Shipley v. People, 01SC83.

• Citation: 45 P.3d 1277
• Decision Date: 29 April 2002
• Docket Number: No. 01SC83.,01SC83.
• Parties: Leonard Ray SHIPLEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

45 P.3d 1277

Leonard Ray SHIPLEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 01SC83.

Supreme Court of Colorado, En Banc.

April 29, 2002.

As Modified on Denial of Rehearing May 20, 2002.

Edward J. LaBarre, Colorado Springs, Colorado, for Petitioner.

Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, Colorado, for Respondent.

Justice COATS delivered the Opinion of the Court.

The defendant petitioned for review of the court of appeals' judgment upholding the trial court's refusal to reconsider his sentence. See People v. Shipley, 22 P.3d 564 (Colo.App. 2001)

. The trial court and court of appeals concluded that the special drug offender provision found at section 18-18-407, 8B C.R.S. (Supp.1993), required a sentence to the custody of the department of corrections, to the exclusion of any alternative sentences authorized by section 16-11-101, 8A C.R.S. (Supp. 1993). We hold that section 18-18-407(1) mandates only the length of sentence which a special drug offender must receive, without altering the sentencing options otherwise within the court's discretion. Because the defendant's underlying conviction did not require a sentence to the department of corrections, the judgment is reversed and the case is remanded with directions to order that the defendant's motion be considered.

I.

Following his arrest in August 1993, the defendant was convicted by a jury for possession of methamphetamine, a schedule II controlled substance (class 3 felony),¹ possession of a schedule II controlled substance with intent to distribute (class 3 felony),² and possession of an incendiary device (class 4 felony).³ In addition, because numerous firearms were discovered during the raid of the defendant's house, even though he was not home at the time, he was adjudicated a "special offender" under the then existing version of section 18-18-407(1)(f)("The defendant used, displayed, possessed, or had available for use a deadly weapon ...;"). The defendant was subsequently sentenced to twenty-four years in the custody of the department of corrections on the first count and to lesser concurrent sentences on the other counts.

In 1999, after the court of appeals' judgment affirming his convictions and sentence on direct appeal had become final, the defendant moved for a reduction of his sentence pursuant to Crim. P. 35(b). The sentencing court denied the motion on the grounds that it had no discretion to impose any sentence other than to the custody of the department of corrections in light of the defendant's special offender adjudication pursuant to section 18-18-407(1). The defendant subsequently appealed the denial of his motion, and the court of appeals affirmed.⁴ We granted the defendant's petition for writ of certiorari to consider the question whether the special offender statute requires a sentence to imprisonment in the department of corrections, to the exclusion of other sentencing alternatives.⁵

II.

Subject to constitutional limitations not at issue here, it is the prerogative of the legislature to define crimes and prescribe punishments. People v. Flenniken, 749 P.2d 395, 398 (Colo.1988); People v. Hinchman, 196 Colo. 526, 530, 589 P.2d 917, 920 (1979). Courts therefore exercise discretion in sentencing only to the extent permitted by statute. The goal in interpreting a sentencing statute must be to effect the legislative intent. See Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187, 1192 (Colo.1992)

; Schubert v. People, 698 P.2d 788, 793 (Colo.1985). If that intent is not clear from the language of the statute alone, or if the statute appears to conflict with other statutes, various intrinsic and extrinsic aids to statutory construction may resolve the ambiguity. § 2-4-203, 1 C.R.S. (2001); Schubert, 698 P.2d at 793-94. Particularly, when a statute is clearly part of a comprehensive regulatory scheme, the scheme should be construed to give consistent, harmonious, and sensible effect to all its parts. Martin v. People, 27 P.3d 846, 851 (Colo.2001); N.A.H. v. S.L.S., 9 P.3d 354, 367 (Colo.2000); Left Hand Ditch Co. v. Hill, 933 P.2d 1, 3 (Colo.1997).

The special offender provision of section 18-18-407 at issue here is potentially applicable, by its own terms, to any felony conviction under part 4, article 18, title 18, which defines offenses involving controlled substances. The version of the statute in effect at the time of the defendant's 1993 crime required the court to sentence anyone convicted of a felony under part 4 who was also found to have committed one of the aggravating factors enumerated in the statute to "a term greater than the presumptive range for a class 2 felony but not more than twice the maximum term for a class 2 felony authorized in the presumptive range for the punishment of such felony."⁶ § 18-18-407(1).

On its face, section 407 does not purport to deal with the nature of the required sentence or designate the official in whose custody it must be served. It merely requires a sentence to a term equal to a sentence in the aggravated range authorized for a class 2 felony. In doing so, however, the statute contains a clear, if implicit, reference to other provisions of a much broader sentencing scheme. Section 18-1-105 divides felonies into classes and distinguishes them from each other by authorizing specific ranges of penalties for each class. The penalties authorized for each class of felony are expressed in terms of dollar amounts of fines, specific numbers of years of mandatory parole, and presumptive ranges of years of "imprisonment." § 18-18-105(1)(a)(V).

The court of appeals found that the reference in the special offender statute to a "term" greater than the "presumptive range" for a class two felony was necessarily a reference to the penalty ranges of section 18-1-105(1)(a)(V)(A), and that in making that reference, the General Assembly intended not only to mandate a specific length of sentence but also to incorporate section 18-1-105's characterization of the term as "imprisonment." In addition, the appellate court found that the reference to section 18-1-105 in the special offender statute implicitly required the defendant's sentence to be served in the custody of the executive director of the Colorado Department of Corrections. It therefore concluded that section 18-18-407(1) forecloses a trial court's discretion to impose a fine or sentence a special drug offender to a community corrections program, home detention, or probation.

A. "Imprisonment" Within the Meaning of Section 18-1-105

The word "imprisonment" is not expressly defined in the Criminal Code or the Criminal Procedure Code, but it generally connotes some kind of confinement or restraint of a person's liberty. Black's Law Dictionary 760 (7th ed.1999). As used in the statutes and case law of this jurisdiction, however, "imprisonment" is clearly not limited to confinement in a state penitentiary. See, e.g., § 16-11-301(2)(allowing sentences to "imprisonment in a county jail" for certain young adults); § 18-1-106(1)("No term of imprisonment for conviction of a misdemeanor shall be served in any state correctional facility unless served concurrently with a term for conviction of a felony."); People v. Green, 734 P.2d 616, 618 (Colo.1987)(distinguishing imprisonment in state penitentiary from imprisonment in county jail); People v. Gibson, 623 P.2d 391, 393 (Colo.1981)(comparing sentences to imprisonment in the state reformatory with imprisonment in the state penitentiary). Imprisonment is listed among the sentencing alternatives available to courts in this jurisdiction generally, which at the time applicable to the defendant's crime also included probation, specialized restitution and community service, a fine, or compliance with any other court order authorized by law. See § 16-11-101, 8A C.R.S. (Supp.1993). "As a general rule, imprisonment for the conviction of a felony by an adult offender [is to] be served by confinement in an appropriate facility as determined by the executive director of the department of corrections," § 16-11-301(1); however, district courts are also given the express authority to "refer any offender convicted of a felony to a community corrections program unless such offender is required to be sentenced pursuant to section 16-11-309(1), C.R.S. [the crime of violence statute]." § 17-27-105, 6 C.R.S. (2001).

In People v. Winters, 765 P.2d 1010, 1012-13 (Colo.1988), this court considered the meaning of the synonymous term "incarceration," as it was used in the closely-related, mandatory sentencing statute for trafficking in large quantities of cocaine. See § 18-18-105(3), 8B C.R.S. (1986). We found the statutory language to be ambiguous with respect to the nature and place of confinement, despite an express provision excluding probation or suspension of sentence. Winters, 765 P.2d at 1012-13. Although we noted that the legislature had not generally used the terms "incarceration" or "imprisonment" with regard to community corrections programs, we nevertheless acknowledged certain statutory references suggesting that these terms may apply to placement or confinement in a community corrections setting. Id.; see also People v. Saucedo, 796 P.2d 11, 12 (Colo.App.1990)

(finding term "incarceration" as used in section 18-1-105(9)(a) includes direct sentences to community corrections); cf. People v. Hoecher, 822 P.2d 8, 12 (Colo.1991)(finding that residential community corrections constitutes "confinement" for which defendant must receive credit against service of a sentence to imprisonment). Only by reference to the legislative history of that sentencing provision, disclosing "an unequivocal legislative intent that violators be sentenced to the custody of the Department of Corrections," Winters, 765 P.2d at 1013, were we able to resolve the ambiguity against authorizing a community corrections sentence for the sale of more than twenty-eight grams of...