Peo in Interest of ZTL

Opinion

18CA1903 Peo in Interest of ZTL 11-04-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA1903

City and County of Denver Juvenile Court No. 17JD443

Honorable D. Brett Woods, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of Z.T.L.,

Juvenile-Appellant.

SENTENCE AFFIRMED

Division II

Opinion by JUDGE BERGER

Román and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 4, 2021

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney

General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy

State Public Defender, Denver, Colorado, for Juvenile-Appellant

1

¶ 1

Juvenile, Z.T.L., appeals the sentence imposed after she

pleaded guilty to accessory to felony murder and aggravated

robbery and was adjudicated an aggravated juvenile offender. She

contends that the juvenile court erred by

 failing to consider the purposes of the Children’s Code in

sections 19-1-102 and 19-2-102, C.R.S. 2019;

 failing to make the specific determinations required by

section 19-2-921(1.5)(a), C.R.S. 2019; and

 failing to consider the proper factors before denying

presentence confinement credit.1

¶ 2

She also argues that the juvenile court abused its discretion

by committing her to four years in the Division of Youth Services

(DYS) and denying presentence confinement credit. We address

and reject her arguments and, therefore, affirm her sentence.

1 As discussed below, the Attorney General contends that the

portion of the juvenile’s appeal asking this court to review the

propriety of the sentence is barred by section 18-1-409(1), C.R.S.

2021. However, the Attorney General concedes, and we agree, that

the juvenile’s contention that the juvenile court did not make the

findings required by the Children’s Code constitutes “an appeal

related to the manner in which the sentence was imposed,

including the sufficiency and accuracy of the information on which

the sentence was based,” which is not barred by section

18-1-409(1). Sullivan v. People, 2020 CO 58, ¶ 26.

2

I. Relevant Facts and Procedural History

¶ 3

The juvenile was involved in a home-invasion homicide along

with four older males. The prosecution filed a delinquency petition

charging the juvenile with accessory to felony murder, second

degree burglary, tampering with physical evidence, second degree

kidnapping, aggravated robbery, and first degree burglary. The

prosecution also charged the juvenile as an aggravated juvenile

offender and moved to transfer the case from juvenile court to

district court.

¶ 4

However, the transfer hearing was vacated when the parties

reached the plea agreement. The juvenile pleaded guilty to

accessory to felony murder, aggravated robbery, and the aggravated

juvenile offender enhancer. Under the plea agreement, the parties

stipulated to a sentencing range of two to five years in the DYS.

The plea agreement was silent as to presentence confinement credit.

¶ 5

At the sentencing hearing, based on the facts of the case and

the juvenile’s history of pretrial noncompliance and gang affiliation,

the prosecutor requested a five-year DYS commitment, without

presentence confinement credit. Based on the juvenile’s

rehabilitation progress during presentence confinement, the

3

juvenile’s guardian ad litem and defense counsel requested two

years in DYS with 331 days of presentence confinement credit.

¶ 6

The juvenile court committed the juvenile to four years in DYS

stating,

First of all, these sentencings in Juvenile

Court are very difficult because they are so

rare that we have what is known as an

aggravated juvenile offender in front of the

Court and, most of the time, as the attorneys

know, it’s not involving the death of someone

which is, which is obviously a good thing. We

don’t have that here today. And so, I’ve

allowed a great deal of latitude for the

sentencing presentation. I imagine that this is

even much more of a presentation tha[n] you

would get in adult court, it just doesn’t happen

here all that often. I am mindful of the fact

that [the juvenile] has made great progress

while she’s been in custody at Gilliam and

what led her back to being in custody at

Gilliam and I will tell you that, and I explored

that a little bit with the guardian ad litem. I’m

mindful that [the juvenile] has received the

benefit of being in the Juvenile Court system

and not in the adult court system, and I’m

keeping that in mind as well. And finally, I’m

mindful of the fact that any sentence that I

impose here today can be revisited by the

Court upon motion. . . . So, I’m mindful that

she is not the shooter and am grateful for that.

But, I do think that the crime here was

significant and obviously resulted in the loss of

life of a member of our community. So, I am

going to, not to beat around the bush any

longer, order a commitment to the Division of

4

Youth Services, standard fines, fees and costs

will be imposed, and the commitment to the

Division of Youth Services will be for a period

of 4 years.

¶ 7

The juvenile court denied PSCC stating, “I’m not doing that.”2

II. The Juvenile Court was Not Required to Make Any Specific

Findings Under Sections 19-1-102 or 19-2.5-101

¶ 8

The juvenile argues that the juvenile court erred by failing to

consider the purposes of and make findings under sections

19-1-102 and 19-2-102, C.R.S. 2019.3 But nothing in section

19-1-102, C.R.S. 2021, or section 19-2.5-101, C.R.S. 2021, imposes

an obligation on the juvenile court to make any specific findings at

sentencing. So, we reject this claim of error.

2 After this appeal was filed, the juvenile court denied the juvenile’s

motion to reconsider her sentence. The juvenile court later granted

the Department of Human Services’ petition to allow the juvenile to

be transferred to a nonsecure placement. We do not further

address these orders because they have no proper bearing on the

resolution of the issues on appeal.

3 Effective October 1, 2021, section 19-2-102 was repealed and

relocated. The legislative declaration is now located in section

19-2.5-101, C.R.S. 2021. For purposes of this appeal, section

19-2.5-101, C.R.S. 2021, does not materially differ from section

19-2-102, C.R.S. 2019.

5

III. The Juvenile Court Made the Specific Determinations Required

by Section 19-2.5-1117(4)(a)

¶ 9

The juvenile argues that the court erred by failing to make the

specific determinations required by section 19-2-921(1.5)(a), C.R.S.

2019.4

¶ 10

When a court commits a juvenile to the department of human

services, the court is required to make the following specific

determinations:

(I) Whether placement of the juvenile

outside the home would be in the

juvenile’s and community’s best interest;

and

(II) Whether reasonable efforts have been

made to prevent or eliminate the need for

removal of the juvenile from the home;

whether is it reasonable that such efforts

are not made because an emergency

situation exists that requires the

immediate removal of the juvenile from

the home; or whether such efforts are not

4 The parties both refer to the specific determinations required by

section 19-2-921(1.5)(a), C.R.S. 2019, in their briefs. Effective

October 1, 2021, section 19-2-921 was repealed and relocated.

Section 19-2.5-1117(4)(a), C.R.S. 2021, now outlines the specific

determinations a juvenile court must make when committing a

juvenile to the department of human services. Section

19-2-921(1.5)(a), C.R.S. 2019, required two specific determinations,

which have remained the same in section 19-2.5-1117(4)(a). But

section 19-2.5-1117(4)(a) now requires an additional third specific

determination. Because the parties do not address the new third

determination, neither do we.

6

required because of circumstances

described in section 19-1-115(7).

§ 19-2.5-1117(4)(a)(I), (II), C.R.S. 2021.

¶ 11

The mittimus states, “[p]lacement out of the home is necessary

and is in the best interest of the juvenile and community.

Reasonable efforts were made to prevent or eliminate the need for

placement of the juvenile.” Accordingly, the juvenile court made the

specific determinations required by subsections (I) and (II) of section

19-2.5-1117(4)(a), and this claim of error fails.

IV. Presentence Confinement Credit

¶ 12

The juvenile also argues that the court erred by failing to

consider the proper factors when it denied her presentence

confinement credit.

¶ 13

In general, the decision whether to apply presentence

confinement credit against a juvenile’s sentence is a matter of

discretion, “subject to an ad hoc assessment of the needs of the

child and the interests of society.” People in Interest of T.S.R., 843

P.2d 105, 107 (Colo. App. 1992).

¶ 14

At the sentencing hearing, the juvenile court considered the

needs of the juvenile: “I am mindful of the fact that [the juvenile]

7

has made great progress while she’s been in custody at Gilliam and

. . . I’m mindful that [the juvenile] has received the benefit of being

in the Juvenile Court system and not in the adult court

system . . . .” The juvenile court also considered the interests of

society at the sentencing hearing: “I’m mindful that she is not the

shooter and am grateful for that. But I do think that the crime here

was significant and obviously resulted in the loss of life of a member

of our community.”

¶ 15

True, when asked about presentence confinement credit, the

juvenile judge simply stated, “I’m not doing that.” But the court’s

statements at the sentencing hearing and findings on the mittimus

reveal that the juvenile court considered the proper factors.

Accordingly, the juvenile court did not abuse its discretion by

denying presentence confinement credit.5

5 We note that when the DYS commitment is aggregated with the

denial of presentence confinement credit, the effective sentence is

still short of the five-year maximum agreed to by the juvenile. See

People in Interest of J.R., 216 P.3d 1220, 1224 (Colo. App. 2009).

8

V. Abuse of Discretion

¶ 16

The juvenile finally contends that the juvenile court abused its

discretion by committing her to four years in DYS and denying her

presentence confinement credit.

¶ 17

The Attorney General contends that section 18-1-409(1),

C.R.S. 2021, which bars appellate review of the propriety of a

criminal sentence that is within the range agreed upon by the

parties, bars review of the propriety of a juvenile sentence that is

within the range agreed upon by the parties.

¶ 18

Because the parties’ plea agreement was silent as to

presentence confinement credit, appellate review of that claim

would not be barred by section 18-1-409(1) even if that section

applied to juvenile sentences. See People v. Garcia, 2016 COA 124,

¶ 20. As discussed above, the court did not abuse its discretion by

denying the juvenile’s request for presentence confinement credit.

¶ 19

Regarding the juvenile’s claim that the court abused its

discretion by committing her to four years in DYS, we decline to

resolve whether section 18-1-409(1) applies to juvenile sentences

because, even assuming section 18-1-409(1) doesn’t apply here, the

juvenile’s claim fails.

9

¶ 20

“[A] trial court normally has broad discretion to craft a

sentence it deems appropriate for a particular juvenile offender.”

A.S. v. People, 2013 CO 63, ¶ 15. Consequently, a trial court’s

sentencing decision will not be disturbed absent a clear abuse of

discretion. People v. Leske, 957 P.2d 1030, 1042 (Colo. 1998). “A

sentencing court abuses its discretion if it fails to consider ‘the

nature of the offense, the character and rehabilitative potential of

the offender, the development of respect for the law and the

deterrence of crime, and the protection of the public.’” Id. at 1043

(quoting People v. Fuller, 791 P.2d 702, 708 (Colo. 1990)).

¶ 21

The commitment was within the statutory range.

§ 19-2.5-1127(1)(a)(I)(a), C.R.S. 2021. It also was within the range

agreed to by the parties. And the juvenile court considered

appropriate factors when it committed the juvenile to four years in

DYS. The facts underlying the juvenile’s adjudication were very

serious and resulted in the death of the victim. The juvenile court

also considered the juvenile’s history of pretrial noncompliance and

efforts at rehabilitation. Under the circumstances, the court did not

abuse its discretion by committing the juvenile to four years in DYS.

10

VI. Disposition

¶ 22

The sentence is affirmed.

JUDGE ROMÁN and JUDGE YUN concur.