The PEOPLE of the State of Colorado, Petitioner v. Joseph Phillip DIAZ, Respondent.
Supreme Court Case No. 12SC939
Supreme Court of Colorado.
April 27, 2015
2015 CO 28 | 621
Cynthia H. Coffman, Attorney General, Christine C. Brady, Senior Assistant Attorney General, Denver, Colorado, for Petitioner. Kathy Goudy, Alternate Defense Counsel, Carbondale, Colorado, for Respondent.
¶ 1 While serving a sentence in an unrelated case (the original sentence), the defen-
¶ 2 A majority of a division of the court of appeals held that the trial court erred by ruling that section
¶ 3 We hold that section
I. Facts and Procedural History
¶ 4 On August 11, 2009, Diaz was serving a sentence at the Colorado State Penitentiary (“CSP“) for felony menacing (the original sentence). While CSP conducted a mandatory strip search of the defendant during the process of transferring him to a different cell after an incident, the defendant punched one of the guards in his eye with a closed fist. According to that guard, the defendant had blood on his hand at the time the defendant struck him. Consequently, medical personnel also took blood from the guard to verify there was no blood-borne pathogen exposure. This incident became case number 09CR332 (the first assault). On September 29, 2009, the district attorney charged Diaz with second degree assault of a detention center employee under section
¶ 5 On October 22, 2009, while still in custody at CSP for his original sentence and now with a new charge pending for the first assault, Diaz threw water in a guard‘s face as she attempted to collect his food tray. While she cleared the water from her glasses so she could see, the defendant reached through the tray slot and threw the cup at her head hard enough to require two stitches to her lower lip. This incident gave rise to case number 09CR417 (the second assault). The district attorney subsequently charged the defendant with second degree assault of a detention center employee under section
¶ 6 Before trial in either case, Diaz finished serving his original sentence.
¶ 7 Trial for the second assault preceded trial for the first, possibly because of delays related to evaluating the defendant‘s sanity and his competency to stand trial. On December 1, 2010, a jury found Diaz guilty, and, on January 24, 2011, the court sentenced him to ten years in prison for the second assault.2 On January 25, 2011, another jury found Diaz guilty of the first assault. After the guilty verdict, the People dismissed two habitual criminal counts in the case involving the first
¶ 8 Although the trial court equivocated on this point during the sentencing hearing on February 9, 2011, the court made several remarks at the conclusion of the hearing strongly suggesting that it construed the statute to require a consecutive sentence for the first assault.4 It is the trial court‘s decision to impose what it perceived as a mandatory consecutive sentence for the first assault that is at issue in this appeal.
II. Standard of Review
¶ 9 Statutory interpretation is a question of law we review de novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo. 2010); Hendricks v. People, 10 P.3d 1231, 1235 (Colo. 2000).
III. Analysis
¶ 10 Section
A person commits the crime of assault in the second degree if: . . . [w]hile lawfully confined or in custody, he or she knowingly and violently applies physical force against the person of a peace officer. . . . A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections and shall run consecutively with any sentences being served by the offender . . . .
(Emphasis added.)
¶ 11 The question for us is the point in time to which the phrase “any sentences being served by the offender” refers. The prosecution argues that the term “any” plainly refers to any sentences the offender is serving at the time of the sentencing. The defendant argues, and the majority below held (see Diaz, ¶ 12), that the phrase is ambiguous and applies only to sentences the offender was serving at the time of the assault.
¶ 12 When construing a statute our primary purpose is to ascertain and effectuate the intent of the General Assembly. Romero v. People, 179 P.3d 984, 986 (Colo. 2007). If the statutory language is clear and unambiguous, no further statutory analysis is required. Id. We construe the statute as a whole, in an effort to give consistent, harmonious, and sensible effect to all its parts, and we read the words and phrases in context and construe them according to the rules of grammar and common usage.
¶ 13 But if the statutory language is susceptible of more than one reasonable interpretation, it is ambiguous and we may
A. The Plain Language
¶ 14 The majority below found the plain language ambiguous: “[Q]uoting the statute simply begs the question: ‘with any sentence being served’ when?” Diaz, ¶ 17 n.2. We disagree for several reasons.
¶ 15 First, we agree with Judge Russel, who in his dissent opined that “this phrase means just what it says—‘with any sentences being served.‘” Diaz, ¶ 23 (Russel, J., dissenting). The construction of the majority below requires us to add words—that is, to read the phrase “at the time of the assault” into the statute. See People v. Benavidez, 222 P.3d 391, 394 (Colo. App. 2009) (interpreting section
¶ 16 Second, the phrase in question begins with a reference to imposition of sentence: “A sentence imposed pursuant to this paragraph (f) . . . .” This indicates that the time at issue is the time the sentence is imposed, not the time of assault.
¶ 17 Third, it is illogical to require a consecutive sentence only if the offender is still serving the sentence for which he was imprisoned at the time of the assault because section
¶ 18 Last, had the legislature intended that the assault sentence at issue here be consecutive only to the sentence being served at the time of the assault, it could have said just that. It has certainly demonstrated the capacity to impose such a requirement in other provisions of the criminal code. See Benavidez, 222 P.3d at 394 (observing that the legislature could have added language under section
¶ 19 The plain language of the statute makes clear that if, at the time of sentencing, the offender has “any” sentence to serve, the trial court “shall” impose a consecutive sentence.
B. The Legislative Purpose
¶ 20 Even if we were to find the statutory language ambiguous, our conclusion would be the same because the legislative purpose supports our construction of section
¶ 21 Highlighting this legislative purpose, another division of the court of appeals has noted that “[i]nterpreting the statute to limit the requirement of consecutive sentences to
¶ 22 The majority distinguished this case from Benavidez, reasoning that “[u]nlike the situation in Benavidez, . . . the sentencing court in this case did not order the assault sentence to be served consecutively to any sentence imposed on a charge for which defendant was confined when he committed the first assault.” Diaz, ¶ 11. This strikes us as a distinction without a difference. Granted, the procedural history of that case was different—the assault took place while the defendant was in custody awaiting the disposition of the other charges, to which the consecutive sentence was later appended. But the court‘s determination that “the sentencing court was required, pursuant to section 18-3-203(1)(f), to make his sentence for second degree assault consecutive to the sentences he received upon conviction for those other charges,” see Benavidez, 222 P.3d at 394, did not rest on the timing of his offenses. It rested on the statute‘s plain language and the legislative purpose behind it. Neither is temporal.5
C. Equal Protection
¶ 23 In addition to finding the statutory language ambiguous, the majority below deemed its interpretation necessary to avoid what it termed “serious equal protection concerns“:6
[T]here would seem to be no rational basis for requiring consecutive sentencing based on the relative timing of the relevant sentencing proceedings, when one offense has no connection to the other and the timing could be the result of circumstances utterly outside of the defendant‘s control or of decisions made to protect the defendant‘s legal rights.
Diaz, ¶ 17.
¶ 24 We agree that any equal protection issue here would be resolved under rational basis review. However, we disagree that a rational basis is absent.
¶ 25 “When a statute is subject to an equal protection challenge, the level of
¶ 26 Here, as explained above, the legitimate legislative purpose and government objective of section
IV. Conclusion
¶ 27 We hold that section
JUSTICE COATS concurs in the judgment only, and JUSTICE EID joins in the concurrence in the judgment only.
JUSTICE COATS, concurring in the judgment only.
¶ 28 While I too would reverse the judgment of the court of appeals, I do not disagree with that court‘s construction of section
¶ 29 Initially, I would reverse the judgment of the court of appeals for erroneously ascribing to the district court‘s sentencing decision any application whatsoever of the consecutive sentencing mandate of section
¶ 30 It is well established that in the absence of legislation to the contrary, sentencing courts in this jurisdiction have the inherent power to order, at their discretion, sentences to be served either consecutively to or concurrently with other sentences already being served. Marquez v. People, 2013 CO 58, ¶ 6, 311 P.3d 265, 267. Not only did the sentencing court here fail to suggest that it would impose a concurrent sentence were it not statutorily limited from doing so; rather than imposing the four year, mid-point-of-the-presumptive-range sentence that was otherwise available if it considered a mandatory consecutive sentence too harsh, the court instead made findings concerning this particular defendant and this particular offense sufficient to justify the consecutive sentence, in the aggravated range, which it ultimately imposed. As we have previously held, in the absence of any suggestion by the sentencing court that it considered itself bound by statute, and therefore erroneously failed to exercise its discretion as required, construction of the statute in question is not at issue. See Tumentsereg v. People, 247 P.3d 1015, 1020-21 (Colo. 2011).
¶ 31 With regard to the question of statutory construction, I disagree with the majority‘s methodology and conclusion on a number of critical points, beginning with its failure to adequately distinguish the interpretation of statutory language relative to the question of ambiguity from the construction of an ambiguous statute. The precise point at which the one leaves off and the other begins in any particular case will, of course, often be subject to debate, but as a matter of general principle, it is clear that a statute takes its meaning, first and foremost, from the text of the statute itself. When that language is susceptible of more than one reasonable interpretation, however, it is considered to be ambiguous, and the particular reasonable interpretation that embodies the legislative intent, and therefore the ultimate meaning of the statute, is to be determined by reference to a body of both internal and external aids to statutory construction. While the reasonable interpretation of statutory text is clearly dependent upon the definitions of the words of the text themselves, the context in which they are used, and the relationships among them, as governed by accepted rules of grammar and syntax, when those considerations nevertheless produce more than one reasonable understanding of the text, additional presumptions, drafting conventions, and external sources pointing to the intent of the body enacting the statute must resolve the “legislative intent.”
¶ 32 It at least appears to be the case that the majority believes the question of ambiguity to turn on more than the text of the statute itself, relying as it does on a number of dubious propositions, or rules of statutory construction, to find that statute unambiguous. As its first of a number of rationales, the majority asserts that the key phrase of the statute “means just what it says—‘with any sentences being served.‘” Maj. op. ¶ 15. But giving emphasis to the word “any,” as the dissenting opinion in the intermediate appellate court had done, actually suggests confusion about precisely what is at issue. There is no dispute here about the kinds of sentences to which a section
¶ 33 Rather than concluding from the text‘s failure to specify any particular point in time that it is therefore ambiguous, the majority mechanically relies on another dubious proposition to conclude that construing the term “being served” as a reference to
¶ 34 Notwithstanding the statute‘s failure to modify the phrase “being served” with the words “at the time the sentence is imposed,” as well as the majority‘s overstatement that adding words is impermissible, the majority finds that an earlier reference to the imposition of sentence must indicate that the intended time is the time the sentence is imposed, rather than the time of the assault. While this inference might be considered reasonable, it is certainly neither necessary nor the only reasonable inference to be drawn from the complete text of section
¶ 35 Apparently unconvinced by its earlier explanations why the statute should be considered unambiguous, the majority adds that requiring sentences imposed pursuant to paragraph (f) to run consecutively only to sentences for which the defendant was lawfully confined when he committed one of the specified assaults would be “illogical.” However, the fact that paragraph (f) elevates what might otherwise be assaults in the third degree to assaults in the second degree in certain cases not involving the service of another sentence in no way renders it illogical or contradictory to mandate consecutive sentences for those assaults committed while serving another sentence. To the extent the majority suggests a legislative intent that sentences for violation of paragraph (f) not be served concurrently with any other sentence, its own construction would no more accomplish this result than would the construction of the court of appeals. Only by forbidding subsequent sentencing courts from running later-imposed sentences concurrently with a sentence imposed pursuant to paragraph (f) could this broad goal be accomplished, and the legislature has clearly shown no inclination to do so.
¶ 36 As a final reason for finding the statute unambiguous, the majority observes that if the legislature intended the phrase “being served” as a limitation to sentences being served when the assault was actually committed, it could simply have said so. Once again this observation advances the inquiry not one iota. While it may be an accurate observation, it is applicable with equal force to the majority‘s construction. If the legislature intended the phrase “being served” to refer to sentences being served at the time of sentencing, it could simply have said so. Rather than demonstrating a lack of ambiguity in the text, the legislature‘s failure to specify with which sentences a paragraph (f) sentence could not be ordered to run concur-
¶ 37 I agree with the majority that existing records of legislative hearings are not helpful in resolving the question in this case. Even without the benefit of such external evidence of legislative motivation, however, the majority divines a “legislative purpose” or “clear legislative intent” to deter assaults in custody, and it asserts that its owns construction better “facilitates this objective.” Although the majority‘s construction might result in restricting sentencing court discretion in a larger class of cases, it could hardly enhance the deterrent value of the penalty, even if such broad deterrence actually were the motivating factor behind the statute. Deterrence, in the sense of behavior modification, necessarily requires an awareness of an undesirable consequence in order to avoid it. The majority‘s construction would mandate consecutive sentences based on the fortuitous, or even manipulated, timing of sentencing hearings rather than enhancing the predictability of the consequences of assaulting a prison employee. In any event, the legislature has separately both elevated and aggravated sentences for assault on law enforcement and prison personnel, and little deterrent effect could be expected from mandating consecutive sentencing, which is already within the discretion of sentencing courts. Perhaps more importantly, however, nothing suggests a legislative purpose to deter any more than to ensure adequate retribution or punishment for such crimes by eliminating the possibility that the offender would serve no greater sentence than that for which he was already confined.
¶ 38 Along these lines, a serious objection to the majority‘s construction, and one leading me to believe the obvious ambiguity in the text should be resolved in favor of limiting a sentencing court‘s discretion only for sentences the service of which elevates the assault to the felony 4 level in the first place, is the fact that doing otherwise effectively increases a defendant‘s confinement on the basis of factors not only beyond his control, but even occurring after the commission of his crime. Unlike the court of appeals, I do not suggest the majority‘s construction lacks any rational basis; but whether constitutional limitations are implicated or not, we in this jurisdiction have long acknowledged traditional principles of criminal responsibility prohibiting the state from converting a less serious charge into a more serious one on the basis of something occurring after the charge. Largely in reliance on this very principle, we long ago resolved ambiguous language in our habitual criminal statute to disallow enhanced sentences on the basis of convictions incurred after commission of the offense for which the defendant was being sentenced. See People v. Nees, 200 Colo. 392, 615 P.2d 690, 693 (1980) (construing “within ten years” to mean only within ten years before, rather than including ten years after, commission of the current offense). Unlike so-called “real offense” sentencing, see generally Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949); People v. Newman, 91 P.3d 369 (Colo. 2004), which permits consideration of even unrelated conduct in imposing a sentence within a statutorily dictated range, the majority‘s construction extends confinement on the basis of convictions not even yet in existence, and in fact crimes not even yet committed, when the crime for which the defendant is being sentenced was committed.
¶ 39 Finally, I am completely baffled both by the majority‘s reliance on the prior court of appeals rationale in People v. Benavidez, 222 P.3d 391 (Colo. App. 2009), and its attempt to minimize the distinction between that rationale and its own reasoning, characterizing it as nothing more than “a distinction without a difference.” Maj. op. ¶ 22. Rather than involving a mere difference in procedural history, as the majority asserts, the construction of Benavidez stands in diametric opposition to the majority‘s construction today. More particularly, the Benavidez court relied on the definition of the crime itself, which elevates the classification of assaults on prison employees committed by defendants “while lawfully confined or in custody as a result of being charged with or convicted of a crime,” to conclude that the legislature‘s consecutive sentence mandate must have been intended to extend to any sentence, whether yet imposed or not, for a crime with which the defendant had already been charged and
¶ 40 Because the legislature‘s failure to specify the point in time to which the phrase “being served” was intended to apply creates an ambiguity which I believe, for both policy and textual reasons, should be resolved as was done by the court of appeals below, I agree with the court of appeals’ construction of the statute. Because, however, I believe the court of appeals failed to appreciate that the sentencing court properly exercised its discretion to sentence consecutively rather than concurrently, I would nevertheless reverse the court of appeals’ judgment. I therefore concur only in the judgment of this court and not its reasoning.
I am authorized to state that JUSTICE EID joins in this concurrence in the judgment only.
Notes
- August 11, 2009 (date of offense for first assault)
- October 22, 2009 (date of offense for second assault)
- December 1, 2010 (guilty verdict for second assault)
- January 24, 2011 (sentencing for second assault)
- January 25, 2011 (guilty verdict for first assault)
- February 9, 2011 (sentencing for first assault)
Just before imposing sentence, the court added: “So, the legislature has indicated they want to treat those offenses differently in terms of both consecutive sentences and the mandatory Department of Corrections sentence.”[T]he defendant argues for concurrent as opposed to consecutive sentencing. So I guess what I look at in part is why would the legislature put consecutive in 18-3-203(1)(f) and I guess I have to assume that the reason they would want the sentence to be consecutive, the legislature, is for the reasons stated by [the prosecutor], which is that so that it will pack some punch, I guess. Because if while you‘re in custody you assault somebody and you[r] sentencing is concurrent, in effect, there is no new or additional penalty for that assault.