v. Dominguez
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
May 27, 2021
2021COA76
No. 20CA0081, People v. Dominguez — Criminal Law — Sentencing — Probation — Two Prior Felony Rule
A division of the court of appeals interprets the 2010 amendment to the two prior felony rule, section 18-1.3-201(2.5), C.R.S. 2020, and concludes for the first time that a defendant is ineligible for probation even if the only conviction for an enumerated disqualifying felony is a conviction from another state.
SENTENCE AFFIRMED
Division I
Opinion by JUDGE TOW
Dailey, J., concurs
Berger, J., dissents
Announced May 27, 2021
Philip J. Weiser, Attorney General, Megan Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 2 Defendant, Jose Luis Dominguez, appeals his sentence, arguing that the district court erred by finding him ineligible for probation under the two prior felony rule. Specifically,
I. Relevant Facts and Procedural History
¶ 3 The following facts are uncontested. Dominguez was at a park with friends. He drank approximately three beers before driving the group to a nearby reservoir. On the way, Dominguez swerved to avoid a deer that ran into the road. He lost control of the car, it rolled, and one of his passengers was seriously injured.
¶ 4 Dominguez pleaded guilty to felony vehicular assault. The plea agreement stipulated to a community corrections sentence. But in the event Dominguеz was not accepted into community corrections — which is ultimately what occurred — the plea agreement provided that the sentence would be open to the court.
¶ 5 The presentence investigation report concluded that he was not eligible for probation under the two prior felony rule because Dominguez had been convicted of multiple prior felonies including, as pertinent here, attempted burglary in Nevada. The report concluded that the attempted burglary conviction disqualified Dominguez from being considered for probation. Although prosecutors may recommend to the сourt that the probation ineligibility be waived, the prosecutor here declined to do so. See
¶ 6 At sentencing, Dominguez argued that the Nevada felony conviction was not a disqualifying offense under the statute because the elements of criminal attempt in Nevada are broader than the elements of criminal attempt in Colorado. Nevada defines an attempt as “[a]n act done with the intent to commit a crime, and tending but failing to accomplish it.”
¶ 7 The district court disagreed. The court concluded that, “absent any legal authority” on the subject, it had “to look at the statutes on their face.” The court reasoned that while the Nevada attempt statute was “less wordy,” the statutes were “sufficiently similar” such that Dominguez’s Nevada conviction qualified as a prior conviction under the two prior felony rule. The court concluded that Dominguez was therefore ineligible for probation and sentenced him to two years in the custody of the department of corrections.
II. Applicable Law
¶ 8 Dominguez contends that the court erred by concluding that he was ineligiblе for probation. He pursues two alternative contentions: (1) foreign felony convictions2 can never satisfy the enumerated offense requirement under the two prior felony rule; and (2) Nevada’s attempt and burglary statutes encompass conduct that is not “as described
A. Standard of Review and Preservation
¶ 9 We review a sentencing decision for an abuse of discretion. People v. Ruibal, 2015 COA 55, ¶ 54, aff‘d, 2018 CO 93. However, if a district court “misapprehends the scope of its discretion in imposing sentence, a remand is necessary for reconsideration of the sentence within the appropriate sentencing range.” People v. Linares-Guzman, 195 P.3d 1130, 1137 (Colo. App. 2008). Whether the court misapplied the two prior felony rule rests оn interpretation of the sentencing statutes, which we review de novo. People v. Rice, 2015 COA 168, ¶ 10. Specifically, whether or when foreign felony convictions are disqualifying under the two prior felony rule is a question of law that we review de novo. See People v. Nguyen, 899 P.2d 352, 355-56 (Colo. App. 1995) (whether a foreign conviction counts under the habitual criminal statute is a question of law reviewed de novo).
¶ 10 We note that Dominguez’s argument before us is fundamentally different than the one he pursued at sentencing. There, as noted, he argued only that Colorado’s definition of criminal attempt is not broad enough to encompass all actions that may constitute a criminal attempt in Nevada. In fаct, defense counsel specifically said, “I’ll note that I think the burglary statute lines up. So I’m not contesting that the burglary is different, but the attempt is different.” Further, although counsel noted, “I don’t think there’s really any case law that I was able to find in determining, for the purposes of the two-prior felony rule, how the court is supposed to analyze out-of-state convictions,” he never asserted that a foreign conviction could not serve as a disqualifying felony.3
¶ 11 That being said, Dominguez’s claim is that the district court incorrectly applied the two prior felony rule, making him ineligible for probation. This claim centers on whether the district court “ignorе[d] [or, here, misapplied] essential procedural rights or statutory considerations in forming the sentence.” People v. Knoeppchen, 2019 COA 34, ¶ 9 (quoting People v. Bowerman, 258 P.3d 314, 316 (Colo. App. 2010)). As such, Dominguez’s challenge is to the manner in which his sentence was imposed. See id.; see also
¶ 12 Our supreme court has recently held that a claim that would be cognizable under
B. Statutory Interpretation
¶ 13 Our primary task in construing a statute is to give effect to the General Assembly’s intent. Riley v. People, 104 P.3d 218, 220 (Colo. 2004). We first look to a statute’s plain language. Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007). “If the statutory language is clear and unambiguous, we do not engage in further statutory analysis.” Id.
¶ 14 Only if the statutory language is ambiguous may we employ other tools of statutory construction, including statutory or
C. The Law of Probation Eligibility
¶ 15 A court may sentence a defendant to a probationary sentence if “the ends of justice and the best interest of the public, as well as the defendant, will be served thereby.”
¶ 16 For convictions entered on or after May 25, 2010 (such as Dominguez’s conviction), the probation eligibility statute states that
a person who has been twice or more convicted of a felony upon charges separately brought and tried and arising out of separate and distinct criminal episodes under the laws of this state, any other state, or the United States prior to the conviction on which his or her application is based shall not be eligible for probation if the current conviction or a prior conviction is for:
. . .
(VII) First or second degree burglary, as described in section 18-4-202 or 18-4-203;
. . .
(XII) Any criminal аttempt or conspiracy to commit any of the offenses specified in this paragraph (b).
III. Analysis
A. The Enumerated Offenses Under the Probation Eligibility Statute Include Foreign Convictions
¶ 17 Dominguez concedes that foreign felonies count toward whether a defendant has two or more prior felony convictions. But he contends that the statute contains a separate, independent requirement that one of the felonies “is for” an enumerated Colorado offense, and that a foreign felony conviction can never satisfy that requirement.
¶ 18 But Dominguez’s argument ignores another phrase in the statutory language of the two priоr felony rule: a conviction is disqualifying if it “is for” one of several offenses “as described in” one of various statutes. See
¶ 19 Thus, we conclude that the language of the two prior felony rule is unambiguous. It disqualifies a defendant from probation eligibility if that defendant has been convicted of two or more felonies “under the laws of this state, any other state, or the United States,” and any of the defendant’s convictions — whether obtained in Colorado or not — arise out of conduct that is encompassed
¶ 20 Because we conclude the language is unambiguous, we need not consider the statutory or legislative history. People v. Rockwell, 125 P.3d 410, 418 (Colo. 2005). Neverthеless, because the dissent assumes, in the alternative, that the language is ambiguous, we, too, turn briefly to the statutory and legislative history6 to demonstrate that it does not contradict our interpretation of the two prior felony rule. See id. at 418-19 (discussing legislative history after concluding the statutory language at issue was “clear and unambiguous“).
¶ 21 The current version of the two prior felony rule was enacted in 2010. Ch. 257, sec. 1, § 18-1.3-201, 2010 Colo. Sess. Laws 1146. The prior version remains in the statute and applies to anyone convicted before May 25, 2010.
¶ 22 According to the testimony in both houses of the legislature, the purpose of the 2010 amendment was simply to limit the application of the two prior felony rule to the enumerated crimes, which were selected because they all involve some level of force or violence.8 Hearings on H.B. 10-1338 before the H. Judiciary Comm., 67th Gen. Assemb., 2d Sess. (Mar. 11, 2010); Hearings on H.B. 10-1338 before the S. Judiciary Comm., 67th Gen. Assemb., 2d Sess. (Apr. 28, 2010). Not one witness or legislator suggested that the enumerated crime must arise from a Colorado conviction or otherwise insinuated that the broad language encompassing convictions arising under “the laws of this state, any other state, or the United States” would not apply to the enumerated list within the same paragraph of the new subsection.
¶ 23 Given what the law was immediately prior to the statutory amendment, and the clear intent of the legislature as evidenced by the testimony of the witnesses during the enactment — which was uniformly in support of the bill — both the statutory and the legislative history demonstrate that the enumerated list was not intended to apply solely to crimes prosecuted under Colorado’s laws.9
¶ 24 We conclude, therefore, that Dominguez’s attempted burglary conviction is not precluded from disqualifying Dominguez simply because it was not a Colorado conviction. Rather, that conviction would disqualify him if it was a conviction for an attempt to commit a burglary “as described in” section 18-4-202 or section 18-4-203. We turn now to that inquiry.
B. Dominguez’s Nevada Attempted Burglary Offense Is a Disqualifying Offense
1. The Focus Is On the Conduct Engaged in by Dominguez Rather Than Elements of the Nevada Offense
¶ 25 Dominguez first argues that, if the elements of the crime under the laws of the other state are broader than the relevant enumerated Colorado statute, the foreign
¶ 26 As the Fourth Circuit Court of Appeals observed in Barial, a legislature’s use of “described in” reflects an intent to address conduct that would fall under the statute, even if the prosecution did not occur under the statute. Barial, 31 F.3d at 217-18. Similarly, the Ninth Circuit Court of Appeals has held that the federal career offender statute,
¶ 27 Suсh a conduct-focused approach is not new to Colorado. Under its habitual sentencing procedures, a foreign misdemeanor conviction will be considered a felony for habitual criminal purposes if it is “the equivalent to” a felony in Colorado. Nguyen, 899 P.2d at 354. This analysis requires consideration not of the elements of the foreign offense, but of the conduct engaged in by the defendant. Id.
¶ 28 In our view, there is no basis to limit the phrase “as described in” to a pure comparison of elements. Rather, as in Nguyen, the question must be whether the conduct engaged in by the defendant, if committed in Colorado, would have fallen within the ambit of the crimes “as described in” the enumeratеd disqualifying offenses. See id.;
2. Nevada’s Criminal Attempt Definition Is Not Broader Than Colorado’s
¶ 29 As a threshold issue, we decline to address Dominguez’s argument, first raised on appeal, that Nevada’s substantive burglary statute is broader than Colorado’s. At sentencing, Dominguez’s counsel told the district court, “I’ll note that I think the burglary statute lines up. So I’m not contesting that the burglary is different . . . .” In light of this admission, Dominguez waived any claim that the Nevada burglary statute is broader than the burglary statute in Colorado.
¶ 30 Instead, Dominguez’s counsel argued that Nevada’s attempt statute is different from Colorado’s. Dominguez reiterates that contention here. Again, we disagree.
¶ 31 In Colоrado, “[a] person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense.”
¶ 32 Dominguez argues that Nevada’s statute requires “less proof” than Colorado’s. We disagree. To commit criminal attempt in Nevada, one must, with the specific intent to commit a crime, engage in an act that tends to accomplish that crime. Though the verbiage is different, we see no functional difference between such an act and the act of taking a substantial step toward the commission of the offense. And the specific intent to commit the crime, as required by Nevada’s law, is at least sufficient to be “strongly corroborative of the firmness of the actor’s purpose” to commit the crime in Colorado. See
¶ 33 In sum, considering counsel’s concession, the district court could rely on the information in the рresentence investigation report that the burglary aspect of Dominguez’s prior conviction disqualified him from probation. And the district court did not err by concluding that conduct encompassed by Nevada’s attempt statute necessarily fell within Colorado’s attempt statute as well. And because foreign convictions for conduct that would qualify as an enumerated disqualifying offense in Colorado are sufficient for disqualification, Dominguez was not eligible
IV. Conclusion
¶ 34 The sentence is affirmed.
JUDGE DAILEY concurs.
JUDGE BERGER dissents.
JUDGE BERGER, dissenting.
¶ 35 This case requires us to answer one question: Is a defendant eligible for probation under
¶ 36 I agree with the majority‘s recitation of the facts, so I move to my analysis.
I. Statutory Construction
¶ 37 Our primary task in construing a statute is to give effect to the General Assembly‘s intent. Riley v. People, 104 P.3d 218, 220 (Colo. 2004). We first look to a statute‘s plain language. Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007). “If the statutory language is clear and unambiguous, we do not engage in further statutory analysis.” Id.
¶ 38 The supreme court has cautioned, however, that “[a]lthough we must give effect to the statute‘s plain and ordinary meaning, the General Assembly‘s intent and purpose must prevail over a literalist interpretation that leads to an absurd result.” People v. Kailey, 2014 CO 50, ¶ 13 (citation omitted). Therefore, “[s]tatutory interpretation leading to an absurd result will not be followed.” State v. Nieto, 993 P.2d 493, 501 (Colo. 2000).
¶ 39 Only if the statutory language is ambiguous may we consider other tools of statutory construction, including the rule of lenity.
II. The Law of Probation
¶ 40 Probation is a privilege, not a right. Veith v. People, 2017 CO 19, ¶ 14. A court may sentence a defendant to a probationary sentence if “the ends of justice and the best interest of the public, as well as the defendant, will be served thereby.”
¶ 41 The probation eligibility statute states,
a person who has been twice or more convicted of a felony upon charges separately brought and tried and arising out of separate and distinct criminal episodes under the laws of this state, any other state, or the United States prior to the conviction on which his or her application is based shall not be eligible for probation if the current conviction or a prior conviction is for:
...
(VII) First or second degree burglary, as described in section[s] 18-4-202 or 18-4-203;
...
(XII) Any criminal attempt or conspiracy to commit any of the offenses specified in this paragraph (b).
III. The Statute‘s Plain Language Compels My Conclusion
¶ 42 The language of the probation eligibility statute is plain and unambiguous: A defendant “shall not be eligible for probation if the current conviction or a prior conviction is for” an enumerated Colorado felony.
¶ 43 The majority relies on United States v. Barial, 31 F.3d 216, 217-18 (4th Cir. 1994), for its conclusion that “described in” evidences an intent to include foreign felonies. Supra ¶ 26. But this federal case does not establish or support the majority‘s interpretation of Colorado‘s probation eligibility statute. While employing Barial‘s conclusion, the majority ignores its reasoning.
¶ 44 There, the Fourth Circuit reasoned that “[w]here Congress hаs chosen different language in proximate subsections of the same statute, courts are obligated to give that choice effect.” Id. at 218. This is a bedrock rule of statutory construction, which we follow in Colorado. See, e.g., Colo. Med. Bd. v. Off. of Admin. Cts., 2014 CO 51, ¶ 19 (“[T]he use of different terms signals the General Assembly‘s intent to afford those terms different meanings.“).
¶ 45 The Fourth Circuit applied this rule in Barial. It reasoned that while one subsection of the special probation statute used the phrase “described in,” another subsection of the same statute addressed defendants convicted “under” a specific federal law. Barial, 31 F.3d at 218. Therefore, because Congress used “described in” and “under” in the same statute, they did not mean the same thing. Id.
¶ 46 But Colorado‘s probation eligibility statute is different. The statute dictates that a defendant is ineligible for probation if the prosecution establishes two distinct requirements: (1) that the defendant has two prior felony convictions “under the laws of this state, any other state, or the United States“; and (2) that one of the convictions, whether a prior conviction or the triggering offense, “is for” an enumerated offense “as described in” a specific Colorado criminal statute.
¶ 47 Thus, under Barial and Colorado precedent, “as described in” specific Colorado statutes cannot mean the same thing as “under the laws of ... any other state, or the United States.” See id. When the legislature “has chosen different language in proximate subsections of the same statute, courts are obligated to give that choice effect.” Barial, 31 F.3d at 218. But the majority‘s construction collapses the distinction drawn by the General Assembly.
¶ 48 There is another reason that Barial does not support the majority‘s interpretation. While we presume that the General Assembly enacts statutes with an awareness of current Colorado precedent, no such presumption exists with respect to how federal courts interpret federal laws, or how those interpretations may play into a Colorado court‘s interpretation of Colorado law. See Griego v. People, 19 P.3d 1, 5 (Colo. 2001) (“When the General Assembly amended” certain statutes, “we must presume that it did so with awareness of our decisions in” that area of law.) (emphasis added). Therefore, the fact that some federal courts have construed “described in” differently should not affect, and certainly does not dictate, our analysis of the plain language of this Colorado stаtute.
IV. The Statute‘s Plain Language Does Not Lead to an Absurd Result
¶ 49 The Attorney General argues that Dominguez‘s construction of the statute (with which I agree) leads to absurd results. Specifically, the Attorney General argues that this construction would treat similarly situated defendants differently depending on whether their enumerated offense conviction was from Colorado or another state. This premise is correct: A defendant with two prior felony convictions, one of which is for second degree murder as defined by Colorado homicide statutes, would not be eligible
¶ 50 It is not absurd for the General Assembly to limit the probationary bar to cases where a defendant has committed a specifically enumerated Colorado offense. Colorado largely followed the Model Penal Code in enacting its criminal statutes, but many states did not. See People v. Childress, 2015 CO 65M, ¶ 22. Due to the differences between states’ criminal statutes, it is rational to limit the probationary bar to cases where a defendant has committed a particular crime as defined by the Colorado General Assembly.
¶ 51 Additionally, the issue before us is probation eligibility, not entitlement. In all cases when a defendant is probation eligible, the judge retains discretion to enter a nonprobationary sentence. While the hypothetical defendant with a prior conviction for second degree murder under Kansas law is not barred from receiving a probationary sentence due to that conviction, a judge could, of course, issue a nonprobationary sentence. My plain reading of the probation eligibility statute, therefore, does not lead to an absurd result.
¶ 52 For these reasons, I would hold that foreign felony convictions do not satisfy the enumerated offensе requirement under the probation eligibility statute.
V. Other Tools of Construction Demonstrate the Majority‘s Error
¶ 53 I acknowledge that determining the plain meaning of a statute presents a question on which reasonable minds may disagree. This case demonstrates that point. But assuming for the sake of argument that the statute is ambiguous, other tools of statutory construction only bolster my conclusion.
¶ 54 First, the probation eligibility statute does not contain the clear language found in other Colorado criminal statutes that permits the consideration of foreign crimes. A felony for the purpose of the habitual criminal statute, for examplе, can be from “this or any other state,” or “[a] crime under the laws of any other state ... which, if committed within this state, would be such a felony.”
¶ 55 Second, my interpretation would have zero negative consequences whatsoever on a court‘s ability to deny a probationary sentence to dangerous or otherwise unfit defendants. See
¶ 56 Third, the statute‘s legislative history does not weigh in either direction. The most recent prior version of the probation eligibility statute barred a defendant with any two prior felonies from any state or the United States.
¶ 57 But as is often the case with legislative history, many reasonable conclusions can be drawn from the same information. Just as plausible as the majority‘s rationale is the view that the addition of the language “as described in [specific Colorado statutes]” demonstrates the intent to limit the bar to the specifically enumerated Colorado statutes. After all, the prior law only required two prior felonies from any jurisdiction. The legislative history therefore does not clearly support either interpretation.2 While relying
¶ 58 Because legislative history is no help, and assuming the statute is otherwise ambiguous, we should consider the rule of lenity. See People v. Summers, 208 P.3d 251, 258 (Colo. 2009) (The rule of lenity is “a rule of last resort.“). This rule “requires us to construe any ambiguities in a penal statute in a manner favoring the person whose liberty interests are affected by the statute.” Faulkner v. Dist. Ct., 826 P.2d 1277, 1278 (Colo. 1992). Here, if the statute is ambiguous and other avenues of statutory construction do not provide clarity, we should construe the statute in such a way to provide more defendants the opportunity for a probationary sentence.
¶ 59 I would hold that foreign felony convictions do not satisfy the enumerated offense requirement under the probation eligibility statute. I respectfully dissent.