Vensor v. People

• Court: Colorado Supreme Court
• Writing for the Court: Coats
• Citation: Vensor v. People, 151 P.3d 1274 (Colo. 2007)
• Decision Date: 05 February 2007
• Docket Number: 05SC193
• Parties: Ernest J. VENSOR, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

151 P.3d 1274

Ernest J. VENSOR, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 05SC193.

Supreme Court of Colorado, En Banc.

February 5, 2007.

David S. Kaplan, Colorado State Public Defender, Karen Taylor, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Cheryl Hone, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

Ernest Vensor sought review of the court of appeals' judgment affirming his sentence for conviction of two class four felony sex offenses. See People v. Vensor, 116 P.3d 1240 (Colo.App.2005). The district court sentenced Vensor to consecutive terms of twenty-five years to life. The court of appeals upheld the sentence, finding that the Lifetime Supervision of Sex Offenders Act places no upper limit on the minimum or lower term of an indeterminate sentence prescribed for sex offenses, and that the sentencing court did not violate the defendant's constitutional rights by considering the testimony of family members of other children claiming to have been molested by the defendant.

Although the sentencing court was not precluded from considering testimony of other, uncharged sexual assaults, its sentence exceeded statutory limitations. Because the Act is properly construed to mandate an indeterminate sentence with a lower term of not more than twice the maximum sentence in the presumptive range for the class of felony of which the defendant stands convicted, the judgment of the court of appeals is reversed and the case is remanded with directions to return it for re-sentencing.

I.

Ernest Vensor pled guilty to two counts of sexual assault on a child and was sentenced to consecutive terms of twenty-five years to life. He appealed his sentence asserting, among other things, that the lower term of the indeterminate sentence prescribed by the Lifetime Supervision of Sex Offenders Act could be no greater than twice the maximum of the presumptive range for a class four felony,¹ and that constitutional guarantees of due process forbade the sentencing court's consideration of hearsay allegations by family members of other children claiming to have been molested by the defendant.

The court of appeals affirmed the defendant's sentences. It rejected the defendant's due process claim, and it interpreted the Lifetime Supervision of Sex Offenders Act to mandate an indeterminate sentence for class four felony sex offenders, with both upper and lower terms but without any cap, or upper limit, on the minimum or lower term.

The defendant petitioned this court for a writ of certiorari.

II.

Subject to constitutional limitations not at issue here, it is the prerogative of the legislature to define crimes and prescribe punishments. Martinez v. People, 69 P.3d 1029, 1031 (Colo.2003); Shipley v. People, 45 P.3d 1277, 1278 (Colo.2002); People v. Flenniken, 749 P.2d 395, 398 (Colo.1988). Courts therefore exercise discretion in sentencing only to the extent permitted by statute. The goal of any interpretation of a sentencing statute must be to discover and effect the legislative intent. See People v. Banks, 9 P.3d 1125, 1127 (Colo.2000); Schubert v. People, 698 P.2d 788, 793 (Colo.1985).

Felony sentencing in this jurisdiction has for some time been largely dictated by a complex scheme of interlocking statutes, premised upon the segregation of felony offenses into six levels or classes, each with its own presumptive sentencing range. See § 18-1.3-401, C.R.S. (2006). On the basis of extraordinary mitigating or aggravating circumstances, sentencing courts are authorized to sentence felons to as little as half the minimum of the presumptive range or as much as twice the maximum of the presumptive range for the class of felony of which a defendant stands convicted. See § 18-1.3-401(6). Although this sentencing scheme, in contrast to the scheme that preceded it, requires courts to impose sentences consisting of a determinate or specific term of years, the parole board has nevertheless always retained the discretion to release a defendant to parole when he has acquired sufficient credits or served a statutorily specified percentage of his sentence. See generally article 22.5 of title 17 of the Colorado Revised Statutes. The length of time that felons may be supervised on parole, however, has been prescribed by various statutory formulae rather than by an upper limit of an indeterminate sentence set by the courts. See generally Martin v. People, 27 P.3d 846 (Colo. 2001) (summarizing history of changes made to parole statutes between 1971 and 2001).

Prior to 1979, courts in this jurisdiction were actually forbidden from imposing a definite term of imprisonment on any felon not convicted of a class one felony. Instead, they were required to establish a maximum term, not longer than the longest term fixed by law for the offense of which the defendant was convicted, and depending on the particular class of felony, either a minimum term, not less than the shortest term fixed by law, or no minimum term at all. See § 16-11-304, C.R.S. (1973) (formerly § 39-11-304, C.R.S. (1963)); see also Thiret v. Kautzky, 792 P.2d 801, 803-04 (Colo.1990) (explaining effect of 1979 revision on previous sentencing scheme). In this statutory scheme, release of a defendant before he had fully served the maximum term of his indeterminate sentence was within the discretion of the parole board, to be exercised by it anytime after the defendant had served his minimum term, less any "good time," "trusty time," or "meritorious time." Whether in prison or on parole, an offender could be subjected to some form of supervision until he had completed the maximum term, or upper limit, of his indeterminate sentence. See generally Thiret, 792 P.2d at 804.

In 1998, the Colorado General Assembly enacted the Lifetime Supervision of Sex Offenders Act. See ch. 303, sec. 1, § 16-13-801 to -812, 1998 Colo. Sess. Laws 1278, 1278-88.² The Act marked a clear return to indeterminate sentencing for many class two, three, and four felony offenses of a sexual nature. Unless a sex offender is sentenced to probation as permitted by the Act, see section 18-1.3-1007, C.R.S. (2006), it requires that he be sentenced to the custody of the department of corrections for an indeterminate term of at least the minimum of the presumptive range specified in section 18-1.3-401 and a maximum of the sex offender's natural life. § 18-1.3-1004(1)(a), C.R.S. (2006).³ On completion of the minimum period of incarceration specified in the sex offender's indeterminate sentence, less any credits earned by him, the Act assigns discretion to the parole board to release him to an indeterminate term of parole of at least ten years for a class four felony, or twenty years for a class two or three felony, and a maximum of the remainder of the sex offender's natural life. § 18-1.3-1006(1), C.R.S. (2006).

III.

It is undisputed that the defendant's sentences for sexual assault on a child are governed by section 18-1.3-1004(1)(a):

Except as otherwise provided in this subsection (1) and in subsection (2) of this section, the district court having jurisdiction shall sentence a sex offender to the custody of the department for an indeterminate term of at least the minimum of the presumptive range specified in section 18-1.3-401 for the level of offense committed and a maximum of the sex offender's natural life.

(emphasis added).

The court of appeals found this language to be clear and unambiguous, and therefore it found unnecessary the consideration of any aids to statutory construction. Largely in reliance on its prior holding in People v. Larson, 97 P.3d 246 (Colo.App.2004); cf. People v. Vigil, 104 P.3d 258, 269 (Colo.App. 2004), rev'd on other grounds, 127 P.3d 916 (Colo.2006); People v. Becker, 55 P.3d 246 (Colo.App.2002); People v. Smith, 29 P.3d 347 (Colo App.2001), the appellate court concluded that by using the words "at least," the legislature designated the shortest possible minimum term to which the defendant could be sentenced but placed no upper limit or cap on that minimum term. The effect of its interpretation was therefore to require an indeterminate sentence with both upper and lower terms, but one in which the lower term for any sex offense could, at the sentencing court's discretion, be of unlimited duration. While this may be one reasonable interpretation of the language of the statute itself, it is not the only one.

Largely because the subsection refers, in literally the same phrase, to two different sentencing ranges—the presumptive range set out in section 181.3401 for each particular class of felony and the indeterminate sentence applicable solely to sex offenders—and uses the term "minimum" in reference to the former but the term "maximum" in reference to the latter, the language of the statute itself is far from clear about the precise limitations intended for the lower term of an indeterminate sex offender's sentence. As the defendant urges, the statutory language "at least" can just as reasonably be understood to simply designate the lower term of the indeterminate sentence, in juxtaposition to the "maximum" or upper term. Such an interpretation would result in a statutorily predetermined sentence for sex offenders, consisting of a lower term always set at the minimum of the presumptive range for the offender's class of felony and an upper term set at life. By the same token, it would not be unreasonable to understand this statutory language, prescribing the lower term of the indeterminate sentence by express reference to the presumptive sentencing procedure of section 18-1.3-401, as incorporating the other features and limitations of that statutory scheme as well.

If statutory language is susceptible of more than one reasonable interpretation, it is considered ambiguous and subject to construction...