2020 COA 80
Colo. Ct. App.2020Background
- Defendant Nehemiah Chavez was convicted of two counts of attempted second-degree murder (each found to be crimes of violence) and one count of attempted manslaughter.
- The district court found Chavez to be a habitual criminal based on three prior felonies and imposed the mandatory habitual-offender sentence of 64 years on each attempted second-degree murder conviction.
- The court applied the crime-of-violence statute to require those two violent-offense sentences to run consecutively, and imposed a concurrent 12-year term on the manslaughter count, for an aggregate 128-year DOC term.
- A direct appeal affirmed the convictions. Chavez then moved under Crim. P. 35(b) to have all sentences run concurrently, arguing the crime-of-violence consecutive requirement should not apply when sentencing under the habitual criminal statute.
- The district court denied the Crim. P. 35(b) motion; Chavez appealed. The Court of Appeals reviewed statutory interpretation de novo and denied relief, affirming the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 18-1.3-406(1)(a)’s mandatory consecutive-sentence rule for multiple crimes of violence applies when the defendant is sentenced under the habitual criminal statute (§ 18-1.3-801). | The crime-of-violence consecutive requirement and the habitual-offender statute are not irreconcilably in conflict; both apply and consecutive sentences are required. | The habitual offender statute preempts or otherwise displaces the crime-of-violence consecutive requirement, so habitual sentences should run concurrently. | The statutes are not in conflict; both apply; the district court properly imposed consecutive habitual-offender sentences. |
| Whether the Crim. P. 35(b) court had discretion to change consecutive habitual sentences to concurrent under the crime-of-violence statute’s "exceptional" language, where this argument was raised for the first time on appeal. | Not preserved below; appellate court should not consider a new Crim. P. 35(b) sentencing-discretion argument. | Chavez argued the court could exercise discretion in a Crim. P. 35(b) proceeding to modify to concurrent sentences as an exceptional case. | Unpreserved; the Court of Appeals declined to consider the argument. |
| Whether ambiguous statutory construction principles (including the rule of lenity) require construing the statutes in Chavez’s favor. | The statutes are unambiguous as applied together; no need to invoke lenity or other construction aids. | Chavez urged ambiguity and asked the court to apply lenity and construction aids to avoid harsh results. | No ambiguity found; lenity and other construction aids not applied. |
Key Cases Cited
- People v. Pena, 794 P.2d 1070 (Colo. App. 1990) (habitual-offender statute preempts incompatible sentencing-range provisions of crime-of-violence statute but does not preclude mandatory consecutive sentences)
- Robles v. People, 811 P.2d 804 (Colo. 1991) (overruled Pena on other grounds)
- People v. Hoefer, 961 P.2d 563 (Colo. App. 1998) (same preemption principle as Pena)
- People v. Rodriguez, 914 P.2d 230 (Colo. 1996) (standard of review for Crim. P. 35(b) rulings)
- People v. Dunlap, 36 P.3d 778 (Colo. 2001) (Crim. P. 35(b) limits on resentencing authority)
- People v. Padilla, 907 P.2d 601 (Colo. 1995) (respecting statutory limits on judicial sentencing discretion)
- Thoro Prods. Co. v. People, 70 P.3d 1188 (Colo. 2003) (rule of lenity applies only when criminal statute ambiguous)