Abu-Nantambu-El v. State of Colorado

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
March 8, 2018
2018COA30
No. 16CA1524, Abu-Nantambu-El v. State of Colorado —
Criminal Law — Compensation for Certain Exonerated Persons
A division of the court of appeals considers whether a
defendant whose felony convictions were vacated, but who remains
convicted of a misdemeanor in the same case, is eligible for
compensation under § 13-65-101 — 103, C.R.S. 2017 (Exoneration
Statute). The division concludes that, because the plain language
of the statute requires that “all” of a petitioner’s convictions in the
case be vacated, and because the defendant-petitioner remained
convicted of a misdemeanor in the case at issue, he was not entitled
to petition for compensation under the Exoneration Statute.
COLORADO COURT OF APPEALS 2018COA30
Court of Appeals No. 16CA1524
City and County of Denver District Court No. 15CV520
Honorable Morris B. Hoffman, Judge
Abdu-Latif Kazembe Abu-Nantambu-El,
Plaintiff-Appellant,
v.
State of Colorado,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE FREYRE
Bernard and Berger, JJ., concur
Announced March 8, 2018
Abdu-Latif Kazembe Abu-Nantambu-El, Pro Se
Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney
General, Denver, Colorado, for Defendant-Appellee
¶1 Defendant-petitioner, Abdu-Latif Kazembe Abu-Nantambu-El,
appeals the district court’s order granting the State of Colorado’s
motion to dismiss his petition for compensation pursuant to the
“Compensation for Certain Exonerated Persons” statute, sections
13-65-101 to -103, C.R.S. 2017 (Exoneration Statute).1 As a matter
of first impression, we consider whether a defendant-petitioner
whose felony convictions were vacated, but who remains convicted
of a misdemeanor in the same case, is eligible for compensation
under the Exoneration Statute. We conclude he is not. We further
conclude that, because he is not eligible to file a petition under the
Exoneration Statute, we need not address whether the court
deprived him of his right to a jury trial under the statute.
Accordingly, we affirm the district court’s order granting the State’s
motion to dismiss.
1 Between the district court’s ruling and the appellate briefing, the
United States Supreme Court held that the Exoneration Statute’s
requirement that a defendant prove his or her innocence by clear
and convincing evidence to obtain a refund of costs, fees, and
restitution paid pursuant to an invalid conviction does not comport
with the defendant’s right to due process under the Fourteenth
Amendment to the United States Constitution. Nelson v. Colorado,
581 U.S. ___, ___, 137 S. Ct. 1249, 1255-58 (2017).
1
I. Background
¶2 A jury convicted Abu-Nantambu-El (formerly known as Paul
Delano McKnight, Jr.) of first degree sexual assault (a class 3
felony), second degree kidnapping (a class 2 felony), and third
degree assault (a class 1 misdemeanor) in the same case, all arising
out of an incident in which the victim claimed that Abu-Nantambu-
El had raped her. His convictions were affirmed on appeal. People
v. McKnight, 813 P.2d 331 (Colo. 1991).
¶3 Abu-Nantambu-El then filed a pro se Crim. P. 35(c) motion
claiming ineffective assistance of counsel. He presented evidence
that scientific testing was available during his trial and that his
attorney never requested it. During the postconviction proceedings,
a scientific test was conducted and it ruled out Abu-Nantambu-El
as the contributor of the semen sample found in the victim’s
underwear.
¶4 The district court found that Abu-Nantambu-El’s counsel
provided ineffective assistance and that, but for the ineffective
assistance, Abu-Nantambu-El would probably not have been
convicted of the kidnapping and sexual assault charges. The court
vacated these two felony convictions.
2
¶5 However, the court also found that counsel’s ineffective
assistance had not affected Abu-Nantambu-El’s third degree assault
conviction, and it denied his Crim. P. 35(c) motion as to that
conviction. The court’s order was affirmed on appeal. See People v.
McKnight, slip op. at 12 (Colo. App. No. 97CA1638, Jan. 14, 1999)
(not published pursuant to C.A.R. 35(f)). The prosecution elected
not to retry the felony counts, but Abu-Nantambu-El remains
convicted of the misdemeanor in that case.
¶6 Based on the order vacating his felony convictions, Abu-
Nantambu-El filed a petition for compensation pursuant to the
Exoneration Statute. The State filed a C.R.C.P. 12(b)(5) motion to
dismiss, contending that Abu-Nantambu-El was not eligible to seek
relief because (1) the order vacating the kidnapping and sexual
assault convictions was based on ineffective assistance of trial
counsel, a ground “unrelated to the petitioner’s actual innocence”;
and (2) Abu-Nantambu-El remained convicted of third degree
assault, and therefore he did not satisfy the portion of the statute
requiring that “all convictions in the case” be vacated or reversed.
The district court rejected the State’s first argument, but agreed
with its second argument and granted the motion to dismiss. The
3
State did not cross-appeal the court’s “actual innocence” finding, so
the only issue we consider is the eligibility requirements for filing a
petition for compensation under the Exoneration Statute.
II. Analysis
¶7 Abu-Nantambu-El contends that the district court erred when
it concluded that his misdemeanor conviction precluded him from
filing a petition under section 13-65-102(2)(a), C.R.S. 2017, because
it was never vacated or reversed and remains on his record. He also
contends that the court erred by rejecting his request for a jury trial
under section 13-65-102(6)(b). We reject his first contention and
therefore do not consider his second contention.
A. Standard of Review and Applicable Law
¶8 We review de novo the district court’s grant of a motion to
dismiss. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.
2004). In reviewing a motion to dismiss, we accept all matters of
material fact in the petition as true and view the allegations in the
light most favorable to the plaintiff. See Bly v. Story, 241 P.3d 529,
533 (Colo. 2010). Under this standard, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.”
Warne v. Hall, 2016 CO 50, ¶ 9 (quoting Ashcroft v. Iqbal, 556 U.S.
4662, 679 (2009)). That is, a party must plead sufficient facts that, if
taken as true, suggest plausible grounds to support a claim for
relief. Warne, ¶ 24.
¶9 Statutory interpretation presents a question of law, which we
review de novo. People v. Garcia, 113 P.3d 775, 780 (Colo. 2005).
When interpreting a statute, a court must ascertain and give effect
to the General Assembly’s “purpose or intent in enacting the
statute.” Martin v. People, 27 P.3d 846, 851 (Colo. 2001). To
determine legislative intent, we first look to the language of the
statute, giving words and phrases their commonly accepted and
understood meanings. Garcia, 113 P.3d at 780; Martin, 27 P.3d at
851. If those words are clear and unambiguous, we apply the
statute as written. See Martin, 27 P.3d at 851. We may discern the
plain meaning of statutory language by referring to its common
dictionary meaning. See People v. Hunter, 2013 CO 48, ¶ 10.
¶ 10 “The legislative choice of language may be concluded to be a
deliberate one calculated to obtain the result dictated by the plain
meaning of the words.” Hendricks v. People, 10 P.3d 1231, 1238
(Colo. 2000) (quoting City & Cty. of Denver v. Gallegos, 916 P.2d
509, 512 (Colo. 1996)); People v. Guenther, 740 P.2d 971, 976 (Colo.
5
1987) (same). Consequently, “[w]hen the General Assembly
includes a provision in one section of a statute, but excludes the
same provision from another section, we presume that the General
Assembly did so purposefully.” Well Augmentation Subdistrict of
Cent. Colo. Water Conservancy Dist. v. City of Aurora, 221 P.3d 399,
419 (Colo. 2009); accord United States v. Pauler, 857 F.3d 1073,
1076 (10th Cir. 2017) (Where the legislature “includes particular
language in one section of a statute but omits it in another section
of the same Act, it is generally presumed that [it] acts intentionally
and purposely in the disparate inclusion or exclusion.” (quoting
Russello v. United States, 464 U.S. 16, 23 (1983))).
¶ 11 Finally, a court must read and consider the statute as a whole,
giving harmonious and sensible effect to all its parts. People v.
Martinez, 70 P.3d 474, 477 (Colo. 2003). If the statute is
unambiguous and does not conflict with other statutory provisions,
the court need look no further in determining its meaning. People
v. Luther, 58 P.3d 1013, 1015 (Colo. 2002). However, if the
language of the statute is ambiguous, or in conflict with other
provisions, the court may look to legislative history, prior law, the
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consequences of a given construction, and the goal of the statutory
scheme to determine its meaning. Id.B. Eligibility Requirements for Filing a Petition for Compensation
¶ 12 We begin by agreeing with Abu-Nantambu-El that the
Exoneration Statute is aimed at compensating persons wrongfully
convicted of and incarcerated for felonies. Indeed, section 13-65-
102(1)(a) provides:
Notwithstanding the provisions of article 10 of
title 24, C.R.S., a person who has been
convicted of a felony in this state and
sentenced to a term of incarceration as a result
of that conviction and has served all or part of
such sentence, or an immediate family
member of such person, may be eligible for
compensation as set forth in this article upon
a finding that the person was actually innocent
of the crime for which he or she was convicted.
Thus, a person who is wrongfully convicted of a misdemeanor may
not seek relief under section 13-65-102(1). However, it does not
necessarily follow that when a person is convicted of both a felony
and a misdemeanor, in the same case, the court should only
consider the felony and disregard the misdemeanor.
¶ 13 Section 13-65-102(2) sets forth the prerequisites for filing a
petition for compensation:
7
A petition may be filed pursuant to this section
only:
(a) When no further criminal prosecution of the
petitioner for the crimes charged, or for crimes
arising from the same criminal episode in the
case that is the subject of the petition, has
been initiated by the district attorney or the
attorney general and subsequent to one of the
following:
(I) A court vacating or reversing all convictions
in the case based on reasons other than legal
insufficiency of evidence or legal error
unrelated to the petitioner’s actual innocence
and following an order of dismissal of all
charges; or
(II) A court vacating or reversing all convictions
in the case based on reasons other than legal
insufficiency of evidence or legal error
unrelated to the petitioner’s actual innocence
and following an acquittal of all charges after
retrial; and
(b) Either:
(I) If the conditions described in paragraph (a)
of this subsection (2) are met on or after June
5, 2013, not more than two years after said
conditions are met; or
(II) If the conditions described in paragraph (a)
of this subsection (2) are met before June 5,
2013, not more than two years after June 5,
2013.
(Emphasis added.)
8
¶ 14 After satisfying these threshold eligibility requirements to file a
petition, a petitioner must then satisfy additional requirements to
be eligible for compensation. See § 13-65-102(4)(a)(I) (a person who
does not meet the definition of actual innocence is ineligible for
compensation); § 13-65-102(4)(a)(II) (A person is ineligible if “[h]e or
she committed or suborned perjury during any proceedings related
to the case that is the subject of the claim.”); § 13-65-102(4)(a)(III)
(A person is ineligible if, “[t]o avoid prosecution in another case for
which the petitioner has not been determined to be actually
innocent, he or she pled guilty in the case that served as the basis
for the conviction and incarceration that is the subject of the
petition.”).
¶ 15 The petition constitutes a civil claim for relief, § 13-65-
102(1)(b), subject to the Colorado rules of civil procedure. § 13-65-
102(5)(g). Upon receipt of a petition, the State may contest either
the petitioner’s actual innocence or the petitioner’s eligibility for
compensation. § 13-65-102(5)(d)(II). If the petition is contested,
“the district court shall set the matter for a trial to the district court
or, at the written election of either party, to a trial to a jury of six.”
§ 13-65-102(6)(b).
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¶ 16 The only portion of the statute at issue here is the meaning of
“all convictions” in section 13-65-102(2)(a)(I) and (II), because no
one disputes that Abu-Nantambu-El remains convicted of third
degree assault in the case at issue. Abu-Nantambu-El urges us to
interpret “all convictions” to mean felony convictions. He reasons
that because the Exoneration Statute addresses only wrongly
convicted felons, the legislature could not have meant to include
misdemeanor convictions within its parameters. His argument
might have some force were we to consider this language in
isolation, because he is correct that the Exoneration Statute was
enacted to compensate wrongfully convicted felons. However, we
must view the statute as a whole, and in doing so, we reject his
interpretation for four reasons.
¶ 17 First, the legislature’s use of the word “felony” in section 13-
65-102(1)(a) convinces us that its use of “all convictions” in section
13-65-102(2)(a) is intended to be broader than merely felony
convictions. See City of Grand Junction v. Ute Water Conservancy
Dist., 900 P.2d 81, 91 (Colo. 1995) (“The word ‘all’ is an
unambiguous term. The dictionary definition and common usage of
the word ‘all’ do not provide for an exception or exclusion that is not
10
expressly specified.”) (citations omitted); Hudgeons v. Tenneco Oil
Co., 796 P.2d 21, 23 (Colo. App. 1990) (“‘All’ is an unambiguous
term and means the whole of, the whole number or sum of, or every
member or individual component of, and is synonymous with ‘every’
and ‘each.’”). If the legislature had intended a court to consider
only the felonies vacated or reversed in a case, it could have said so,
as it did in sections 13-65-102(1)(a) and 13-65-103(3)(a). Because
it did not, we view the legislature’s choice of “all convictions” as a
deliberate one intended to encompass all the convictions in a case.
Well Augmentation Subdistrict of Cent. Colo. Water Conservancy
Dist., 221 P.3d at 419. Moreover, we may not add words to a
statute that do not exist. People v. Diaz, 2015 CO 28, ¶ 12 (“We do
not add words to the statute or subtract words from it.” (quoting
Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007))); People v.
Benavidez, 222 P.3d 391, 393-94 (Colo. App. 2009) (“But, in
interpreting a statute, we must accept the General Assembly’s
choice of language and not add or imply words that simply are not
there.”).
¶ 18 Second, a petition may only be filed, under section 13-65-
102(2)(a), when no further prosecution of the petitioner for “the
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crimes charged, or for crimes arising from the same criminal
episode in the case that is the subject of the petition,” has occurred.
Like the “all convictions” language, “crimes charged” and “crimes
arising from the same criminal episode” plainly encompass more
than simply the felonies charged. If the filing requirements were
limited to felony charges, the legislature would have so stated. Its
choice of broader language evidences its intent to restrict the
eligibility requirements for filing petitions for compensation to those
cases in which a petitioner has been exonerated of all charges, not
just the felony charges. Turbyne, 151 P.3d at 568 (“[W]e cannot
supply the missing language and must respect the legislature’s
choice of language.”).
¶ 19 Third, we are not persuaded by Abu-Nantambu-El’s contention
that the word “incarceration” in section 13-65-102(1)(a) restricts the
language of subsection (2)(a) to felony convictions. This assertion is
inconsistent with the definition of incarceration found in section 13-
65-101(5), which provides:
“Incarceration” means a person’s custody in a
county jail or a correctional facility while he or
she serves a sentence issued pursuant to a
felony conviction in this state or pursuant to
the person’s adjudication as a juvenile
12
delinquent for the commission of one or more
offenses that would be felonies if committed by
a person eighteen years of age or older. For
the purposes of this section, “incarceration”
includes placement as a juvenile to the
custody of the state department of human
services or a county department of social
services pursuant to such an adjudication.
¶ 20 In our view, this definition recognizes that a person charged
with a felony may remain incarcerated in a county jail pending a
conviction and sentence. Our view is supported by the language of
section 13-65-103(3)(a) entitling an exonerated person to receive
compensation in the amount of “seventy thousand dollars for each
year that he or she was incarcerated for the felony of which he or
she has been exonerated.”
¶ 21 As Abu-Nantambu-El concedes, the purpose of the statute is
to compensate those who are actually innocent for the time they
spent wrongfully incarcerated. Abu-Nantambu-El’s interpretation
of “incarceration” would lead to the absurd result of compensating a
wrongfully convicted person for the time he or she spent in the
custody of the Department of Corrections but not for the time he or
she spent awaiting that wrongful conviction in a county jail.
Indeed, a person sentenced to the custody of the Department of
13
Corrections is entitled, as a matter of law, to receive credit against
the sentence for pretrial confinement in a county jail. See § 18-1.3-
405, C.R.S. 2017 (“A person who is confined for an offense prior to
the imposition of sentence for said offense is entitled to credit
against the term of his or her sentence for the entire period of such
confinement.”). And we may not interpret a statute in a way that
leads to absurd results. Pineda-Liberato v. People, 2017 CO 95,
¶ 22.
¶ 22 Fourth, Abu-Nantambu-El’s contention is further undermined
by the specific language of section 13-65-103 pertaining to the
amount of compensation a qualified person may be awarded. In
particular, section 13-65-103(3)(a) specifies annual compensation
amounts for “the felony of which he or she has been exonerated.”
The legislature’s choice of the word “felony” in this provision
supports our conclusion that its decision to use “all convictions” in
the eligibility requirements provision encompasses more than felony
convictions. Pineda-Liberato, ¶ 22 (“We also read the statutory
scheme as a whole, giving consistent, harmonious, and sensible
effect to all of its parts . . . .”).
14
¶ 23 Reading the Exoneration Statute as a whole, we conclude that
the General Assembly intended to require that “all convictions in
the case” be vacated or reversed, including any misdemeanor
convictions, in order for a petition for compensation to qualify for a
district court’s further consideration. Because we find the language
unambiguous, we necessarily reject Abu-Nantambu-El’s invitation
to consider the statute’s legislative history. See Luther, 58 P.3d at
1015.
¶ 24 Abu-Nantambu-El finally contends that he qualifies to file a
petition under the Exoneration Statute because the misdemeanor
conviction was factually unrelated to the felony conviction.2 We
disagree for two reasons.
¶ 25 First, Abu-Nantambu-El did not provide the record from his
postconviction hearing as part of this appeal, and the burden is on
2Abu-Nantambu-El explains that he did not consider including the
misdemeanor conviction and sentence in his Crim. P. 35(c) motion
because the sentence “had been fully served and had no effect, and
was not the reason nor basis, nor was it factually related to his
wrongful incarceration.” However, neither party disputes that the
district court’s postconviction ruling considered the misdemeanor
conviction, concluded that sufficient evidence supported it — as
evidenced by Abu-Nantambu-El’s concession of sufficiency — and
denied the motion as to that count.
15
an appellant to provide a record justifying reversal. See § 13-65-
102(5)(f)(I); C.A.R. 10. Absent this record, we must assume that the
district court’s finding that all of the convictions arose out of the
same incident is correct. See People v. Gallegos, 179 Colo. 211,
213, 499 P.2d 315, 316 (1972) (“No transcript of the evidence
considered by the lower court was made a part of the record by
appellant, and in the absence of any showing to the contrary we
must presume that the findings are supported by the evidence
presented to and considered by the court.”).
¶ 26 Second, the plain language of the petition eligibility provision,
§ 13-65-102(2)(a), does not distinguish between convictions arising
from factually related and unrelated counts. Instead, the statute
requires that “all convictions in the case” must have been vacated or
reversed, not just those convictions factually related to the felony.
§ 13-65-102(2)(a) (emphasis added).
¶ 27 Accordingly, we conclude that because Abu-Nantambu-El
failed to satisfy the petition eligibility requirements set forth in
section 13-65-102(2)(a), his petition did not state a plausible claim
for relief. We therefore affirm the district court’s ruling granting the
State’s motion to dismiss.
16
C. Right to Trial Under Section 13-65-102(6)(b)
¶ 28 Because we have concluded that Abu-Nantambu-El’s petition
did not meet the threshold requirements for a district court’s
further consideration, we reject his contention that the court erred
in denying him a trial on the petition under section 13-65-102(6)(b).
III. Conclusion
¶ 29 The judgment is affirmed.
JUDGE BERNARD and JUDGE BERGER concur.
17