People v. Cooper

expressly Mark from her Bonnie excluded 10-4-721,

policy pursuant to section

Progressive adjusted premiums Bonnie's ac-

cordingly. The text the named driver ex- policy echoed the

clusion her ab- liability

solving insurer in section 10-4-721. statutorily

Because Bonnie assented to this limitation, Progressive

authorized is not lia- injuries PIP

ble for claims for Miranda's

arising operation pickup from Mark's of the

truck.

IIL.

Accordingly, judgment we affirm the appeals.

court of

The PEOPLE of the State of

Colorado, Petitioner,

v. COOPER, Respondent.

David People

The of the State of

Colorado, Petitioner,

v.

Joseph Rula, Respondent. A. People

The of the State of

Colorado, Petitioner,

v. Joshua, Respondent.

Franklin R. of the State of

Colorado, Petitioner, Rodriguez, Respondent.

Alfred 00SC474, 00SC499,

Nos. 00SC587

and 00SC588. Colorado,

Supreme Court of

En Banc.

June statutory two distinct inquiry focuses on

Our specifically, and schemes by changes the General enacted (2000), 17-2- sections 18-1, 201(5), and 6 CRS. 1993,1996, 105(1)(a){(V)(C),in and 1998. changes con- to the statutes Despite some Martin, we arrive at the same in sidered in Martin. cases as we did of these resolution that the exact same Specifically, we conclude 17-2-201(5)(a) and in sections (5b)(a.5) meaning. There- identical has the that, in fore, under the statutes hold were sen- here when the defendants effect tenced, offense person convicted of sexual 1, 1996, No- July but before after committed 1, 1998, subject to a is vember re- longer than the discretionary parole, no of incar- maximum sentence mainder of the Accordingly, imposed the court. ceration ap- the court of judgment we affirm reversing cases in of these four peals each of the defendants' courts' denial the trial General, Salazar, Attorney 85(e) John J. Ken motions. Crim. P. General, Attorney Krause, Assistant First L. Section, Division, Justice Appellate Criminal Denver, CO, Attorneys for Petitioner. are of these four cases specific facts determination necessarily to the essential Public Kaplan, Colorado State David S. the court of presented because of the issues Brien, Defender, Deputy State Katherine in each case that the de- appeals concluded Rosen, Defender, Den- D. Jonathan Public mandatory parole. subject to was not fendant ver, CO, Respondent. Attorneys for However, facts cen- do share some the cases Rula, pro se. Respondent, Joseph A. in analysis. begin, each To tral to our cases, is a sexual the crime four Opinion delivered MARTINEZ Justice offense, under classifiable of the Court. 201(5)(a.5), between which occurred Additionally, and November cases, consoli we have four These case, a trial appealed in the defendant each here, question of the exten present a dated 35(c) P. motion ruling denying a Crim. v. court resolved Martin the issue we sion of Joshua, Rula, In (2001). relief. post-conviction granted We 27 P.3d 846 People, P. Rodrigues the defendants' Crim. and to deter of these cases in all four certiorari 35(c) claimed that correctly motions appeals whether the court mine them that adequately advised never court leg statutory scheme and that the concluded Department of Correc- to the sentences parole for sex their require that intent islative (DOC) by period of be followed tions be offenses committed convicted of Moreover, mandatory parole. Joskua is tween Cooper, the defen- well as Rodrigues, as in sections discretionary provisions under the periods of 18-1-105(1)(a)(Vv)(C).1 motions claimed 17-2-201(5)(@a.5) dants' for each of sex offenders petitions of certiorari like other for writ to be treated 1. The mandatory parole is this issue as follows: cases all state the four consecutively prison sentences to their served scheme ''Whether only by length length and limited in their who committed require sex offenders intent trial court." original sentence 1996, and November crimes between Joshua, 99CA0712, (Colo. slip op. No. at 2 parole imposed DOC were 2000); App. Apr. People Rodrigues, plea agreements,. violation of their We 99CA0764, slip op. (Colo.App.July No. at 2-8 Cooper, note no advisement concern- holding ing defendant, It given that the ever Rula, Joshua, orally writing. In either or appeal. now Rodriguez, and the trial court did advise the Notwithstanding marginal analytical the defendants, orally writing, either or in of the utility, we now describe the of each facts case however, possibility period of a in distinguishing to assist one from another. sufficiency do not reach the issue those advisements. A. that, We further in note none of the cases Cooper (Cooper) pleaded Defendant David did the trial de- court address whether guilty January in to sexual assault subject discretionary fendant was man- or degree second violation of section 18- datory parole. Nor did the trial court 3-4038(1)(b), (2000), 6 C.R.S. an offense com- explicitly of the cases sentence the defendant Cooper mitted on initially 1996. was mandatory parole. In both charged with sexual assault in the first de- did, Rodrigues, Rula and the trial court on gree, attempted assault, degree first and mittimus, refer to be set as crime Additionally, of violence. three - required by law and included a charges of habitual criminal were added distinguishing citation not useful to between against Cooper in November 1996. In June mandatory discretionary parole. and 1997, the district court Cooper found incom- cases, For all of these in the time petent proceed and ordered him to the original rulings between the trial court and Colorado Mental Health Institute. In Octo- appeals' rulings, the court of this court issued ber Cooper district court found that Craig its decisionin People, both v. had been competency pro- restored to and (Colo.1999), and v. People, Benavidez ceeded with the trial. (Colo.1999). cases, P.2d 948 In both of those Cooper plea entered into an oral bargain plea we held that a entered into without an stipulated sentence, five-year DOC adequate advisement of the direct conse with parole. no mention of Pursuant to that quence mandatory parole is constitutional plea bargain, Cooper pleaded guilty to see- ly subject infirm and to withdrawal unless degree Throughout ond sexual assault. harmless, infirmity such or can be ren plea bargain entire sentencing process, and legal dered harmless a modified sentence. advised, Cooper writing was never either Craig, 986 P.2d at 957. In each of the four orally, any mandatory parole period. here, appeals cases the court of held that it sentencing, At the trial court sentenced him necessary was not for the trial court to ad years in to five DOC. mandatory parole vise the defendant of be subject 35(c) cause defendant was not Cooper to man filed a Crim. P. motion for datory post-conviction under alleging relief that he was - - - 105(1)(a)(V). Instead, appeals good court of denied sufficient time credit and that imposition held, year mandatory of a five peri- subject these defendants were all discretionary parole parole by under sections 17-2- od plea DOC violated his 201(5)(a.5) 18-1-105(1)(a)(V)(C).2People agreement. In August a minute order dated Cooper, 3, 1998, v. (Colo.App. granted 557-58 the trial Cooper's good court 2000); Rula, 99CA1522, People v. slip op. No. credit, mandatory time but denied his 16, 2000); 2 (Colo.App. Mar. Cooper claim. appealed, and the court of discretionary parole issue The for sex offend- offenders. While the other defendants did not commiting raise this issue in their briefs to the court of ers offenses on or after by Cooper opening appeals, was first raised appeals his brief to the court of followed its initial appeals. Cooper, holding the court of Cooper In its decision in subsequent in each of the cases, agreed appeals Cooper's argu- the court of and held that all of the defendants were 17-2-201(5)(a.5) subject ment discretionary parole pursuant sections and 18-1- to sec- 105(1)(a)(V)(C) govern parole group 18-1-105(1)(a)(v)(C). for that tions 35(c) post- motion for a Crim. P. Rula filed that, under sections ruled appeals (2000), and 18-1- relief, asserting neither 201(b)(a.5), CRS. conviction sentencing court advised nor the 105(1)(a)(V)(C), providency to the DOC would him that his sentence remainder of not exceed parole could five-year period his the time of followed Cooper's sentence motion, appeals also held and the court of court of his prison. The trial court denied from affirmed, excepted reasoning because appeals discretionary not crimes between parole period is who committed Rula's plea, from the trial consequence of his a direct 18-l- requirements obliged him of it. to advise court was appeals further of- Accordingly, the court of 105(1)(a){V), meant for such instead discretionary parole under offender, Rula, to receive fenders as a sex held that 18-1- sections discretionary parole under sections to 18-1-105(0)(@)(VW)(C).Rulo, 201(5)(a.5) and 105(1)(a){(V)(C). of Accordingly, the court offender, as a sex Cooper, appeals held that 99CA1522, (citing Cooper, slip op. at No. mandatory, discretionary, not subject to was appeal that deci- People now The The Peo- at 557-58. Cooper, 8 P.3d parole. sion. appeal that decision. ple now C.

B. (Joshua) Franklin R. Joshua Defendant (Rula) pleaded Rula Joseph A. Defendant 1997, to one count of guilty in March pleaded count of sexual to one guilty June in violation of see- on a child sexual assault child, 18- a violation assault on (2000), an offense 6 C.R.S. tion (2000), 3-405(1), commit- an offense 6 C.R.S. 24, 1996. Joshua on November initially 1996. Rula was ted on on a initially charged with sexual assault assault on counts of sexual charged with two degree, child, assault in the second sexual trust, position of one by person a a child a in the third assault counts of sexual two three counts exposure, and of indecent count degree, and in the third degree, assault exposure a child. to of indecent injury bodily resulting from violence crime of bargain in plea into a Rula entered during offense. a sexual drop original six agreed to People plea bargain into a entered Joshua plea agreement did against him. The counts drop the other People agreed to agreement, which any sentencing not include request plea against The him. signed five counts petition that he did though plea any him that signed advised received Joshua any he him that sentence advise carry up a five- to received could sentence he five-year period of carry it a plea Pursuant to his year parole. plea agreement, Pursuant guilty sexual as pleaded to bargain, a Joshua assault of pleaded guilty to sexual Rula child, eight-year agreed to an a court, sault of child, ever dis trial without and the Community in the Corrections to eight years sentence him to cussing parole, sentenced mittimus, Community judge program. Because the trial in the DOC. On sex offender Joshua, rejected of Corrections stating, "plus term marked a box agreed to a sev 17-22.5-303, subsequently the defendant by section parole authorized regarding The DOC. en-year sentence C.R.S.," comments made no other but any parole.4 not sentence Joshua paro court did le.3 17-22.5-303, 303(6). acknowledgment generally of trial court's Section The necessarily im- concepts "good mittimus does time" in the of discusses time," play concepts parole those type and how over another. plicate "earned one of parole's decision of of the state board role in grant to an offender. and when to whether a box case contained form in this 4. The mittimus is, length only made to of reference The required period of that referred determine ... shall board of state "[The judge not check. did which the trial law period parole, which length ... years." § up 17-22.5- period to five be for 35(c) filed a P. motion for Joshua Crim. consistent with that oral it relief, post-conviction asserting that he had any period also fails order not been advised that his sentence to the Rodriguez. The "plus any mittimus states five-year period DOC would be followed term by § authorized mandatory parole, and that such a 105(1)(a)(V)." sentence, parole, when added to his DOC 35(c) Rodriguez filed a Crim. P. seven-year motion for stipulation exceeded the in the relief, plea agreement. post-conviction asserting The trial court denied his that he had motion, concluding that Joshua received ade- properly not been advised that his sentence quate parole period advisement of the in his to the DOC would be followed a three- request plead guilty written form. The year period parole. Rodriguez argued appeals court of affirmed the outcome of the that his sentence should be modified so that decision, holding trial court's the lower sentence, including his total required court regard- was not to advise him years. does not exceed five The trial ing mandatory parole. reasoning motion, court finding denied his that Rodri- appeals court of was that Joshua was not guez adequate received advisement of the subject mandatory parole. Instead, range penalties, including pa- the term of appellate court held that Joshua is appeals role. The court of affirmed the trial discretionary parole under section 18-1- ruling, court's but reached its conclusion 105(1)(a)(V)(C). Joshua, 99CAOT12,slip No. reasoning. based on different The court of 554). op. 2 (citing Cooper, The appeals held because the trial court was People appeal now that decision. required regarding to advise him manda- tory parole, any Rodriguez deficiencies that

D. claimed the advisement did not entitle him Rodrigues (Rodriguez) Defendant Alfred any post-conviction to relief. The court of pleaded guilty May to one count of appeals continued further reasoned that the attempted degree first sexual assault in viola- required trial court was not to him advise of 18-8-402(1)(b), tion of section 6 CRS. mandatory parole Rodriguez because was (2000), January offense committed on discretionary parole to under section Rodrigues initially charged was with 18-1-105(1)(a)(V)(C). Rodrigues, No. degree kidnapping, degree second first sexu- 99CA0T64,slip op. (citing Cooper, 2-3 assault, felony al menacing. and People The appeal now that deci- Rodriguez plea agree sion. entered into an oral

ment in which agreed drop the to the original against three counts him. Pursuant IL. plea bargain, to that oral Rodriguez pleaded guilty attempted degree first sexual as properly us, analyze To the case before sault, agreed five-year to a sentence to begin explication must first with an of the the providency DOC. At the hearing, the legislative history in parole. the area of Rodriguez court advised range pos of the of Many changes have been made to the laws crime, sible sentences for his as well as the surrounding parole decades, past in the two possibility years of parole. three of The interpretation of the statutes is a multi- imposed five-year court then the DOC sen Therefore, confusing faceted and task. tence, agreed during plea as bargaining clarify situation, the we now negotiations. not, set forth a brief time, The court did at that history legislative changes. of these See impose any parole upon Rodriguez. A docu entitled, ment "Sentencing Memorandum" is (giving 27 P.3d at 849-851 a de- 18-1-105(1)(a)(V) 5. Because section necessarily is the type sub- does not reference one paragraph only mandatory which not Instead, includes over another. both schemes of (A), sub-subparagraph see but also parole, discre- brought question by are into the trial court's tionary (C), sub-subparagraph see the tri- reference. al court's inclusion of this section in the mittimus adopted a scheme of it changes to change when cant history of the tailed felons. See for convicted mandatory parole parole). offender 18-1-105(1)(a)(V), ch. see. (2000), governs 17-2-201, 6 C.R.S. Section Under 1981-82. Laws Sess. Colo. board the state creation the scheme, adopted section legislature powers. new the board's (board) delineates 39-18-1, length 18-1-105(1)(a)(V), detailed from evolved This section felons, received the board in which mandatory periods of C.R.S. grant or refuse grant, power to sole on the parole periods length basing the pa- of such fix the condition parole, and the individual felony for which class of "full had parole board Additionally, the role. prison terms length of Id. convicted. term of duration to set the discretion separate compo- became parole terms ... [could] in no event but parole granted, court, imposed penalty nents of sen- maximum parole exceed the term only a including not now penalty each court." inmate upon the tence imprisonment, but determinate renumbering and 39-18-1(4). more After This period of pre-determined also 1977, the section in 1976 and reenactments eliminated parole also scheme new location, 17-2- current in its appeared to determine authority the board 201(5)(a). Title see. ch. See Howev- offenders. parole for most length of 894, 908-49. Laws Colo. Sess. er, shift despite the sudden felony amended In dis- providing parole, section scheme, "presumptive creating offenders, was not for sex cretionary parole a court guidelines for as penalties" ranges of repealed. amended imprisonment, specific term to order of most convicted mandating release of Assembly added see- In the General parole onee one-year fenders 17-2-201(5)(a.5), giving the discere- same tion appropriate accumulated such 1'7- the board tionary powers to time credits. "earned" "good" and number of to indi- 2-201(5)(a), the section applying but 16-11-8310, 10, 1979 Colo. 157, § ch. see. See or after on committing offenses viduals 16, 157, § 662, 666; see. ch. Laws Sess. 17-2-201(5)(a), 6, 280, $ 1, see. 1996. Ch. 669, In 669-70. 105, Laws Sess. 1979 Colo. 1578, 1584-85. Laws 1996 Colo. Sess. Assembly also year, the General the same 17-2- section revised legislature also 17-2-201(5)(a), adding lan section amended (a) ap- 201(5)(a), paragraph specifying that full discre had the board stating that guage com- of offenses convicted persons plies offenders.6 Title 16 sex parole for set tion to 280, 1, see. 17-2-201(5)(a), ch. 1979 Colo. 1996. See 157, 12, § prior mitted see. Ch. 662, new amendment Laws 17-2-201(5)(a), This 667. 1996 Colo. Sess. 6, § Laws Sess. (2000). re to its five-year limitation 6 C.R.S. 1578,1584; § also added not ex the quirement 17-2-201(5)(a) (a.5), when Thus, sections imposed, stat maximum sentence the ceed re- the board provide that together, read the term of shall ing, "in no event parole for offender over sex powers tained its upon sentence maximum exeeed the after, as as well on offenses which years, by court or the the inmate five 1, before, July 1996. original). (emphasis Id. ever is less." Assembly again once 1998, In the General parole stat- amendments various After by amend- parole laws sex offender revised the utes between 18-1-105(1)(a)(V)(C). Ch. signifi- most Assembly ing the enacted section General offenses of sex persons convicted refers to of- opinion, we refer to "sex Throughout 6. 17-2-201(5)(a) CRS. 8A specified in section fenders," convicted to "individuals as well as sex defines (1986 That section Supp.1996). & interchange- terms, used These sex offenses." in sec- found upon the definition speci- based offenses specifically individuals ably, to those refer (1986 Supp. 16-13-202(5), & 8A CRS. (2000). tion 6 C.R.S. fied in section "Lifetime Su- term Finally, we use the "unlawful sex- uses the definition That those individ- to refer pervision offenders" behavior," section 18-3- as defined ual by governed parole and whose uals specify indi- 412.5(1), those 6 C.R.S. 18, 13 of Title part 8 of article provisions in the We also provisions. under its who fall viduals (2000). C.R.S. term This offenders." 16 sex to the "Title refer 18-1-105(1)(a)(V)(C), § see. 1998 Colo. A. 389, 399; 18-1-105(1)(a)(V)(C), § Sess. Laws Our responsibility fundamental (2000). 6 CRS. The new section 18-1- interpreting a give statute tois effect to the 105(1)(a)(V)(C) adopted language utilized Assembly's General purpose or intent in en 17-2-201(5)(a) (a.5), both sections stat- acting Martin, the statute. See 27 P.3d at ing, "in no event shall the term of 851; Reg'l Transp. Lopez, Dist. v. 916 P.2d exeeed the maximum imposed upon (Colo.1996); Lakeview Assocs. v. inmate § court" 18-1- Maes, (Colo.1995). 907 P.2d Our 105(1)(a)(V)(C). Furthermore, this section interpretive begin efforts language states that the for sex of- Martin, 851; statute itself. 27 P.3d at fenders who committed offenses on or after 1192; Maes, Lopez, see 916 P.2d at 907 P.2d "shall be set the state board If statutory language unambigu pursuant ously sets legislative forth the purpose, we 201(5)(a.5)." Thus, Id. language of see- apply need not statutory additional rules of 18-1-105(1)(a)(V)(C) clearly

tion refers sex construction to determine the statute's mean discretionary scheme ing. Martin, 851; 27 P.3d Lopez, see 17-2-201(5)(a.5). 1192; Maes, P.2d at 907 P.2d at 584. How ever, if In also does not un introduced the ambiguously (the Act). Supervision Colorado establish the Lifetime General Assem Act bly's purpose enacting statute, § See ch. or if part see. 16-18 1998 Colo. appears statute to conflict with provi other Act, Sess. Laws 1278-88. Under sions, then rely factors, on other General program created such as history, law, prior through which Supervision Lifetime sex of- consequences given of a construction of the could, necessary, fenders if receive treatment statute, and the end to be achieved supervision for the rest of their lives. statute, to determine the meaning of a stat 16-13-801, (2000). § Similar to see- ute. 24-208, 27 P.3d at see tion the board retains control (2000); C.R.S. People, Schubert v. over Supervision Lifetime pa- sex offenders' (Colo.1985). 793-94 role until such time as the board finds that an offender has point been rehabilitated to a analysis supervision Our part

where longer is no statute required. Despite name, 1613-806. its is based assumption the Act does on the the General Assembly intended that the actually entire statute be Supervision Lifetime effective, 2-4-201(1)(b), § (2000); 1 CRS. offenders to parole, automatic lifetime Martin, 27 P.3d at 851. We but "must read instead periods mandates minimum statutory consider the scheme as a whole to Supervision Lifetime sex offenders must give consistent, harmonious and sensible ef serve on Id. parts." Martin, fect to all 851; its 27 P.3d at Boom, (Colo. 665, Charnes v. 766 P.2d 667 IIL 1988); Bynum see also v. Kautzky, 784 P.2d 785, (Colo.1989)("If 738 possible, try we must Because resolution of this case turns on an to reconcile governing statutes the same sub interpretation of the govern- several statutes ject."). In interpreting a comprehensive leg ing imposition we must first dis- scheme, islative we provi must construe each principles cuss the relevant con- sion to further the overall intent apply struction. We then principles those Martin, behind the statutes. 27 P.3d at 851- statutory construction to parole provi- these 852; Press, see A.B. Inc. City v. Hirschfeld sions, resulting in our conclusion that section Denver, (Colo. County 917, & 806 P.2d 920 17-2-201(5)(a.5) limits the term of which defendants be sen- tenced to the unserved remainder of their If irreconcilably, statutes conflict the Gen- prison sentences. eral apply has directed spe- us

355 Therefore, look must we may be sentenced. which to determine construction rules cial to determine statutory language to -207. §§ 24-204 beyond the prevail. will statute Martin, 27 P.3d at intent. legislature's provision general if a state rules Those Maes, 1192; 907 at 852; "the P.2d Lopez, then 916 provision, see specific awith conflicts however, with a begin, an ex first prevails as We P.2d at 584. provision or local special 17-2-201(5)(a.5). unless provision, general discussion ception to adoption and later is provision general 17-2-201(5)(a.5) above, section As stated provi general is that the intent manifest ch. sec. in 1996. See was enacted (2000); 24-205, 1 § C.RS. prevail." sion Laws Colo. Sess. § 1996 legislative di This Martin, 27 P.3d at 852. lan- adopted the exact This section 1584-85. princi law common with consistent rection is 17-2-201(5)(a) per- in section guage found Martin, 27 statutory construction. ples of- of sexual convicted taining to individuals MacEvoy Co. v. F. 852; see P.3d Clifford 172-201(5)(@) Compare fenses. States, 64 S.Ct. 322 U.S. United 17-2-201(5)(a.5). Section (1944)("Specific terms 1163 L.Ed. 88 provides that: an same or in the general over prevail might be con otherwise which statute other a convie- for any person sentenced As to Sons, v. Inc. Ginsberg & (citing D. trolling.") involvingunlawful sexual an offense tion of S.Ct. Popkin, 285 U.S. behavior, the factual basis which or for Med. (1982); Permanente Colo. L.Ed. 704 involving sex- unlawful an offense involved Evans, P.2d v. Group, P.C. in section as defined ual behavior statutory provi (1996)("Generally, specific on or after 412.5(1), C.R.S., general provision.")(Mul- prevails over a sion power the sole has the board part)). J., dissenting in larkey, and to grant parole grant or refuse has full dis- thereof fix the condition provision specific Interpreting of the term duration to set the cretion allows general one still prevailing over shall the in no event granted, but Martin, P.3d at exist. provisions both maximum sen- parole exceed term of Bainbridge, County Comm'rs Bd. of by the inmate upon the imposed tence (Vol (Colo.1996) n. 4 Inc., court. specific (reasoning that lack, C.J., dissenting) language of Martin, interpreted we In. provision general over prevails provision (a) in har which two statutes paragraph these to "construe order (a.5). one"). If paragraph having to discard mony exact same before case, specific prevailed over In that provisions 852-855. general cease "in no ones, provisions historically, phrase specific then held carefully such, we must entirely. As exceed function the term shall event general, are provisions upon the inmate which determine maximum sentence full and give in order to specific, interpret- court," are previously had been by the entire to the effect parole granted sensible of period that the ed to mean Martin, 24-201(10)(b); § See longer than scheme. cannot be board parole the Charnes, P.2d at 667. at of incar- portion of the sentence the unserved Price, (citing Duran Id. ceration. the lan- (Colo.1994)(holdingthat P.2d 375 B. of section 1978 version guage of the the parole to 201(5)(a) length of the confined below, conclude explained further As imprison- remaining a sentence on time of sections versions language of the that the ment)). a sex offender Thus, example, 18-1-105(1) for 17-22.5-408, in prison who has years in nine sentenced sentenced, were defendants when the effect the time years his sentence five served legisla- the unambiguously set forth do only four serve required can parole, parole term concerning the intent tive years four those parole, because years of offense of a sex convicted a defendant which represent C. the remainder of the unserved original time of his sentence. above, As discussed under section 17-2- 201(5)(a.5), parole the terms of the defen- Martin, We further held that the addi- dants in the cases before us could not extend five-year tion limiting language of the that is beyond remaining length the of their terms (a) only in paragraph found cap functioned to of incarceration. provision, Pursuant to that length parole the period of the that inmates grant discretion parole for these defen- Martin, could'be made to serve. 27 P.3d at solely dants is board, the hands of the 157, 12, 17-2-201(5)(a), § 858. see ch. see. may parole set a term of longer no 662, 1979 Colo. Sess. (adding Laws length the than the of the unserved remainder of limitation). five-year prison the changes defendants' No sentences. If were made only provision were the bearing on these language to the referencing the statute the cases, then it clearly any follow that length parole Despite term. the ad- mandatory parole term ordered for the de- vent of determinate and mandato- fendants However, would be invalid. full 1998, ry parole in language in section 17- statutory picture is complicated by further 2-201(5)(a) 322, remained the same. See ch. 18-1-105(1)(@)(V). sections 17-22.5-403 and see.7, 18-1-105(1)(a)(V), § 1998 Colo. Sess. 17-22.5-408(7)(a), (2000) Section 1975, (a.5) Laws 1981-82. paragraph When pertinent part states in that: 17-2-201(5) section adopted For offender who is incarcerated for language chosen General an offense committed on July or after matched the language same as had been 1993, upon application parole, the state interpreted Duran. see. Ch. 17- parole board of ... shall determine wheth- 2-201(5)(a), 1996 Colo. Sess. Laws at 1585. grant er or not The state board parole, if it determines placing that Thus, language because the in section parole offender on appropriate, shall set 17-2-201(5)(a.5) exactly matches the lan length parole mandatory at the peri- guage in section we hold that od of established in section 18-1- meaning 105(1)(a)(V),C.R.S. language is also identi cal. In our decision in we held that provision This was enacted in 1998. ch. See interpretation 17-2-201(5)(a) 17-22.5-403, see. 1998 Colo. Sess. changed despite has not many amend By Laws plain 1980. language of provision. Martin, 17-22.5-403(7)(a) ments to that both section P.3d at and section 17-2-201(5)(a.5), 17-2-201(5)(a) applies each statute interpreted We section determination of for the defendants in to mean for individuals convicted of these All cases. of the offenses here were involving offenses unlawful sexual behavior committed after making section prior the board 17-22.5-403(7)(a) applicable. However, these may grant be no offenses were also committed after longer than the unserved remainder of the making thus offender's sentence at the time of his applicable. years, or five whichever is less. Id. at 26. As problem applying both statutes to such, we now hold that of see the cases before us is that section 17-22.5- tion "in no event shall 408(7)(a) requires length term of exceed the maximum sentence be set at imposed upon court," the inmate 18-1-105(1)(a)(V), established persons means for convicted of offenses 17-2-201(5)(a.5) whereas provides section for involving unlawfal sexual behavior committed discretionary parole. According to the ver- 1, 1996, on or after parole 18-1-105(1)(a)(V) sion of section in effect granted by may long board be no when these defendants committed their vari- er than the unserved remainder of the of offenses, any ous person convicted of a sexual fender's sentence at the time of his assault, part as defined in article 3 of Title that of identical this section is guage of is Title article 6 of part presume that and we years. five section parole of mandatory period of to a (1997). previously of our 18-1-105(1)(a)(V)(C), legislature This is aware § specific lan mandatory pa- understanding expressed five-year required with the that facially guage, inconsistent we assume role is 17-2-201(5)(a.5), aware, they which section 17-2- enacted in section when provision discretionary period creating excep 201(5)(a.5), they an for a were allows than, than, five greater or even statute, less possibly sentencing felony general tion to the years. 17-22.5-403(7). Martin, at section 480-81; Swain, 861-862; at 959 P.2d see in are direct two statutes these Because 409; Tompkins, 197 Vaughan, P.2d at conflict, the task of determin turn to we now 570-71, Fur at 248-44. 595 P.2d Colo. at precedence. As in takes ing which statute 17-2-201(5)(a.5), thermore, section because Martin, plain language provision's neither 17-2-201(b)(a), specifically ad like section unambiguous answer to a clear and presents discretionary parole for sex offend dresses Accordingly, must turn to we question. 17-2-201(5)(a.5) as ers, we construe section statutory construction. rules of additional Martin, 27 P.3d at 862. As specific. See 860; Martin, Lopes, 916 P.2d at see 27 P.3d exception such, is an section Maes, 1192; P.2d at 584. at place for sentencing scheme general noted, are irree- if two statutes have As we felons, convicted that offenders and dictates prevails oncilable, provision special or local involving either unlawful sexual of offenses provision,unless exception general anas behavior, in the factual basis or for which adoption provision is later general involving unlawful sexual volved offense general pro- intent is that the 18-3-412.5(1), in section behavior as defined (2000); 24-205, § 1 CRS. prevail. vision 1, 1996, C.R.S., committed between 860; Martin, Bainbridge, 929 P.2d 1, 1998, subject to discretion are (Vollack, C.J., dissenting). We n. 4 at 716 17-2-201(5)(a.5).7 ary parole. by looking analysis begin specific/general our 17-22.5-408(7). we determined As at section 17- Accordingly, hold that section general provision is a this section 2-201(5)(a.5) pre provision which specific ais of felo- persons all convicted requiring that offender sen general felonious vails over the 1, 1998, placed on on or after nies 17-22.5-408(7), tencing provision of section determines parole, if the board 18-1-105(1)(a)(V) thus, does not section guidelines set forth under the appropriate Be in these cases. apply to the offenders 18-1-105(1)(a)(V). Martin, 27 P.3d 17-2-201(5)(a.5), section, specific cause purposes, section all intents and For provision, general exception to the acts as an 17-22.5-403(7) through a threshold acts 17-22.5-403(7), for holding allows our pass ar- must before felons which convicted harmoniously, and to function both sections sentencing in Title 18. scheme riving at the effect to the full and sensible gives Thus, analysis must focus on Id. our Charnes, 2-4-201(1)(b); scheme. See 17-22.5-408(7) relationship between sections n. 4 P.2d at 716 Bainbridge, 929 P.2d at their treatment such, the sen (Vollack, C.J., dissenting). As we have deter- parole. Because offender cases erred of these tencing courts each 17-22.5-408(7) gener- is a that section mined of man periods defendants section 17- must now turn to provision, we al to section datory parole. Pursuant 2-201(5)(a.5). 201(5)(a.5), with the sole is vested the board pa grant and set discretionary authority to 17-2-201(5)(a.5) applies specifically Section sections Under defendants. role for these and to the determination offenders to sex 18-1-105(1)(a)(V)(C), 17-2-201(5)(a.5) and the lan Because offenders. parole for such Supervision Lifetime the Colorado enactment of holding does not address 7. Our Act, govern for such purports occurring of sexual offenses convicted § 16-13-806. offenders. the 1998 because after November discretionary that parole may though mandatory parole new provisions, undischarged effect, exceed the remainder of in superfluous rendered existing sentence of incarceration to which limitations on the defen- for sex offenders found in section they dants were ordered. in way no 17-2-201(5)(a)

conflicted with them. Section merely barred a greater term than IV. years, five which precisely was the term We hold persons convicted of sex mandated for sex pa- the 1998 occurring July offenses between scheme, parole term, role or a regardless of 17-2-201(5)(a.5) section length, its absolute extending beyond the specific provision requires discre- "maximum imposed by court, sentence" tionary parole. Furthermore, the mandate (after amendments) the 1998 was the 18-1-105(1)(a)(V)(C) in section that sex of- sum of the defendant's term of incarceration fenders be parole pursuant sentenced to mandatory parole and his term. Subsection 17-2-201(5)(a.5), section therefore also re- (5)(a.5) superceded (5)(a) subsection in 1996 quires that sex offenders receive discretion- change but did not its "maximum sentence" ary parole. Accordingly, we affirm judg- limitation in way. Therefore, when a ment appeals of the court of reversing the defendant's "maximum properly sentence" is trial courts' denial of the defendants' Crim. understood to include his sentence to a term 85(c) P. post-conviction motions for relief in plus incarceration mandatory his each of these four cases. additional term of section 17-2- 201(5)(a.5) (for 1996) July crimes after was dissents, Justice COATS and Justice no more in conflict with existing manda- join KOURLIS and Justice RICE in the tory parole provision section 18-1- dissent. 105(1)(a)(V)(C), (5)(a) than was subsection (for crimes committed before COATS, Justice dissenting: Whatever various members of the General cases, In these consolidated majority Assembly may mind, have had in the sen extends holding its in Martin People, tencing scheme that existed both before and (2001),by P.3d 846 concluding person that a after the 1996 amendment was consistent convictedof a sex offense committedbetween requiring that the sentences of sex offenders 1996 and November 1998 is five-year parole include a period, whether or "discretionary parole" long- no not the actually offender had that amount of er than the remainder of the maximum sen- remaining time on his sentence to incarcera tence of imposed incarceration by the court. However, tion. years two after the I disagree Because that the term "maximum enactment of section sentence" section years five after the reintroduction of manda (2000), C.R.S. is limited to the incarceration tory parole terms over and above a sentence component sentence, of a and because I do incarceration, legislature again amend not believe the intended to retro- mandatory ed the parole provisions for sex actively five-year eliminate the offenses, _- found section - - requirement of- - 105(1)(a)(V)(C). The lack of understanding 105(1)(a)(V)(C), for sentences agreement about earlier amendments after respectfully I offender provisions pales by dissent. comparison mystery surrounding the For the expressed reasons my dissent- intent behind the 1998 amendment. In the ing opinion Martin, I believe that when regular first sixty-first session of the General General changed the sentenc- Assembly, 18-1-105(1)(a@)(V)(C) ing scheme in mandating felony bills, amended in two different without refer sentences include term of in addition other, ence to each slightly each with differ incarceration, to a term of lengthened it language, ent different applicability provi "maximum imposed by sentence" sions, the court and different effective dates. See ch. 18-1-105, see. the amount of 1998 Colo. Sess. term. Al-

359 parole former 18-1-105, of the amount 6, 189, 1278, see. ch. Laws 389,399.1 term. Laws Colo.Sess. 1998 bills, amend the two later of In the two, Bill 98- House of the In the earlier 18-1-105(1)(a)(V) of was one to section ment num- joined with a was 1177, the amendment at conforming amendments of a number pro- offense unrelated sexual generally of ber offender entirely sexual new tached to ex- which of visions, most substantial entitled, scheme, "Lifetime Su sentencing of registration for requirements panded The new sen Offenders." of Sex pervision not become Although it did offenders. 1998, to scheme, in June 1998, approved 21, purported tencing it April until effective Novem terms on its own effective become provisions parole existing limit only offenses 1998, apply to sex 1, ,. and to ber be- 18-1-105(1)(a)(V)(C) committed to erimes date, reinstituted after that on or pro- committed parole to amend 1996 fore sentencing for sex after on or indeterminate type a of committed offenses for sex visions new sex offender offenses, offenders. 1, post-1996 For mini a imposition of required mandatory, five- scheme replaced the amendment minimum of sentence, at least mum as by the court imposed parole year period the defendant's range for presumptive parole sentence, awith part of the sentence board, offense, a maximum within level of by the set to be natural offender's the sex 17-2- section remainder provided parameters a beyond which The maximum life. did amendment 201(5)(a.5). 1998 this While super could be sex offender meaning of the plain change the nothing to of the end therefore necessarily vision sentence," became which "maximum term Bill Although House life. natural a fender's component of any additional includes Bill 98- House approved after 98-1156 court- sentence, arguably eliminated it to section 1177, its amendments of sex offender component previ 105(1)(a)(V) acknowledge the did Intentionally applied. it to which sentences of statutes amendment, revisor and the ous sex offenders not, removed in effect it or of amendments sets merely included both re- mandatory parole scheme from the revised code.2 by the "maximum sentence" their duced person convicted a tory period for on effective became 98-1177, which Bill 1. House TO PRIOR felony COMMITTED offense 21, applied to offenses April 1998 1996, 1, part 4 article 3 pursuant date, 18-1-105 JULY amended on or after title, title, shall of this part article 6 3 of or this follows: years. sub-subpara- Notwithstanding be five (1)(a)(V)(C) PROVL (C.3) THE (V), (A) manda- NOTWITHSTANDING subparagraph graph of this - (A) OF SUB-SUBPARAGRAPH person convicted of OF SIONS tory (V), OF THE PERIOD TO PRIOR SUBPARAGRAPH felony COMMITTED THIS offense OF A 1996, CONVICTED part article 3 pursuant 4 of FOR A PERSON PAROLE JULY title, OFFENSE, OR title, ON this shall part 6 of COMMITTED 3 of article FELONY this SUB NO- PRIOR TO years. BUT NOTWITHSTANDING five JULY AFTER 4 OF PART (A) TO PURSUANT SUBPARA- THIS VEMBER OF SUBPARAGRAPH 3 OF PART (V), OR FOR OF THIS TITLE OF PAROLE PERIOD ARTICLE THE GRAPH TITLE, SET BE OF- SHALL OF A FELONY THIS 6 OF CONVICTED ARTICLE A PERSON PURSU- JULY OF PAROLE OR AFTER BOARD ON STATE COMMITTED BY THE FENSE ARTICLE OF C.R.S. TO PART PURSUANT ANT TO SECTION ARTICLE PROVL- 3 OF (C.5) THE TITLE, OR PART THIS NOTWITHSTANDING OF (A) BY THE OF BE SET TITLE, SHALL SUB-SUBPARAGRAPH «OF THIS OF SIONS TO PURSUANT OF PAROLE (V), BOARD STATE ANY PERSON SUBPARAGRAPH THIS OFFENSE, BUT IN DE- C.R.S., AS A SEX SECTION FOR SENTENCED CRS., 16-13-803(5) PAROLE TERM OF THE SHALL NO EVENT SECTION IN FINED IM- SENTENCE THE MAXIMUM NOVEMBER EXCEED OR AFTER ON COMMITTED BY THE THE INMATE UPON PURSUANT POSED SENTENCED BE SHALL ARTI- 8 OF OF PART COURT. PROVISIONS TO THE 98-1156, No- effective became Bill House C.R.S. TITLE 13 OF CLE commit- applied to offenses vember 18-1-105(1)(a)(V). 18-1- Section 2. See date, amended after ted on or 105(1)(a)(V) part: provides in part as follows: in relevant (A) of sub-subparagraph (C) Notwithstanding sub-subpara- Notwithstanding (1)(a)(V)(C) (V), mandatory period of subparagraph (V), (A) the manda- subparagraph graph of this Unless the General intended to in which it expressed has itself possibility parole extend the supervision of susceptible must be interpretation of an that for sex offenses committed on or after No- implements that though intent. Even the 1, vember 1998 to the end of the offender's legislature may fully not have understood life, and at the retroactively same time bar 17-2-201(5)(a.5) that section parole limited any parole supervision beyond the offender's the remainder the maximum of defendant's sentence to incarceration for offenses com- appreciated sentence or by removing the mitted July 1, narrow window between five-year mandatory parole sentence of see- 1, 1998, 1996 and likely it is 18-1-105(1)(a)(V) tion it actually shor- the latter effect was not by intended the 1998 tening a sentence," sex offender's "maximum 18-1-105(1)(a)(V). amendment to section In the terms of its enactment cannot be con- light legislature's clear distinction be- strued to inescapable avoid their conse- pre- post-July offenses, tween 1996 quences. express and its return to reliance on section clear, however, It is less post offenses, 1996 it likely seems more that the these 1996 1998 amendments amendments to section 18-1-105(1)(a)(V) apply. 18-1-105(1)(a)(V)(C) should to section See 24- were under- increasing stood as length possible (2000) (if of 1 C.R.S. amendments to same supervision, and the "maximum sentence" statute are enacted at same legis- session of formula was permit understood to an abso- lature without reference to each other and parole just lute term long as as offender's conflict, they the amendment with the latest term of incarceration rather than to restrict effective prevail). date should Because the parole supervision to the unserved remainder apply could not its acts viola- of the defendant's sentence. majority As the tion of the law of this state or fundamental out, points however, such an understanding States, the United its ap- statutes must be is simply not consistent with the historical plied possible if to avoid such constitutional meaning prior by constructions this Booth, violations. See Bd. Educ. v. 984 very provision. court of this Maj. op. at 855- (Colo.1999). 658 Although section 18-1-~105(1)(a)(V)(C), (2000) (as 6 CRS. 98-1177), by

While the first amended principle H.B. con- restricted on only struction is its face to effect to offenses intent committed on or interpret ambiguous July after and conflicting provi- and section 18-1- 105(1)(a)(V)(C.8), (2000)(as end, accomplish C.R.S. sions to amend- it is not the role of the courts by 98-1156), to rewrite ed or H.B. eliminate clear only is restricted unambiguous merely statutes offenses committed on July because or after they do not believe the 1, 1998, General and before November I do not be- would have consequences intended the lieve that its either enlarge could five-year enactments. Whatever extrinsic aids to term con- to which a sex offender had struction likely indicate about pur- already been violating sentenced without con- pose or intent of the Assembly, General stitutional post limitations on ex legisla- facto person for a felony convicted of of- person for a convicted of a fense committed 1, 1996, prior pursu- offense felony on or after part title, ant to part of article 3 of this or 1, 1998, prior but pursuant to November of article 6 of this title, shall be five years. 4 of article 3 of part title, this or 3 of part Notwithstanding (A) sub-subparagraph of this article 6 of title, this shall be set the state by (V), subparagraph for a parole pursuant board of to section 17-2- person felony convicted of a offense committed 201(5)(a.5), C.R.S. 1, 1996, on or pursuant after part 4 of (C.5) Notwithstanding provisions of sub- title, part article 3 of this 3 of article 6 of (A) subparagraph (V), subparagraph of this title, shall be set the state board person offense, sentenced for a sex parole pursuant to section C.R.S., defined in but in no event shall the term of C.R.S., com- exceed the maximum mitted on or after November upon shall pursuant provisions inmate sentenced part court. (C.3) Notwithstanding provisions of sub- (V), of article 13 of title C.R.S. (A) subparagraph subparagraph of this require Jones, a case quirements, but would instead 529 U.S. Garner tion. See 250-51, 146 L.Ed.2d 120 S.Ct. whether retroactive case determination 18-1-105(1)(a)(V)(C) changes (2000) application (indicating that retroactive actually their deprive defendants of violate prisoners governing laws they create a when existing Ex Post Facto Clause rights or reduce constitutional increasing the measure final risk of sentence. sufficient crimes); covered attached to the punishment expressed and in the reasons above For (Colo. Gunter, 912, 916 Gasper v. holdings my I believe the dissent appeals in consolidated of the court of these constitutionally respectful- I therefore Similarly, legislature is were too broad. cases commuting shortening ly from dissent. prohibited Colo. Const. in Colorado. See

final sentence IV, People, P.2d v. join Mamula art. and Justice RICE Justice KOURLIS (Colo.1993) (recognizing the "con in the dissent. only the executive principle that stitutional may modify legally

department upon the conviction sentence after

criminal final"); People is based has become

which it Herrera, 155, 162, 516 P.2d 188 Colo.

v. (1978) (observing governor's exclusive reprieves, commutations and

power grant inability of and the

pardons after conviction powers executive corporation, to confer FUN Colorado SKY Macias, judiciary); People v. upon Petitioner, cf. (Colo.1981) (noting that a v. benefits of amen- is entitled to the defendant SCHUTTLOFFEL, Respondent. John penal legislation mitigating criminal datory final); only conviction becomes

ties before No. 00SC291. Thomas, 185 Colo. (same). Supreme Court of Colorado. (1974) Since En Banc. 18-1-105(1)(a)(V)(C) imposition required the separate five-year parole term as a aof of a sex offender's sentence distinct element limited this re

until the 1998 amendments offenses, pre-1996 retroactive

quirement of amendments to sex

application of those already convicted and who had been

fenders final, with the sentences had become

whose five-year parole shortening their

effect of

term, unconstitutional amount to an would of a sentence.

commutation the 1998 hold that

I would therefore 18-1-105(1)(a)(V)(C),

amendments to section (C.8), only applied addition of can be and the committed their sex offenders who

to those and November

offenses between would nei- application whom and to nor post prohibitions facto violate ex

ther Un- commutation of a sentence.

amount all majority, I not relieve

like the of the General from 1996 to 1998 mandatory parole re-

Assembly's express,

Case Details

Case Name: People v. Cooper

Court Name: Supreme Court of Colorado

Date Published: Jun 25, 2001

Citation: 27 P.3d 348

Docket Number: 00SC474, 00SC499, 00SC587 and 00SC588

Court Abbreviation: Colo.