People v. Jim

2017 COA 123, 424 P.3d 455

• Court: Colorado Court of Appeals
• Decided: September 21, 2017
• Docket: 16CA0191
• Status: Published

Opinion

COLORADO COURT OF APPEALS 2017COA123

Court of Appeals No. 16CA0191 Montezuma County District Court No. 15CR87 Honorable Douglas S. Walker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremiah Elijah Jim,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE LICHTENSTEIN Taubman and Nieto*, JJ., concur

Announced September 21, 2017

Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 Defendant, Jeremiah Elijah Jim, appeals the district court’s

order denying his postconviction motion seeking presentence

confinement credit (PSCC) for the time he spent in a residential

community corrections program before he was resentenced to the

custody of the Department of Corrections (DOC). We reverse and

remand for correction of the mittimus.

I. Background

¶2 In July 2015, defendant pleaded guilty to one count of

attempted aggravated motor vehicle theft, and the district court

sentenced him to eighteen months in community corrections. Two

months after reporting to community corrections, defendant

escaped.

¶3 Following his arrest, the district court resentenced him to

eighteen months in the custody of the DOC. At the resentencing

hearing, although defendant requested 129 days of PSCC for the

time he was held in jail waiting for his initial sentencing and the

time he spent in the residential community corrections program,

the district court only granted him 67 days of PSCC for the time he

was confined in the county jail prior to his initial sentencing.

1 ¶4 The next day, defendant filed a postconviction motion, again

requesting sixty-two days of credit for the time he was in

community corrections and also an additional twenty-three days for

the time he was in jail awaiting resentencing. The court, in a

written order, granted defendant twenty-three days of PSCC for the

time he spent in jail between his arrest and resentencing, but it

denied the request for PSCC related to the time he spent in

community corrections. The district court ruled that (1) under

section 18-1.3-301(1)(k), C.R.S. 2016, defendant was not entitled to

the credit for his community corrections time because he had

escaped; and (2) the holding in People v. Hoecher, 822 P.2d 8 (Colo.

1991), the case defendant relied on, was based on statutes that had

since been repealed.

II. Analysis

¶5 On appeal, defendant contends, the People concede, and we

agree that the court erred by not awarding him PSCC for the time

he spent in the residential community corrections program.

¶6 We review whether a defendant is entitled to PSCC de novo.

People v. Howe, 2012 COA 177, ¶ 12.

2 ¶7 When a person is confined for an offense prior to being

sentenced for that offense, he or she “is entitled to credit against

the term of his or her sentence for the entire period of such

confinement,” and “[a]t the time of sentencing, the court shall make

a finding of the amount of presentence confinement to which the

offender is entitled and shall include such finding in the mittimus.”

§ 18-1.3-405, C.R.S. 2016. Time spent by a defendant in jail, in a

DOC facility, or as a resident in a community corrections facility

constitutes confinement under section 18-1.3-405, because those

facilities limit an individual’s liberty. People v. Chavez, 122 P.3d

1036, 1037-38 (Colo. App. 2005); see also Hoecher, 822 P.2d at 11-

12. Thus, when a defendant is resentenced to DOC custody after

revocation of a direct sentence to community corrections, he or she

is entitled to credit for time served in a residential community

corrections placement, but not for time served in a nonresidential

placement. See §§ 17-27-104(9), 18-1.3-301(1)(j), C.R.S. 2016;

Hoecher, 822 P.2d at 12; see also People v. McGraw, 30 P.3d 835,

840 (Colo. App. 2001) (although Hoecher was decided prior to the

enactment of section 17-27-104(9) and section 18-1.3-301(1)(j)’s

3 predecessor,1 which together provide that an offender sentenced to

DOC custody after placement in a community corrections program

is entitled to credit for the number of days of residential placement

completed, the reasoning in that case is still applicable).

¶8 The record in this case reflects, and the parties do not dispute,

that defendant spent sixty-two days in a residential community

corrections facility, from August 10 to October 11, 2015, and thus

is entitled to sixty-two days of PSCC for this time.

¶9 We note that the district court, in denying defendant’s motion,

ruled that section 18-1.3-301(1)(k) barred defendant from receiving

PSCC for his time in community corrections because he had

escaped. We agree with both defendant and the People that the

court erred in interpreting the statute that way.

¶ 10 “[W]hen a statute is clearly part of a comprehensive regulatory

scheme, the scheme should be construed to give consistent,

harmonious, and sensible effect to all its parts.” Shipley v. People,

45 P.3d 1277, 1278 (Colo. 2002).

1In 2002, section 17-27-105(1)(j) was relocated to section 18-1.3- 301(1)(j). Ch. 318, sec. 2, § 18-1.3-301(1)(j), 2002 Colo. Sess. Laws 1386-89.

4 ¶ 11 Section 18-1.3-301(1)(k) provides that “[a]ny offender who

escapes from a residential community corrections program or who

absconds from a nonresidential community corrections program

shall forfeit any time credit deductions earned pursuant to

paragraph (i) of this subsection (1) and shall not be credited with

any time on escape or absconder status.” By the statute’s express

terms, only credits earned pursuant to section 18-1.3-301(1)(i) are

forfeited. Although not delineated as such, the time credits

discussed in section 18-1.3-301(1)(i) refer to good time and earned

time credits awarded by the community corrections program. See

People v. McCreadie, 938 P.2d 528, 531 (Colo. 1997); see also

People v. Pimble, 2015 COA 112, ¶¶ 11-12 (the time credits referred

to in section 18-1.3-301(1)(j), formerly codified at section 17-27-

105(1)(j), include “good time” and “earned time” credits). Therefore,

we conclude that section 18-1.3-301(1)(k) does not apply to awards

of PSCC.

¶ 12 Further, section 18-1.3-301(1)(k) refers only to time credit

deductions that are earned. An offender does not earn PSCC but

rather is entitled to it based upon his or her confinement before

sentencing or any resentencing. See § 18-1.3-405 (an offender is

5 entitled to PSCC based solely upon the length of time he or she was

confined before sentencing).

¶ 13 Consequently, defendant’s escape from community corrections

did not negate his right to receive PSCC for the time he spent in

residential community corrections. Accordingly, because the

district court erred in denying defendant’s motion for sixty-two days

of PSCC related to his time in a residential community corrections

program, we remand the case for the court to amend the mittimus

to include those additional days in the award of PSCC.

III. Conclusion

¶ 14 The order is reversed, and the case is remanded for the district

court to correct the mittimus to reflect that defendant is entitled to

a total of 152 days of PSCC.

JUDGE TAUBMAN and JUDGE NIETO concur.