v. People , 2020 CO 39 ( 2020 )

Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s
homepage at http://www.courts.state.co.us. Opinions are also
posted on the Colorado Bar Association’s homepage at
http://www.cobar.org.
ADVANCE SHEET HEADNOTE
May 11, 2020
2020 CO 39
No. 18SC905, Waddell v. People—Drug Offender Surcharge—Miscellaneous
Surcharges—Imposition After Sentencing Hearing—Punishment—Double
Jeopardy.
The supreme court holds that the drug offender surcharge, which is a form
of punishment, is statutorily mandated and, thus, the trial court’s failure to order
it in open court rendered the defendant’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 the defendant’s rights under the Double Jeopardy Clauses
of the United States and Colorado Constitutions.
The supreme court further holds that the trial court’s imposition of five
other surcharges after the sentencing hearing did not infringe the defendant’s
double jeopardy rights either. Even assuming, without deciding, that these five
surcharges constitute punishment, the supreme court rules that they are
statutorily mandated and, thus, the trial court’s failure to impose them in open
court rendered the defendant’s sentences illegal and subject to correction at any
time pursuant to Crim. P. 35(a).
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 39
Supreme Court Case No. 18SC905
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA570
Petitioner:
David Scott Waddell,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
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
JUSTICE SAMOUR delivered the Opinion of the Court.
¶1 In this case and the companion case, Yeadon v. People, 2020 CO __, __ P.3d
__, 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
1 We assume, without deciding, that Waddell’s sentences were final at the
conclusion of the sentencing hearing. As such, we do not address issues related to
Waddell’s expectation of finality at the end of the sentencing hearing.
2
¶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), CR.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 24-4.1-119(1)(a), C.R.S. (2019).
3
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.
4
¶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.
2 We granted certiorari on the following issue:
Whether surcharges imposed after a sentencing hearing, without
notice or an opportunity to object or present evidence of inability to
pay, violate a defendant’s state and federal constitutional rights to
due process and protections from double jeopardy consistent with
People v. McQuarrie, 66 P.3d 181 (Colo. App. 2002), and contrary to
People v. Yeadon, 2018 COA 104, __ P.3d __.
5
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
3 We recognize that Waddell also raises a due process claim, arguing that the
surcharges were imposed without notice and an opportunity to present evidence
of his financial inability to pay them. Because we remand with instructions to
return the case to the trial court to give Waddell an opportunity to request a waiver
of all or any part of the surcharges levied against him, we need not address the
merits of this claim.
4 The Double Jeopardy Clauses “do not, however, prevent the General Assembly
from authorizing multiple punishments based on the same criminal conduct.”
Friend v. People, 2018 CO 90, ¶ 14, 429 P.3d 1191, 1194. Hence, the Clauses simply
embody “the constitutional principle of separation of powers by ensuring that
courts do not exceed their own authority by imposing multiple punishments not
authorized by the legislature.” Id. (quoting Woellhaf v. People, 105 P.3d 209, 214
(Colo. 2005)).
6
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
5 “A . . . sanction in the form of an assessment that is primarily remedial [or civil]
rather than punitive does not violate principles of double jeopardy.” People v.
Howell, 64 P.3d 894, 899 (Colo. App. 2002). Whether a particular sanction is
punitive or civil requires the court to consider two related questions. Hudson v.
United States, 522 U.S. 93, 99 (1997). First, looking to the authorizing statute, did
the legislature intend a punitive or a civil sanction? Id. Second, even if the
legislature indicated an intention to establish a civil penalty, is the statutory
scheme primarily punitive in purpose or effect? Id.
7
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 . . . .”).
6 The People argue that double jeopardy is not implicated in this case because
Waddell’s sentences were not final until the trial court signed the mittimuses
containing the surcharges. Consequently, aver the People, Waddell did not have
an expectation of finality before then. As we mentioned earlier, we leave the
merits of this contention for another day. For the reasons we articulate in some
detail, Waddell’s appeal cannot succeed even if, as he maintains, he had an
expectation of finality at the conclusion of the sentencing hearing.
8
¶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 (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
9
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’s] intent for the term to
be mandatory.” See also Ryan Ranch Cmty. Ass’n v. Kelley, 2016 CO 65, ¶ 42,
380 P.3d 137, 146 (comparing “shall” to “must” and noting that each “connotes a
mandatory requirement”).
¶17 Relying on subsections (6)(a) and (6)(b) of the drug offender surcharge
statute, however, Waddell insists that the surcharge cannot be deemed mandatory
because the trial court has discretion to waive it. We are unpersuaded.
¶18 Subsection (6)(a) provides that “[t]he court may not waive any portion of
the surcharge . . . unless the court first finds that the drug offender is financially
unable to pay any portion of said surcharge.” § 18-19-103(6)(a). And subsection
(6)(b) states that such a finding “shall only be made after a hearing at which the
7 It is undisputed that Waddell is a “drug offender” for purposes of section
18-19-103(1)(a) based on his level 1 drug felony conviction. See § 18-19-102(2),
C.R.S. (2019) (“‘Drug offender’ means any person convicted of any offense under
article 18 of this title or an attempt to commit such offense as provided by article 2
of this title.”).
10
drug offender shall have the burden of presenting clear and convincing evidence
that he is financially unable to pay any portion of the surcharge.”
§ 18-19-103(6)(b). To be sure, when a defendant presents clear and convincing
evidence at a hearing that he lacks the financial means to pay any portion of the
drug offender surcharge, the trial court is vested with discretion to waive that
portion of the surcharge. But absent a subsection (6)(a) finding following a
subsection (6)(b) hearing, the trial court lacks authority to waive any portion of the
surcharge. Because the trial court here did not hold the necessary hearing or make
the necessary finding, it had no choice but to impose the mandatory surcharge.
Consequently, the sentence imposed in open court was not authorized by law. See
People v. Baker, 2019 CO 97M, ¶ 19, 452 P.3d 759, 762 (“[A] sentence is not
authorized by law within the meaning of Rule 35(a) if any of the sentence’s
components fail to comply with the sentencing statutes.”).
¶19 We are aware that a different division of the court of appeals reached a
contrary conclusion in People v. McQuarrie, 66 P.3d 181 (Colo. App. 2002). The
division there held that “the drug offender surcharge is . . . not mandatory” and
that double jeopardy principles required the trial court to impose it during the
sentencing hearing “in open court.” Id. at 183. Because McQuarrie is inconsistent
with this opinion and Yeadon, we now overrule it.
11
¶20 In sum, the sentence Waddell received on his level 1 drug felony conviction
was not authorized by law because it did not include the mandatory drug offender
surcharge. As such, the sentence was subject to correction by the trial court at any
time pursuant to Rule 35(a) without violating Waddell’s rights under the Double
Jeopardy Clauses.
B. The Remaining Five Surcharges
¶21 Our analysis of the remaining five surcharges closely parallels that of the
drug offender surcharge. We take up the restorative justice and rural surcharges
first before turning to the genetic testing, victims assistance, and victim
compensation surcharges.
¶22 The statute that sets forth the restorative justice surcharge and the statute
that governs the rural surcharge contain mandatory language identical to that
found in the drug offender surcharge statute. The restorative justice statute
provides that “[e]ach person who is convicted of a crime . . . shall be required to pay
a ten-dollar surcharge.” § 18-25-101(1) (emphasis added). The court may waive
“all or any portion” of this surcharge only if it “finds that a person or juvenile is
indigent or financially unable to pay all or any portion” of it. § 18-25-101(4). The
rural statute states that “each drug offender and each alcohol- or drug-related
offender who is convicted, or receives a deferred sentence . . . , shall be required to
pay a surcharge.” § 18-19-103.5(1) (emphasis added). And, though the trial court
12
enjoys some discretion in selecting the amount of this surcharge—“not less than
one dollar nor more than ten dollars”—the court cannot decline to impose it
entirely. Id.
¶23 For the same reason we concluded earlier that the statutory phrase “shall be
required to pay” renders the drug offender surcharge mandatory, we now
conclude that it also renders the restorative justice and rural surcharges
mandatory. And just as the waiver provision in the drug offender surcharge
statute did not alter our analysis of the drug offender surcharge, the waiver
provision in the restorative justice statute does not change the mandatory nature
of the restorative justice surcharge.
¶24 The last three surcharges—related to genetic testing, victims assistance, and
victim compensation—are housed in statutes that do not include the phrase “shall
be required to pay.” However, the enacting statutes for these surcharges use
language that’s similarly mandatory: each surcharge “is hereby levied.” See
§ 24-33.5-415.6(3)(a) (stating that a “cost of two dollars and fifty cents is hereby
levied” for genetic testing “on each criminal action resulting in a conviction or in a
deferred judgment and sentence . . . for a felony, a misdemeanor, or misdemeanor
traffic offense, charged pursuant to state statute” (emphasis added));
§ 24-4.2-104(1)(a)(I) (stating that a victims assistance surcharge in the amount
specified “is hereby levied on each criminal action resulting in a conviction or in a
13
deferred judgment and sentence . . . , which criminal action is charged pursuant to
state statute, or upon each petition alleging that a child is delinquent that results
in a finding of guilty . . . or a deferral of adjudication” (emphasis added));
§ 24-4.1-119(1)(a) (stating that a victim compensation surcharge “is hereby levied on
each criminal action resulting in a conviction or in a deferred judgment and
sentence . . . , which criminal action is charged pursuant to state statute”
(emphasis added)).8
¶25 We read the statutory phrase “is hereby levied” as signaling an automatic
and immediate imposition of the particular surcharges. Pursuant to the statutes
in question, the genetic testing, victims assistance, and victim compensation
surcharges are automatically and immediately imposed if certain circumstances
are present. Thus, when, as here, the statutes’ triggering circumstances are
present, all three surcharges are mandatory.
¶26 That the trial court may waive each surcharge upon a finding that the
defendant is indigent, see § 24-33.5-415.6(9); § 24-4.2-104(1)(c); § 24-4.1-119(1.5),
does not alter this determination. Because the trial court did not make a finding
8 To “levy” is defined by Black’s Law Dictionary as follows: “[t]he imposition of a
fine or tax; the fine or tax so imposed.” Levy, Black’s Law Dictionary (11th ed.
2019).
14
of indigency, Colorado law automatically and immediately levied all three
surcharges on Waddell upon entry of his convictions. Absent a finding of
indigency, the trial court had no choice but to order these mandatory surcharges.
¶27 In short, we conclude that, like the drug offender surcharge, the five other
surcharges at issue here are statutorily mandated. We reiterate, though, that we
do not decide today that these five surcharges constitute a form of punishment
and are therefore components of a sentence. Instead, we simply hold that even
assuming that’s the case, the trial court’s failure to impose them in open court
rendered Waddell’s sentences illegal and subject to correction at any time under
Rule 35(a) without violating his right to protection from double jeopardy.
IV. Conclusion
¶28 We affirm the division’s judgment, though we do so on different grounds
with respect to the victims assistance and victim compensation surcharges.
Because the trial court added all six surcharges on the mittimuses outside
Waddell’s presence and without giving him an opportunity to ask for a waiver,
we remand with instructions to return the case to the trial court to allow Waddell
to request a waiver of all or any portion of the surcharges assessed.
15