2014 COA 20
Colo. Ct. App.2014Background
- Herrera pleaded guilty to third-degree assault, resisting arrest, and second-degree burglary and was sentenced to six years in a community corrections program based on preliminary acceptance by the community corrections board and probation's recommendation.
- About one month after sentencing, the community corrections program rejected Herrera before placement due to mental-health concerns.
- Four days after rejection, the probation department asked the district court to resentence Herrera because community corrections was no longer available.
- The district court, without holding a resentencing hearing, converted Herrera’s six-year community corrections term to a six-year Department of Corrections (DOC) term followed by three years mandatory parole.
- Herrera appealed, arguing (1) the court erred by resentencing without a hearing, (2) the court failed to exercise discretion in converting the sentence, and (3) alternatively, the conversion to six years in DOC was an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Herrera) | Held |
|---|---|---|---|
| Whether a resentencing hearing was required when a community corrections placement is rejected before placement | Court may resentence without further hearing under statutes; resentence may be prompt and need not include a hearing | Section 18-1.3-801(1)(d) requires a hearing before converting a community corrections sentence to DOC when rejection occurs before placement | No hearing required; subsection (1)(d) is silent on hearings and confers discretion to the court to resentence promptly without mandating a hearing |
| Whether the district court failed to exercise sentencing discretion in converting the sentence | The court properly exercised discretion by relying on its original sentencing considerations and by choosing an equivalent DOC term | Court failed to recognize options (e.g., hold hearing or reduce sentence) and thus failed to exercise discretion | No failure to exercise discretion; record shows the court considered appropriate factors at initial sentencing and applied them on resentencing |
| Whether resentencing to six years in DOC (plus three years mandatory parole) was an abuse of discretion | The DOC sentence is within statutory range and based on proper factors; mandatory parole does not increase the sentence | Six-year DOC term (and mandatory parole) is excessive and thus an abuse of discretion | Not an abuse: six-year DOC term is within the applicable range and presumed reasonable; mandatory parole is collateral to confinement length and not an increased sentence |
Key Cases Cited
- Dubois v. People, 211 P.3d 41 (Colo. 2009) (statutory interpretation reviewed de novo)
- Erlenbaugh v. United States, 409 U.S. 289 (1972) (in pari materia canon for statutes addressing same subject)
- Shipley v. People, 45 P.3d 1277 (Colo. 2002) (community corrections sentences can, in some contexts, be treatable as incarceration for sentencing purposes)
- Fuller v. People, 791 P.2d 702 (Colo. 1990) (factors a court must consider in imposing sentence)
- Johnson v. People, 13 P.3d 309 (Colo. 2000) (mandatory parole is separate from the term of confinement)