2020 CO 39
Colo.2020Background
- David Waddell pled guilty as part of a global disposition to a level 1 drug felony (possession) and two other felonies; at the combined sentencing hearing the trial court did not announce several statutorily-created surcharges in open court.
- After the hearing the court added six surcharges to Waddell’s mittimuses: the drug offender surcharge and five others (rural, restorative-justice, genetic-testing, victims-assistance, and victim-compensation).
- Waddell appealed, arguing that adding the surcharges after sentencing (and without notice/hearing) violated the federal and state Double Jeopardy and Due Process Clauses.
- The court of appeals held the surcharges could be imposed post-hearing because they are statutorily mandated; it remanded to give Waddell an opportunity to request waiver.
- The Colorado Supreme Court affirmed: it held the drug offender surcharge (and, assuming arguendo the others are punitive, those five as well) are mandatory under statute, so failing to impose them in open court rendered the sentence illegal and correctable at any time under Crim. P. 35(a); it remanded for waiver opportunity.
Issues
| Issue | Waddell’s Argument | People’s Argument | Held |
|---|---|---|---|
| Whether imposing the drug offender surcharge after sentencing violated Double Jeopardy | Post-sentencing addition of surcharge is a new punishment and thus double jeopardy barred it | The surcharge is statutorily required and the trial court can correct an illegal sentence under Crim. P. 35(a) | The surcharge is mandatory; sentence without it was illegal and correctable, so no Double Jeopardy violation |
| Whether the five other surcharges (rural, restorative, genetic, victims-assist, victim-comp) violated Double Jeopardy when added after sentencing | Addition of any punitive surcharge after sentence violates double jeopardy | Even if punitive, these surcharges are statutorily mandated and omission made the sentence illegal and correctable | Assuming they are punishment, they are mandatory; omission rendered sentence illegal and correction did not violate Double Jeopardy |
| Whether the relevant surcharges are mandatory or discretionary | Court could freely decline some or all surcharges at sentencing | Statutory language ("shall be required to pay" or "is hereby levied") makes them mandatory, subject only to waiver on indigency | Statutes make the surcharges mandatory absent a proper indigency finding/hearing |
| Whether Waddell’s due process claim (lack of notice/opportunity to show inability to pay) should be decided now | Imposition without notice/hearing violated Due Process | Case should be resolved on double jeopardy/sentence-illegality grounds; remand for waiver process remedies the concern | Court remanded to allow Waddell to seek waivers; due process claim not decided on the merits |
Key Cases Cited
- People v. Stead, 845 P.2d 1156 (Colo. 1993) (characterizing the drug offender surcharge as punishment)
- People v. McQuarrie, 66 P.3d 181 (Colo. App. 2002) (contrary court-of-appeals precedent, overruled here)
- Delgado v. People, 105 P.3d 634 (Colo. 2005) (sentence not in statutory compliance is illegal)
- Romero v. People, 179 P.3d 984 (Colo. 2007) (increasing punishment after sentence can implicate Double Jeopardy)
- Bozza v. United States, 330 U.S. 160 (U.S. 1947) (judicial sentencing errors do not let defendants escape lawful punishment)
- Veith v. People, 390 P.3d 403 (Colo. 2017) (standard of review for sentence legality/de novo)