*1 finalize, supersede, its intent or the earlier only supported by when the decision is adoption oral applications. findings of all three Board's written and conclusions. ripeness Where the of neither the PUD County That the Board of Commis plication preliminary plat nor the subdivision performing quasi-judicial sioners was fune application disputed, complaint was seek- application granting tion in RCI's and that ing judicial review of both was therefore standing challenge Citizens had that deci timely filed. disputed by have been RCI. sion never Cf. (Colo. Lakewood, Wright v. 1981) rezoning (distinguishing determination IV. challenge general zoning ordinance Because the Board's written resolution was 106(a)(4) finding appropriate Rule vehi necessary approval to finalize its of RCI's former). Although cle for review of Elbert applications depriving and because Citizens County's regulations, just as Rule 106 judicial of review without notice of that reso- itself, require judicial initiation of review lution guarantees would violate constitutional days decision, thirty
within of a final without law, process judgment due specifying parties also that affected must be appeals court of is reversed and the case is decision, provided notice the loss of a remanded the resolution of RCT's remain- judicial right timely review for failure to ing assignments of error. adequate file in the absence of notice would clearly process violate due of law. See States,
Mountain 520 P2d at 588-89. recording
Whether or not the Board's writ County
ten resolution with the Clerk
Recorder would constitute sufficient notice to case,
satisfy process every due in there has allegation
been no proceedings these Citizens was otherwise on notice of the Terry TOWNSEND, Petitioner they Board's written resolution or that failed timely complaint file following their its recording. The PEOPLE of the State appear While there any does not to be Colorado, Respondent. requirement similar County's regu- Elbert lations or elsewhere for the written approval No. 09SC652. application prelimi- RCI's related PUD Colorado, Supreme Court nary plat application, subdivision sep- provision judicial either, arate review of En Banc. all applications three related approved were May single resolution, written which was approval
mandated for the final of RCI's Rehearing Denied June 2011.* application. writing Whether or not a required would have been for a final decision
approving or rejecting these two additional
applications, including the written resolution approval
their in this case constituted more publication
than mere or written notice of the Despite
earlier Board action. significant- not
ly altering approval applica- its oral of either
tion, by including disposition of these two applications
related in the written resolution
it formally adopt approve application,
RCT's 1041 the Board made clear
* grant Chief Justice Bender Justice Martinez would the Petition.
1110
On November Townsend met with a parole agreement, officer to review his signed certifying, among forms several things, other that he understood all of the *3 parole, conditions and directives of his includ- ing weekly meetings parole with his assigned officer and curfew hours at his resi- record, dence of and that he understood he prosecuted felony escape could be for 18-8-208, 17-27.5-104 and sections C.R.S. (2010), if he failed to remain within the ex- tended limits on his confinement under the homeless, ISP. Because Townsend was he parole and the officer set his residence of as Denver New record Genesis homeless shelter. The officer faxed New Genesis proper paperwork arrange payment Wilson, Defender, Douglas K. Public Eliza- housing two weeks of for Townsend. Griffin, Defender, Deputy beth Public Den- later, days Several Townsend was arrested ver, Colorado, Attorneys for Petitioner. jailed charge. and on an unrelated On No- Suthers, General, Attorney John W. Jenni- 16, parole vember Townsend's officer filed a Berman, General, Attorney fer A. Assistant complaint seeking pa- to revoke Townsend's Denver, Colorado, Attorneys Respondent. charge role. dropped, The new and at a 3, 2005, hearing parole on March board Opinion Justice RICE delivered the complaint dismissed and reinstated Court. parole, restarting 180~-day Townsend's period. verbally agreed Townsend that Terry appeals Petitioner he understood the of terms the ISP. judgment appeals affirming the court of escape by failing his convictionfor means of parole After hearing, board Town- to remain within the extended terms of his parole send's arranged officer for his release partic- confinement as established under his jail day. from later The officer ordered ipation in an supervision program intensive immediately Townsend to pa- to the ("ISP") parole. as a condition of his We role original parole paper- office to review his agree appeals jury with the court of that the during work if he was released the office's instructions issued the trial court did not alternatively business hours. The officer or- include reversible error and that the ISP dered evening Townsend to statute, 17-27.5-104, section C.R.S. day New Genesis and at 8 a.m. the next (2010), unconstitutionally vague is not as parole if office he was released after plied to Townsend. We also conclude that signed business hours. Townsend a form argument Townsend waived his that the stat- certifying require- that he understood the separation ute powers violates the parole ments that he to the office nondelegation doctrines of the Colorado Con- his residence record. and/or Accordingly, stitution. judg- we affirm the Although it unclear when Townsend was ment appeals. court of released, reported he never either to the parole office or to New Genesis. On March
I. Facts and Procedural Posture parole complaint, his officer filed another The Colorado State Board of Parole and on March Townsend was arrested year starting again. People charged Townsend on for one Townsend with felony November class 3 under section 18-8- 208(2). agreement required days that he serve 180 A him guilty, found and the trial 17-27.5, in an years imprison ISP under article him to court sentenced five C.R.S. appealed ment. Townsend to the court of knowingly escaped custody his conviction. from affirmed We or confine- appeals, which petition for certiorari granted Townsend's ment."
review.1 People's specific theory of Townsend's 17-27.5-104, escape rested on section which Analysis
II. an provides "[if offender fails to remain within the extended limits on his confinement of his contends reversal (A) ..., as established under the he [ISP] the trial shall conviction is warranted: because escaped custody be deemed to have (B) erroneous; court's instructions were shall, thereof, upon punished conviction be 17-27.5-104 is unconstitu- because section provided in section 18-8-208." (C) him; applied tional as because separation 17-27.5-104violates the section the trial court instructed " '[elustody or *4 nondelegation confinement' includes the ex- powers and doctrines of the tended limits of argu- confinement as established Colorado Constitution. We find these unpersuasive. ments under the [ISP]." together, Read these instructions Jury A. Instructions plainly forth escape set the elements of un correctly 17-27.5-104; A trial court must instruct 18-8-208(2) der sections and law, jury applicable on but retains sub that Townsend was within the extended lim style the form stantial discretion over and its on his confinement as established under jury Krueger Ary, 205 P.3d instructions. knowingly escaped the ISP and he from (Colo.2009) 1150, (citing Bog jury those limits. theWhile 1157 Jordan v. did instructions ner, 664, (Colo.1998); 844 P.2d Mont specificallyequate not "escaped" the term to Kerns, 59, gomery Ward & Co. v. 172 Colo. remain," statutory language of "failed to 63-64, 34, 86-37 Accord plain ordinary and definitions of the legal ingly, implicit we review conclusions in convey substantially terms legal the same novo, jury instructions de see Romero v. Peo meaning. Accordingly, reject we (Colo.2007), ple, 179 review P.3d but contention that the instructions did not set style for an issues of form and abuse of forth the elements of discretion, Krueger, 205 at see P.3d 1157. 2. Definition of "Extended Limits Escape
1. Elements of
of Confinement"
Townsend first contends that
argues
Townsend also
that the trial court's
jury
trial court's
instructions
failed to set
encompassed
definitional
instruction
conduct
escape
forth all the elements of
under
escape
that did not rise to the level of
under
18-8-208(2)
meaning
18-8-208(2)
combined
of sections
meaning
of sections
and 17-
disagree.
and 17-27.5-104. We
particular,
In
27.5-104.
Townsend contends
impermissibly
the instruction
allowed
People charged
Townsend under see-
jury
to consider
limitations that
18-8-208(2),
provides
tion
which
that "[a]
judicially recognized
are not
"extended limits
if,
person
felony
a class 3
commits
while
part
on
a
"custody
confinement" as
...,
being
custody
in
or confinement
he
confinement" from which he could have es-
knowingly escapes
custody
from said
or con-
caped.
finement."
the trial court
in-
jury
structed the
elements of the
Townsend first contends that
"[the
defini-
Escape
permitted
are ...
tional
jury
[that
[Townsend]
crime of
instruction
to con-
confinement,
custody
failing
.
and
him for
to
a
was
viet
to residence of
granted
Specifically,
2)
1.
we
certiorari
to review:
17-27.5-104,
Whether
section
is un-
CR.S.
vague
constitutional because it is
as
1)
Whether reversal is
where the
and
plied;
encouraged
instructions
a
verdict
3)
17-27.5-104, C.R.S.,
Whether section
is un-
based on
violations that do not con-
separa-
constitutional because it violates the
law;
stitute
as matter
powers
nondelegation
tion of
doctrines
of the Colorado Constitution.
added).
that he was
(emphasis
Under
despite his contentions
the [ISP]"
record
doctrine, we will not review
the invited error
he was released
subject
when
not
drafted
instructions
alleged errors
that he did
jail on
March
Zapata,
People v.
the defense.
and tendered
that time in
of record at
not have a residence
(Colo.1989).
1307, 1308-09
P.2d
77
however,
contention,
ais
This
case.
Accordingly, we decline to address whether
challenge the court
attempt
thinly veiled
offi
failure to
parolee's
was suffi-
there
appeals' conclusion
of record con
and establish a residence
cer
that,
3, Townsend
on March
cient evidence
meaning of sections
under the
stitutes
according
the terms of his
was on ISP
18-8-208(2)
any er
and 17-27.5-104 because
on
agreement,
that he was
original parole
possibility
in the
that Townsend
ror
terms,
did have a residence
notice of
is attributable to his
convicted on
basis
report.
We
he failed
of record
which
jury instruction.2
tendered
of this issue and
review
denied certiorari
it.
attempt to revisit
reject Townsend's
"Escape"
Definition of
Finally,
contends that the
parolee's
that a
concedes
"a
"escape"
definition of
con
trial court's
record
his residence of
failure to
commencing
concep
tinuing activity
with the
18-8-208(2)
escape under sections
constitutes
design
escape" could have
tion of the
light
long
of a
line of
and 17-27.5-104
*5
jury
merely
permitted the
to convict him for
includ
appeals,
the court of
precedent
from
failing to remain within the
thinking about
(Colo.
Sa'ra,
51,
People
117 P.3d
55
ing
v.
confinement under the
extended limits on his
Smith,
751,
People
77 P.3d
App.2004);
v.
ISP,
actually failing
than
to do so.
rather
Taylor, 74
(Colo.App.2003);People v.
754-56
however,
People,
alleged that Townsend
396,
People v.
(Colo.App.2002);
399-400
P.3d
by failing
within the ex
escaped
to remain
Perea,
326,
(Colo.App.2002); and
74 P.3d
331
confinement,
merely
not
tended limits on his
Williams,
1187,
33 P.3d
1188-89
People v.
by thinking
failing
about
to remain within
Accordingly,
perceive
we
(Colo.App.2001).
in the defini
them.
the error
that he was con-
possibility
no
in the
error
tion,
harmless,
any,
if
and we need not
escape
failing
report
for
to
viected for
Key
People, 715
address it further. See
v.
record under the terms of the
residence of
(Colo.1986)
319,
Chapman
(citing
323
v.
P.2d
ISP.
824,
18,
California,
87 S.Ct.
17
386 U.S.
(1967),
People,
v.
705
L.Ed.2d 705
Graham
Second,
that
Townsend contends
(Colo.1985);
Myrick,
People v.
638
P.2d 505
permitted
definitional instruction
Blair,
(Colo.1981); People v.
P.2d 34
failing
his
convicthim for
(1978)).
462,
Moreover,
tended limits on Zapata, 779 P.2d at (quoting 1309-10 Patter to "the Denver Metro Area" or had referred State, 724, son 233 Ga. 213 S.E.2d ambiguous meaning that trial some other 617-18 Accordingly, we decline to obliged court was to construe as "the Denver reverse Townsend's conviction on constitu appeal, argued Area." he instead Metro On grounds. tional the statute was unconstitutional as plied to him he had not received because III. Conclusion timely written notice he could be liable presents Because Townsend no tenable ba- failing to his resi- conviction, reversing sis for his we affirm the upon jail dence of record his release from on judgment of appeals. the court of March 2005. We will not consider consti- arguments tutional raised for the first time Chief Justice in part BENDER concurs People, 244 appeal. on Martinez v. P.3d part, and dissents in and Justice (Colo.2010). joins MARTINEZ in the concurrence and affording Townsend the benefit of Even dissent. preserved the doubt he somehow unavailing argument, we find it because it is BENDER, concurring Chief Justice yet thinly attempt another veiled to revisit dissenting. argument there was insufficient evi- Despite disconcerting facts of Town- knowingly failed dence to conclude he felony escape, send's trial for majority Again, to his residence of record. *6 affirms his conviction. Townsend was con- appeals rejected argument, court of and felony escape, requires victed of which a five- we denied certiorari review and decline to year consecutively sentence to run to his address it further here. we parole, revoked under cireumstances where: upon premise have no which to concludethat (1) provided he was not notice of which facts section 17-27.5-104 is unconstitutional as felony would constitute the new crime actions, plied to and will not Townsend's opposed as to which facts would result reverse his conviction on that basis. revocation; (2) only parole in Townsend's parole any officers testified that violation of Constitutionality C. of Section 17- parole requirements his ISP could constitute Separation 27.5-104 under the of Pow- (8) felony escape; the trial court's instruc- Nondelegation ers and Doctrines correctly tions failed to inform as to Lastly, argues Townsend that parole which kinds of ISP violations consti- separation section 17-27.5-104 violates the (4) felony escape; tute prosecutor, and in powers nondelegation and doctrines of the closing argument, repeatedly told the by leaving Colorado Constitution the task of violating any that parole directive of the offi- defining meaning of "extended limits cer, including failing report meetings, to to Department confinement" to the of Corree- Hence, constitutes the crime of ("DOC"). tions need not reach that We con view, my these cumulative errors lowered the tention, however, because Townsend waived prosecution's proof burden of and caused an it when he tendered a instruction that injustice requiring reversal meaning defined the of "extended limits of conviction. confinement" to include "other established reasons, ISP on respectfully [Townsend] directives For these I dissent majority opinion added). By from Part ILA. of the but (emphasis tendering [ISP]" instruction, tactically majority's that Townsend con concur with the discussion in Parts ILB. and II.C. proscribes ceded that section 17-27.5-104 es 3. See discussion note 2. supra,
I. on release from him to to her office hours, or, after jail if released from case, was released Townsend In this immediately of record and to his residence pa- incarceration, of his a condition as at 8:00 a.m. the next to her office then role, participate required was name a resi- morning. directive did not This - officer, days. He met with directives, record, any ISP mention dence of Wilde, paperwork him with who reviewed escape. The docu- advise Townsend about parole and ISP. general both pertaining my that only, "I understand ment stated eight directives listed ISP document One directive(s) of the Communi- to follow failure with, comply was that Townsend lead to the revoco- ty ... can Parole Officer residence of he remain at his including that added). Vaughn parole." (Emphasis tion hours, attend during assigned curfew record Town- arrange with New Genesis for did not officer, weekly meeting with his stay there. send in- drug testing. The document submit "I understand cluded an advisement hours, failed to after Townsend Released contained follow condition my failure to night and New report to Genesis my pa- revocation of ... can lead to herein day. Vaughn Vaughn the next meeting with document, escape advise- A an role." second on complaint revocation based filed a ment, statutory language quoted the arrested, these failures. Townsend both within the fails to remain an offender him prosecution charged "Llf with and the as estab- on his confinement extended limits custody in violation of sections 17-27.5- from be he shall [ISP] lished under 18-8-208(2), Section 104 and C.R.S. custody" escaped from to have deemed parolee if a "fails provides that 17-27.5-104 statute, I I violate this recited that "should limits on his remain within the extended Felony Escape." ... am liable under the [ISP] as established confinement escaped ... deemed to have he shall be homeless, he and Townsend was Because custody punished provided and ... agreed that his residence record Wilde 18-8-208, 18-8- section CRS." Section homeless shelter. would be the New Genesis 208(2) person commits a class "[a] states stay at the arranged for Townsend to Wilde felony knowingly escapes if ... he from [] A paid for initial cost. few shelter and custody or confinement." later, pos- was arrested for days and, drug paraphernalia, conse- session of trial, disputed both the fact At *7 officer filed a quently, Townsend's knowingly his ISP directives that he violated complaint. Townsend re- parole revocation theory a prosecution's legal that and the jail before the mained in for four months any escapes if violates of his ISP parolee he dismissed, and, hearing, charges after were point, Townsend directives. As to the first the revocation the board dismissed any argued that he "did not have extended pa- complaint. hearing, At the his confinement established under limits of officer, that Townsend's Vaughn, role asked [therefore, .... not have he could [ISP] the days hearing The of ISP be reinstated. remain in those extended knowingly failed to agreed and notified Townsend he officer theory, ar- this Townsend limits." Within hearing officer did remained on ISP. The ISP, on so he gued both that he was never directives, of not advise Townsend his ISP confinement, had no extended limits them, consequences violating but ISP, that, if on he did not even he were "understood his merely asked whether he his extended knowingly fail to remain within your him "see obligations" and told to ISP told those limits he was never what because immediately upon your release parole officer disputed wheth- limits were. Townsend also up supervision." get to hooked with the ISP knowingly report to to New er he failed pre- He briefly night he was released. hearing, met Genesis After the Townsend Vaughn any that he and never Vaughn go over sented evidence Vaughn. did not with agreed his ISP conditions or advise him discussed paperwork ISP with Townsend residence of rec- Genesis would be his New Instead, gave any she ISP directives. ord; Vaughn arrange for Townsend instructing nor did preprinted directive stay at to New Genesis. Townsend did not advised that he going to be reinstated contest that he failed to attend the scheduled on his ISP and that he parole. was still on meeting Vaughn. with added). (Emphasis Finally, rebuttal, disputed prosecution's Townsend also prosecutor again stressed that violating any theory guilty that he would escape be of the ISP directives escape. constitutes She violating any ISP directive. Supporting the asserted, "You can't separate out the di- prosecution's theory, Vaughn Wilde and tes- rectives.... His extended limits of confine- parolee tified that a violates his "extended ment ... include record, his residence of confinement," limits on subject and thus is to curfew, appearing supposed when he's an escape charge, when any he violates ISP pear, reporting." prosecutor concluded, The directive, including failure to attend office "He didn't report. report He didn't to New drug testing. visits and Explaining the es- Genesis report and he didn't advisement, cape testified, Wilde over Town- you I'd ask the law and officer. follow objection, parolees send's "subject are added). guilty." (Emphasis him find escape a new criminal charge" "they if decide The instructions the trial pro- court complete not to program the ISP ... they vided reinforced prosecutor's argument visits, don't to the their officefor office violating any ISP directive constituted added). they stop dropping UAs." (Emphasis " Instruction 14 stated that '[elx- Wilde stated that "extended limits on con- tended limits of confinement' geo- means the you finement" means that "[If don't do [the graphic, limits, time and other established you're subject directives] escape." ISP directives on the defendant Similarly, Vaughn testified that she can added). (Emphasis [ISP]." Although de- request escape an charge for "numerous rea- fense counsel tendered instruction, sons," including they "if don't to our argues defense counsel mistakenly immediately upon office prison." release from included "other established ISP directives" in allowed, judge objec- over Townsend's the definition of "extended limits of confine- tion, Vaughn to juror's answer a legal ques- ment," because, throughout trial, counsel tion about whether it would have constituted objected expansive to such an definition. escape if Townsend had failed to Instruction 14 also "escape" defined "a go Wilde to over the initial paperwork, continuing activity commencing with the con- before he was ever advised of ISP re- ception design escape and continu- quirements. answered, Vaughn "Yes." ing escapee until the custody returned to In closing argument, over Townsend's ob- attempt or the is thwarted or aban- jection, prosecutor repeatedly urged the added). (Emphasis doned." Townsend ob- jury to convict Townsend of for violat- jected to this definition. ing any of the ISP prosecu- directives. The convicted Townsend escape, tor asserted "parole directives and the trial court him sentenced to five clearly [ISP] define[] conduct.... He years prison, *8 to run consecutively to his by had to live regulations." these rules and parole. revoked prosecutor continued, The "Extended limits of confinement. What does that include? IL. These regulations." rules and again objected, overruled, and the court stat- The legal central issue of this case is which ing, "Encompasses the directives there. parole violations constitute a "faillure] to re prosecutor Overruled." argued then main within the extended limits on [] con knowingly violated the ISP [ISP]," finement as established the regulations." "rules prosecutor subjecting parolee therefore the to conviction - stated: § escape. for majority 17-27.5-104. The He go decided not to to his residence of does not First, address this crucial issue.
record, he majority the focuses on the decided mot to of elements es parole officer, he decided 18-8-208(2) not to cape under section rather than follow these though directives even he was key language the of "extended limits on con of in its administrative embodied Maj. op. at confinement" 17-27.5-104. in section
finement" limits on define "extended regulations, which Second, that the erroneous it asserts limits on confine residence of "[alpproved "extended as the of confinement" definition by Department of Corrections." the invited record 14 was Jury Instruction ment" in And, third, majority Corrections, Reg. the Dep't Admin. 250-22 Id. at 1112. error1 Colo. (available (2010) http://www.doe.state.co. at no error the perceive reasons that "we us/sites/default/files/ar/0250_22_1.pdf). Old- was convicted possibility [Townsend] - similarly regulations define the of er DOC report to his residence failing to always have limited the definition phrase and that this Townsend concedes record" because time limita- geographic of or at to violations Id. would constitute ISP violation (1990) DOC, Regs. Admin 250-1 tions. See the the fact 1112. This overlooks (1999) parol- (defining escape as when a on his Townsend based could have convicted of remain the defined areas ee fails to within knowingly failed to meet that he admission under the ISP which, view, confinement as established officer, my his with approved residence at fails to return to his law. escape as a matter of does not constitute time). stipulated limits on confinement" I believe "extended time "geographic and properly defined as is jurisdictions grappled that have with Other beyond offender those placed on the limits statutory language construe "extend similar by in a correctional imposed incarceration beyond that extend limits" as those limits ed Perea, People 74 P.3d facility." prison the offender the walls of the where comports (Colo.App.2002). This definition particular otherwise be but for would Department of precedent, with Colorado program that allows them to live work (DOC) the lan- interpretation of Corrections' See, eg., prison. Jones v. outside of the jurisdictions' interpreta- guage, and other State, (Wyo.2006). Applying P.3d 162 tions of similar statutes. program, reasoning to Colorado's ISP this limits on would mean that the extended First, appeals in Perea con the court only geographic would include confinement "extended limits on confinement" cluded that and time limits. placed and time limits geographic "refers to beyond imposed those on the offender ISP, geographic In the context facility." in a Id. incarceration correctional parolee encompass on the time limits conclusionon appeals The court of based its requiring parolee only the ISP directives Lucero, implied that an People v. where we of record approved to be in his residence escaped custody when he offender and, specified curfew hours read during the facility to a work release failed to return general context of the di- given pass. a 10-hour after he was rectives, during Area all the Denver Metro (Colo.1982). that a We reasoned Limiting other times. the definition es- merely "the limits of temporary pass extends way cape comports in this with idea beyond the work re confinement" [custodial] confinement-an extension traditional ISP facility during period time that lease facilities-because, tradi- as with correctional pass. allowed the Id. This the offender was confinement, parolee tional that, equally program logic applies to an ISP particular place during particu- remain in a facility, like a release is an extension of work recognizes lar time. This definition also correctional facilities. our state's traditional parolees violate their reality that often id.; 17-27.5-101, § See C.R.S. directives, by missing meetings especially *9 testing. Limiting the offense of Second, comports drug the and this definition with escape prevents parole officer from arbi- understanding limits on DOC's of "extended repeatedly objected prose- majority to the disagree erroneous defense counsel I with the that the defining "extended jury by and trial witnesses tendered Townsend was invit- cution instruction encompassing all jury confinement" as instruction is limits on ed error. Where an erroneous directives, jury that the erroneous in- attorney incompetence, it it seems the mistake or result likely attorney People inadvertence v. struction was due to invited error. See does not constitute Stewart, (Colo.2002). incompetence. Because P.3d 119 55 record; Vaughn arrange nor did trarily exercising her for Town- discretion whether (and escape charge However, resulting stay. seek a criminal send's Townsend did not felony five-year dispute prison knowingly consecutive that he sen- failed to attend a tence), required simply parole, meeting or to revoke when a Vaughn with the morning after he was released. inevitably parolee comply fails to with one of many his ISP directives. trial, At parole testimony, the officers' the Allowing escape an on a conviction based prosecutor's closing argument, and jury the parolee's violation of other kind of ISP erroneously instructions all jury informed the improperly directive broadens the offense of violating any ISP directive would consti- escape prosecution's and lowers the burden escape. prosecutor tute repeatedly proving charged each element of the of urged jury the to convict Townsend for miss- beyond a fense reasonable doubt. See Grie ing meeting And, with Vaughn. impor- (Colo.2001). go People, P.3d tantly, argument heard, the last jury the during prosecutor's rebuttal, the emphasized majority also does not address the easy prosecutor avenue to convict. The "escape" by trial court's definition of deem stated: "[HJe didn't to his offi- ing Maj. op. it harmless error. at 1112-18. you cer. I'd ask to follow the law and find view, my In by the trial court erred instruct guilty." him ing jury escape continuing is "a activity commencing conception with the persistent instruction, Given the erroneous First, design escape." it is axiomatic jury could have convicted Townsend that "no can by crime be committed bad admission, solely based on this without hav- alone[;] thoughts [slomething way in the ing analyze disputed issue of whether act, an or of an omission to act where there is knowingly Townsend failed to to his act, duty legal too." 1 Therefore, residence of record. I believe LaFave, Wayne R. Substantive Criminal permitted jury these errors to convict 6.1(b) (2d 2008). Law, Second, § ed. we have escape Townsend of violating an ISP voluntary that "a stated act" the offender directive that geographic did not concern necessary is a element of the crime of time limitations. Lanzieri, (Colo. People v. 25 P.3d By directing jury violating any 2001). Therefore, escape to define as "com ISP directive escape, constituted the errone- mencing conception design with the of the instructions, ous testimony, closing escape" both mischaracterizes the law of es argument, together, taken adequate- failed to cape erroneously punishes thought. mere ly law, apprise improperly Although prosecution alleged that Town and, escape, broadened the offense of there- send committed acts which constituted es by, prosecution's lowered the burden of cape, this erroneous definition warrants cor (1) proof. that, The additional facts when completely rection it departs because so released, Townsend was Vaughn pro- never provides our law and example another vided notice of which facts would constitute many subjected errors that Townsend to an (2) this new crime of escape, and the trial unfair trial. erroneously court instructed the crime of includes the mere "con- IIL. ception" escape, only injustice add to the case, Turning to the facts of this that occurred here. I believe the combined disputed whether his officer instructed effect of these errors constituted cumulative him to to his residence of record the require error and therefore reversal. See night he was released from incarceration. 64, 66-67, People, Oaks v. 150 Colo. presented evidence that he never 448,446 received notice of which ISP violations would because, prior constitute the crime of IV. release, Vaughn he and never dis- agreed cussed his ISP Turning briefly conditions or to Townsend's constitution- that New Genesis challenges, would be his residence of al I would hold that if "extended *10 geo is defined
limits on confinement" the offend placed on time limits
graphic and by incarceration imposed beyond those
er not un facility, the statute correctional vague or a violation
constitutionally nondelegation doc powers
separation Perea, P.3d at 332-34. See
trines. ILA. of from Part I dissent but concur with majority opinion II.C., in Parts ILB. and
majority's discussion is not unconstitu- statute
that the ISP separation not violate
tionally vague and does powers. MAR- to state Justice
I am authorized and dissent. joins in this concurrence
TINEZ Colorado,
The PEOPLE of State
Plaintiff-Appellant
v. HUGHES,
Benjamin Vester
Defendant-Appellee. Colorado, People State
Plaintiff-Appellant Defendant-Appellee. Meza-Reyes,
Martha 11SA21,
Nos. 11SA42. Colorado,
Supreme Court of
En Banc.
June