People v. Jim

COLORADO COURT OF APPEALS 2017COA123
Court of Appeals No. 16CA0191
Montezuma County District Court No. 15CR87
Honorable Douglas S. Walker, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeremiah Elijah Jim,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE LICHTENSTEIN
Taubman and Nieto*, JJ., concur
Announced September 21, 2017
Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, Jeremiah Elijah Jim, appeals the district court’s
order denying his postconviction motion seeking presentence
confinement credit (PSCC) for the time he spent in a residential
community corrections program before he was resentenced to the
custody of the Department of Corrections (DOC). We reverse and
remand for correction of the mittimus.
I. Background
¶2 In July 2015, defendant pleaded guilty to one count of
attempted aggravated motor vehicle theft, and the district court
sentenced him to eighteen months in community corrections. Two
months after reporting to community corrections, defendant
escaped.
¶3 Following his arrest, the district court resentenced him to
eighteen months in the custody of the DOC. At the resentencing
hearing, although defendant requested 129 days of PSCC for the
time he was held in jail waiting for his initial sentencing and the
time he spent in the residential community corrections program,
the district court only granted him 67 days of PSCC for the time he
was confined in the county jail prior to his initial sentencing.
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¶4 The next day, defendant filed a postconviction motion, again
requesting sixty-two days of credit for the time he was in
community corrections and also an additional twenty-three days for
the time he was in jail awaiting resentencing. The court, in a
written order, granted defendant twenty-three days of PSCC for the
time he spent in jail between his arrest and resentencing, but it
denied the request for PSCC related to the time he spent in
community corrections. The district court ruled that (1) under
section 18-1.3-301(1)(k), C.R.S. 2016, defendant was not entitled to
the credit for his community corrections time because he had
escaped; and (2) the holding in People v. Hoecher, 822 P.2d 8 (Colo.
1991), the case defendant relied on, was based on statutes that had
since been repealed.
II. Analysis
¶5 On appeal, defendant contends, the People concede, and we
agree that the court erred by not awarding him PSCC for the time
he spent in the residential community corrections program.
¶6 We review whether a defendant is entitled to PSCC de novo.
People v. Howe, 2012 COA 177, ¶ 12.
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¶7 When a person is confined for an offense prior to being
sentenced for that offense, he or she “is entitled to credit against
the term of his or her sentence for the entire period of such
confinement,” and “[a]t the time of sentencing, the court shall make
a finding of the amount of presentence confinement to which the
offender is entitled and shall include such finding in the mittimus.”
§ 18-1.3-405, C.R.S. 2016. Time spent by a defendant in jail, in a
DOC facility, or as a resident in a community corrections facility
constitutes confinement under section 18-1.3-405, because those
facilities limit an individual’s liberty. People v. Chavez, 122 P.3d
1036, 1037-38 (Colo. App. 2005); see also Hoecher, 822 P.2d at 11-
12. Thus, when a defendant is resentenced to DOC custody after
revocation of a direct sentence to community corrections, he or she
is entitled to credit for time served in a residential community
corrections placement, but not for time served in a nonresidential
placement. See §§ 17-27-104(9), 18-1.3-301(1)(j), C.R.S. 2016;
Hoecher, 822 P.2d at 12; see also People v. McGraw, 30 P.3d 835,
840 (Colo. App. 2001) (although Hoecher was decided prior to the
enactment of section 17-27-104(9) and section 18-1.3-301(1)(j)’s
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predecessor,1 which together provide that an offender sentenced to
DOC custody after placement in a community corrections program
is entitled to credit for the number of days of residential placement
completed, the reasoning in that case is still applicable).
¶8 The record in this case reflects, and the parties do not dispute,
that defendant spent sixty-two days in a residential community
corrections facility, from August 10 to October 11, 2015, and thus
is entitled to sixty-two days of PSCC for this time.
¶9 We note that the district court, in denying defendant’s motion,
ruled that section 18-1.3-301(1)(k) barred defendant from receiving
PSCC for his time in community corrections because he had
escaped. We agree with both defendant and the People that the
court erred in interpreting the statute that way.
¶ 10 “[W]hen a statute is clearly part of a comprehensive regulatory
scheme, the scheme should be construed to give consistent,
harmonious, and sensible effect to all its parts.” Shipley v. People,
45 P.3d 1277, 1278 (Colo. 2002).
1In 2002, section 17-27-105(1)(j) was relocated to section 18-1.3-
301(1)(j). Ch. 318, sec. 2, § 18-1.3-301(1)(j), 2002 Colo. Sess. Laws
1386-89.
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¶ 11 Section 18-1.3-301(1)(k) provides that “[a]ny offender who
escapes from a residential community corrections program or who
absconds from a nonresidential community corrections program
shall forfeit any time credit deductions earned pursuant to
paragraph (i) of this subsection (1) and shall not be credited with
any time on escape or absconder status.” By the statute’s express
terms, only credits earned pursuant to section 18-1.3-301(1)(i) are
forfeited. Although not delineated as such, the time credits
discussed in section 18-1.3-301(1)(i) refer to good time and earned
time credits awarded by the community corrections program. See
People v. McCreadie, 938 P.2d 528, 531 (Colo. 1997); see also
People v. Pimble, 2015 COA 112, ¶¶ 11-12 (the time credits referred
to in section 18-1.3-301(1)(j), formerly codified at section 17-27-
105(1)(j), include “good time” and “earned time” credits). Therefore,
we conclude that section 18-1.3-301(1)(k) does not apply to awards
of PSCC.
¶ 12 Further, section 18-1.3-301(1)(k) refers only to time credit
deductions that are earned. An offender does not earn PSCC but
rather is entitled to it based upon his or her confinement before
sentencing or any resentencing. See § 18-1.3-405 (an offender is
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entitled to PSCC based solely upon the length of time he or she was
confined before sentencing).
¶ 13 Consequently, defendant’s escape from community corrections
did not negate his right to receive PSCC for the time he spent in
residential community corrections. Accordingly, because the
district court erred in denying defendant’s motion for sixty-two days
of PSCC related to his time in a residential community corrections
program, we remand the case for the court to amend the mittimus
to include those additional days in the award of PSCC.
III. Conclusion
¶ 14 The order is reversed, and the case is remanded for the district
court to correct the mittimus to reflect that defendant is entitled to
a total of 152 days of PSCC.
JUDGE TAUBMAN and JUDGE NIETO concur.
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