People v. Williams

• Decision Date: 15 February 2001
• Docket Number: No. 99CA1178.,99CA1178.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael A. WILLIAMS, Defendant-Appellant.
• Court: Colorado Court of Appeals

33 P.3d 1187

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael A. WILLIAMS, Defendant-Appellant.

No. 99CA1178.

Colorado Court of Appeals, Div. III.

February 15, 2001.

As Modified on Denial of Rehearing April 12, 2001.

Certiorari Denied November 13, 2001.¹

Ken Salazar, Attorney General, Kathleen M. Byrne, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Christopher H. Gehring, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge NEY.

Defendant, Michael A. Williams, appeals from the judgment of conviction of escape from an Intensive Supervision Program, a class 3 felony, pursuant to §§ 17-27.5-104 and 18-8-208(2), C.R.S.2000. We affirm the conviction, but remand for clarification of defendant's sentence.

Defendant was placed on mandatory parole for three years on May 27, 1998. Pursuant to § 17-27.5-106, C.R.S.2000, the parole board entered into a Parole Agreement/Order with defendant, which required that defendant participate in an Intensive Supervision Program (ISP) for 180 days.

The Parole Agreement/Order provided that:

Parolee will abide by all conditions of parole set forth in this agreement and any additional conditions and directives set forth by Parole Officer, consistent with the laws of the State of Colorado.

The agreement also required that defendant not leave the area to which he was paroled without the permission of his parole officer and that he comply with the directives of his parole officer at all times.

At his initial meeting with his parole officer, defendant signed and initialed a document setting forth the directives of the ISP. The directives required him to be at his residence of record each day during the curfew hours of 7:00 a.m. to 6:00 p.m., Monday through Friday, and 12:00 p.m. to 6:00 p.m., Saturday and Sunday. Additionally, defendant was restricted, when not confined to his residence, to the Denver Metropolitan Area. Finally, defendant was to be monitored by electronic surveillance equipment.

At that meeting, defendant also signed a document in which he indicated that his parole officer had apprised him of § 17-27.5-104. The document also stated that:

I therefore clearly understand that should I leave my designated residence of record for my ISP confinement for an excess of 24 hours, I am therefore, liable for prosecution, conviction and punishment for Felony Escape. . . .

On June 29, 1998, electronic monitoring revealed that defendant had been away from his residence of record since June 26, 1998, at 9:27 p.m. The next day, defendant called his parole officer, admitted that he had been away from his residence, and agreed to come to the parole office. Defendant did not appear, and his parole was revoked. Defendant was subsequently convicted of escape from ISP. This appeal followed.

I.

Defendant's primary contention on appeal is based on the definition of "extended limits on his confinement," as that phrase is used in § 17-27.5-104. He argues that there was insufficient evidence that he failed to remain within the extended limits of his confinement. We disagree.

Section 17-27.5-104 provides:

Escape from custody. If an offender fails to remain within the extended limits on his confinement as established under the intensive supervision program, . . . he shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208, C.R.S.

Defendant claims that neither the statute nor case law has defined the phrase "extended limits on his confinement." He maintains that since the plain and ordinary meaning of the word "extended" is "expanded," the unambiguous meaning of the "extended limits on his confinement" in this case is the ISP directive that he remain within the Denver Metropolitan Area. Because the prosecution only presented evidence that defendant had left his residence for a 24-hour period, and not that he had left the Denver Metropolitan Area, he reasons that the evidence was insufficient to sustain his conviction.

The trial court ruled that defendant's "extended limits on his confinement" consisted of his electronic monitoring at all times, his residence for the designated curfew hours, and the Denver Metropolitan Area at all other times. Defendant argues that this interpretation is incorrect because it narrows, as opposed to extends, the limits on his confinement.

Although we do not agree with defendant's characterization of the phrase "extended limits on his confinement," we do not reach the issue of its definition because here defendant was specifically advised, and acknowledged in writing, that violating the terms of his residential curfew would subject him to prosecution under § 17-27.5-104. Therefore, defendant's curfew directive constituted an extended limitation on his confinement under these facts.

Because the evidence is undisputed that defendant was not at his residence from June 26, 1998, until June 29, 1998, his conviction for escape is thus supported by sufficient evidence.

II.

Defendant also argues that his conviction violated his right to equal protection of the laws because there is no rational basis for determining which mandatory parolees are subject to ISP and, as such, are punished more severely than other similarly situated parolees. We find no equal protection violation.

Equal protection of the laws assures that those who are similarly situated will be afforded similar treatment. U.S. Const. amend. XIV; Colo. Const. art. II, § 25; People v. Alexander, 797 P.2d 1250 (Colo.1990). In the absence of a statutory infringement on a fundamental right or the creation of a suspect classification, equal protection of the laws is satisfied if the statutory classification has a reasonable basis in fact and bears a reasonable relationship to a legitimate governmental interest. People v. Alexander, supra.

The party challenging the statutory classification bears the burden of proving beyond a reasonable doubt that the classification is unreasonable or unrelated to any legitimate governmental objective. People v. Alexander, supra.

On appeal, defendant argues that § 17-27.5-106 provides no standards or criteria to govern the determination of which mandatory parolees should be subject to ISP and which should be placed on regular (or non-ISP) parole and, therefore, the statute violates equal protection. We disagree.

The criteria for selecting offenders for transfer into an ISP include, but are not limited to, the following:

(a) The frequency, severity, and recency of disciplinary actions against the offender;

(b) The offender's escape history, if any;

(c) Whether the offender has functioned at a high level of responsibility in a community corrections program, if applicable;

(d) Whether the offender will have adequate means of support and suitable housing in the community; and

(e) The nature of the offense for which the offender has been incarcerated.

Section 17-27.5-102(3), C.R.S.2000. Section 17-27.5-106, which was enacted after ISPs were created for discretionary parolees, provides:

Authority of state board of parole to utilize intensive supervision program. An offender who is granted parole or whose parole is modified may be required by the state board of parole, as a condition of such parole, to participate in an intensive supervision program as defined by this article . . . . (emphasis added)

In light of the phrase "as defined by this article," we conclude that the General Assembly intended § 17-27.5-106 to incorporate the standards and criteria set forth in § 17-27.5-102(3) for the parole board to consider when selecting parolees for placement in an ISP.

Thus, to effectuate this intent, we conclude that § 17-27.5-106 serves to modify § 17-27.5-102 to apply to all parolees described in § 17-27.5-102, as well as parolees subject to placement in an ISP as set forth in § 17-27.5-106. See People v. Farbes, 973 P.2d 704 (Colo.App.1998) (our task is to ascertain and give effect to the intent of the General Assembly).

Under this statutory scheme, the parole board is given discretionary power, based on an analysis of factors set forth in § 17-27.5-102(3), to determine which mandatory parolees are to participate in an ISP. The purpose of these factors is to provide guidance to the parole board in exercising its discretion, and implicit in this purpose is a recognition that not all mandatory parolees should be placed in an ISP. Thus, the statutory scheme is reasonably related to the legitimate governmental interest of supervising at-risk mandatory parolees. As such, we find no equal protection violation. See People v. Alexander, supra.

III.

We decline to address several of defendant's contentions on appeal because the record reveals that they were not first raised in the trial court. Those contentions include: 1) that § 17-27.5-104 violates the Colorado Constitution because the title of House Bill 89-1067, see Colo. Sess. Laws 1989, ch. 157 at 883-885, failed to express the statute's subject matter and, thus, did not provide notice that it was creating a new felony offense; 2) that § 17-27.5-104 applies to discretionary parolees, but not to...