v. Pennington

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
January 28, 2021
2021COA9
No. 20CA1116, People v. Pennington — Crimes — Unauthorized
Absence; Criminal Law — Sentencing — Amendatory Statutes
— Retroactive Application; Colorado Constitution — Article III
— Separation of Powers
A division of the court of appeals agrees with People v.
Gregory, 2020 COA 162, and concludes that the unauthorized
absence provision of the 2020 Prison Population Reduction and
Management Act (PPRMA) applies retroactively. The division also
concludes that the district court infringed on the separation of
powers doctrine when it sua sponte amended the defendant’s
criminal charge.
The special concurrence reaches the same result but
questions whether the supreme court’s reasoning in People v.
Stellabotte, 2018 CO 66, directs retroactive application of
ameliorative legislation changing the elements of an existing offense
and simultaneously creating a new crime.
The partial dissent would affirm the judgment of the district
court in its entirety, concluding that the district court had the
authority to amend the defendant’s criminal charge.
COLORADO COURT OF APPEALS 2021COA9
Court of Appeals No. 20CA1116
Larimer County District Court No. 20CR444
Honorable Susan Blanco, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
Emily Marie Pennington,
Defendant-Appellee.
ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE TERRY
Richman, J., specially concurs
Martinez*, J., concurs in part and dissents in part
Announced January 28, 2021
Clifford E. Riedel, District Attorney, Erin E. Butler, Deputy District Attorney,
David P. Vandenberg, Second Assistant District Attorney, Fort Collins,
Colorado, for Plaintiff-Appellant
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 This appeal involves a new twist on the issue decided in People
v. Gregory, 2020 COA 162. There, a division of this court held that
newly amended section 18-8-208(11), C.R.S. 2020, which originated
as part of the Prison Population Reduction and Management Act
(the Prison Reduction Act), H.B. 20-1019, 72d Gen. Assemb., 2d
Reg. Sess., 2020 Colo. Sess. Laws 23, applies retroactively to cases
being prosecuted as of the effective date of the new statute.
¶2 In this case, the prosecution appeals the district court’s order
of June 19, 2020, that sua sponte amended the charge against
defendant, Emily Marie Pennington, from felony escape under
section 18-8-208, C.R.S. 2019, to a charge of unauthorized absence
under a provision of the Prison Reduction Act, section 18-8-208.2,
C.R.S. 2020, and effectively dismissed the escape charge.
According to the prosecution, the court’s order violated the
separation of governmental powers and improperly applied the 2020
statute retroactively to Pennington.
¶3 We conclude that the district court did not err by retroactively
applying H.B. 20-1019 to Pennington. But we conclude that the
district court did err by amending Pennington’s charge to a charge
1
under the 2020 statute, because that action violated the separation
of powers.
¶4 As a result, we affirm the court’s order dismissing the escape
charge against Pennington, but we reverse the court’s amendment
of the charge to one under the 2020 statute, and remand for further
proceedings.
I. Background
¶5 Pennington was sentenced to concurrent terms in Larimer
County Community Corrections for two drug felonies. According to
the prosecution, on February 14, 2020, Pennington left the
Community Corrections facility and never returned. Pennington
was later arrested in April and charged with escape, a class 3
felony.
¶6 While Pennington was still at large, on March 6, 2020,
Governor Jared Polis signed H.B. 20-1019 into law. As relevant
here, the enactment redefined felony escape so that the act of
leaving and failing to return to a community corrections facility is
no longer an escape and instead constitutes the new misdemeanor
offense of unauthorized absence. § 18-8-208(11), C.R.S. 2020;
§ 18-8-208.2, C.R.S. 2020.
2
¶7 After her arrest, Pennington moved to dismiss the felony
escape charge, arguing that she was entitled to retroactive
application of the Prison Reduction Act and that consequently she
could only be charged with unauthorized absence. Though the
district court denied dismissal of the case, it ruled that H.B. 20-
1019 should be applied retroactively, and as a result, the court
amended the escape charge to a charge of unauthorized absence
under the 2020 statute.
II. Retroactive Application of H.B. 20-1019
¶8 The prosecution argues that the district court erred by
applying H.B. 20-1019 retroactively. We disagree.
A. Legal Standards for Retroactive Application
¶9 Statutes are generally presumed to operate prospectively. § 2-
4-202, C.R.S. 2020; see also § 2-4-303, C.R.S. 2020 (“The
[amendment] of any statute or part of a statute . . . shall not have
the effect to release, extinguish, alter, modify, or change . . . any
penalty, forfeiture, or liability . . . which shall have been incurred
under such statute, unless the repealing, revising, amending, or
consolidating act so expressly provides . . . .”). But if a statute is
silent as to whether it applies only prospectively, a defendant may
3
seek retroactive application if she benefits from a significant change
in the law. People v. Stellabotte, 2018 CO 66, ¶ 3.
¶ 10 In Stellabotte, our supreme court held that “ameliorative,
amendatory legislation applies retroactively to non-final convictions
under section 18-1-410(1)(f), unless the amendment contains
language indicating it applies only prospectively.” Id.; see also § 18-
1-410(1)(f)(I), C.R.S. 2020 (a defendant may request postconviction
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”).
Stellabotte also reaffirmed a long line of cases that retroactively
applied legislative changes when a criminal defendant stood to
benefit from those amendments. Stellabotte, ¶ 26; see, e.g., Glazier
v. People, 193 Colo. 268, 269, 565 P.2d 935, 936 (1977) (“As we
have repeatedly held, a defendant is entitled to the benefits of
amendatory legislation when relief is sought before finality has
attached to the judgment of conviction.”); People v. Thomas, 185
Colo. 395, 398, 525 P.2d 1136, 1138 (1974) (the district court erred
by failing to retroactively apply a legislative change that mitigated
the penalties for attempted burglary).
4
¶ 11 However, in cases where a legislative amendment has
substantially changed the elements or definition of a crime,
Colorado courts have held that such legislation does not apply
retroactively. See People v. Marlott, 191 Colo. 304, 308-09, 552
P.2d 491, 494 (1976) (refusing to retroactively apply an amended
definition of assault because the elements of the offense had been
substantially changed from those in the statute under which the
defendant had originally been charged); People v. Ellis, 41 Colo.
App. 271, 274, 589 P.2d 494, 496 (1978) (refusing to retroactively
apply an amended homicide statute because the new statute was
considerably altered from the statute under which the defendant
was originally charged).
B. Discussion
¶ 12 We conclude that the legislative changes in H.B. 20-1019
should be applied retroactively to Pennington’s case. The parties
agree, as do we, that H.B. 20-1019 does not contain language
indicating that it applies only prospectively. See Stellabotte, ¶ 3
(legislation does not apply retroactively if the legislation says that it
applies only prospectively); see also Gregory, ¶ 50 (H.B. 20-1019
does not specify that the unauthorized absence provision only
5
applies prospectively). We further conclude that because H.B. 20-
1019’s legislative changes are plainly ameliorative in nature,
Pennington is entitled to the benefit of those changes.
¶ 13 Before the General Assembly enacted H.B. 20-1019, leaving
and failing to return to a community corrections facility constituted
escape under section 18-8-208, C.R.S. 2019. Under that 2019
statute, Pennington’s actions in this case would have resulted in a
class 3 felony escape charge, an offense punishable by up to twelve
years in jail.
¶ 14 H.B. 20-1019 changed the type of conduct for which a
defendant could be charged with escape. As enacted, the statute
now provides that a person serving a direct sentence to community
corrections is “not in custody or confinement for purposes of” the
statute. § 18-8-208(11), C.R.S. 2020. And leaving and failing to
return to a community corrections facility is no longer an escape.
Id. Instead, such conduct is now an unauthorized absence under
section 18-8-208.2, C.R.S. 2020; cf. Gregory, ¶¶ 7-8 (discussing
unauthorized absence offense under section 18-8-208.2(1)(b), which
addresses removal of or tampering with an electronic monitoring
device).
6
¶ 15 In Pennington’s case, if the new statute were to apply, a
charge of unauthorized absence would be a class 3 misdemeanor
punishable by no more than six months in jail. § 18-8-208.2(2)(b);
§ 18-1.3-501, C.R.S. 2020.
¶ 16 As relevant here, H.B. 20-1019 reduced the penalty and level
of offense for certain walkaways from correctional facilities by
redefining custody and confinement to remove certain conduct from
the crime of escape and instead categorizing such conduct under
the lesser crime of unauthorized absence. Gregory, ¶¶ 37-38. Such
changes are plainly ameliorative in nature. Stellabotte, ¶ 3;
Gregory, ¶¶ 37-38 (the unauthorized absence provision in H.B. 20-
1019 was ameliorative because it mitigated the penalty for the
defendant’s conduct). And they are exactly the types of legislative
changes that Stellabotte held are entitled to retroactive application.
Stellabotte, ¶ 3 (“ameliorative, amendatory legislation applies
retroactively” unless the statute says to the contrary).
¶ 17 Thus, applying the reasoning of Stellabotte, we conclude that
H.B. 20-1019 applies retroactively, and that Pennington is entitled
to the benefit of its legislative changes. See Gregory, ¶ 6.
7
¶ 18 We also reject the prosecution’s argument that H.B. 20-1019
cannot apply retroactively because it creates a new offense. The
Gregory division held that H.B. 20-1019 applies retroactively, even
though it creates a new offense, because the legislative changes
effectuated by the new enactment benefit the defendant. Id. at
¶ 41. We agree with that division’s reasoning and apply it here.
¶ 19 The prosecution’s citation to Marlott does not change our
conclusion. It is true that in Marlott, our supreme court held that
the assault statute under the new criminal code could not apply
retroactively because “where, as here, the new Criminal Code
changes the elements of the crimes, there can be no measure by
which to determine whether the standards of punishment have
increased or decreased because the crimes are no longer the same.”
Marlott, 191 Colo. at 308-09, 552 P.2d at 494 (footnote omitted).
¶ 20 But Pennington’s case is distinguishable from the facts of
Marlott. Unlike the circumstances in that case, H.B. 20-1019 did
not overhaul the entire criminal code. And unlike the legislative
change in Marlott, H.B. 20-1019 does not present a situation where
the elements of escape have been so changed that there is no way to
determine “whether the standards of punishment have increased or
8
decreased because the crimes are no longer the same.” Id. The
newly enacted statute clearly changes the category of crime for
conduct that was previously chargeable as felony escape. Thus, we
conclude that H.B. 20-1019 applies retroactively despite its creation
of a new crime.
¶ 21 Pressing further, the prosecution contends that Pennington is
not entitled to the retroactive application of H.B. 20-1019 because
she has not yet been convicted of a crime. According to the
prosecution, a defendant can only assert that she is entitled to
retroactive application of a legislative change after the defendant
has already been convicted. See § 18-1-410(1) (“[E]very person
convicted of a crime is entitled as a matter of right to make
applications for postconviction review.”). We are not persuaded.
¶ 22 Section 18-1-410(1) postconviction relief is not the only vehicle
for retroactive application of a legislative change to a criminal
defendant’s case. In Thomas, the supreme court held that where
the defendant filed his motion for application of the newly revised
criminal statute before his conviction became final, “[t]he court
therefore had jurisdiction to entertain his motion for relief.”
Thomas, 185 Colo. at 397, 525 P.2d at 1137. Subsequent
9
developments in Colorado law have not disturbed this holding.
Indeed, Stellabotte held that “relief under an amended statute is
available only to those defendants whose convictions were not final
when the amendment was enacted.” Stellabotte, ¶ 37 (emphasis
added); accord Gregory, ¶ 27. Certainly, a defendant who has not
yet been convicted does not have a final conviction.
¶ 23 The prosecution contends that H.B. 20-1019 should not be
applied retroactively because the new law redefined the crime of
escape. According to the prosecution, Stellabotte does not permit
the retroactive application of legislation that redefines crimes, and
that case only permits retroactive application when the legislation
either decreases the severity of or reduces the maximum sentence
for a crime. We disagree. Stellabotte was not so limited. See
Stellabotte, ¶ 18 (numerous cases held that criminal defendants
should get the benefit of amendatory legislation enacted before their
convictions became final on appeal). Because H.B. 20-1019
provides such relief to Pennington, and her conviction was not final
before enactment, the amendment applies to her case.
10
III. Amendment of Pennington’s Felony Escape Charge
¶ 24 Our conclusion that Pennington is entitled to the benefit of the
statutory change does not end our inquiry, though. The
prosecution further contends that the district court erred by
amending Pennington’s charge from felony escape to misdemeanor
unauthorized absence. We agree that the court erred by doing so
because this action violated the separation of powers between
governmental entities.
A. Standard of Review and Preservation
¶ 25 Whether a district court violated the separation of powers
doctrine is a question of law reviewed de novo. People v. Reyes,
2016 COA 98, ¶ 23.
¶ 26 This issue was preserved for appeal.
B. Discussion
Article III of the Colorado Constitution provides
that the powers of the state government are
divided into three different branches — the
legislative, executive, and judicial branches —
and that “no person . . . charged with the
exercise of powers properly belonging to
one . . . shall exercise any power properly
belonging to either of the others,” unless
expressly directed or permitted by the
Colorado Constitution.
11
People v. Mazzarelli, 2019 CO 71, ¶ 29. Prosecutors belong to the
executive branch, and as members of that branch, they are vested
with broad discretion to prosecute people for violations of criminal
law. Reyes, ¶ 24. “The scope of this discretion extends to the
power to investigate and to determine who shall be prosecuted and
what crimes shall be charged.” People v. Dist. Ct., 632 P.2d 1022,
1024 (Colo. 1981).
¶ 27 Prosecutors also have broad discretion to alter or dismiss
criminal charges. Reyes, ¶ 24. Generally, a prosecutor’s discretion
in charging or requesting the dismissal of pending charges “may not
be controlled or limited by judicial intervention.” Dist. Ct., 632 P.2d
at 1024; see also People v. Renander, 151 P.3d 657, 660 (Colo. App.
2006) (“[I]nterference by a court with the authority of the
prosecution to dismiss charges once filed may occur only in limited
circumstances: (1) when exercising its supervisory authority to
dismiss on constitutional grounds (e.g., infringement of defendant’s
due process rights); (2) when exercising its supervisory authority to
protect the integrity of the judicial process (e.g., prosecutorial
misconduct . . . ); (3) upon determination that the evidence is
insufficient to support prosecution; or (4) when authorized by
12
statute . . . .”), superseded by statute on other grounds, Ch. 362,
sec. 7, § 18-6-403, 2006 Colo. Sess. Laws 2056.
¶ 28 We conclude that the district court infringed on the separation
of powers when it sua sponte amended Pennington’s criminal
charge. In this case, there was no valid reason for the district court
to interfere with the prosecution’s discretion to charge Pennington
by amending her charge from one of felony escape to one of
misdemeanor unauthorized absence. See Renander, 151 P.3d at
660. Instead, upon finding that H.B. 20-1019 applied retroactively,
and that Pennington could thus no longer be charged with felony
escape, the district court should have simply dismissed the felony
escape charge. Cf. Harris v. Dist. Ct., 843 P.2d 1316, 1319 (Colo.
1993) (if the prosecution cannot establish probable cause, the
charged offense must be dismissed).
¶ 29 The district court asserted that it had the authority to amend
Pennington’s charge because it would have had the authority to do
so at a preliminary hearing. But the district court did not amend
Pennington’s charge in the context of a preliminary hearing. Simply
because a court has the ability to amend charges at a preliminary
hearing does not mean that that authority extends to amending
13
charges in other procedural contexts. Instead, it is the prosecution
that has the authority to decide what a criminal defendant should
be charged with if the original charge is no longer available to it.
See Reyes, ¶ 24 (prosecutors have broad discretion to alter
charges).
¶ 30 Given our disposition, the prosecution’s last contention — that
the district court erred by amending the date of the offense in
Pennington’s charge — is moot.
IV. Conclusion
¶ 31 We affirm the district court’s order to the extent that it
dismissed the escape charge against Pennington. The district
court’s amendment of Pennington’s charge from one of felony
escape to one of unauthorized absence is reversed, and the case is
remanded for the district court to dismiss the unauthorized absence
charge.
JUDGE RICHMAN specially concurs.
JUSTICE MARTINEZ concurs in part and dissents in part.
14
JUDGE RICHMAN, specially concurring.
¶ 32 I agree with the majority that the legislative amendments to
the escape statute should apply retroactively to Pennington’s case,
but not for the same reasons advanced by the majority.
¶ 33 The majority relies in part on the division’s opinion in People v.
Gregory, 2020 COA 162, which in turn relied on the opinion in
People v. Stellabotte, 2018 CO 66, to conclude that the amendments
to section 18-8-208(11), C.R.S. 2020, enacted as part of the Prison
Population Reduction and Management Act (PPRMA), apply
retroactively to Pennington’s case. See H.B. 20-1019, 72d Gen.
Assemb., 2d Reg. Sess., 2020 Colo. Sess. Laws 23. I write
separately because I do not read Stellabotte to clearly apply to this
case. I think the holding of Stellabotte is ambiguous; applying the
ambiguous holding as the majority does here could create
unforeseen circumstances in this case and unanticipated results in
future cases, if it is not clarified.
¶ 34 The explicit holding in Stellabotte is that “[o]ur decision in
People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974), remains
good law.” Stellabotte, ¶ 38. In at least two places, the Stellabotte
opinion describes the decision in Thomas as holding that
15
“amendatory legislation mitigating the penalties for crimes should be
applied to any case which has not received final judgment.”
Stellabotte, ¶¶ 16, 27 (emphasis added) (quoting Thomas, 185 Colo.
at 398, 525 P.2d at 1138). The statutory change at issue in
Stellabotte was a change in the classification of the offense of theft
and a revision to the penalties applied to the new classifications.
See id. at ¶ 6. Thus, the holding of Thomas, as stated in the
conclusion of Stellabotte, fits the facts in Stellabotte and directed
application of the amendatory legislation to reduce the sentence
imposed on the defendant in that case. See People v. Godinez, 2018
COA 170M, ¶ 29 (Stellabotte clearly “addressed statutes that either
decreased the severity of a previously defined crime or reduced the
maximum sentence that could be imposed for commission of that
crime.”). I find that holding and result to be clear, and I have relied
on that holding in subsequent opinions that I have authored or
joined.
¶ 35 But immediately after stating the holding in Thomas, the
Stellabotte opinion goes on to state that “[a]ccordingly, we hold that
ameliorative, amendatory legislation applies retroactively to non-
final convictions under section 18-1-410(1)(f), unless the
16
amendment contains language indicating it applies only
prospectively.” Stellabotte, ¶ 38. Giving the word “accordingly” its
usual meaning — that what comes next follows from — the
statement should read that amendatory legislation that “mitigates
the penalties for crimes” is applied retroactively. But instead,
without expressly stating so, the court appears to have expanded its
holding in Thomas to presume retroactive applicability of any type
of ameliorative, amendatory legislation.
¶ 36 In my view, this recitation leaves an ambiguity. If the
controlling decision of Thomas, by its quoted language, applies only
when the amendatory legislation mitigates the penalties, the next
sentence in Stellabotte should logically include that limitation. But
because it does not, I remain uncertain whether the supreme court
intended to hold that any ameliorative, amendatory legislation
should apply retroactively to non-final convictions. If so, the
relevant language was technically dicta because it was not
necessary to decide Stellabotte’s case. Although the majority in this
case and the majority in Gregory read Stellabotte to apply to any
ameliorative, amendatory legislation, I am not certain that is a
correct reading.
17
¶ 37 Whether that is a correct reading is essential to whether
Stellabotte applies to Pennington’s case. The PPRMA did not
mitigate the penalties applicable to escape, the offense for which
Pennington was charged under section 18-8-208, C.R.S. 2019, and
it did not modify the classification of the offense. Instead, as the
majority acknowledges, the PPRMA created an entirely new (lesser)
offense — unauthorized absence from a community corrections
program. See § 18-8-208.2, C.R.S. 2020. In this regard, the
PPRMA was not amendatory legislation that mitigated the penalties
available for the charges filed against Pennington, as was the case
in Stellabotte.
¶ 38 However, the PPRMA did effectively change the definition of
custody or confinement, an element of the offense of escape. In the
2019 version, only persons placed in community corrections for
residential treatment were “not in custody or confinement” for
purposes of the statute; the 2020 version expanded the categories
of those “not in custody or confinement” to include persons serving
a direct sentence in a community corrections program (like
Pennington). Compare § 18-8-208(11), C.R.S. 2019, with § 18-8-
208(11), C.R.S. 2020. Because the changed definition, if applicable
18
to Pennington’s conduct, would have reduced her offense from a
felony to a misdemeanor, it is arguably an ameliorative amendment.
¶ 39 The problem I have with applying Stellabotte to this case, and
with agreeing with the majority’s analysis, is that there is Colorado
authority stating that a legislative amendment that substantially
changes the definition of a crime does not apply retroactively. See
People v. Marlott, 191 Colo. 304, 308-09, 552 P.2d 491, 494 (1976);
People v. Ellis, 41 Colo. App. 271, 274, 589 P.2d 494, 496 (1978).
The majority acknowledges the holding from these cases.
¶ 40 In Marlott and Ellis, the defendants argued that under
Thomas, the benefits of amendatory legislation should be applied to
them, but each decision rejected the argument. In Ellis, a division
of this court expressly stated, “Thomas involved changes in criminal
penalties, and the argument that it should be extended to changes
in substantive criminal definitions was addressed and rejected by
the [s]upreme [c]ourt in People v. Marlott, Colo., 552 P.2d 491(1976).” 41 Colo. App. at 274, 589 P.2d at 496.
19
¶ 41 The majority distinguishes Marlott because the PPRMA “did
not overhaul the entire criminal code,”1 supra ¶¶ 19-20, like in
Marlott, and because here, unlike in Marlott, we can clearly
determine that the punishment for Pennington’s conduct is
decreased under the new statute. The majority, however, does not
address the statement in Ellis that a change in a definition in a
statute is not applied retroactively. See 41 Colo. App. at 274, 589
P.2d at 496. In my view, the holdings of these cases apply to
Pennington’s case, and Stellabotte does not address a situation
where the definition of a crime was changed, because those were
not the facts in that case.
¶ 42 We are left with conflicting authority in relation to Pennington.
On the one hand, Stellabotte appears to state, arguably in dicta,
1 The PPRMA did amend several statutes in addition to modifying
statutes related to escape. It (1) redefined “private contract prison,”
see § 17-1-102(7.3), C.R.S. 2020; (2) prescribed new inmate
capacity for the Centennial correctional facility, see § 17-1-104.3,
C.R.S. 2020; (3) established a new function of the Department of
Local Affairs Division of Local Government — to study future prison
bed needs, see § 24-32-104(3), C.R.S. 2020; (4) added subsections
(3) and (4) to section 17-1-104.5, C.R.S. 2020, regarding
incarceration of inmates from other states; and (5) revised
sentencing hearing requirements for termination from community
corrections, see § 18-1.3-301, C.R.S. 2020.
20
that any ameliorative, amendatory legislation applies retroactively
to non-final convictions; on the other hand, Marlott and Ellis
explicitly state that a legislative amendment that substantially
changes the elements or definition of a crime does not apply
retroactively.
¶ 43 I thus write separately to identify this apparent conflict and to
urge the supreme court to clarify the breadth of its holding in
Stellabotte, with respect to its holding in Marlott. If the holding of
Stellabotte is not clarified, and it continues to be applied in any case
where amendatory legislation is arguably ameliorative, I am
concerned there may be unforeseen circumstances that will
interfere with the prosecution of criminal conduct that the General
Assembly did not intend to change. One of these unintended
consequences may arise in this very case.
¶ 44 However Stellabotte may be clarified, we still must decide
whether the district court in this case properly applied the changed
definition of “custody or confinement” in the PPRMA retroactively, to
dismiss the prosecution’s escape charge. Retroactive application of
the PPRMA raises particular concerns here. There is no doubt that
at the time Pennington committed the acts giving rise to the charge
21
of escape, her conduct, if proven, amounted to a violation of the
escape statute. See § 18-8-208, C.R.S. 2019. But if the changed
definition of custody or confinement contained in section 18-8-208,
C.R.S. 2020, is applied retroactively, Pennington cannot be charged
with escape.
¶ 45 But can she be charged under the new statute with
unauthorized absence? The new statute, section 18-8-208.2, would
certainly apply to Pennington’s conduct; but it did not become
effective until March 6, 2020. As the majority notes, Pennington
absented herself from community corrections on February 14,
2020, before the new statute became effective. This raises the
question of whether Pennington can be prosecuted for conduct that
occurred before the new statute became effective, and whether that
is what the legislature intended. If not, does she avoid prosecution
altogether because we are applying the PPRMA retroactively to
dismiss the escape charge against her? I am not sure of the answer
to that question under the facts of this case, and therefore take no
position on the issue.
¶ 46 Despite my reservations about applying Stellabotte, I agree
with the majority that the legislative amendments to the escape
22
statute should apply retroactively to Pennington’s benefit and result
in a dismissal of the escape charge. As the majority correctly
concludes, the PPRMA is silent as to whether it only applies
prospectively. And, as stated above, in my view whether it applies
retroactively under Stellabotte is uncertain. Thus, I see application
of the PPRMA to Pennington’s case as an ambiguous proposition.
¶ 47 Because the PPRMA is ambiguous, I turn to the principle of
statutory interpretation that requires that we “ascertain and give
effect to the legislature’s intent . . . [and] effectuate the purpose of
the legislative scheme.” People v. Cali, 2020 CO 20, ¶¶ 15, 16. It is
clear from the title of H.B. 20-1019 that the General Assembly’s
intent in enacting the PPRMA is to reduce the prison population.
Accordingly, I conclude that the General Assembly intended the
amendments to the escape statute to apply retroactively.
¶ 48 I agree with the majority that the district court’s order
dismissing the escape charge against Pennington should be
affirmed, and I agree with Judge Terry that the district court did not
have authority to unilaterally amend the charges.
23
JUSTICE MARTINEZ, concurring in part and dissenting in
part.
¶ 49 I agree with the opinion of Judge Terry, to which I refer as the
majority (it enjoys a majority of the panel, albeit with different
judges joining each of its two parts), that Pennington is entitled to
the benefit of the ameliorative legislation. I part ways with the
majority when it concludes that the district court violated the
separation of powers under article III of the Colorado Constitution
by amending the escape charge to unauthorized absence, and
should instead just dismiss the escape charge. Because I do not
agree that separation of powers principles prohibit amendment of
the escape charge, or that dismissal of the entire escape charge is
the benefit of the ameliorative legislation, I respectfully dissent in
part.
¶ 50 Although neither of the other two opinions in this case states
so directly, it is precisely because unauthorized absence is a subset
of the escape charge brought against Pennington that the Prison
Population Reduction and Management Act is ameliorative
legislation and reduces the penalty to which she is subject. If
unauthorized absence were not a subset of escape, People v.
24
Marlott, 191 Colo. 304, 552 P.2d 491 (1976) — which declined to
consider an amended definition of assault as ameliorative
legislation because the elements of the offense had been
substantially changed from those in the statute under which the
defendant had originally been charged — would compel a different
result. It is for this same reason, because unauthorized absence is
a subset of escape, that principles of separation of powers do not
prevent the district court from amending the escape charge to
unauthorized absence; in effect, the unauthorized absence charge
was brought by the prosecution when it charged Pennington with
escape.
¶ 51 The separation of powers doctrine insures “that the three
branches of government are separate, coordinate, and equal,” and it
“imposes upon the judiciary a proscription against interfering with
the executive or legislative branches.” Pena v. Dist. Ct., 681 P.2d
953, 956 (Colo. 1984). However, this doctrine does not preclude the
necessary overlap that occurs between the powers exercised by
each branch. Crowe v. Tull, 126 P.3d 196, 205-06 (Colo. 2006).
¶ 52 Generally, as members of the executive branch, prosecutors
have broad discretion to file or dismiss charges. People v. Reyes,
25
2016 COA 98, ¶ 24. These actions “may not be controlled or limited
by judicial intervention.” People v. Dist. Ct., 632 P.2d 1022, 1024
(Colo. 1981).
¶ 53 As the majority notes, district courts have discretion to
dismiss charges under certain circumstances. People v. Renander,
151 P.3d 657, 660 (Colo. App. 2006) (district court may determine
unit of prosecution for sexual exploitation of a child), superseded on
other grounds by statute, Ch. 362, sec. 7, § 18-6-403(5), 2006 Colo.
Sess. Laws 2056; see also People v. Villapando, 984 P.2d 51, 55
(Colo. 1999) (district court may screen charged offense for probable
cause during a preliminary hearing); People v. Zapotocky, 869 P.2d
1234, 1243-44 (Colo. 1994) (district court can dismiss pending
charges against a defendant on constitutional grounds); People v.
Guenther, 740 P.2d 971, 975 (Colo. 1987) (district court can dismiss
prosecution at pretrial stage pursuant to statute); People v. Dennis,
164 Colo. 163, 166, 433 P.2d 339, 340 (1967) (district court can
dismiss case where evidence is insufficient to support prosecution);
People v. Auld, 815 P.2d 956, 957-58 (Colo. App. 1991) (dismissal of
case proper if government’s conduct violates fundamental fairness
and is shocking to the universal sense of justice). But the district
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court may also amend or reduce a charge under certain
circumstances. Hunter v. Dist. Ct., 184 Colo. 238, 240-41, 519 P.2d
941, 943 (1974) (district court has authority at preliminary hearing
to bind over a defendant on a lesser included charge); People v.
Houser, 2013 COA 11, ¶ 83 (district court may instruct jury on
lesser included offense if there is supporting evidence); People v.
Carey, 198 P.3d 1223, 1234 (Colo. App. 2008) (district court may
instruct jury on lesser nonincluded offense if the defendant
requests or consents to it); People v. Scott, 10 P.3d 686, 688 (Colo.
App. 2000) (district court has authority to submit jury instruction
on lesser included offense after granting judgment of acquittal on
greater offense).
¶ 54 Here, the district court amended Pennington’s charge,
reasoning by analogy that because it would have had authority at a
preliminary hearing to bind over a count that did not suffice as a
felony but met the requirements of a misdemeanor, it had the same
authority in this circumstance. The majority contends that there
was no valid reason for the district court to interfere with the
prosecution’s discretion to amend Pennington’s charge. Further,
the majority argues that a district court’s authority to amend
27
charges at a preliminary hearing does not extend to amending
charges in other procedural contexts. At the same time, the
majority acknowledges that a district court may dismiss charges
under certain circumstances.
¶ 55 In support of its assertion that amending charges is solely
within the discretion of the prosecutor, the majority cites only
general propositions of prosecutorial authority rather than any
authority prohibiting amendment of charges by the court. See, e.g.,
Reyes, ¶ 24 (prosecutors have broad discretion to alter or dismiss
charges). In my view, to the extent that the majority reasons that
the district court should dismiss the escape charge, it is
inconsistent to hold that the district court may not amend the
charge because separation of powers generally prohibits both
dismissing and amending charges. However, despite this general
prohibition, there are many circumstances in which the district
court may dismiss or alter charges. As our supreme court noted in
Crowe, the separation of powers doctrine does not require absolute
division of authority among the branches of government. 126 P.3d
at 205-06. Part of this overlap in authority among branches of
government permits courts to dismiss charges (1) on constitutional
28
grounds; (2) to protect the integrity of the judicial process; (3) for
insufficient evidence to support prosecution; and (4) when
authorized by statute. Renander, 151 P.3d at 660; see also Hunter,
184 Colo. at 240-41, 519 P.2d at 943; Houser, ¶ 83; Carey, 198
P.3d at 1234; Scott, 10 P.3d at 688.
¶ 56 When the district court amended the escape charge to a
charge of unauthorized absence, it was effectively dismissing only a
portion of the escape charge and allowing the case to proceed on a
subset of the initial escape charge. While the majority would
require the district court to dismiss the entire escape charge, I do
not agree that the district court is somehow prevented by principles
of separation of powers from dismissing only a portion of the escape
charge and proceeding with the lesser remainder of the escape
charge, unauthorized absence. The conclusion that the legislative
change to escape confers an ameliorative benefit expresses our best
understanding of the intent of the legislature, a conclusion we
reach in the absence of an expressed intent by applying legislative
guidance and following the direction of our supreme court. Thus,
dismissing part of the escape charge and proceeding with the
remaining part, unauthorized absence, is both authorized by
29
statute and a permitted variance from the general principle that
dismissing and amending charges is with the providence of the
prosecutor. Therefore, I find no error with the district court’s
amendment of the offense charged from escape to unauthorized
absence.
¶ 57 For the reasons discussed above, I would affirm the judgment
of the district court in its entirety.
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