Gerald Adrian Yeadon, Petitioner, v. The People of the State of Colorado, Respondent.
No. 18SC630
The Supreme Court of the State of Colorado
May 11, 2020
2020 CO 38
JUSTICE SAMOUR delivered the Opinion of the Court.
Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 15CA1811
Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch‘s homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association‘s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
May 11, 2020
2020 CO 38
No. 18SC630, Yeadon v. People — Drug Offender Surcharge — Punishment — Imposition After Sentencing Hearing — Double Jeopardy.
The supreme court holds that the drug offender surcharge, which is a form of punishment, is statutorily mandated and, thus, the trial court‘s failure to order it in open court rendered the defendant‘s sentence on his class 6 felony drug conviction illegal and subject to correction at any time pursuant to
Judgment Affirmed
en banc
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Inga K. Nelson, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Brenna A. Brackett, Assistant Attorney General
Denver, Colorado
Attorneys for Amicus Curiae Colorado Criminal Defense Bar:
The Noble Law Firm, LLC
Matthew Fredrickson
¶1 In this case and the companion case, Waddell v. People, 2020 CO __, __ P.3d __, we address questions surrounding the imposition of surcharges after a sentencing hearing. Here, we hold that the drug offender surcharge, which we long ago declared a form of punishment, is statutorily mandated and, thus, the trial court‘s failure to order it in open court rendered Gerald Adrian Yeadon‘s sentence on his class 6 felony drug conviction illegal and subject to correction at any time pursuant to
¶2 The court of appeals arrived at the same conclusion in this case. People v. Yeadon, 2018 COA 104, ¶¶ 2, 52-53, __ P.3d __. Accordingly, we affirm its judgment.
I. Procedural History
¶3 A jury found Yeadon guilty of several charges, including possession of less than two grams of a controlled substance (methamphetamine), a class 6 felony at the time. At his sentencing hearing, the trial court failed to impose the drug offender surcharge as a component of the sentence on the class 6 felony drug conviction.2 See
¶4 Yeadon appealed his judgment of conviction and sentence. Id. at ¶ 1. As relevant here, he argued that the late imposition of the drug offender surcharge violated his federal and state constitutional rights against double jeopardy. Id. at ¶ 2. In a unanimous, published decision, a division of the court of appeals disagreed. Id. The division acknowledged that in certain circumstances increasing
¶5 Yeadon then sought review of the division‘s decision. And we granted certiorari to consider whether the trial court‘s failure to impose the drug offender surcharge during Yeadon‘s sentencing hearing rendered his sentence illegal and subject to correction at any time under Rule 35(a).4
II. Standard of Review
¶6 The parties assert, and we agree, that whether the sentence imposed during Yeadon‘s sentencing hearing was authorized by law is a question that we review de novo. See Veith v. People, 2017 CO 19, ¶ 12, 390 P.3d 403, 406 (recognizing that the legality of a defendant‘s sentence presents a question that we review de novo).
III. Analysis
¶7 The United States Constitution provides that a person shall not “for the same offense . . . be twice put in jeopardy of life or limb.”
¶8 Under some circumstances, increasing a defendant‘s punishment after a lawful sentence is imposed and the defendant begins serving it “violates the double jeopardy protection against multiple punishments for the same offense.” Romero v. People, 179 P.3d 984, 989 (Colo. 2007). For purposes of this appeal, we assume, without deciding, that the trial court added the drug offender surcharge after Yeadon started serving the sentence imposed. The question that naturally follows is whether the trial court imposed a lawful sentence in open court. If it did, then the subsequent imposition of the drug offender surcharge may have violated Yeadon‘s constitutional rights to be free from multiple punishments for the same offense. But if it didn‘t, then no double jeopardy infringement occurred because “a sentence that is contrary to legislative mandates is illegal and may be corrected at any time by a sentencing court without violating a defendant‘s rights against double jeopardy.” People v. Smith, 121 P.3d 243, 251 (Colo. App. 2005); accord
¶9 The protection against double jeopardy cannot prevent the correction of a sentence that‘s not authorized by law. The Supreme Court has explained that the United States Constitution “does not require that sentencing should be a game in which a wrong move by the judge” in passing the sentence allows the defendant to escape punishment. Bozza v. United States, 330 U.S. 160, 166–67 (1947). And we have likewise made clear that “[g]ranting defendants a right to benefit from illegal sentences serves no sound public policy.” People v. Dist. Court, 673 P.2d 991, 997 (Colo. 1983). Therefore, while the Double Jeopardy Clauses may function as a shield against multiple punishments, they may never be used as a sword to enforce an illegal sentence.
¶10 Since the division found that the drug offender surcharge is statutorily mandated, it concluded that the sentence Yeadon received in open court was illegal. But Yeadon takes issue with that determination. He contends that the sentence uttered at his sentencing hearing was a legal sentence because the drug offender surcharge is discretionary, not mandatory. Thus, urges Yeadon, the trial court was authorized to forgo the imposition of the surcharge. We disagree.
¶11
¶12 Relying on subsections (6)(a) and (6)(b) of the drug offender surcharge statute, however, Yeadon insists that the surcharge cannot be deemed mandatory because the trial court has discretion to waive it. We are unpersuaded.
¶13 Subsection (6)(a) provides that “[t]he court may not waive any portion of the surcharge . . . unless the court first finds that the drug offender is financially unable to pay any portion of said surcharge.”
¶14 We are aware that a different division of the court of appeals reached a contrary conclusion in People v. McQuarrie, 66 P.3d 181 (Colo. App. 2002). The division there held that “the drug offender surcharge is . . . not mandatory” and that double jeopardy principles required the trial court to impose it during the sentencing hearing “in open court.” Id. at 183. Because McQuarrie is inconsistent with this opinion and Waddell, we now overrule it.
¶15 In sum, the sentence Yeadon received was not authorized by law because it did not include the mandatory drug offender surcharge. As such, the sentence was subject to correction by the trial court at any time pursuant to Rule 35(a) without violating Yeadon‘s rights under the Double Jeopardy Clauses. However, because the court corrected Yeadon‘s sentence by adding the drug offender surcharge outside his presence and without giving him an opportunity to ask for a waiver and receive a hearing, we remand with instructions to return the case to the trial court. On remand, Yeadon may request a waiver and ask for a hearing to show that
IV. Conclusion
¶16 We conclude that the division correctly ruled that a drug offender surcharge is mandatory and that the trial court‘s failure to impose it in open court rendered Yeadon‘s sentence illegal and subject to correction at any time under Rule 35(a). Accordingly, we affirm and remand for further proceedings consistent with this opinion.