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ADVANCE SHEET HEADNOTE February 8, 2021
2021 CO 10
No. 20SA262, In re People v. Subjack & No. 20SA283, In re People v. Lynch— Preliminary Hearings—Statutory Interpretation.
The supreme court reviews whether a criminal defendant who is unable to
post bond on a class 4 felony charge is “in custody” and therefore entitled to a
preliminary hearing on that charge under section 16-5-301(1)(b)(II), C.R.S. (2020),
and Crim. P. 7(h)(1), even if that defendant is also in custody for separate,
unrelated offenses. The court overrules People v. Taylor, 104 P.3d 269 (Colo. App.
2004), and People v. Pena, 250 P.3d 592 (Colo. App. 2009), and holds that such a
defendant is “in custody for the offense for which the preliminary hearing is
requested” for purposes of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1) and is
therefore entitled to a preliminary hearing on the current charges. The court
therefore makes the rule to show cause in each case absolute. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
Supreme Court Case No. 20SA262 Original Proceeding Pursuant to C.A.R. 21 Fremont County District Court Case No. 20CR54 Honorable Ramsey Lama, Judge
In Re Plaintiff: The People of the State of Colorado, v. Defendant: David Subjack.
Rule Made Absolute en banc
***** Supreme Court Case No. 20SA283 Original Proceeding Pursuant to C.A.R. 21 Fremont County District Court Case No. 20CR228 Honorable Ramsey Lama, Judge
In Re Plaintiff: The People of the State of Colorado, v. Defendant: Darryl Lewis Lynch. Rule Made Absolute en banc February 8, 2021
Attorneys for Plaintiff: Kaitlin B. Turner, District Attorney, Eleventh Judicial District Aaron F. Pembleton, Deputy District Attorney Cañon City, Colorado
Attorneys for Defendant David Subjack: Megan A. Ring, Public Defender Kyle Robert Nettleblad, Deputy Public Defender Salida, Colorado
Attorneys for Defendant Darryl Lewis Lynch: CS Law, PLLC Carrie E. Skahan Colorado Springs, Colorado
Attorneys for Respondent the Honorable Ramsey Lama: Philip J. Weiser, Attorney General Grant T. Sullivan, Assistant Solicitor General Denver, Colorado
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
2 ¶1 In these two original proceedings pursuant to C.A.R. 21, we address
whether a criminal defendant who is unable to post bond on a class 4 felony charge
is “in custody” and therefore entitled to a preliminary hearing on that charge
under section 16-5-301(1)(b)(II), C.R.S. (2020), and Crim. P. 7(h)(1), even if that
defendant is also in custody for separate, unrelated offenses.
¶2 While serving sentences in the Department of Corrections (“DOC”) for
unrelated offenses, David Subjack and Darryl Lynch were each arrested and
charged with possession of contraband in the first degree, which is a class 4 felony.
In both cases, the court set cash-only bonds, which neither defendant posted.
Subjack and Lynch each requested a preliminary hearing pursuant to
section 16-5-301(1)(b)(II) (“Any defendant accused of a class 4, 5, or 6
felony . . . may demand and shall receive a preliminary hearing . . . if the
defendant is in custody for the offense for which the preliminary hearing is
requested.”) and Crim. P. 7(h)(1) (same). The district court denied their requests,
reasoning that the current charges did not form the “primary basis” of their
custody.
¶3 We issued a rule to show cause in each case. We conclude that, under the
facts of these cases, Subjack and Lynch are “in custody for the offense for which
the preliminary hearing is requested” for purposes of section 16-5-301(1)(b)(II) and
Crim. P. 7(h)(1) and are therefore entitled to a preliminary hearing on the current
3 charges. In so concluding, we reject the “primary basis” approach articulated in
People v. Taylor, 104 P.3d 269 (Colo. App. 2004), and People v. Pena, 250 P.3d 592
(Colo. App. 2009), and relied upon by the district court in these cases.
Accordingly, we make the rule to show cause in each case absolute and remand
for further proceedings consistent with this opinion.
I. Facts and Procedural History
¶4 These original proceedings arise from two unrelated cases pending before
the same district court judge in the Fremont County District Court.
¶5 Subjack and Lynch are in the custody of the DOC serving sentences at the
Colorado State Penitentiary. In separate incidents, correctional officers discovered
each inmate in possession of a dangerous instrument. Both were charged with
possession of contraband in the first degree, in violation of section 18-8-204.1(1),
(3), C.R.S. (2020), which is a class 4 felony. In Case No. 2020CR54, Subjack’s bond
was set at $10,000 cash-only, and in Case No. 2020CR228, Lynch’s bond was set at
$5,000 cash-only. Neither posted bond.
A. People v. Subjack
¶6 Subjack requested a preliminary hearing on the contraband charge. On
April 20, 2020, the court set the case for preliminary hearing. On June 1, 2020,
however, the district court granted the People’s request for a continuance. At that
time, the People also orally requested that the court vacate any future preliminary
4 hearing, arguing that under Taylor and Pena, Subjack was not entitled to a
preliminary hearing because the offense charged was not the “primary basis” for
his custodial status. See Taylor, 104 P.3d at 272; Pena, 250 P.3d at 594–96.
¶7 In response, Subjack argued that Taylor and Pena were incorrectly decided
and that section 16-5-301(1)(b)(II) does not limit the availability of a preliminary
hearing to cases serving as the “primary basis” or having a “substantial nexus” to
an individual’s confinement. Subjack reasoned that, in the absence of all other
cases and sentences, he was unable to post bond and thus was “in custody” for the
offense for which the preliminary hearing was requested.
¶8 On June 13, 2020, the district court ruled that, under the court of appeals’
decisions in Taylor and Pena, Subjack was not entitled to a preliminary hearing.
The court observed that Subjack was entitled to a preliminary hearing under the
statute only if he was “in custody for the offense for which a preliminary hearing
is requested.” But the court reasoned that the current charge was not the “primary
basis” of Subjack’s confinement:
Applying the holdings of Pena and Taylor, I do not find that the Defendant is in custody for purposes of demanding or requesting a preliminary hearing. The Defendant is in the custody of the Department of Corrections. Even were the Defendant to post bond, it would have no effect on his in-custody status. . . . Even were the [c]ourt to proceed to preliminary hearing today and find no probable cause for the offense charged, he would still remain in custody. At most, Mr. Subjack is concurrently held in Fremont and DOC custodies. But this Fremont County [c]ase is certainly not the primary
5 basis of the Defendant’s custodial status, where, here, the Defendant is serving a sentence in DOC.
Subjack filed a motion to reconsider, which the district court denied.
B. People v. Lynch
¶9 Lynch similarly requested a preliminary hearing on his contraband charge,
which a magistrate granted. The People moved to vacate the preliminary hearing,
however, arguing that Lynch was not entitled to a preliminary hearing under
Taylor and Pena because “[a]t all time[s] during the proceedings, [he] will be in the
primary custody of DOC.” The magistrate denied this motion, reasoning, “The
Defendant has not posted bond and he cannot be released from his DOC sentence
in the meantime without posting bond. This Defendant is, therefore, held in
custody on this case.”
¶10 The People petitioned the district court for review. The district court
vacated the magistrate’s ruling and granted the People’s motion to vacate the
preliminary hearing. The court took issue with the magistrate’s reasoning,
observing that “[p]osting bond in this case would have no practical effect on the
Defendant’s release from his DOC sentence.” It then concluded that the present
case was not the “primary basis” for Lynch’s custodial status and that, under
Taylor and Pena, Lynch was not entitled to a preliminary hearing.
6 ¶11 Subjack and Lynch filed separate petitions invoking our original jurisdiction
under C.A.R. 21. We issued a rule to show cause in each case and now make the
rule in each case absolute.
II. Original Jurisdiction ¶12 Whether to exercise our original jurisdiction pursuant to C.A.R. 21 is within
our sole discretion. C.A.R. 21(a)(1) (“Relief under this rule . . . is a matter wholly
within the discretion of the supreme court.”). In exercising our discretion, we are
mindful that such relief “is extraordinary in nature,” id., and “is limited in both
purpose and availability,” People v. Lucy, 2020 CO 68, ¶ 11, 467 P.3d 332, 335
(quoting People v. Rosas, 2020 CO 22, ¶ 19, 459 P.3d 540, 545). In light of this
narrow scope, “we have exercised our jurisdiction pursuant to C.A.R. 21 when an
appellate remedy would be inadequate, when a party may otherwise suffer
irreparable harm, or when a petition raises ‘issues of significant public importance
that we have not yet considered.’” People v. Rowell, 2019 CO 104, ¶ 9, 453 P.3d
1156, 1159 (citations omitted) (quoting Wesp v. Everson, 33 P.3d 191, 194 (Colo.
2001)).
¶13 We exercise our original jurisdiction in this case because the interpretation
of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1) raises an issue of first impression
that is of significant public importance. Moreover, ordinary appellate processes
are inadequate here given that the relief Subjack and Lynch seek—a preliminary
7 hearing on the charges against them—will be moot after trial. See People v. Tafoya,
2019 CO 13, ¶ 15, 434 P.3d 1193, 1195.
III. Standard of Review
¶14 The interpretation of a statute or rule is a question of law that we review de
novo. Lucy, ¶ 19, 467 P.3d at 336. “In construing a statute, our primary purpose
is to ascertain and give effect to the legislature’s intent.” McCoy v. People, 2019 CO
44, ¶ 37, 442 P.3d 379, 389 (citing Doubleday v. People, 2016 CO 3, ¶ 19, 364 P.3d 193,
196). In so doing, we first look to the plain language of the statute, reading the
“words and phrases in context . . . according to the rules of grammar and common
usage.” Id. We must construe the statute as a whole to give “consistent,
harmonious, and sensible effect to all of its parts.” Id. at ¶ 38, 442 P.3d at 389. If
the plain language is unambiguous, we apply the statute as written. Id. Similarly,
when construing our rules of criminal procedure, “[w]e employ the same
interpretive rules applicable to statutory construction.” People v. Steen, 2014 CO 9,
¶ 10, 318 P.3d 487, 490 (citing Kazadi v. People, 2012 CO 73, ¶ 11, 291 P.3d 16, 20).
IV. Analysis
¶15 In Colorado, a person charged with a class 4, 5, or 6 felony is not
automatically entitled to a preliminary hearing unless the felony charged requires
mandatory sentencing, is a crime of violence, or is a sexual offense. See
§ 16-5-301(1)(a), (1)(b)(I); see also § 18-1-404(1), (2)(a), C.R.S. (2020). However,
8 “[a]ny defendant accused of a class 4, 5, or 6 felony . . . who is not otherwise
entitled to a preliminary hearing . . . may demand and shall receive a preliminary
hearing . . . if the defendant is in custody for the offense for which the preliminary hearing
is requested.” § 16-5-301(1)(b)(II) (emphasis added); see also § 18-1-404(2)(b)
(allowing a defendant to demand and receive a preliminary hearing “if the
defendant is in custody”).1
¶16 Subjack and Lynch assert that because they have not posted bond, they are
in custody for the contraband charges against them, and therefore, under the plain
language of the statute, they are entitled to a preliminary hearing on those charges.
They argue that Taylor and Pena were erroneously decided and that the “primary
basis” approach to the custody analysis articulated in those cases goes beyond the
plain language of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1).
¶17 The People, by contrast, argue that Subjack and Lynch are not in custody for
the contraband charges in the Fremont County cases; instead, the primary basis of
their incarceration is the DOC sentences they are serving for unrelated convictions.
1 Crim. P. 7(h)(1) similarly provides that “any defendant accused of a class 4, 5, or 6 felony . . . who is not otherwise entitled to a preliminary hearing may request a preliminary hearing if the defendant is in custody for the offense for which the preliminary hearing is requested.” (Emphasis added.) See also Crim. P. 5(a)(4) (comparable rule for county court procedures).
9 Moreover, the People contend, the purpose of a preliminary hearing is to protect
the defendant’s pretrial liberty interest where no probable cause exists for the
charges against him. Because Subjack and Lynch will remain in custody on their
DOC sentences throughout these proceedings, a preliminary hearing on the
contraband charges will not further that purpose.
¶18 We agree with Subjack and Lynch.
¶19 First, nothing in the plain language of section 16-5-301(1)(b)(II) and
Crim. P. 7(h)(1) requires the offense for which a preliminary hearing is
sought—here, possession of contraband—to be the “primary basis” of the
defendant’s custodial status. Instead, a defendant is entitled to a preliminary
hearing on an offense so long as he is “in custody for [that] offense.” And here,
although Subjack and Lynch are in DOC custody for unrelated convictions, they
are also in custody for possession of contraband in Fremont County. Arrest
warrants were issued for both Subjack and Lynch on these charges, and bond was
set at $10,000 cash-only and $5,000 cash-only, respectively. Neither defendant has
posted bond. On these facts, Subjack and Lynch are in custody on the Fremont
10 County charges. Put simply, absent their DOC sentences, Subjack and Lynch
would remain confined and in custody on the contraband charges in these cases.2
¶20 The People argue that the purpose of a preliminary hearing is to preserve
the defendant’s pretrial liberty where there is no probable cause for the charge
against him. But this purpose-based argument cannot override the plain language
of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1). True, section 16-5-301(1)(b)(II)
and Crim. P. 7(h)(1) require the court to vacate a scheduled preliminary hearing if
there is a reasonable showing that the defendant has been released. And the
availability of a preliminary hearing generally corresponds to situations in which
the defendant’s pretrial liberty is at greater risk—high-level felonies, see
§ 16-5-301(1)(a); certain felonies of a particular nature, see § 16-5-301(1)(a), (1)(b)(I);
and low-level felonies for which the defendant is in custody, see
§ 16-5-301(1)(b)(II). Nevertheless, we decline to import a “primary basis” qualifier
into section 16-5-301(1)(b)(II) where that phrase does not exist. See People v. Brown,
2019 CO 50, ¶ 17, 442 P.3d 428, 432 (explaining that it is not the court’s role to add
2 The People point out that Subjack and Lynch will remain incarcerated on their DOC sentences even if, at the preliminary hearing, the district court determines that probable cause is lacking. While this is true, Subjack is eligible for parole on his current sentence, and a preliminary hearing could ensure that the current charge does not act as an impediment to his possible release.
11 language to a statute); People v. Diaz, 2015 CO 28, ¶ 12, 347 P.3d 621, 624 (“We do
not add words to the statute or subtract words from it.” (quoting Turbyne v. People,
151 P.3d 563, 567 (Colo. 2007))).
¶21 Moreover, the People’s argument incorrectly assumes that a preliminary
hearing functions solely to protect a defendant’s pretrial liberty. A preliminary
hearing also serves to determine whether probable cause exists to support the
prosecution’s charges against the defendant. Maestas v. Dist. Ct., 541 P.2d 889, 891
(Colo. 1975). It thus acts as a “screening device” by testing “the sufficiency of the
prosecution’s case before an impartial judge” and “weed[ing] out the fatally weak
case.” Id.; see also People v. Brothers, 2013 CO 31, ¶ 16, 308 P.3d 1213, 1216 (“[T]he
‘restricted purpose’ of the preliminary hearing ‘is to screen out cases in which
prosecution is unwarranted by allowing an impartial judge to determine whether
there is probable cause to believe that the crime charged may have been committed
by the defendant.’” (quoting Rex v. Sullivan, 575 P.2d 408, 410 (Colo. 1978)));
Holmes v. Dist. Ct., 668 P.2d 11, 15 (Colo. 1983) (“The preliminary hearing is
designed to weed out groundless or unsupported charges . . . .”).
¶22 In this way, a preliminary hearing serves to
prevent hasty, malicious, improvident, and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, to save the defendant from the humiliation and anxiety involved in public prosecution, and to . . . [ensure that] there are substantial grounds upon which a prosecution may be based.
12 Wayne R. LaFave, 4 Crim. Proc. § 14.1(a) (4th ed. 2020) (alteration in original)
(quoting Thies v. State, 189 N.W. 539, 541 (Wisc. 1922)); see also Holmes, 668 P.2d at
15 (explaining that a preliminary hearing “relieve[s] the accused of the
degradation and expense of a criminal trial”); Hunter v. Dist. Ct., 543 P.2d 1265,
1267 (Colo. 1975) (explaining that a preliminary hearing “protects the accused by
avoiding an embarrassing, costly and unnecessary trial” and “benefits the interests
of judicial economy and efficiency”). Thus, while a preliminary hearing may
relieve a defendant of an unwarranted restriction of personal liberty, People v.
Macrander, 756 P.2d 356, 361–62 (Colo. 1988), it is, at its core, a screening
mechanism.
¶23 In concluding that the defendants were not entitled to a preliminary
hearing, the district court relied on Taylor and Pena. In Taylor, a division of the
court of appeals held that the defendant was not entitled to a preliminary hearing
because he was in the custody of another judicial district at the time and “remained
in the primary custody of that judicial district throughout the proceedings” at
issue. 104 P.3d at 272. Therefore, the division concluded, the offense charged was
not the primary basis for the defendant’s custodial status, and he “was never ‘in
custody’ for th[at] offense.” Id. In Pena, another division of the court of appeals
adopted the Taylor analysis to come to a similar conclusion. 250 P.3d at 595–96.
13 ¶24 Although the district court correctly noted it was bound by these court of
appeals decisions, we conclude that these cases were erroneously decided. First,
as explained above, nothing in the plain language of section 16-5-301(1)(b)(II) and
Crim. P. 7(h)(1) requires an offense to form the “primary basis” of the defendant’s
custodial status for the defendant to be entitled to a preliminary hearing on that
offense. Moreover, the Taylor division likened its “primary basis” approach to the
“substantial nexus” test applied in the context of presentence confinement credit
(“PSCC”). See 104 P.3d at 272 (citing People v. Fitzgerald, 973 P.2d 708, 710–11
(Colo. App. 1998)). However, PSCC and preliminary hearings serve different
purposes. PSCC applies after a defendant is convicted and ensures that the
defendant receives appropriate credit, but not duplicative credit, for time served
against his sentence in a particular case. See § 18-1.3-405, C.R.S. (2020); People v.
Russell, 2020 CO 37, ¶¶ 21–27, 462 P.3d 1092, 1096–98. A preliminary hearing, by
contrast, occurs while the defendant maintains the presumption of innocence as to
pending charges and, as discussed above, serves to screen out unwarranted
prosecutions when charges are unsupported by sufficient evidence. Thus, the
Taylor division’s analogy to PSCC is questionable.
¶25 Even assuming an analogy to PSCC is appropriate, Taylor and Pena predate
and are inconsistent with more recent developments in our PSCC jurisprudence.
As noted above, the Taylor division relied upon Fitzgerald, in which a division of
14 the court of appeals concluded that a defendant was not entitled to additional
PSCC because his “confinement necessarily [was] attributable to the sentence
imposed” on an unrelated charge, rather than his failure to post bond on the
pending charges. 973 P.2d at 711.
¶26 But our PSCC jurisprudence has since shifted. In Russell, we made clear that
the charge for which the sentence is to be imposed need not be the exclusive cause
of the defendant’s confinement for the defendant to receive PSCC. ¶ 22, 462 P.3d
at 1097. We explained that “when a defendant is confined on charges from two
different jurisdictions, he will necessarily have to be physically confined in only
one of the two jurisdictions at any given time. His confinement, however, may be
caused by the charges in both jurisdictions . . . .” Id. at ¶ 25, 462 P.3d at 1097.
Importantly, we clarified that the relevant question under the “substantial nexus”
test is whether “the defendant would have remained confined on the charge or
conduct for which credit is sought in the absence of any other charge.” Id. at ¶ 24,
462 P.3d at 1097. In other words, “the court should ask ‘what would happen if
only the sentencing charge existed; in such a scenario, would the defendant have
remained confined?’” Id. (quoting People v. Torrez, 2017 CO 91, ¶ 51, 403 P.3d 189,
200 (Márquez, J., dissenting)).
¶27 Thus, if anything, this court’s current case law on PSCC actually supports
Subjack and Lynch’s position. Under our reasoning in Russell, Subjack and Lynch
15 are “in custody” for purposes of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1). If
only the Fremont County charges existed—that is, if Subjack and Lynch were not
serving prison sentences—they would remain in the custody of Fremont County
on charges of possession of contraband because they have not posted bond on
those charges.
¶28 Finally, we note that in practice, the “primary basis” approach urged by the
People would be difficult to apply because it would require trial courts to identify,
in often fluid circumstances, the “primary basis” of a defendant’s custody. Courts
would need to constantly reevaluate whether a defendant is entitled to a
preliminary hearing in light of changed circumstances—for example, when cases
are resolved, bonds are changed, or parole is granted or denied. Moreover, courts
may not have access to information in real-time in order to make accurate
determinations. By contrast, the plain language of section 16-5-301(1)(b)(II) and
Crim. P. 7(h)(1) provides a bright-line rule that is easy and straightforward to
administer.
¶29 In sum, we conclude that, on the facts before us, Subjack and Lynch are
entitled to a preliminary hearing under section 16-5-301(1)(b)(II) and
16 Crim. P. 7(h)(1). In reaching this conclusion, we overrule Taylor and Pena and
reject the “primary basis” approach as inconsistent with the statutory language.3
V. Conclusion
¶30 For the foregoing reasons, we hold that Subjack and Lynch are entitled to a
preliminary hearing. Accordingly, we make the rule to show cause in each case
absolute and remand for further proceedings consistent with this opinion.
3 In light of our conclusion, we need not address Subjack and Lynch’s assertions that the district court’s rulings denied them of due process and violated principles of equal protection.