Veith v. People
| Decision Date | 06 March 2017 |
| Docket Number | Supreme Court Case No. 14SC1021 |
| Citation | 390 P.3d 403 |
| Parties | Austin Slattery VEITH, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Attorneys for Petitioner: Johnson, Brennan & Klein, PLLC, Eric K. Klein, Boulder, Colorado
Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado
En Banc
¶ 1 This case requires us to determine what constitutes "consent" by a defendant in the context of probation.1 Specifically, we must decide if a defendant consented to the probationary portion of his sentence when he requested probation in lieu of incarceration, but instead received a ten-year prison sentence in addition to the probationary sentence he requested.
¶ 2 Petitioner Austin Slattery Veith pleaded guilty to theft and securities fraud. He asked the trial court to sentence him to probation instead of a term of incarceration. The trial court rejected his request for probation with no incarceration and sentenced Veith to ten years of incarceration on the theft count, and twenty-five years of probation on the securities fraud count. Veith did not object when the judge announced his sentence. But, he did not sign the probation order acknowledging and accepting the terms and conditions of his sentence of probation. Instead, he filed a motion to correct his sentence pursuant to Crim. P. 35(a), arguing that the probationary portion of his sentence must be vacated because he did not consent to it.
¶ 3 The trial court denied the motion, and Veith appealed. The court of appeals affirmed in part and reversed in part, concluding that Veith had consented to the terms and conditions of the sentence of probation by requesting probation prior to the hearing, but that his consent did not include certain terms of probation added by the court. As a result, the court of appeals remanded the case to the trial court to remove the terms of probation from his sentence that Veith had not requested before sentencing. It did not order any modification of the prison sentence. We granted certiorari to determine the legality of Veith's sentence of probation. We now reverse the judgment of the court of appeals.
¶ 4 We hold that a trial court cannot impose a sentence of probation without the defendant's consent. In this case, Veith consented to probation in lieu of incarceration; therefore, the trial court exceeded the scope of Veith's consent when it imposed a ten-year sentence of incarceration2 in addition to probation.3 Hence, the trial court lacked authority to impose the sentence of probation. Accordingly, we vacate Veith's sentence in its entirety, reverse the judgment of the court of appeals, and remand the case to that court to return the case to the trial court for resentencing consistent with Veith's plea agreement.
¶ 5 Veith stole a substantial sum of money from the company he worked for as Chief Executive Officer. The People charged Veith with one count of theft and twenty-five counts of securities fraud. Veith pleaded guilty to one count of theft (count one) and one count of securities fraud (count two), and the court dismissed the remaining counts.4 Pursuant to the plea agreement, the trial court had the discretion to sentence Veith to prison or probation, but any prison sentence was capped at twelve years. Because Veith had previously pleaded guilty to felony theft in an earlier case and had received a deferred judgment, the plea agreement also required him to admit that he had violated that deferred judgment, and that case was closed without further penalty.5
¶ 6 Before the sentencing hearing, Veith filed a sentencing memorandum with the court requesting that the judge sentence him to probation without any incarceration. He attached a document outlining twenty-five specific terms and conditions of probation for economic crimes and noted in his memorandum that those terms would provide him with intense supervision. The People requested a ten- to twelve-year sentence in the custody of the Department of Corrections.
¶ 7 After conducting a sentencing hearing, the trial court judge sentenced Veith to (1) ten years in the custody of the Department of Corrections plus five years of parole for count one, and (2) twenty-five years of supervised probation on count two to commence immediately and run "concurrent with parole."6 The terms and conditions of the court's probationary sentence included the same twenty-five terms and conditions that Veith had submitted with his sentencing memorandum,7 along with the following three additional terms: (1) that Veith not be employed in any capacity that allowed him access to a company's or client's credit cards or checking accounts; (2) that he not be allowed to solicit investors or act as a Chief Executive Officer or Chief Financial Officer of any company; and (3) that he not be allowed to subscribe to any internet service provider.8
¶ 8 At the sentencing hearing, the judge imposed Veith's sentence and then asked defense counsel if there was "anything further." Veith's counsel responded by asking the court to transfer Veith's probation supervision to Iowa. The judge told Veith's counsel that he would consider a transfer when Veith was on probation. Defense counsel did not say anything further. The judge then remanded Veith into custody to begin serving the Department of Corrections portion of his sentence.
¶ 9 The record does not reveal precisely what happened after the sentencing hearing. It is undisputed, however, that Veith did not sign the form acknowledging and accepting the terms and conditions of the probationary sentence. The next event in the record is Veith's filing of a Crim. P. 35(a) motion to vacate his sentence. He argued in that motion that the court lacked the authority to impose the sentence of probation because he had not agreed to the terms and conditions imposed by the court. The trial court denied his motion.9
¶ 10 Veith appealed and the court of appeals affirmed in part and reversed in part. People v. Veith , No. 13CA956, slip op. at 1, 2014 WL 5489463 (Colo. App. Oct. 30, 2014). The division concluded that Veith had consented to probation by requesting it, and that he had consented to the twenty-five specific terms and conditions of probation that he had attached to his sentencing memorandum. Id. at 4–6, 9. However, the division further concluded that Veith had not agreed to the three additional terms of probation that the trial court added. Id. at 10. The court of appeals accordingly remanded the case to the trial court for modification of Veith's sentence by deleting the conditions of probation that the trial court had added. Id. at 15.
¶ 11 We granted certiorari to determine the validity of Veith's probationary sentence. We conclude that the probationary sentence is invalid because it exceeds the scope of Veith's consent.
¶ 12 We review the legality of a defendant's sentence de novo. Misenhelter v. People , 234 P.3d 657, 660 (Colo. 2010).
¶ 13 To determine whether Veith's probationary sentence is valid, we must decide whether he consented to probation. We conclude that the sentence that the trial court imposed exceeded the scope of Veith's consent to probation; therefore, Veith did not consent and his probationary sentence is not valid.
¶ 14 To reach this conclusion, we begin by reviewing the law applicable to probationary sentences. Assuming that a defendant is eligible for probation, a trial court has discretion to sentence him to probation if it will best serve the interests of justice, the public, and the defendant. § 18–1.3–202, C.R.S. (2016). Because probation is an opportunity for a defendant to avoid serving the harsher sentence of incarceration, a defendant must apply for it, and the receipt of probation is a privilege, not a right. People v. Smith , 2014 CO 10, ¶ 8, 318 P.3d 472, 475 (citing Holdren v. People , 168 Colo. 474, 452 P.2d 28, 30 (1969) ). A trial court may not impose a sentence of probation without the defendant's consent, and the defendant must "choose to accept the court's terms" and conditions of probation. Id. (); People v. Rollins , 771 P.2d 32, 34 (Colo. App. 1989) (). If the defendant "rejects probation," the court may instead sentence him to incarceration under section 18–1.3–104, C.R.S. (2016). Smith , ¶ 8, 318 P.3d at 475.
¶ 15 Resolution of the issue before us requires us to determine what constitutes consent. The applicable probationary statutes, sections 18–1.3–201 through –203, do not define "consent," and we have not yet defined the term in this context. When a word is not defined by statute, we construe it in accordance with its ordinary meaning. Taniguchi v. Kan Pac. Saipan, Ltd. , 566 U.S. 560, 132 S.Ct. 1997, 2002, 182 L.Ed.2d 903 (2012) ; Smith v. United States , 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). To do so, we consult definitions in recognized dictionaries. See Smith , 508 U.S. at 228–29, 113 S.Ct. 2050 ().
¶ 16 Black's Law Dictionary defines consent as "[a] voluntary yielding to what another proposes or desires; agreement, approval, or permission regarding some act or purpose, ... given voluntarily by a competent person; legally effective assent." Consent , Black's Law Dictionary (10th ed. 2014). This definition comports with the ordinary understanding of consent. Therefore, in this context consent means to voluntarily agree regarding some act or purpose. As such, our inquiry hinges on whether Veith voluntarily agreed to probation when the court also imposed a prison sentence.10
¶ 17 Typically,...
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