2016 COA 185
Colo. Ct. App.2016Background
- Cody DeBorde pleaded guilty to one count of possession of a controlled substance (class 4 drug felony) in 2013 and was sentenced to nine months in community corrections with eligibility for relief under Colorado’s "wobbler" statute (§ 18-1.3-103.5).
- At sentencing the court imposed mandatory court costs and a $1,500 felony drug-offender surcharge under § 18-19-103; defense counsel requested a waiver for inability to pay, which the court denied for lack of evidence.
- DeBorde was homeless and unemployed per the presentence report; counsel relied on a sparse public defender application but provided no clear-and-convincing evidence of permanent inability to pay.
- The district court required DeBorde to file a motion to invoke the wobbler relief rather than setting a review hearing; after successful completion of community corrections DeBorde filed the motion.
- The court granted the motion, vacated the felony conviction, and entered a level 1 drug misdemeanor conviction; most of the $1,500 surcharge remained unpaid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the felony drug-offender surcharge must be reduced when a felony conviction is vacated under the wobbler statute | The People argued the surcharge imposed at initial sentencing remains because the wobbler only alters the conviction, not the original sentence | DeBorde argued that conversion of the conviction to a misdemeanor required reducing the surcharge to the misdemeanor amount ($1,000) | Court held the wobbler vacates only the conviction, not the sentence; the surcharge is set by the original conviction, so $1,500 remained proper |
| Whether the court abused discretion by refusing to waive the surcharge for inability to pay | The People maintained the record lacked clear-and-convincing proof of present and future inability to pay | DeBorde argued the presentence report and public defender application showed he was indigent and the court should have waived the surcharge | Court held DeBorde failed to meet his burden by clear and convincing evidence; trial court’s refusal to waive was not clearly erroneous |
| Whether the court erred in placing burden on defendant to seek wobbler relief (setting review hearing) | The People defended the court’s procedure requiring a motion for relief | DeBorde argued the court should set a review hearing rather than require him to file a motion | Court found the claim moot because DeBorde obtained the wobbler relief; declined to decide under the exception to mootness |
Key Cases Cited
- People v. McQuarrie, 66 P.3d 181 (Colo. App. 2002) (drug-offender surcharge is punishment and is imposed with the initial sentence)
- People v. Stead, 845 P.2d 1156 (Colo. 1993) (surcharge is part of the sentence)
- People v. Griffiths, 251 P.3d 462 (Colo. App. 2010) (standard of review and evidentiary burden for inability-to-pay findings)
- People v. Turner, 644 P.2d 951 (Colo. 1982) (conviction and sentence together constitute the judgment)
- People v. Fogarty, 126 P.3d 238 (Colo. App. 2005) (future ability to pay may be inferred from education and work prospects)