Waddell v. People

• Decision Date: 11 May 2020
• Docket Number: Supreme Court Case No. 18SC905
• Citation: 462 P.3d 1100
• Parties: David Scott WADDELL, Petitioner v. The PEOPLE of the State of Colorado, Respondent
• Court: Colorado Supreme Court

462 P.3d 1100

David Scott WADDELL, Petitioner

v.The PEOPLE of the State of Colorado, Respondent

Supreme Court Case No. 18SC905

Supreme Court of Colorado.

May 11, 2020

Attorneys for Petitioner: Megan A. Ring, Public Defender, James S. Hardy, Lead Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 In this case and the companion case, Yeadon v. People , 2020 CO 38, 462 P.3d 1087, we address questions surrounding the imposition of surcharges after a sentencing hearing. Here, we first hold that the drug offender surcharge, which we long ago declared a form of punishment, is statutorily mandated and, thus, the trial court's failure to order it in open court rendered David Scott Waddell's sentence on his level 1 drug felony conviction illegal and subject to correction at any time pursuant to Crim. P. 35(a). Therefore, the trial court's imposition of that surcharge after the sentencing hearing did not violate Waddell's rights under the Double Jeopardy Clauses of the United States and Colorado Constitutions.

¶2 We further hold that the trial court's imposition of five other surcharges after the sentencing hearing did not infringe Waddell's double jeopardy rights either. Even assuming, without deciding, that these five surcharges constitute punishment, we conclude that they are statutorily mandated and, thus, the trial court's failure to impose them in open court rendered Waddell's sentences illegal and subject to correction at any time pursuant to Crim. P. 35(a).¹

¶3 Finally, because we remand the case to give Waddell an opportunity to request a waiver of the surcharges assessed, we do not reach the merits of his due process claim.

¶4 The court of appeals arrived at similar conclusions in this case. Accordingly, we affirm its judgment.

I. Procedural History

¶5 As part of a global disposition involving three felony cases, Waddell pled guilty to the following substantive charges: possession of a controlled substance, a level 1 drug felony; attempted aggravated robbery, a class 4 felony; and vehicular eluding, a class 5 felony. At Waddell's combined sentencing hearing, the trial court failed to impose the following surcharges:

• the drug offender surcharge, pursuant to section 18-19-103(1), C.R.S. (2019);

• the rural alcohol and substance abuse ("rural") surcharge, pursuant to section 18-19-103.5(1), C.R.S. (2019);

• the restorative justice surcharge, pursuant to section 18-25-101(1), C.R.S. (2019);

• the offender identification fund ("genetic testing") surcharge, pursuant to section 24-33.5-415.6(1), (3)(a), C.R.S. (2019);

• the victims and witnesses assistance and law enforcement fund ("victims assistance") surcharge, pursuant to section 24-4.2-104(1)(a)(I), C.R.S. (2019); and

• the crime victim compensation fund ("victim compensation") surcharge, pursuant to section 24-4.1-119(1)(a), C.R.S. (2019).

After the sentencing hearing, however, the court included these surcharges on Waddell's mittimuses.

¶6 Waddell appealed his sentences. As relevant here, he argued that the late imposition of the surcharges violated his federal and state constitutional rights against double jeopardy. In an unpublished decision, a unanimous division of the court of appeals disagreed.

¶7 Although acknowledging that the drug offender surcharge is a form of punishment, the division nevertheless found that the addition of the surcharge on the relevant mittimus did not violate double jeopardy because the trial court was required by statute to impose it in open court and the failure to do so rendered the sentence on the level 1 drug felony conviction illegal and subject to correction at any time pursuant to Crim. P. 35(a). Turning to the restorative justice, genetic testing, and rural surcharges, the division determined that, even assuming they constitute punishment, they are as mandatory as the drug offender surcharge and, thus, the trial court's failure to impose them in open court rendered the corresponding sentences illegal and subject to correction at any time pursuant to Crim. P. 35(a). Lastly, the division ruled that the victims assistance and victim compensation surcharges are remedial or civil sanctions that do not constitute punishment for double jeopardy purposes.

¶8 Because the trial court imposed the surcharges outside Waddell's presence, the division remanded the matter to the trial court. It instructed the trial court to afford Waddell an opportunity to request a waiver of all or any portion of the surcharges assessed.

¶9 Waddell then sought review of the division's decision. And we granted certiorari to consider whether the surcharges imposed after the sentencing hearing violated his federal and state constitutional rights under the Double Jeopardy and Due Process Clauses.²

II. Standard of Review

¶10 Whether the trial court violated Waddell's rights under the Double Jeopardy Clauses hinges on the legality of the sentences imposed in open court. The parties assert, and we agree, that whether the sentences imposed during Waddell's sentencing hearing were authorized by law is a question that we review de novo. See Veith v. People , 2017 CO 19, ¶ 12, 390 P.3d 403, 406 (explaining that the legality of a defendant's sentence presents a question that we review de novo).³

III. Analysis

¶11 The United States Constitution provides that a person shall not "for the same offense ... be twice put in jeopardy of life or limb." U.S. Const. amend. V. Similarly, the Colorado Constitution states that a person shall not "be twice put in jeopardy for the same offense." Colo. Const. art. II, § 18. The protective umbrella of these constitutional provisions affords shelter "against receiving multiple punishments for the same offense."⁴ Allman v. People , 2019 CO 78, ¶ 11, 451 P.3d 826, 829. But are the challenged surcharges considered punishment such that double jeopardy concerns may be implicated here? At least one of them is. Almost three decades ago, we concluded that the drug offender surcharge "is properly characterized as a punishment" imposed on defendants convicted of drug offenses. People v. Stead , 845 P.2d 1156, 1160 (Colo. 1993).

¶12 We have not had occasion to decide whether the five remaining surcharges constitute a form of punishment or whether they are merely remedial or civil sanctions that serve a purpose unrelated to punishment.⁵ Because Waddell cannot prevail even if these surcharges amount to punishment, we need not answer that question today. Instead, we assume, without deciding, that all five surcharges constitute punishment for double jeopardy purposes.

¶13 Under some circumstances, increasing a defendant's punishment after a lawful sentence is imposed and the defendant begins serving it "violates the double jeopardy protection against multiple punishments for the same offense." Romero v. People , 179 P.3d 984, 989 (Colo. 2007). The parties contest whether the trial court imposed Waddell's sentences and he began serving them before the six surcharges (including the drug offender surcharge) were added on his mittimuses. Because resolution of this disagreement is inconsequential, we assume, again without deciding, that the trial court added all of the surcharges after Waddell started serving the sentences imposed.⁶ The question that naturally follows is whether the trial court imposed lawful sentences in open court. If it did, then the subsequent imposition of the surcharges may have violated Waddell's constitutional rights to be free from multiple punishments for the same offense. But if it didn't, then no double jeopardy infringement occurred because "a sentence that is contrary to legislative mandates is illegal and may be corrected at any time by a sentencing court without violating a defendant's rights against double jeopardy." People v. Smith , 121 P.3d 243, 251 (Colo. App. 2005) ; accord Crim. P. 35(a) ("The court may correct a sentence that was not authorized by law ... at any time ....").

¶14 The protection against double jeopardy cannot prevent the correction of a sentence that's not authorized by law. The Supreme Court has explained that the United States Constitution "does not require that sentencing should be a game in which a wrong move by the judge" in passing the sentence allows the defendant to escape punishment. Bozza v. United States , 330 U.S. 160, 166–67, 67 S.Ct. 645, 91 L.Ed. 818 (1947). And we have likewise made clear that "[g]ranting defendants a right to benefit from illegal sentences serves no sound public policy." People v. Dist. Court , 673 P.2d 991, 997 (Colo. 1983). Therefore, while the Double Jeopardy Clauses may function as a shield against multiple punishments, they may never be used as a sword to enforce an illegal sentence.

¶15 In order to determine whether the trial court imposed illegal sentences on Waddell in open court, we must consider whether the surcharges levied against him are statutorily mandated. Delgado v. People , 105 P.3d 634, 636 (Colo. 2005) ("[I]f the sentence imposed is not in full compliance with statutory requirements it is illegal."). Waddell claims that they are not. Rather, urges Waddell, the trial court was authorized to forgo the imposition of all the surcharges. We disagree.

A. The Drug Offender Surcharge

¶16 Section 18-19-103(1)(a) provides that "each drug offender who is convicted ... shall be required to pay a surcharge ... in the following amount[ ]: ... [f]or each ... level 1 drug felony ..., four thousand five hundred dollars[.]"⁷ § 18-19-103(1)(a) (emphasis added). Like the division, we read the statutory phrase "shall be required to pay" as a mandate to the trial court to impose the drug offender surcharge whenever it sentences a drug offender. As we explained in People v. Hyde , 2017 CO 24, ¶ 28, 393 P.3d 962, 969, the "use of the word ‘shall’ in a statute generally indicates [the legislature'...