v. Scott ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 21, 2019
2019COA174
No. 19CA0976, People v. Scott — Crimes — Escape; Criminal
Law — Sentencing
In this prosecution appeal, a division of the court of appeals
holds that the General Assembly did not legislatively overrule People
v. Andrews, 871 P.2d 1199 (Colo. 1994), concerning the mandatory
minimum sentence for the crime of escape, by its 1995 amendment
to section 18-8-208, C.R.S. 2019. Therefore, because the division
concludes that Andrews is still binding authority, it affirms the trial
court’s sentence.
COLORADO COURT OF APPEALS 2019COA174
Court of Appeals No. 19CA0976
Mesa County District Court No. 18CR1011
Honorable Brian J. Flynn, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Cody Jay Scott,
Defendant-Appellee.
SENTENCE AFFIRMED
Division III
Opinion by JUDGE WEBB
Dunn and Lipinsky, JJ., concur
Announced November 21, 2019
Daniel P. Rubinstein, District Attorney, George Alan Holley II, Senior Deputy
District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 This prosecution appeal requires us to decide whether the
General Assembly has legislatively overruled People v. Andrews, 871
P.2d 1199 (Colo. 1994), concerning the mandatory minimum
sentence for the crime of escape (F3), by its 1995 amendment to
section 18-8-208, C.R.S. 2019. Because we conclude that Andrews
is still binding authority, we affirm the trial court’s sentence, which
it imposed based on Andrews.
I. Background
¶2 Under section 16-12-102(1), C.R.S. 2019, the District Attorney
for the 21st Judicial District appeals the four-year sentence (plus
mandatory parole) imposed on defendant, Cody Jay Scott, following
his guilty plea — without a sentencing concession — to escape, in
violation of section 18-8-208(2). Specifically, the District Attorney
contends the trial court erred as a matter of law in concluding
based on Andrews that the mandatory minimum sentence was four
years, under section 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2019, rather
than eight years under section 18-1.3-401(8)(a)(IV). Scott concedes
preservation.
1
II. Standard of Review
¶3 The parties agree that we review interpretation of a sentencing
statute de novo. See, e.g., People v. Wylie, 260 P.3d 57, 60 (Colo.
App. 2010) (“To the extent defendant’s argument requires us to
interpret statutory provisions, we do so de novo.”). That review is
guided by several familiar principles.
 A court’s principal task when construing a statute is to give
effect to the General Assembly’s intent, as determined
primarily from the plain language of the statute. Romero v.
People, 179 P.3d 984, 986 (Colo. 2007).
 The court construes the statute as a whole in an effort to give
consistent, harmonious, and sensible effect to all its parts,
and reads words and phrases in context and according to the
rules of grammar and common usage. People v.
Banuelos-Landa, 109 P.3d 1039, 1041 (Colo. App. 2004).
 If the statutory language is clear and unambiguous, the court
does not engage in further statutory analysis, much less
consider extrinsic information. Romero, 179 P.3d at 986.
 “The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific
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context in which that language is used, and the broader
context of the statute as a whole.” Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997); see also Klinger v. Adams Cty. Sch.
Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006).
 A statutory interpretation leading to an illogical or absurd
result will not be adopted, and courts avoid constructions that
are at odds with the overall legislative scheme. See People v.
Tixier, 207 P.3d 844, 847 (Colo. App. 2008).
III. Law
¶4 The sentencing range for a class 3 felony is four to twelve
years. § 18-1.3-401(1)(a)(V)(A.1). But the presence of one or more
“extraordinary aggravating circumstances” requires an enhanced
minimum sentence of “at least the midpoint in the presumptive
range” — which is eight years for a class 3 felony.
§ 18-1.3-401(8)(a). Relevant here, one such aggravating factor is
that “[t]he defendant was under confinement . . . or in any
correctional institution as a convicted felon, or an escapee . . . at
the time of the commission of a felony.” § 18-1.3-401(8)(a)(IV). And
at least on appeal, Scott does not dispute that he “was under
3
confinement or in any correctional institution” when he walked
away from a halfway house.
¶5 The first Colorado case to address whether a defendant’s
conviction for escape “triggered the operation of this enhanced
sentencing provision” was People v. Russell, 703 P.2d 620, 622
(Colo. App. 1985), abrogated on other grounds by People v. Sanchez,
769 P.2d 1064 (Colo. 1989). Unsurprisingly, the Attorney General
argued that this enhancement provision applied “because
commission of felony escape is a felony committed while under
confinement and continued while an escapee.” Id.
¶6 The division disagreed. It explained that under this
construction, “conviction of the class 3 felony of escape would
always require imposition of a sentence in excess of the
presumptive range specified for such class of felonies.” Id. Instead,
the division held that the enhancement provision “does not apply to
the crime of escape, but rather it applies to other felonies
committed while under confinement or to other felonies committed
after escape from confinement.” Id.
¶7 Almost a decade later, and without any intervening legislation,
our supreme court addressed application of the enhancement
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provision to escape in Andrews. Again, the Attorney General
argued that, “because the defendant was under confinement as a
convicted felon at the time he committed the felony of attempted
escape, the sentence enhancement provision applies.” 871 P.2d at
1201. The supreme court disagreed.
¶8 Echoing Russell, the court explained that, under the Attorney
General’s construction, the enhancement provision “would apply
automatically to every individual convicted of class 3 felony escape.”
Id. at 1202. And such a construction was unacceptable because it
“would effectively render meaningless the classification of the felony
as class 3, since in each and every case an enhanced sentence
would be imposed upon the defendant.” Id.
¶9 The supreme court went on to hold that “the legislature did
not intend to punish escape and attempted escape through
application of the enhancement provision . . . .” Id. at 1203. In
doing so, it noted “that since it was decided in 1985, this court has
addressed the Russell decision on at least four occasions, and while
limiting its application to crimes of escape we have not altered its
force.” Id.; see also People v. Phillips, 885 P.2d 359, 360 (Colo. App.
1994) (“According to Andrews . . . automatic aggravation of every
5
felony escape conviction would render meaningless the original
statutory classification of that crime and that, therefore, it was
contrary to the presumption that statutes are intended to be
effective in their entirety.”).
¶ 10 Everyone would agree that the Colorado Court of Appeals
must follow binding Colorado Supreme Court precedent. See, e.g.,
In re Estate of Ramstetter, 2016 COA 81, ¶ 40. So, if the story
stopped here, under Andrews its ending would be obvious.
¶ 11 But divisions have sometimes avoided this limitation by
holding that because a supreme court decision has been
legislatively overruled by the General Assembly, it is no longer
binding. See, e.g., People v. Bondurant, 2012 COA 50, ¶ 75 (“We
agree with other divisions of this court that the 1999 amendments
legislatively overruled Cooper with respect to the intent element of
burglary.”).
¶ 12 So, do we follow Andrews and affirm or conclude — as the
District Attorney argues — that Andrews was overruled when the
General Assembly added section 18-8-208(9) and reverse? We
conclude that Andrews was not legislatively overruled.
6
IV. The Continuing Vitality of Andrews in Light of Section
18-8-208(9)
¶ 13 According to the District Attorney, section 18-1.3-401(8)(a)(IV)
mandates an enhanced sentence for escape because the General
Assembly “clearly annunciated that it intended for escapes to be
aggravated” by adding subsection (9) to section 18-8-208 the year
after Andrews was announced. We begin with the plain language of
section 18-8-208(9) but discover that it is not so clear.
A. Section 18-8-208(9) is Ambiguous
¶ 14 When subsection (9) was added, it read: “The minimum
sentences provided by sections 18-1-105, 18-1-106, and 18-1-107
respectively, for the violation of the provisions of this section shall
be mandatory, and the court shall not grant probation or a
suspended sentence . . . .” Ch. 240, sec. 16, § 18-8-208, 1995 Colo.
Sess. Law 1255 (emphasis added). At that time, section
18-1-105(9)(a)(V), C.R.S. 1995, required — as section 18-1.3-
401(8)(a)(IV) does now — an enhanced sentence if “[t]he defendant
was under confinement . . . in any correctional institution as a
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convicted felon, or an escapee . . . at the time of the commission of
a felony.”1
¶ 15 The District Attorney argues that the plain language of section
18-8-208(9) requires an enhanced sentence for escape. Scott
responds that section 18-8-208(9) does not address whether an
escapee is subject to an enhanced sentence, but “rather what
sentencing options are available to the court — specifically, that
probation or a suspended sentence are not possibilities because the
minimum sentences outlined in the sentencing statutes . . . are
mandatory.”
¶ 16 To be sure, differing possible interpretations of statutory
language do not necessarily mean that the statute is ambiguous.
Cf. Klun v. Klun, 2019 CO 46, ¶ 19 (“The mere fact that the parties
may interpret the agreement differently, however, does not alone
———————————————————————
1 Section 18-1.3-401(8)(a)(IV), C.R.S. 2019, is substantially similar
to former section 18-1-105(9)(a)(V), C.R.S. 1995, which was in effect
when section 18-8-208(9), C.R.S. 2019, was enacted. See People v.
Willcoxon, 80 P.3d 817, 821 (Colo. App. 2002) (recognizing that
former section 18-1-105(9)(a)(V) is now codified at section
18-1.3-401(8)(a)(IV)), overruled on other grounds by People v. Adams,
2016 CO 74. The cross-reference in section 18-8-208(9) has since
been amended to change, among others, section 18-1-105 to
section 18-1.3-401.
8
establish an ambiguity.”). But as explained below, both
interpretations are reasonable. And “[a] statute is ambiguous if it is
susceptible to multiple reasonable interpretations.” Carrera v.
People, 2019 CO 83, ¶ 18.
¶ 17 On the one hand, the General Assembly’s use of the phrase
“shall be mandatory” in section 18-8-208(9) after referencing
section 18-1-105 could mean that all of section 18-1-105 was
mandatory for escape, including the enhanced sentencing provision
of section 18-1-105(9)(a)(V). On the other hand, the General
Assembly cross-referenced three sentencing statutes generally —
those for felonies, misdemeanors, and petty offenses — followed by
the language “shall be mandatory, and the court shall not grant
probation or a suspended sentence.” § 18-8-208(9). So, subsection
(9) could be read as requiring a sentence under whichever of those
statutes applied, while removing any discretion for the court to
grant probation or impose a suspended sentence.
¶ 18 Of course, the General Assembly could have avoided this
ambiguity by expressly declaring its intent to overrule Andrews.
See § 2-4-214, C.R.S. 2019 (“[T]he rule of statutory construction
expressed in the Colorado supreme court decision entitled People v.
9
McPherson, 200 Colo. 249, 619 P.2d 38 (1980), . . . has not been
adopted by the general assembly and does not create any
presumption of statutory intent.”). But because it did not, at least
expressly, we must look beyond the language of section 18-8-208(9)
to determine the meaning. See In re Marriage of Garrett, 2018 COA
154, ¶ 29 (“We must engage in [an] examination of legislative intent
because the statute is ambiguous.”).
B. The General Assembly Did Not Clearly Intend to Overrule
Andrews
¶ 19 “[W]hen the General Assembly amends a statute, we presume
that it is aware of published judicial precedents construing the prior
version of the statute.” Przekurat v. Torres, 2016 COA 177, ¶ 23.
So, in weighing the District Attorney’s argument that the General
Assembly overruled Andrews by adding section 18-8-208(9) after
that opinion was announced, we recognize that the General
Assembly could have intended to disavow that case without
expressly mentioning it.
¶ 20 Passamano v. Travelers Indemnity Company, 882 P.2d 1312,
1323 (Colo. 1994), is illustrative. There, the supreme court held
that section 10-4-609(1), C.R.S. 1994, applied to automobile rental
10
companies. Then the General Assembly amended section
10-4-609(1) as follows: “This subsection (1) shall not apply to motor
vehicle rental agreements or motor vehicle rental companies.” See
Ch. 51, sec. 4, § 10-4-609(1)(b), 1995 Colo. Sess. Laws 143. In a
later case, the supreme court explained that “[t]his amendment was
inconsistent with our holding in Passamano and clearly implied
abrogation.” Vaughan v. McMinn, 945 P.2d 404, 409 (Colo. 1997).
¶ 21 But the language of section 18-8-208(9) does not similarly
imply a legislative intent to overrule Andrews. See id. (explaining
that “[e]ven if a connection could be imagined between Savio and
the 1991 amendment to section 8-43-304(1),” the standard for
abrogation “requires more than an imagined connection”). Consider
that had the General Assembly intended to overrule Andrews —
albeit without mentioning the case — it could have referenced
section 18-1-105(9)(a)(V) rather than more broadly citing to section
18-1-105.
¶ 22 Given the lack of textual support for the District Attorney’s
position, you might wonder whether legislative history provides him
with the necessary explanation. See Gallegos v. Phipps, 779 P.2d
856, 861 (Colo. 1989) (“According to the legislators who sponsored
11
House Bill 1205, which later became section 13-21-115, the
common-law categories were reestablished because the reasonable
person standard created by Mile High Fence [v. Radovich, 175 Colo.
537, 489 P.2d 308 (1971),] led to unpredictable and inequitable
results.”); see also In re Marriage of Ciesluk, 113 P.3d 135, 141
(Colo. 2005) (“[T]his reading of the statute is equally consistent with
the legislative history of the statute, which indicates that legislators
proposed the amendments in an effort to eliminate the Francis
test.”). It does not.
¶ 23 The legislative history does not mention Andrews. Compare In
re Marriage of Gallo, 752 P.2d 47, 50 (Colo. 1988) (“The legislative
history of the Protection Act makes it clear that the principal
purpose of the legislation was to legislatively overrule the McCarty
decision.”), with People v. Carey, 198 P.3d 1223, 1230 (Colo. App.
2008) (“The legislative history of the 1994 amendment includes no
discussion of Bossert.”).
¶ 24 Rather, the legislative history paints a clear picture that the
General Assembly’s focus was on correcting a disparity between
escape, which allowed for probation or a suspended sentence, and
attempted escape, which did not, although the latter offense is the
12
less serious. In a hearing before the Senate Judiciary Committee,
Ray Slaughter — then the Director for the Colorado District
Attorney’s Counsel — explained that the addition of section
18-8-208(9)
corrects an error between escape and
attempted escape. Currently . . . if you are
convicted of escape from a penitentiary or a jail
facility . . . you can get probation. Which
doesn’t make a lot of sense because you’ve just
escaped from jail. But you are eligible for
probation. On the other hand, if you are
convicted of attempting to escape, but not
getting away with it, you are not eligible for
probation. We felt that you probably didn’t
want these people eligible for probation in
either case. And in fact, the practice, of
course, is to take the plea to attempted escape
to preclude any possibility of probation. That
is the practice. So, [the amendment] remedies
that by simply stating that with a conviction
for escape you’re not eligible for probation.
Hearings on H.B. 1070 before the S. Judiciary Comm., 60th Gen.
Assemb., 1st Sess. (Apr. 5, 1995).
¶ 25 This reason was echoed by Senator Dorothy Wham during the
second reading of the bill on the senate floor. The senator
explained that the bill overall “deals with . . . problems that have
come up in the substantive criminal law.” And regarding section
18-8-208(9) specifically, she explained:
13
If a defendant is convicted of attempt to
escape, the sentence is mandatory and the
court shall not grant probation or a suspended
sentence. This was not included in the greater
offense of escape. And this section corrects
that.
Second Reading of H.B. 1070 before the Senate, 60th Gen. Assemb.,
1st Sess. (Apr. 28, 1995).
¶ 26 These statements of purpose are particularly persuasive in
resolving ambiguity. See § 2-4-203(1)(a), C.R.S. 2019 (“If a statute
is ambiguous, the court, in determining the intention of the general
assembly, may consider . . . [t]he object sought to be
attained . . . .”).
¶ 27 Despite all of this, the District Attorney argues that the
General Assembly’s intent to enhance the sentence for escape is
shown by the lack of a comparable amendment to section
18-8-208.1, C.R.S. 2019, sentencing for attempted escape. But
when section 18-8-208(9) was added, the attempted escape statute
already required that “the minimum sentences . . . of this section
shall be mandatory, and the court shall not grant probation or a
suspended sentence, in whole or in part . . . .” § 18-8-208.1(5),
C.R.S. 1995. Because — as the legislative history explains — the
14
purpose of section 18-8-208(9) was to correct a disparity between
escape and attempted escape, precise drafting would amend only
the escape statute.
¶ 28 For these reasons, we discern no basis for holding that the
General Assembly intended to overrule Andrews by adding section
18-8-208(9). Therefore, we conclude that the trial court acted
within its discretion in sentencing defendant to four years’
imprisonment.
V. Conclusion
¶ 29 The sentence is affirmed
JUDGE DUNN and JUDGE LIPINSKY concur.
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