Peo v. Gregory , 2020 COA 162 ( 2020 )

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 12, 2020
2020COA162
No. 20CA0856, Peo v Gregory — Criminal Law — Sentencing —
Amendatory Statutes — Retroactive Application; Crimes —
Unauthorized Absence
A division of the court of appeals considers for the first time
whether a provision of the 2020 Prison Population Reduction and
Management Act — the language of the Act creating the crime of
“unauthorized absence” — applies retroactively. The division
concludes that the unauthorized absence provision applies
retroactively, following the supreme court’s reasoning in People v.
Stellabotte, 2018 CO 66, 421 P.3d 174.
COLORADO COURT OF APPEALS 2020COA162
Court of Appeals No. 20CA0856
Mesa County District Court No. 19CR2080
Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Jesse Gregory,
Defendant-Appellee.
ORDER AFFIRMED
Division VII
Opinion by JUDGE LIPINSKY
Navarro and Tow, JJ., concur
Announced November 12, 2020
Daniel P. Rubenstein, District Attorney, Kraig R. Hamit, Deputy District
Attorney, Grand Junction, Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 On March 6, 2020, Governor Jared Polis signed into law a bill
that, among other provisions, substantially reduced the penalty for
a person’s unauthorized removal of an electronic monitoring device
while on parole in an intensive supervision program (ISP parole).
Under House Bill 20-1019, the Prison Population Reduction and
Management Act (the Prison Reduction Act), the unauthorized
removal of an electronic monitoring device while on ISP parole no
longer constitutes felony escape, with a sentencing range of four to
twelve years in prison. Rather, the Prison Reduction Act provides
that a person on ISP parole who removes an electronic monitoring
device “without permission and with the intent to avoid arrest,
prosecution, monitoring or other legal process” commits the new
crime of “unauthorized absence.” Ch. 9, sec. 10, § 18-8-208.2(1)(b),
2020 Colo. Sess. Laws 27-28.
¶2 Unauthorized absence is a class 3 misdemeanor with a
maximum sentence of six months in county jail, unless the person
is serving a sentence for certain offenses, which the parties
stipulated do not apply here. Id. § 18-8-208.2(2)(b), 2020 Colo.
Sess. Laws at 27-28. (A person convicted of unauthorized absence
while serving a sentence for one of those listed offenses commits a
1
class 6 felony. Id. § 18-8-208.2(1)(a), 2020 Colo. Sess. Laws at 27-
28.)
¶3 Defendant, Jesse Gregory, allegedly removed his electronic
monitoring device without authorization while on ISP parole.
Gregory faced prosecution for felony escape on the date the
governor signed the Prison Reduction Act into law.
¶4 It makes a significant difference whether a defendant is
charged with felony escape or the new crime of unauthorized
absence — even more so in this case, because, together with the
escape count, the prosecution charged Gregory with habitual
criminal sentencing enhancers and sought a forty-eight-year
sentence. Thus, for Gregory, retroactive application of the
unauthorized absence provision of the Prison Reduction Act means
the difference between a prison sentence of forty-eight years and a
maximum jail sentence of six months.
¶5 The district court agreed with Gregory that the new crime of
unauthorized absence applied to him and dismissed the felony
escape and habitual criminal charges. The court remanded the
case to county court for further proceedings as a misdemeanor
unauthorized absence case. The prosecution appealed.
2
¶6 We agree with the district court that the unauthorized absence
provision applies retroactively to cases being prosecuted as of the
effective date of the new statute, and thus applies to Gregory.
I. Background
A. The Prison Reduction Act
¶7 The Prison Reduction Act amended, among other statutes,
section 18-8-208(11), C.R.S. 2019, to state that, “[i]f a person . . . is
participating in a[n] . . . intensive supervision program . . . then the
person is not in custody or confinement” for purposes of the escape
statute. Ch. 9, sec. 8, § 18-8-208(11), 2020 Colo. Sess. Laws 26-
27. Before the enactment of the Prison Reduction Act, a person on
ISP parole was deemed to be “in custody or confinement” for
purposes of the escape statute. See § 17-27.5-104(1), C.R.S. 2019
(“If an offender . . . knowingly removes or tampers with an electronic
monitoring device that he or she is required to wear as a condition
of parole, he or she shall be deemed to have escaped from custody
and shall, upon conviction thereof, be punished as provided in
section 18-8-208, C.R.S.”); § 18-8-208(2) (“A person commits a class
3 felony if, while being in custody or confinement following
3
conviction of a felony other than a class 1 or class 2 felony, he
knowingly escapes from said custody or confinement.”).
¶8 The Prison Reduction Act defines the crime of authorized
absence as “knowingly . . . [r]emov[ing] or tamper[ing] with an
electronic monitoring device required by the supervising agency to
be worn by the person in order to monitor his or her location,
without permission and with the intent to avoid arrest, prosecution,
monitoring or other legal process.” Ch. 9, sec. 9, § 18-8-208.2(1)(b),
2020 Colo. Sess. Laws 27-28. (We note that the Prison Reduction
Act did not amend section 17-27.5-104(1), which arguably still
defines Gregory’s conduct as felony escape. However, because
neither party asked us to consider the apparent inconsistency
between amended sections 18-8-208(11) and 18-8-208.2(1)(b) and
section 17-27.5-104(1), that issue is not properly before us and we
do not consider it.)
¶9 Because, under the amended version of section 18-8-208(11),
a person on ISP parole is not considered to be “in custody or
confinement,” such a person who removes an electronic monitoring
device without permission to avoid monitoring commits the crime of
unauthorized absence, and not felony escape. Id.4
B. The Charges Filed Against Gregory
¶ 10 The prosecution alleges that, while Gregory was on ISP parole,
he removed his electronic monitoring device and left his residence of
record without permission. According to the prosecution, law
enforcement authorities could not find Gregory for fifteen months.
Once the authorities located Gregory, he was arrested and charged
with felony escape and habitual criminal sentencing enhancers.
¶ 11 Governor Polis signed the Prison Reduction Act into law after
Gregory allegedly removed his electronic monitoring device and
while Gregory’s felony escape charge was pending.
¶ 12 Gregory moved to dismiss the felony escape charge and to
remand the case to county court for further proceedings on a
misdemeanor unauthorized absence charge. He argued that the
General Assembly’s reclassification of his alleged conduct applies
retroactively.
¶ 13 The prosecution opposed the motion, asserting that, although
Gregory’s conduct, “if committed after [the enactment of the Prison
Reduction Act], [would] constitute the crime of ‘unauthorized
absence,’” the unauthorized absence provision does not apply
retroactively because the General Assembly created a new criminal
5
offense instead of reducing the penalties associated with an existing
offense. The prosecution argued that People v. Stellabotte, 2018 CO
66, ¶ 3, 421 P.3d 174, 175, which addressed the retroactivity of
“ameliorative, amendatory legislation,” applies only when the
General Assembly reduces the sentencing range of or reclassifies an
existing offense and not when the General Assembly creates a new
offense.
¶ 14 The district court disagreed with the prosecution’s narrow
reading of Stellabotte and found that the unauthorized absence
provision applies retroactively to Gregory. The court remanded
Gregory’s case to county court for further proceedings as a
misdemeanor unauthorized absence charge. Further, “because
[Gregory could] no longer be charged with a felony,” the court
dismissed the habitual criminal counts. The prosecution filed this
interlocutory appeal.
II. Discussion
A. Standard of Review
¶ 15 We review de novo a district court’s decision to grant a defense
motion to dismiss criminal charges, which presents a question of
law. People v. Alameno, 193 P.3d 830, 834 (Colo. 2008); People v.
6
Collins, 32 P.3d 636, 638 (Colo. App. 2001). This case also
“involves questions of statutory interpretation, which we review de
novo.” Stellabotte, ¶ 10, 421 P.3d at 176.
B. The Law Governing the Retroactive Application of
Criminal Statutes
¶ 16 Sections 2-4-202 and 2-4-303, C.R.S. 2020, create a general
presumption that statutes apply prospectively. Section
18-1-410(1)(f)(I), C.R.S. 2020, a section of the Criminal Code,
however, provides that a defendant may be entitled to relief if “there
has been significant change in the law, applied to the applicant’s
conviction or sentence, allowing in the interests of justice
retroactive application of the changed legal standard.” Under
section 18-1-410(1)(f)(II), an applicant may obtain relief on these
grounds unless the applicant “has not sought appeal of a conviction
within the time prescribed therefor or if a judgment of conviction
has been affirmed upon appeal.”
¶ 17 Relying on the identically worded predecessor of section
18-1-410(1)(f), our supreme court held in People v. Thomas that the
defendant was entitled to retroactive application of amendatory
legislation that lowered the degree of, and thus the maximum
7
penalty for, the charged offense. 185 Colo. 395, 397-98, 525 P.2d
1136, 1137-38 (1974). The defendant in Thomas was charged with
attempted burglary. After the defendant’s arrest, but before his
case went to trial, the General Assembly lowered the degree of, and
thus the maximum penalty for, attempted second degree burglary.
Id. at 396-97, 525 P.2d at 1137; see Ch. 121, sec. 1, §§ 40-2–
101(5), 40-4-203, 1971 Colo. Sess. Laws 414-15, 427. In addition,
following the defendant’s conviction, and while his case was on
appeal, the General Assembly amended the savings clause of the
criminal code to allow for retroactive application of criminal
statutes. See Ch. 152, sec. 2, § 40-1-510(1)(f), 1973 Colo. Sess.
Laws 533.
¶ 18 The Thomas court explained that retroactive application of a
criminal statute “is especially appropriate where [the] change in the
law reducing the sentence intervenes before conviction is had and
sentence is imposed . . . .” Thomas, 185 Colo. at 397-98, 525 P.2d
at 1138. Further, the Thomas court noted that “[t]he view that
amendatory legislation mitigating the penalties for crimes should be
applied to any case which has not received final judgment finds
substantial support in the common law.” Id. at 398, 525 P.2d at
8
1138. Thus, Thomas teaches that application of section
18-1-410(1)(f)(I) is not limited to cases in which the defendant has
been convicted and sentenced.
¶ 19 Two years ago, the supreme court reaffirmed the holding of
Thomas in a case involving facts similar to those presented here.
See Stellabotte, ¶¶ 5-6, 421 P.3d at 176. The defendant in
Stellabotte was charged with felony theft of items valued between
$5,000 to $20,000. Between the date of the alleged theft and
Stellabotte’s trial, the General Assembly lowered the classification of
theft for items valued between $5,000 to $20,000. Id.
¶ 20 Although the General Assembly amended the theft statute
before Stellabotte’s trial, neither the prosecution nor Stellabotte
brought the amendment to the trial court’s attention before the
trial. Id. at ¶ 7, 421 P.3d at 176. Because the trial court was
unaware of the amendment, following Stellabotte’s conviction, the
trial court sentenced him under the earlier version of the theft
statute. Id.
¶ 21 The supreme court applied section 18-1-410(1)(f)(I) in
determining that the amendment to the theft statute applied
retroactively to Stellabotte. Stellabotte, ¶ 38, 421 P.3d at 181-82.
9
The Stellabotte court reaffirmed the rule announced in Thomas that
“amendatory legislation mitigating the penalties for crimes should
be applied to any case which has not yet received final judgment.”
Id. at ¶ 16, 421 P.3d at 177 (quoting Thomas, 185 Colo. at 398, 525
P.2d at 1138).
¶ 22 The Stellabotte court further clarified that the Thomas
retroactivity rule applies “unless the amendment contains language
indicating it applies only prospectively.” Id. at ¶ 3, 421 P.3d at 175.
In so ruling, the court expressly disavowed as dicta its statements
in People v. Macias, 631 P.2d 584 (Colo. 1981); People v. McCoy,
764 P.2d 1171 (Colo. 1988); and Riley v. People, 828 P.2d 254 (Colo.
1992), suggesting that courts may give retroactive effect only to
those criminal statutes that expressly apply retroactively.
Stellabotte, ¶¶ 28-29, 38, 421 P.3d at 179-80, 182.
¶ 23 The court explained that, because the statutes at issue in
Macias, McCoy, and Riley expressly provided for prospective
application only, the court’s “statements in those cases about the
legislature’s need to clearly indicate its intent for retroactive
application were ‘not necessary to the decisions in those cases’” and
were therefore dicta. Id. at ¶ 28, 421 P.3d at 179-80 (quoting Town
10
of Eagle v. Scheibe, 10 P.3d 648, 652 (Colo. 2000)). For this reason,
the court concluded, the statements in Macias, McCoy, and Riley do
not control in cases involving statutes that do not expressly provide
for prospective application, such as the amendment to the theft
statute at issue in Stellabotte. Id.¶ 24 The court noted that the amendment to the theft statute was
silent on whether it applied prospectively only or retroactively. Id.
at ¶ 11, 421 P.3d at 177. While acknowledging the general
presumption of prospective application found in sections 2-4-202
and 2-4-303, the court held that “well-established principles of
statutory interpretation” require the adoption of “a construction
that avoids or resolves potential conflicts, giving effect to all
legislative acts,” such as section 18-1-410(1)(f)(I). Id. at ¶ 32, 421
P.3d at 180 (quoting Huber v. Colo. Mining Ass’n, 264 P.3d 884, 892
(Colo. 2011)).
¶ 25 If conflicting statutes cannot be reconciled, “a specific
statutory provision ‘acts as an exception to [a] general provision,
carving out a special niche from the general rules to accommodate a
specific circumstance.’” Id. (quoting Martin v. People, 27 P.3d 846,
851 (Colo. 2001)). Because section 18-1-410(1)(f)(I) “is a more
11
specific provision than the broad presumptions of prospective
application” of sections 2-4-202 and 2-4-303, the Stellabotte court
concluded that section 18-1-410(1)(f)(I) prevailed as an exception to
the general rule of prospectivity. Id. at ¶ 33, 421 P.3d at 181.
¶ 26 The Stellabotte court stressed the limited time period in a
criminal case in which section 18-1-410(1)(f)(I) relief is available.
Section 18-1-410(1)(f)(II) limits retroactive application of
ameliorative, amendatory criminal statutes to the time “before the
conviction is final.” Id. at ¶ 33, 421 P.3d at 181.
¶ 27 Under the broad language of Thomas and Stellabotte,
amendatory legislation applies both before and after the defendant’s
conviction and sentencing, so long as the defendant’s conviction
has not become final. The supreme court’s language can be read
only one way: the trial court should have applied the amendatory
legislation during Stellabotte’s trial and sentencing. Thus, the
Stellabotte analysis applies to cases where, as here, the General
Assembly enacted amendatory legislation between the date of the
alleged offense and the defendant’s trial.
¶ 28 Moreover, there is no logical reason why amendatory
legislation should apply only after a conviction, but not to a pending
12
prosecution that has not yet gone to trial. A rule limiting Stellabotte
to cases where the defendant has already been convicted not only
cannot be squared with Stellabotte’s broad holding but makes no
sense in practice. Following the enactment of amendatory
legislation, a trial court should not be required to apply the old
version of the statute at trial, knowing full well that, immediately
following the trial, the trial court will need to set aside the
conviction and sentence and order a new trial or sentencing
proceeding.
¶ 29 Having determined that Thomas and Stellabotte apply even to
pending charges where the General Assembly enacted amendatory
legislation between the date of the defendant’s alleged criminal
conduct and the trial, we turn to whether the three requirements of
Stellabotte require retroactive application of the Prison Reduction
Act to Gregory’s case: (1) the amendment must be ameliorative; (2)
the amendment must not state that it only applies prospectively;
and (3) the defendant’s conviction must not yet be final. Id. at ¶ 38,
421 P.3d at 182.
13
C. Application
1. The District Court Did Not Err by Finding that the
Unauthorized Absence Provision Satisfies the First Prong of
the Stellabotte Test
¶ 30 In determining whether the unauthorized absence provision
satisfies the first prong of Stellabotte, we consider two questions:
first, whether the unauthorized absence provision is “ameliorative”
and, second, whether the Stellabotte analysis applies to legislation
that creates a new offense. We answer both questions in the
affirmative.
a. The Unauthorized Absence Provision Is the Type of Legislation
that Thomas and Stellabotte Characterized as Ameliorative
¶ 31 The district court reasoned that, because “the newly created
offense of unauthorized absence exposes [Gregory] to a much lower
sentence range than he would otherwise face if charged under the
escape statute,” the unauthorized absence provision fits “squarely
within the type of ameliorative amendments that apply retroactively
under Thomas and Stellabotte.”
¶ 32 But what does “ameliorative” mean for purposes of the Thomas
and Stellabotte analysis?
14
¶ 33 The Thomas court neither used nor defined “ameliorative.”
185 Colo. at 398, 525 P.2d at 1138. Stellabotte also did not define
“ameliorative,” although the Stellabotte court provided an example
of “ameliorative” legislation — an amendment that “mitigates
penalties for crimes.” Stellabotte, ¶ 17, 421 P.3d at 178 (quoting
People v. Thornton, 187 Colo. 202, 203, 529 P.2d 628, 628 (1974)).
¶ 34 People v. Bloom, 195 Colo. 246, 577 P.2d 288(1978), superseded by statute as stated in People v. Lucero, 2016
COA 105, 381 P.3d 436, provides another example of ameliorative
legislation, although it, too, does not define “ameliorative.” The
Bloom court held the defendant was entitled to the “ameliorative
benefits” of amendments to the state’s drug laws that reduced the
sentencing range for possession of cannabis. See Bloom, 195 Colo.
at 251-52, 577 P.2d at 292.
¶ 35 In addition, People v. Godinez, 2018 COA 170M, 457 P.3d 77,
provided examples of ameliorative amendments and explained when
an amendment is not ameliorative. In that case, a division of this
court noted that Stellabotte applies to statutes that “either
decrease[] the severity of a previously defined crime or reduce[] the
15
maximum sentence that could be imposed for the commission of
that crime.” Id. at ¶ 29, 457 P.3d at 85.
¶ 36 Godinez concerned amendments to a jurisdictional statute
that the division concluded did not apply retroactively. The
amendments did not “reduce the severity or sentences for any of the
crimes of which Godinez was convicted.” Id. at ¶ 30, 457 P.3d at
85. Rather, the amendment concerned “the procedure by which
jurisdiction is apportioned between the district courts and the
juvenile courts . . . [an issue] fundamentally of a different nature”
than those addressed in Stellabotte and its antecedents. Id. at ¶ 29,
457 P.3d at 85.
¶ 37 Following the examples of ameliorative and nonameliorative
statutes in these cases, the unauthorized absence provision is
ameliorative because it mitigates the penalty for Gregory’s alleged
conduct. Recall that, before the enactment of the Prison Reduction
Act, Gregory’s alleged conduct was classified as felony escape
presumptively punishable by a four- to twelve-year prison sentence.
§ 18-1.3-401(1)(a)(V)(A.1), C.R.S. 2019. The Prison Reform Act
reclassified the identical conduct as a misdemeanor punishable by
a maximum sentence of six months in jail (unless the person is
16
serving a sentence for certain offenses, which, as noted above, the
parties stipulated do not apply here). § 18-1.3-501(1)(a), C.R.S.
2020; Ch. 9, sec. 10, § 18-8-208.2(1)(b), 2020 Colo. Sess. Laws 27-
28.
¶ 38 Thus, the unauthorized absence provision mitigates the
penalty for unauthorized removal of an electronic monitoring device
while on ISP parole — it reduces Gregory’s possible punishment.
For these reasons, it constitutes the type of ameliorative,
amendatory legislation that, according to Stellabotte, applies
retroactively under section 18-1-410(1)(f)(I), so long as the second
and third prongs of Stellabotte are also satisfied.
¶ 39 But our analysis of the first prong of Stellabotte does not stop
here. We must also address the prosecution’s argument that the
unauthorized absence provision does not apply retroactively, even if
it is ameliorative under Stellabotte, because it created a new
offense.
b. Stellabotte Applies to Ameliorative Amendments that Create a
New Offense
¶ 40 The prosecution contends that the unauthorized absence
provision “is not the type of ameliorative legislation that was applied
17
in Stellabotte because it does not merely reduce the sentencing
range for escape, but instead creates an entirely new offense with
different elements.” Under the prosecution’s reasoning, Thomas,
Stellabotte, and section 18-1-410(1)(f) apply only to statutes that
reduce the sentencing range for an offense; they do not apply when
the General Assembly creates a new offense.
¶ 41 Like the district court, we reject the prosecution’s narrow
reading of Thomas, Stellabotte, and section 18-1-410(1)(f). By its
terms, section 18-1-410(1)(f) applies to any “significant change in
the law” that “applied to the applicant’s conviction or sentence,
allowing in the interests of justice retroactive application of the
changed legal standard.” The statute is not limited to “significant
change[s] in the law” that take the form of reducing the sentencing
range for an offense. See § 18-1-410(1)(f). In applying section 18-1-
410(1)(f), Thomas and Stellabotte did not create such a distinction.
Thus, regardless of whether the General Assembly reduces a
penalty by creating a new offense or by modifying an existing
offense, such an amendment applies retroactively for the benefit of
a defendant whose case has not yet resulted in a final conviction, so
18
long as the legislation by its terms does not apply prospectively
only.
¶ 42 We agree with Gregory that Bloom and Glazier v. People, 193
Colo. 268, 565 P.2d 935 (1977), provide further support for
retroactive application of the unauthorized absence provision. In
Bloom, the division explained how the General Assembly had
mitigated the penalties for possession of cannabis by creating a new
offense. Ch. 115, sec. 6, § 12-22-404(1), 1975 Colo. Sess. Laws
435; see Bloom, 195 Colo. at 251-52, 577 P.3d at 292. Through the
1975 cannabis legislation, the General Assembly reclassified the
possession of cannabis from a felony to a misdemeanor and lowered
the applicable sentencing range. Bloom, 195 Colo. at 251, 577 P.3d
at 292. Based on the reasoning of Thomas, the Bloom court held
that the amendment to the cannabis statute applied retroactively
because it was “amendatory legislation which mitigates the penalty
for a crime.” Id.
¶ 43 Similarly, based on Thomas, the supreme court held in Glazier
that a defendant who was convicted of possessing more than
one-half ounce of cannabis was also entitled to be sentenced under
19
the 1975 amendment, as it reduced the penalty for the defendant’s
conduct. See Glazier, 193 Colo. at 268, 565 P.2d at 935.
¶ 44 Like the unauthorized absence provision, the legislation at
issue in Bloom and Glazier created a new offense — which did not
exist at the time of the defendants’ arrest — but which covered
conduct that had previously fallen under a different criminal offense
with a more severe sanction. Both Bloom and Glazier held that this
type of legislation applies retroactively. Bloom, 195 Colo. at 251-52,
577 P.2d at 292; Glazier, 193 Colo. at 269, 565 P.2d at 936.
¶ 45 Also like the unauthorized absence provision, the legislation at
issue in Bloom and Glazier lowered the severity of, and reduced the
sentencing range for, the offense with which the defendant was
charged. See Bloom, 195 Colo. at 251-252, 577 P.2d at 292;
Glazier, 193 Colo. at 269, 565 P.2d 936. Moreover, the means by
which the General Assembly ameliorated the punishment for
possession of cannabis in Bloom and Glazier — creation of a new
offense — is the same means by which, through the Prison
Reduction Act, the General Assembly ameliorated the punishment
for unauthorized removal of an electronic monitoring device while
20
on ISP parole. See Bloom, 195 Colo. at 251-252, 577 P.2d at 292;
Glazier, 193 Colo. at 269, 565 P.2d 936.
¶ 46 Thus, the prosecution’s contention that “ameliorative
legislation” refers exclusively to amendments that reduce the
sentence for an existing offense, and not to amendments that create
a new offense, draws a distinction that lacks support in section
18-1-410(1)(f), Thomas, or Stellabotte.
¶ 47 For this reason, we hold that, under the first prong of
Stellabotte, the unauthorized absence provision applies to Gregory,
even though the General Assembly accomplished its goal by
creating a new offense.
2. Because the Prison Reduction Act Does Not State that It
Only Applies Prospectively, the Unauthorized Absence
Provision Satisfies the Second Prong of Stellabotte
¶ 48 As explained above in Part II.B., the Stellabotte court held that
an ameliorative statutory amendment applies retroactively “unless
the amendment contains language indicating it applies only
prospectively.” Stellabotte, ¶ 3, 421 P.3d at 175. Thus, the second
prong of the Stellabotte test focuses on whether the amendment
expressly applies prospectively only.
21
¶ 49 As the district court explained, the Prison Reduction Act is
silent on whether “the [unauthorized absence provision] may only
be applied prospectively.” See People v. Hamm, 2019 COA 90, ¶ 35,
461 P.3d 559, 565 (holding that a statute that expressly applies “on
or after” a specified date has prospective effect only). The absence
of prospective application language from the Prison Reduction Act is
significant. See Wilkinson v. Wilkinson, 41 Colo. App. 364, 365, 585
P.2d 599, 600 (1978).
¶ 50 Because the Prison Reduction Act does not specify that the
unauthorized absence provision only applies prospectively, the
provision satisfies the second prong of Stellabotte.
3. Because No Final Judgment of Conviction Has Entered
Against Gregory, the Third Prong of Stellabotte Is Satisfied
¶ 51 As explained above, retroactivity under Thomas, Stellabotte,
and section 18-1-410(1)(f)(I) is only available to applicants who do
not have a final conviction. § 18-1-410(1)(f)(II); Stellabotte, ¶ 3, 421
P.3d at 175; Thomas, 185 Colo. at 397, 525 P.3d at 1137. No
conviction, whether final or not, has entered in Gregory’s case. For
this reason, the third prong of Stellabotte is satisfied.
22
¶ 52 Because the application of the unauthorized absence provision
in this case meets all three of the Stellabotte requirements for
retroactivity, we must apply it retroactively to Gregory.
D. The Prosecution’s Remaining Contentions Are Not Convincing
¶ 53 The prosecution presents three additional arguments that we
conclude are not convincing.
¶ 54 First, the prosecution contends that retroactive application of
the unauthorized absence provision would create “some
constitutional peculiarities.” But the prosecution does not explain
the nature of these “peculiarities.” The prosecution concedes that
retroactive application of the unauthorized absence provision
“would not likely constitute an unconstitutional ex post facto law
because it decreases rather than increases punishment.”
¶ 55 The prosecution’s “peculiarities” argument is at best
underdeveloped and, for that reason, we do not address it on the
merits. See Sanchez v. Indus. Claim Appeals Office, 2017 COA 71,
¶ 41, 411 P.3d 245, 255.
¶ 56 Second, the prosecution contends that this court should
decline to apply the unauthorized absence provision to Gregory
because the supreme court is currently considering whether a
23
defendant “who is entitled to the ameliorative benefit of . . .
amendments to the theft statute” is also entitled to “entry of a
conviction for the degree of theft supported by the jury’s verdict, or
whether he should be subjected to a new theft trial.” Lawrence v.
People, No. 19SC556, 2020 WL 291171, at *1 (Colo. Jan. 21, 2020)
(unpublished order).
¶ 57 But the pendency of an issue in the supreme court does not
preclude us from addressing it or a similar issue. See People v.
Viburg, 2020 COA 8M, ¶ 1 n.1, ___ P.3d ___, ___ n.1.
¶ 58 Third, citing People v. Boyd, 2017 CO 2, 387 P.3d 755, the
prosecution asserts that, because the General Assembly did not
decriminalize interference with ISP parole monitoring, retroactive
application of the unauthorized absence provision would “deprive
the People of the power to prosecute escapes.”
¶ 59 But Boyd is inapposite. In that case, the supreme court did
not address retroactivity under section 18-1-410(1)(f). See id. at
¶¶ 5-10, 387 P.3d at 757-58. Rather, the Boyd court addressed
whether a constitutional amendment legalizing the possession of
less than one ounce of marijuana deprived the state of the power to
continue to prosecute appeals involving possession of such quantity
24
of marijuana. See id. at ¶ 8, 387 P.3d at 757. The court concluded
that the amendment barred the state from continuing to prosecute
such appeals in those cases where the defendant had a pending
right to appeal at the time the amendment became effective. Id. at
¶ 10, 387 P.3d at 757.
¶ 60 The amendment at issue in Boyd did not merely reduce the
penalty for possessing small quantities of marijuana; it legalized
that conduct. In contrast, the Prison Reduction Act did not legalize
the removal of an electronic monitoring device without
authorization with the intent to avoid monitoring. Such conduct
remains a crime. It is simply a different crime, with a lesser
penalty, from the crime applicable before enactment of the Prison
Reduction Act. As explained above, under Stellabotte, ameliorative,
amendatory legislation that reduces the penalty for criminal
conduct applies during the pendency of a criminal case.
¶ 61 For this reason, in creating the new offense of unauthorized
absence, the General Assembly did not preclude the prosecution
from holding Gregory accountable. He still faces a possible jail
sentence for allegedly removing his electronic monitoring device
without authorization, even though he can no longer be prosecuted
25
for felony escape. The prosecution can prosecute Gregory for the
misdemeanor offense of unauthorized absence.
¶ 62 Lastly, we note that the unauthorized absence provision does
not constitute unconstitutional retrospective legislation.
“Retrospective” legislation violates the constitution because it “takes
away or impairs vested rights acquired under existing laws, or
creates a new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already past.”
Abromelt v. Denver Career Serv. Bd., 140 P.3d 44, 51 (Colo. App.
2005). See also Colo. Const. art. 2, § 11 (barring legislation that is
“retrospective in its operation”). “Because some retroactively
applied legislation is constitutional while some is not, Colorado
courts use the term ‘retrospective’ to describe a statute
whose retroactive application is unconstitutional.” Whiting Oil &
Gas Corp. v. Atl. Richfield Co., 321 P.3d 500, 507 (Colo. App.
2010), aff’d on other grounds, 2014 CO 16, 320 P.3d 1179.
“[R]etroactive application of a statute . . . is not necessarily
unconstitutional.” Mesa Cnty. Land Conservancy, Inc. v. Allen,
2012 COA 95, ¶ 7, 318 P.3d 46, 50. Because the unauthorized
absence provision applies to conduct that was already illegal at the
26
time Gregory engaged in it, the unauthorized absence provision is
not unconstitutional retrospective legislation.
III. Conclusion
¶ 63 The order is affirmed.
JUDGE NAVARRO and JUDGE TOW concur.
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