v. People , 2020 CO 38 ( 2020 )

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ADVANCE SHEET HEADNOTE
May 11, 2020
2020 CO 38
No. 18SC630, Yeadon v. People—Drug Offender Surcharge—Punishment—
Imposition After Sentencing Hearing—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 class 6 felony drug
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 of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 38
Supreme Court Case No. 18SC630
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA1811
Petitioner:
Gerald Adrian Yeadon,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
May 11, 2020
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Inga K. Nelson, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Brenna A. Brackett, Assistant Attorney General
Denver, Colorado
Attorneys for Amicus Curiae Colorado Criminal Defense Bar:
The Noble Law Firm, LLC
Matthew Fredrickson
Lakewood, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court.
¶1 In this case and the companion case, Waddell v. People, 2020 CO __, __ P.3d
__, we address questions surrounding the imposition of surcharges after a
sentencing hearing. Here, we 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 Gerald Adrian Yeadon’s
sentence on his class 6 felony drug conviction illegal and subject to correction at
any time pursuant to Crim. P. 35(a).1 Therefore, the trial court’s imposition of that
surcharge after the sentencing hearing did not violate Yeadon’s rights under the
Double Jeopardy Clauses of the United States and Colorado Constitutions.
Because we remand the case to give Yeadon an opportunity to request a waiver of
the drug offender surcharge assessed, we do not reach the merits of his due
process claim.
¶2 The court of appeals arrived at the same conclusion in this case. People v.
Yeadon, 2018 COA 104, ¶¶ 2, 52–53, __ P.3d __. Accordingly, we affirm its
judgment.
1We assume, without deciding, that Yeadon’s sentence on his class 6 felony drug
conviction was final at the conclusion of the sentencing hearing. As such, we do
not address issues related to Yeadon’s expectation of finality at the end of the
sentencing hearing.
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I. Procedural History
¶3 A jury found Yeadon guilty of several charges, including possession of less
than two grams of a controlled substance (methamphetamine), a class 6 felony at
the time. At his sentencing hearing, the trial court failed to impose the drug
offender surcharge as a component of the sentence on the class 6 felony drug
conviction.2 See § 18-19-103(1)(e), C.R.S. (2019) (providing that “each drug
offender who is convicted . . . shall be required to pay a surcharge . . . in the
following amount[]: . . . [f]or each class 6 felony . . . , one thousand two hundred
fifty dollars[.]”)3 After the sentencing hearing, however, the court added the
$1,250 drug offender surcharge on Yeadon’s mittimus.
¶4 Yeadon appealed his judgment of conviction and sentence. Id. at ¶ 1. As
relevant here, he argued that the late imposition of the drug offender surcharge
violated his federal and state constitutional rights against double jeopardy. Id. at
¶ 2. In a unanimous, published decision, a division of the court of appeals
2For the sake of convenience, we refer to the sentence imposed on the class 6 felony
drug conviction as the “sentence.”
3 It is undisputed that Yeadon is a “drug offender” for purposes of section
18-19-103(1)(e) based on his class 6 felony drug conviction for possession of
methamphetamine. 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.”).
3
disagreed. Id. The division acknowledged that in certain circumstances increasing
a lawful sentence after it has been imposed and the defendant has begun serving
it may amount to double jeopardy. Id. at ¶ 44. But, finding that the drug offender
surcharge is mandatory under section 18-19-103(1)(e), the division held that the
sentence imposed in open court was illegal and could be—indeed, had to be
—corrected pursuant to Crim. P. 35(a). Id. at ¶ 50. Thus, ruled the division, no
double jeopardy violation occurred when the court subsequently imposed the
surcharge by including it on the mittimus. Id. at ¶ 51.
¶5 Yeadon then sought review of the division’s decision. And we granted
certiorari to consider whether the trial court’s failure to impose the drug offender
surcharge during Yeadon’s sentencing hearing rendered his sentence illegal and
subject to correction at any time under Rule 35(a).4
II. Standard of Review
¶6 The parties assert, and we agree, that whether the sentence imposed during
Yeadon’s sentencing hearing was authorized by law is a question that we review
4 We granted certiorari on the following issue:
Whether a trial court’s failure to impose the drug offender surcharge
at sentencing as required by section 18-19-103, C.R.S. (2018), renders
the sentence illegal such that it can be corrected at any time under
Crim. P. 35(a).
4
de novo. See Veith v. People, 2017 CO 19, ¶ 12, 390 P.3d 403, 406 (recognizing that
the legality of a defendant’s sentence presents a question that we review de novo).
III. Analysis
¶7 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.”5 Allman v. People, 2019 CO 78, ¶ 11, 451 P.3d
826, 829. But is the drug offender surcharge considered punishment such that
double jeopardy concerns may be implicated here? The answer is “yes.” 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).
5 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)).
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¶8 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). For purposes of this appeal, we
assume, without deciding, that the trial court added the drug offender surcharge
after Yeadon started serving the sentence imposed. The question that naturally
follows is whether the trial court imposed a lawful sentence in open court. If it did,
then the subsequent imposition of the drug offender surcharge may have violated
Yeadon’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 . . . .”).
¶9 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
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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.
¶10 Since the division found that the drug offender surcharge is statutorily
mandated, it concluded that the sentence Yeadon received in open court was
illegal. But Yeadon takes issue with that determination. He contends that the
sentence uttered at his sentencing hearing was a legal sentence because the drug
offender surcharge is discretionary, not mandatory. Thus, urges Yeadon, the trial
court was authorized to forgo the imposition of the surcharge. We disagree.
¶11 Section 18-19-103(1) states that a convicted drug offender “shall be required
to pay a surcharge.” Like the division, we read this statutory phrase 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”).
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¶12 Relying on subsections (6)(a) and (6)(b) of the drug offender surcharge
statute, however, Yeadon insists that the surcharge cannot be deemed mandatory
because the trial court has discretion to waive it. We are unpersuaded.
¶13 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
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.”); Delgado v. People,
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105 P.3d 634, 636 (Colo. 2005) (“[I]f the sentence imposed is not in full compliance
with statutory requirements it is illegal.”).
¶14 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 Waddell, we now overrule it.
¶15 In sum, the sentence Yeadon received 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 Yeadon’s rights under the Double Jeopardy Clauses. However,
because the court corrected Yeadon’s sentence by adding the drug offender
surcharge outside his presence and without giving him an opportunity to ask for
a waiver and receive a hearing, we remand with instructions to return the case to
the trial court. On remand, Yeadon may request a waiver and ask for a hearing to
show that he is financially unable to pay any portion of the drug offender
surcharge.
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IV. Conclusion
¶16 We conclude that the division correctly ruled that a drug offender surcharge
is mandatory and that the trial court’s failure to impose it in open court rendered
Yeadon’s sentence illegal and subject to correction at any time under Rule 35(a).
Accordingly, we affirm and remand for further proceedings consistent with this
opinion.
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