Schubert v. People
| Decision Date | 14 January 1985 |
| Docket Number | No. 83SC144,83SC144 |
| Citation | 698 P.2d 788 |
| Parties | Walter Joe SCHUBERT, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, State Public Defender, Matthew L. Goldsmith, Deputy State Public Defender, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Valerie J. McNevin-Petersen, Asst. Atty. Gen., Denver, for respondent.
We granted certiorari to review an unpublished decision of the court of appeals (No. 82CA597), which affirmed a judgment of the District Court of Jefferson County denying credit to the defendant, Walter Joe Schubert, for presentence confinement served in connection with charges separate and distinct from the offenses for which the defendant was ultimately sentenced. The court of appeals held that section 16-11-306, 8 C.R.S. (1984 Supp.), requires a sentencing court to credit a defendant only for that part of presentence confinement attributable to the criminal transaction for which the defendant is to be sentenced and not for confinement attributable to an unrelated criminal charge or conviction. We affirm the judgment of the Court of Appeals.
On October 3, 1980, the defendant was arrested and charged on two counts of second degree burglary of a dwelling 1 allegedly committed on April 1 and April 3, 1980, in Jefferson County, Colorado. Prior to his arrest on the burglary charges, the defendant had been charged in the District Court of Boulder County with felony menacing 2 and unlawfully carrying a concealed weapon. 3 On June 10, 1980, he tendered guilty pleas to these charges and was granted a deferred judgment and sentence conditioned on his participation in a rehabilitative program at the Colorado State Hospital. The defendant received an unsatisfactory discharge from the hospital on August 7, 1980, and his status on the Boulder charges was not yet resolved when he was arrested for the Jefferson County burglaries on October 3, 1980.
Following his arrest in Jefferson County, bail was set in the amount of $2,000, but the defendant was unable to post the bail and remained in the Jefferson County jail for fifty-two days from October 3, 1980, to November 23, 1980. On November 23 the District Court of Jefferson County authorized the defendant's transfer to the Boulder County jail for resolution of the deferred judgment and sentence pending in the Boulder District Court. 4 The defendant remained in custody in the Boulder jail from November 23 to December 17, 1980, when the District Court of Boulder County revoked the deferred judgment and sentence and granted him probation on the condition that he be confined in the county jail on a work release program and be later transferred to a community corrections facility.
On December 29, 1980, while confined in the Boulder County jail on the work release program, the defendant was taken to the District Court of Jefferson County for the entry of not guilty pleas to the pending second degree burglary charges. The defendant was then returned to the Boulder County jail and remained there on the work release program until January 9, 1981, when he was transferred to Empathy House, a Boulder community corrections facility. Upon his transfer to the community corrections facility, the District Court of Jefferson County granted the defendant a personal recognizance bond on the pending Jefferson County burglary charges on the condition that the defendant remain at the community corrections facility. The defendant remained at Empathy House until March 27, 1981, when he absconded and fled to California.
On June 16, 1981, the defendant pled guilty in California to assault with a deadly weapon and was ordered to serve a one-year county jail sentence as a condition of probation. 5 On December 3, 1981, he was extradited to Colorado and was transferred to the Jefferson County jail on December 4, 1981. Except for a brief transfer to the District Court of Boulder County for resolution of a petition to revoke his probation, 6 the defendant remained in the Jefferson County jail until the final resolution of the charges pending there against him on March 15, 1982. This period of confinement in the Jefferson County jail totalled 102 days.
On January 14, 1982, the defendant, pursuant to a plea agreement, entered guilty pleas to two counts of attempted second degree burglary of a building in exchange for the dismissal of the two counts of second degree burglary of a dwelling. 7 The District Court of Jefferson County sentenced the defendant on March 15, 1982, to concurrent sentences of two years on each of his attempted burglary convictions and credited him with presentence confinement of 154 days. 8 The 154 day credit represented those periods which the defendant spent in the Jefferson County jail awaiting disposition of the pending burglary charges, namely, the 52 days from October 3, 1980, to November 23, 1980, and the 102 days from December 4, 1981, to March 15, 1982. The sentencing court, however, expressly refused to credit against the sentence those periods of confinement or detention spent in the Boulder County jail, the Boulder County work release program, and the Boulder community corrections facility in connection with the charges pending against him in the Boulder District Court.
The defendant appealed his sentence to the court of appeals. In affirming the sentence, the court of appeals held that section 16-11-306, 8 C.R.S. (1984 Supp.), implicitly limits the right to presentence confinement credit to that confinement served in connection with the transaction for which the offender is to be sentenced. 9 We granted certiorari to consider whether section 16-11-306, 8 C.R.S. (1984 Supp.), requires credit for presentence confinement when such confinement is attributable to criminal charges which are separate and distinct from the charge or conduct for which the defendant is ultimately sentenced.
Before addressing the merits of the issue before us, we first review the state of the law which preceded the enactment of section 16-11-306, 8 C.R.S. (1984 Supp.). Prior to 1972 there was no statute addressing the question of credit for presentence confinement. In People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971), this court, after noting that credit for presentence confinement was not a matter of constitutional or statutory right, strongly recommended as a better practice the granting of credit for all time spent in custody as a result of the criminal transaction for which a sentence was to be imposed. The legislature responded to the Jones decision by enacting in 1972 section 39-11-306 as part of the Colorado Code of Criminal Procedure. Ch. 44, sec. 1, § 39-11-306, 1972 Colo.Sess.Laws 190, 249. This 1972 statute provided as follows:
(1) In sentencing a defendant to imprisonment the sentencing judge shall take into consideration that part of any presentence confinement which the defendant has undergone with respect to the transaction for which he is to be sentenced.
(2) The judge shall state in pronouncing sentence, and the judgment shall recite, that such consideration has been given, but no sentence shall be set aside or modified on review because of alleged failure to give such consideration unless the record clearly shows that the judge did not, in fact, consider such presentence confinement when imposing sentence.
(3) If the maximum sentence imposed is longer than the statutory maximum for the offense less the amount of allowable presentence confinement, it shall be presumed that the judge did not consider the presentence confinement.
This original statute, which was renumbered as section 16-11-306 in the 1973 Colorado Revised Statutes, 10 was consistently construed by this court to mean that a sentencing judge, although under legal obligation to consider presentence confinement, was not required to actually grant the defendant credit for such confinement. People v. Reed, 190 Colo. 517, 549 P.2d 1086 (1976); accord, e.g., People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Lobato, 192 Colo. 357, 559 P.2d 224 (1977).
It was against this backdrop of prior statutory and decisional law that the legislature in 1979 repealed section 16-11-306 and reenacted it in the following amended form:
A person who is confined prior to the imposition of sentence is entitled to credit against the term of his sentence for the entire period of such confinement. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include such finding in the mittimus. Such period of confinement shall be deducted by the Department of Corrections.
Ch. 157, sec. 7, § 16-11-306, 1979 Colo.Sess.Laws 664, 665-66.
Focusing his argument on the legislative omission in the 1979 version of section 16-11-306 of that phrase which limited presentence confinement credit to the jail time "which the defendant has undergone with respect to the transaction for which he is to be sentenced," the defendant argues that it must be presumed that the legislature thereby intended to change the law so as to require credit for all periods of presentence confinement without regard to whether such confinement is related to the transaction for which an offender is ultimately sentenced. We conclude that section 16-11-306, 8 C.R.S. (1984 Supp.), was intended to create a statutory entitlement to credit only with respect to the presentence confinement served in connection with the charge or conduct for which a particular sentence is imposed and that, consequently, the defendant in this case was not entitled to credit for the periods of his confinement or detention in Boulder on charges separate and distinct from those for which he was sentenced by the District Court of Jefferson County. 11
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