v. People, 2020 CO 38

Gerald Adrian Yeadon was convicted by a jury of several offenses, including possession of <2 grams of methamphetamine (a class 6 felony).
At sentencing the trial court did not announce the $1,250 drug offender surcharge mandated by § 18-19-103(1)(e), but the court later added the surcharge to the mittimus after the hearing.
Yeadon appealed, arguing the post-sentencing addition of the surcharge violated federal and state double jeopardy protections.
A division of the Colorado Court of Appeals held the surcharge is mandatory, the sentence pronounced in open court was therefore illegal, and the court could correct it under Colo. Crim. P. 35(a); the Supreme Court granted certiorari.
The Colorado Supreme Court reviewed de novo, held the surcharge is a form of punishment and statutorily mandatory, concluded the original sentence was illegal and correctable under Rule 35(a), and remanded to give Yeadon an opportunity to request a waiver and a hearing under § 18-19-103(6).
The Court overruled the contrary Court of Appeals decision in People v. McQuarrie.

Issue	Yeadon’s Argument	People’s Argument	Held
Whether failing to impose the drug offender surcharge at sentencing renders the sentence illegal and correctable under Crim. P. 35(a), and whether later adding the surcharge violated Double Jeopardy	The surcharge is discretionary; the court’s failure to impose it in open court made any later addition an unconstitutional second punishment in violation of double jeopardy	The statute’s use of "shall" makes the surcharge mandatory; omission rendered the sentence unauthorized and correctable under Rule 35(a), so later imposition did not violate double jeopardy	The surcharge is mandatory; the sentence pronounced was illegal and subject to correction at any time under Rule 35(a); adding the surcharge after sentencing did not violate double jeopardy; remand for waiver/hearing opportunity

People v. Stead, 845 P.2d 1156 (Colo. 1993) (characterizing drug offender surcharge as punishment)
Bozza v. United States, 330 U.S. 160 (U.S. 1947) (constitutional principles do not let defendants escape punishment due to a judge’s procedural error)
People v. Hyde, 393 P.3d 962 (Colo. 2017) (statutory use of “shall” generally indicates mandatory intent)
Romero v. People, 179 P.3d 984 (Colo. 2007) (increasing a lawful sentence after it is imposed can implicate double jeopardy)
People v. Smith, 121 P.3d 243 (Colo. App. 2005) (Rule 35(a) permits correction of sentences not authorized by law)
Delgado v. People, 105 P.3d 634 (Colo. 2005) (sentences not fully complying with statutory requirements are illegal)
People v. Dist. Court, 673 P.2d 991 (Colo. 1983) (courts should not enable defendants to benefit from illegal sentences)
Ryan Ranch Cmty. Ass’n v. Kelley, 380 P.3d 137 (Colo. 2016) (comparison of mandatory terms; "shall"/"must" connotes mandatory requirement)
People v. Baker, 452 P.3d 759 (Colo. 2019) (a sentence component that fails to comply with statute renders the sentence unauthorized under Rule 35(a))
People v. McQuarrie, 66 P.3d 181 (Colo. App. 2002) (contrary Court of Appeals precedent holding surcharge discretionary, overruled by this opinion)