to impose a sentence under section 16-11-309. See §§ 16-11-309(1)(a) and 16-11-309(2)(a)(I)....

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