18CA1903 Peo in Interest of ZTL 11-04-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 18CA1903
City and County of Denver Juvenile Court No. 17JD443
Honorable D. Brett Woods, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of Z.T.L.,
Juvenile-Appellant.
SENTENCE AFFIRMED
Division II
Opinion by JUDGE BERGER
Román and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 4, 2021
Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy
State Public Defender, Denver, Colorado, for Juvenile-Appellant
1
¶ 1
Juvenile, Z.T.L., appeals the sentence imposed after she
pleaded guilty to accessory to felony murder and aggravated
robbery and was adjudicated an aggravated juvenile offender. She
contends that the juvenile court erred by
failing to consider the purposes of the Children’s Code in
sections 19-1-102 and 19-2-102, C.R.S. 2019;
failing to make the specific determinations required by
section 19-2-921(1.5)(a), C.R.S. 2019; and
failing to consider the proper factors before denying
presentence confinement credit.1
¶ 2
She also argues that the juvenile court abused its discretion
by committing her to four years in the Division of Youth Services
(DYS) and denying presentence confinement credit. We address
and reject her arguments and, therefore, affirm her sentence.
1 As discussed below, the Attorney General contends that the
portion of the juvenile’s appeal asking this court to review the
propriety of the sentence is barred by section 18-1-409(1), C.R.S.
2021. However, the Attorney General concedes, and we agree, that
the juvenile’s contention that the juvenile court did not make the
findings required by the Children’s Code constitutes “an appeal
related to the manner in which the sentence was imposed,
including the sufficiency and accuracy of the information on which
the sentence was based,” which is not barred by section
18-1-409(1). Sullivan v. People, 2020 CO 58, ¶ 26.
2
I. Relevant Facts and Procedural History
¶ 3
The juvenile was involved in a home-invasion homicide along
with four older males. The prosecution filed a delinquency petition
charging the juvenile with accessory to felony murder, second
degree burglary, tampering with physical evidence, second degree
kidnapping, aggravated robbery, and first degree burglary. The
prosecution also charged the juvenile as an aggravated juvenile
offender and moved to transfer the case from juvenile court to
district court.
¶ 4
However, the transfer hearing was vacated when the parties
reached the plea agreement. The juvenile pleaded guilty to
accessory to felony murder, aggravated robbery, and the aggravated
juvenile offender enhancer. Under the plea agreement, the parties
stipulated to a sentencing range of two to five years in the DYS.
The plea agreement was silent as to presentence confinement credit.
¶ 5
At the sentencing hearing, based on the facts of the case and
the juvenile’s history of pretrial noncompliance and gang affiliation,
the prosecutor requested a five-year DYS commitment, without
presentence confinement credit. Based on the juvenile’s
rehabilitation progress during presentence confinement, the
3
juvenile’s guardian ad litem and defense counsel requested two
years in DYS with 331 days of presentence confinement credit.
¶ 6
The juvenile court committed the juvenile to four years in DYS
stating,
First of all, these sentencings in Juvenile
Court are very difficult because they are so
rare that we have what is known as an
aggravated juvenile offender in front of the
Court and, most of the time, as the attorneys
know, it’s not involving the death of someone
which is, which is obviously a good thing. We
don’t have that here today. And so, I’ve
allowed a great deal of latitude for the
sentencing presentation. I imagine that this is
even much more of a presentation tha[n] you
would get in adult court, it just doesn’t happen
here all that often. I am mindful of the fact
that [the juvenile] has made great progress
while she’s been in custody at Gilliam and
what led her back to being in custody at
Gilliam and I will tell you that, and I explored
that a little bit with the guardian ad litem. I’m
mindful that [the juvenile] has received the
benefit of being in the Juvenile Court system
and not in the adult court system, and I’m
keeping that in mind as well. And finally, I’m
mindful of the fact that any sentence that I
impose here today can be revisited by the
Court upon motion. . . . So, I’m mindful that
she is not the shooter and am grateful for that.
But, I do think that the crime here was
significant and obviously resulted in the loss of
life of a member of our community. So, I am
going to, not to beat around the bush any
longer, order a commitment to the Division of
4
Youth Services, standard fines, fees and costs
will be imposed, and the commitment to the
Division of Youth Services will be for a period
of 4 years.
¶ 7
The juvenile court denied PSCC stating, “I’m not doing that.”2
II. The Juvenile Court was Not Required to Make Any Specific
Findings Under Sections 19-1-102 or 19-2.5-101
¶ 8
The juvenile argues that the juvenile court erred by failing to
consider the purposes of and make findings under sections
19-1-102 and 19-2-102, C.R.S. 2019.3 But nothing in section
19-1-102, C.R.S. 2021, or section 19-2.5-101, C.R.S. 2021, imposes
an obligation on the juvenile court to make any specific findings at
sentencing. So, we reject this claim of error.
2 After this appeal was filed, the juvenile court denied the juvenile’s
motion to reconsider her sentence. The juvenile court later granted
the Department of Human Services’ petition to allow the juvenile to
be transferred to a nonsecure placement. We do not further
address these orders because they have no proper bearing on the
resolution of the issues on appeal.
3 Effective October 1, 2021, section 19-2-102 was repealed and
relocated. The legislative declaration is now located in section
19-2.5-101, C.R.S. 2021. For purposes of this appeal, section
19-2.5-101, C.R.S. 2021, does not materially differ from section
19-2-102, C.R.S. 2019.
5
III. The Juvenile Court Made the Specific Determinations Required
by Section 19-2.5-1117(4)(a)
¶ 9
The juvenile argues that the court erred by failing to make the
specific determinations required by section 19-2-921(1.5)(a), C.R.S.
2019.4
¶ 10
When a court commits a juvenile to the department of human
services, the court is required to make the following specific
determinations:
(I) Whether placement of the juvenile
outside the home would be in the
juvenile’s and community’s best interest;
and
(II) Whether reasonable efforts have been
made to prevent or eliminate the need for
removal of the juvenile from the home;
whether is it reasonable that such efforts
are not made because an emergency
situation exists that requires the
immediate removal of the juvenile from
the home; or whether such efforts are not
4 The parties both refer to the specific determinations required by
section 19-2-921(1.5)(a), C.R.S. 2019, in their briefs. Effective
October 1, 2021, section 19-2-921 was repealed and relocated.
Section 19-2.5-1117(4)(a), C.R.S. 2021, now outlines the specific
determinations a juvenile court must make when committing a
juvenile to the department of human services. Section
19-2-921(1.5)(a), C.R.S. 2019, required two specific determinations,
which have remained the same in section 19-2.5-1117(4)(a). But
section 19-2.5-1117(4)(a) now requires an additional third specific
determination. Because the parties do not address the new third
determination, neither do we.
6
required because of circumstances
described in section 19-1-115(7).
§ 19-2.5-1117(4)(a)(I), (II), C.R.S. 2021.
¶ 11
The mittimus states, “[p]lacement out of the home is necessary
and is in the best interest of the juvenile and community.
Reasonable efforts were made to prevent or eliminate the need for
placement of the juvenile.” Accordingly, the juvenile court made the
specific determinations required by subsections (I) and (II) of section
19-2.5-1117(4)(a), and this claim of error fails.
IV. Presentence Confinement Credit
¶ 12
The juvenile also argues that the court erred by failing to
consider the proper factors when it denied her presentence
confinement credit.
¶ 13
In general, the decision whether to apply presentence
confinement credit against a juvenile’s sentence is a matter of
discretion, “subject to an ad hoc assessment of the needs of the
child and the interests of society.” People in Interest of T.S.R., 843
P.2d 105, 107 (Colo. App. 1992).
¶ 14
At the sentencing hearing, the juvenile court considered the
needs of the juvenile: “I am mindful of the fact that [the juvenile]
7
has made great progress while she’s been in custody at Gilliam and
. . . I’m mindful that [the juvenile] has received the benefit of being
in the Juvenile Court system and not in the adult court
system . . . .” The juvenile court also considered the interests of
society at the sentencing hearing: “I’m mindful that she is not the
shooter and am grateful for that. But I do think that the crime here
was significant and obviously resulted in the loss of life of a member
of our community.”
¶ 15
True, when asked about presentence confinement credit, the
juvenile judge simply stated, “I’m not doing that.” But the court’s
statements at the sentencing hearing and findings on the mittimus
reveal that the juvenile court considered the proper factors.
Accordingly, the juvenile court did not abuse its discretion by
denying presentence confinement credit.5
5 We note that when the DYS commitment is aggregated with the
denial of presentence confinement credit, the effective sentence is
still short of the five-year maximum agreed to by the juvenile. See
People in Interest of J.R., 216 P.3d 1220, 1224 (Colo. App. 2009).
8
V. Abuse of Discretion
¶ 16
The juvenile finally contends that the juvenile court abused its
discretion by committing her to four years in DYS and denying her
presentence confinement credit.
¶ 17
The Attorney General contends that section 18-1-409(1),
C.R.S. 2021, which bars appellate review of the propriety of a
criminal sentence that is within the range agreed upon by the
parties, bars review of the propriety of a juvenile sentence that is
within the range agreed upon by the parties.
¶ 18
Because the parties’ plea agreement was silent as to
presentence confinement credit, appellate review of that claim
would not be barred by section 18-1-409(1) even if that section
applied to juvenile sentences. See People v. Garcia, 2016 COA 124,
¶ 20. As discussed above, the court did not abuse its discretion by
denying the juvenile’s request for presentence confinement credit.
¶ 19
Regarding the juvenile’s claim that the court abused its
discretion by committing her to four years in DYS, we decline to
resolve whether section 18-1-409(1) applies to juvenile sentences
because, even assuming section 18-1-409(1) doesn’t apply here, the
juvenile’s claim fails.
9
¶ 20
“[A] trial court normally has broad discretion to craft a
sentence it deems appropriate for a particular juvenile offender.”
A.S. v. People, 2013 CO 63, ¶ 15. Consequently, a trial court’s
sentencing decision will not be disturbed absent a clear abuse of
discretion. People v. Leske, 957 P.2d 1030, 1042 (Colo. 1998). “A
sentencing court abuses its discretion if it fails to consider ‘the
nature of the offense, the character and rehabilitative potential of
the offender, the development of respect for the law and the
deterrence of crime, and the protection of the public.’” Id. at 1043
(quoting People v. Fuller, 791 P.2d 702, 708 (Colo. 1990)).
¶ 21
The commitment was within the statutory range.
§ 19-2.5-1127(1)(a)(I)(a), C.R.S. 2021. It also was within the range
agreed to by the parties. And the juvenile court considered
appropriate factors when it committed the juvenile to four years in
DYS. The facts underlying the juvenile’s adjudication were very
serious and resulted in the death of the victim. The juvenile court
also considered the juvenile’s history of pretrial noncompliance and
efforts at rehabilitation. Under the circumstances, the court did not
abuse its discretion by committing the juvenile to four years in DYS.
10
VI. Disposition
¶ 22
The sentence is affirmed.
JUDGE ROMÁN and JUDGE YUN concur.