Torand v. People, 83SC114
| Decision Date | 21 January 1985 |
| Docket Number | No. 83SC114,83SC114 |
| Citation | 698 P.2d 797 |
| Parties | Johnny Lee TORAND, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, Colorado State Public Defender, Matthew L. Goldsmith, Deputy State Public Defender, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Marie Volk Bahr, Asst. Atty. Gen., Denver, for respondent.
We granted certiorari to review the unpublished decision of the court of appeals in People v. Torand (No. 81CA977), which affirmed the judgment of the District Court of Pueblo County denying credit for presentence confinement against an eight year sentence imposed on the defendant, Johnny Lee Torand, for the crime of sexual assault in the first degree. The court of appeals held that the defendant was not entitled to credit because the period of confinement was attributable to other criminal matters and not to the sexual assault transaction which resulted in the eight year sentence. We affirm in part, reverse in part, and remand the case for the entry of a corrected sentence.
I.
On December 24, 1979, while on parole from a one-day-to-life sentence imposed under the Colorado Sex Offenders Act, 1 the defendant was arrested following a consent search of his apartment. He was thereafter confined in jail as a suspect in connection with a burglary and sexual assault which occurred on December 10, 1979, and a burglary and theft which occurred on December 24, 1979. A detainer for a parole violation was also lodged against the defendant based on his possession of a weapon uncovered in the consent search. On or about January 7, 1980, an information was filed in the District Court of Pueblo County (case no. 80CR50) charging the defendant with the crimes of first degree burglary, 2 a class 3 felony, and first degree sexual assault while armed with and using a deadly weapon, 3 a class 2 felony, alleged to have been committed December 10, 1979. It is this case which is the subject of this appellate proceeding. A separate information also filed in the District Court of Pueblo County (case no. 80CR41) charged the defendant with burglary and theft based on the December 24, 1979, transaction. The defendant was unable to post bail on either case.
The defendant proceeded to trial in case no. 80CR41, which involved the burglary and theft charges arising from the December 24, 1979, incident. The jury acquitted the defendant of these charges on July 11, 1980. On July 14, 1980, three days later, defendant's parole was revoked and he was transferred to the Colorado State Penitentiary to resume his sentence under the Colorado Sex Offenders Act. The basis of the parole revocation was the defendant's possession of a weapon on December 24, 1979, in violation of the conditions of his parole. The defendant remained in the penitentiary until approximately July 29, 1981, when he was returned to the District Court of Pueblo County and, pursuant to a plea bargain in case no. 80CR50, entered a guilty plea to the reduced charge of first degree sexual assault not involving the use of a deadly weapon, a class 3 felony, in exchange for the dismissal of the burglary count. On the same day the district court imposed a sentence of eight years 4 to be served concurrently with the one-day-to-life sentence that the defendant was presently serving, but denied the defendant any credit for presentence confinement against the sentence. The district court ruled that due to the other charges of burglary and theft filed against him in case no. 80CR41, coupled with the parole detainer placed on him on the same day and the subsequent revocation of parole, the defendant served no period of presentence confinement at the Pueblo County jail attributable to the first degree sexual assault charge for which the eight year sentence was imposed.
The defendant appealed the sentence to the court of appeals, which held that the defendant was not entitled to any credit for presentence confinement against the sexual assault sentence. We granted certiorari to consider whether section 16-11-306, 8 C.R.S. (1984 Supp.), requires that the defendant be credited with some or all of the confinement served by him prior to the imposition of the eight year sentence for first degree sexual assault.
The defendant argues that the 1979 amended version of section 16-11-306 mandates that credit be given for all presentence confinement served by an offender, whether such confinement relates to the criminal charge or conduct for which the offender is ultimately sentenced or to some other offense. We considered and rejected an identical argument in Schubert v. People, 698 P.2d 788 (Colo.1985), as we do here. We conclude, however, that section 16-11-306 requires the sentencing judge in this case to credit some of the presentence confinement served by the defendant against the eight year sentence for first degree sexual assault.
Section 16-11-306, 8 C.R.S. (1984 Supp.), which was enacted in 1979, states as follows:
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.
In analyzing this statute in Schubert, we noted that its purpose was to eliminate the unequal treatment that could result to indigent offenders under the pre-1979 version of the law, which reposed in the sentencing judge the discretion to grant or withhold credit for presentence confinement served in connection with the transaction for which the offender was to be sentenced. Schubert requires a sentencing judge to credit an offender with the longer of the following two periods: the time served as the result of the charge for which the sentence is imposed or the time served as the result of the conduct on which such charge is based. We stated in Schubert:
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