People v. Trujillo, Court of Appeals No. 16CA2176

• Decision Date: 16 May 2019
• Docket Number: Court of Appeals No. 16CA2176
• Citation: 487 P.3d 1051
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mario TRUJILLO, Defendant-Appellant.
• Court: Colorado Court of Appeals

487 P.3d 1051

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

v.Mario TRUJILLO, Defendant-Appellant.

Court of Appeals No. 16CA2176

Colorado Court of Appeals, Division V.

Announced May 16, 2019

Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Denver, Colorado, Alex San Filippo-Rosser, Deputy State Public Defender, Pueblo, Colorado, for Defendant-Appellant

Opinion by CHIEF JUDGE BERNARD

¶1 This appeal calls on us to decide whether an express exception to a general statutory rule applies to an arguably related circumstance that is not mentioned in the exception.

¶2 The general rule appears in section 18-6-801(1)(a), C.R.S. 2018. This subsection (1)(a), which addresses crimes that include acts of domestic violence, requires a court to order a defendant who has committed such a crime to "complete a treatment program and a treatment evaluation that conform with the standards adopted by the domestic violence offender management board."

¶3 The exception appears in section 18-6-801(2). This subsection (2) states that the requirements of subsection (1) "shall not apply to persons sentenced to the department of corrections." In other words, a court that has sentenced a defendant to prison for a domestic violence crime cannot order him to complete a treatment program as described in subsection (1).

¶4 The question we must answer in this appeal is: Does the exception in subsection (2) prevent a court from ordering a defendant to complete a treatment program if the court has sentenced the defendant to jail? We answer that question "no." We conclude, because of the reasons that we explain below, that subsection (1)(a) applies to all sentences except for prison sentences.

¶5 In this case, the trial court imposed a two-year jail sentence on defendant, Mario Trujillo, for a misdemeanor involving domestic violence. The court also ordered him to complete a certified domestic violence treatment program. He appeals. We affirm.

I. Background

¶6 The prosecution originally charged defendant with third degree assault, menacing, harassment, being a domestic violence habitual offender, and obstruction of telephone service. It also alleged that the facts of the case met the definition of domestic violence in section 18-6-800.3, C.R.S. 2018.

¶7 Defendant agreed to plead guilty to third degree assault. Under the plea agreement, he stipulated that the crime involved an act of domestic violence, that the court would sentence him to two years in jail, and that he would complete "a court certified domestic violence treatment and/or education program."

¶8 The trial court accepted defendant's plea. It then sentenced him to two years in jail, which was the maximum possible jail sentence; it ordered him to complete a domestic violence treatment program; and it set a review hearing for a year later to determine whether he had complied with the treatment order.

¶9 Defendant then filed a Crim. P. 35(a) motion, which alleged that the treatment order was illegal and asked the trial court to vacate it. The court held a hearing on the motion. Relying, in part, on section 18-6-801(1)(a), the court decided that it had the authority to enter the treatment order because the order was "in addition to," not part of, defendant's sentence.

¶10 The court then offered to set a review hearing. Defendant objected, arguing that the court did not have the authority to set further review hearings because they would be "akin to some sort of probationary sentence."

He added that the prosecution could "initiate proceedings" for contempt, but the court did not have "the authority to order [him] to appear ... when no contempt proceeding [was] ongoing." The court agreed, and it set an internal review as a presumptive deadline for defendant to file some proof of his enrollment in a treatment program. The court then noted that it would be, at that point, "up to the [prosecution] to take any action" if he had not completed the program.

II. Subsection (1)(a)’s Plain Language Requires the Trial Court to Order Domestic Violence Treatment

¶11 Defendant contends that the legislature did not intend for the general rule in subsection (1)(a) to apply to jail sentences. We disagree.

A. Standard of Review and Statutory Interpretation Principles

¶12 This appeal requires us to interpret statutes. We review such issues de novo. People v. Ortiz , 2016 COA 58, ¶ 15, 381 P.3d 410.

¶13 When we interpret statutes, we must ascertain and give effect to the legislature's intent. Colo. Dep't of Revenue v. Creager Mercantile Co. , 2017 CO 41M, ¶ 16, 395 P.3d 741. In doing so, "[w]e give effect to words and phrases according to their plain and ordinary meaning[s]." Denver Post Corp. v. Ritter , 255 P.3d 1083, 1089 (Colo. 2011). And "we will not interpret a statute to mean that which it does not express." Carruthers v. Carrier Access Corp. , 251 P.3d 1199, 1204 (Colo. App. 2010).

¶14 If a statute's language is clear, we apply it as the legislature wrote it. Denver Post Corp. , 255 P.3d at 1089. We "must read and consider the statutory scheme as a whole to give consistent, harmonious and sensible effect to all its parts." Charnes v. Boom , 766 P.2d 665, 667 (Colo. 1988). "In interpreting a comprehensive legislative scheme, we must construe each provision to further the overall legislative intent behind the statutes." Martin v. People , 27 P.3d 846, 851-52 (Colo. 2001). And, "when interpreting more than one statute, we will favor a construction that avoids potential conflict between the relevant provisions." People v. Smith , 971 P.2d 1056, 1058 (Colo. 1999).

B. Crim. P. 35(a) versus Crim. P. 35(c)

¶15 The prosecution contends that defendant rode the wrong horse — Crim. P. 35(a) — to the courthouse; he should have relied on Crim. P. 35(c) instead. Crim. P. 35(a) provides that a "court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time...." Crim. P. 35(c) is "the proper postconviction route in which to challenge ... sentences as unconstitutional." People v. Collier , 151 P.3d 668, 670 (Colo. App. 2006). And a defendant may assert that a court "rendering judgment was without jurisdiction over ... the subject matter" in a Crim. P. 35(c) motion. Crim. P. 35(c)(2)(III).

¶16 The prosecution supports its contention by asserting that the treatment order was not part of defendant's sentence. We agree.

¶17 In subsection (1)(a), the legislature characterized a treatment order as something other than a sentence. Section 18-6-801(1)(a) states that, "[i]n addition to any sentence" imposed, the trial court "shall" order the defendant to "complete a treatment program." (Emphasis added.)

¶18 Plus, domestic violence treatment, as contemplated by subsection (1)(a), "is not a form of punishment," and subsection (1)(a) "does not mandate a ‘penalty.’ " People v. Heisler , 2017 COA 58, ¶ 45, 488 P.3d 176 ; see Allen v. People , 2013 CO 44, ¶ 7, 307 P.3d 1102 ("Unlike a criminal sentence, the [sexually violent predator] designation is not punishment.... [A] trial court's decision to designate an offender as [a sexually violent predator] is legally and practically distinct from its sentencing function.").

¶19 We therefore conclude that the contentions defendant raises on appeal are cognizable under Crim. P. 35(c) instead of under Crim. P. 35(a). But, as the prosecution concedes, we must nonetheless address the merits of these contentions because defendant timely filed his motion.

C. Analysis

¶20 Section 18-6-801(1)(a) provides that, "[i]n addition to any sentence" imposed, the trial court "shall" order the defendant to "complete a treatment program." Subsection (2) provides that the provisions of subsection (1)(a) do "not apply to persons sentenced to the department of corrections." When we read these two subsections together, we conclude that they are clear and unambiguous.

¶21 The legislature's use of the word "shall" requires the trial court to order a defendant convicted of a domestic violence crime to complete a treatment program. See People v. Dist. Court , 713 P.2d 918, 921 (Colo. 1986) ("[T]he use of the word ‘shall’ in a statute is usually deemed to involve a mandatory connotation."). The use of the word "any" means that the statute applies to all sentences. See Stamp v. Vail Corp. , 172 P.3d 437, 447 (Colo. 2007) ("When used as an adjective in a statute, the word ‘any’ means ‘all.’ ").

¶22 The legislature provided a single, explicit exception in subsection (2): if the trial court sentences a defendant to prison, it cannot also order him to complete a treatment program. See Partners in Change, L.L.C. v. Philp , 197 P.3d 232, 235-36 (Colo. App. 2008) ("[W]hen the General Assembly intended to exempt certain domestic violence offenders from treatment ... it did so expressly" in subsection (2).); People v. Torres , 141 P.3d 931, 937 (Colo. App. 2006) (noting that the trial court could not order treatment because it sentenced the defendant to prison). Generally, we interpret the legislature's "inclusion of a single, specific, narrow exception to mean that the [legislature] intended that there be no other exceptions to the rule." Cain v. People , 2014 CO 49, ¶ 13, 327 P.3d 249.

¶23 The trial court sentenced defendant to jail, not to prison. Jail and prison are decidedly different. Prison "has long been recognized as the proper place for the incarceration of those convicted of the graver offenses[,] ... while county jails have been utilized for the confinement of those convicted of minor offenses." Brooks v. People , 14 Colo. 413, 414, 24 P. 553, 553 (1890).

¶24 Because the court sentenced defendant to jail instead of prison, we reject his assertion that subsection (1)(a) did not require the court to order him to complete a treatment program. To agree with him would be to "create an exception to a statute that the plain meaning does not suggest or demand."...