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 September 6, 2018
2018COA128
No. 15CA0868 People v. Jompp — Crimes — Escapes; Criminal Law — Sentencing — Punishment for Habitual Offenders
A division of the Colorado Court of Appeals concludes that
section 18-1.3-801(5), C.R.S. 2013, precludes noncustodial escape
convictions from being used as a current conviction for adjudicating
a defendant an habitual criminal. COLORADO COURT OF APPEALS 2018COA128
Court of Appeals No. 15CA0868 Mesa County District Court No. 13CR1336 Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Allen Jompp,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE HAWTHORNE Berger and Miller*, JJ., concur
Announced September 6, 2018
Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Sean J. Lacefield, 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, Christopher Allen Jompp, appeals the judgment of
conviction entered on jury verdicts finding him guilty of third degree
assault, robbery, and escape. He also appeals his sentence. We
affirm the judgment, but we vacate his sentence on the escape
conviction and remand the case for resentencing on that conviction.
We affirm the remainder of the sentence.
I. Factual Background and Procedural History
¶2 Jompp, the victim, and an acquaintance, B.B., were driving
around one evening in a stolen car while high on
methamphetamine. During the night they stopped at two
apartments to use more methamphetamine. Another acquaintance,
C.P., who was also high, left with the group from the second
apartment. The four continued to drive around town, with the
victim driving, Jompp in the passenger seat, and B.B. and C.P.
sitting in the back. Tension arose between the victim and Jompp.
The victim had propositioned B.B. and C.P. numerous times for sex
in return for money and drugs, and Jompp asked him to stop.
¶3 Eventually the victim parked the car near one of the
apartments they had visited earlier. What happened next isn’t
clear, but by all accounts a fight broke out between Jompp and the
1 victim. When the fight ended, the victim fell out of the driver’s side
door unconscious.
¶4 C.P. recalled that B.B. then got out of the car and hit and
kicked the victim while he was on the ground. B.B. said, however,
that she remained in the car and saw C.P. go over to the victim.
C.P. admitted that at some point after the victim was unconscious
on the ground, at Jompp’s direction, she went through the victim’s
pockets, took money from him, and gave it to Jompp. B.B. also
took the victim’s cell phone from the backseat.
¶5 Jompp, B.B., and C.P. left the victim on the ground and
dropped the car off in an alley. Around four o’clock that morning a
security guard noticed the victim still on the ground and called the
police. An ambulance took him to the emergency room where he
was diagnosed with multiple serious head injuries.
¶6 The police traced the victim’s cell phone to B.B., who identified
Jompp as the victim’s assailant. Days after the victim was injured,
the police found Jompp and C.P. The police ordered Jompp to the
ground, handcuffed him, and searched him. One officer led Jompp
to a police car to take him to jail. As the officer was about to place
2 Jompp in the police car’s back seat, Jompp took off running. After
a short chase, the police caught Jompp and he was taken to jail.
¶7 The victim died approximately one month later from the
injuries he sustained in the fight.
¶8 The People charged Jompp with second degree murder, second
degree assault, robbery, escape, and several habitual criminal
counts. At trial, Jompp’s defense theories were that B.B. killed the
victim and that the prosecution otherwise failed to prove the
charges. The jury convicted Jompp of third degree assault, robbery,
and escape. The trial court adjudicated Jompp an habitual
criminal1 and sentenced him to forty-eight years in prison.
II. Speedy Trial
¶9 Jompp contends the court violated his speedy trial rights by
continuing his jury trial, over his objection, beyond six months after
he pleaded not guilty and thirteen months after he was arrested.
We disagree.
1 While we prefer “[a] habitual criminal,” we use the statute’s language. See The Chicago Manual of Style § 5.72 (17th ed. 2017). 3 A. Preservation
¶ 10 The People agree that Jompp preserved his statutory speedy
trial claim, but argue that he didn’t preserve his constitutional
speedy trial claim.
¶ 11 At the hearing to continue the trial, defense counsel objected
“to the continuance of Mr. Jompp’s speedy trial rights under the
Federal and State Constitutions, as well as, his statutory right.”
But for the rest of the hearing, the parties and the court only
discussed and considered the statutory speedy trial elements
required to continue the trial.
¶ 12 On the morning of trial, defense counsel again objected:
Judge, at this time, I wanted to reiterate a previous objection we made for the record. It is the Defense’s position that [the] Prosecution’s previous request to continue the trial that was in the context of their unavailability of some witnesses. It is the Defense’s position that there was not good cause for that at that time. And as such, it is our position that this trial is outside of speedy trial. So we are objecting to being outside of speedy trial. We’d ask the Court to note that objection.
¶ 13 So at both the hearing and trial, defense counsel “provided no
analysis of the constitutional issues and never sought a ruling from
4 the trial court.” People v. Roberts, 2013 COA 50, ¶ 48. Nor did he
“ask the court to determine whether, under the applicable four-part
balancing test of Barker v. Wingo, 407 U.S. 514 (1972), and People
v. Small, 631 P.2d 148 (Colo. 1981), the delay in this case violated
the state and federal constitutions.” People v. Scialabba, 55 P.3d
207, 209-10 (Colo. App. 2002); see People v. McMurtry, 122 P.3d
237, 243 (Colo. 2005) (“[H]e did not argue any of the elements of
this constitutional right in either his motion or at the hearing on
the motion.”). So Jompp didn’t preserve his constitutional speedy
trial claims.
¶ 14 But, unpreserved constitutional errors may be reviewed for the
first time on appeal. Reyna-Abarca v. People, 2017 CO 15, ¶ 37.
And we “do not presume acquiescence in the loss of fundamental
constitutional rights, and therefore indulge every reasonable
presumption against waiver.” People v. Rediger, 2018 CO 32, ¶ 39
(quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)). So we
review Jompp’s constitutional speedy trial claims for plain error.
See id. at ¶ 47.
5 B. Standard of Review
¶ 15 We review a trial court’s decision to apply the statutory speedy
trial exclusion in section 18-1-405(6)(g)(I), C.R.S. 2017, for an abuse
of discretion. Scialabba, 55 P.3d at 209. “We will not disturb the
trial court’s findings granting a continuance if the record supports
these findings.” People v. Trujillo, 2014 COA 72, ¶ 18.
An error is plain if it is obvious and substantial and so
undermines the trial’s fundamental fairness as to cast serious
doubt on the judgment of conviction’s reliability. Rediger, ¶ 48.
C. Additional Facts
¶ 16 Jompp was arrested on October 31, 2013. On March 14,
2014, he entered a not guilty plea and jury trial was set for August
25, 2014.
¶ 17 Over the following months, the prosecution sought to secure
B.B.’s attendance at trial. The prosecution knew B.B. lived in Utah
and in April 2014 asked the trial court to issue a certificate to
summon her from outside the state under section 16-9-203, C.R.S.
6 2017, which the court granted.2 After trying unsuccessfully to
serve B.B. the summons, the prosecution learned that she may
have been living at a different address in Utah, and in June the
court issued a second certificate to summon. In August the
prosecution requested a third certificate to summon, and the court
issued it with a recommendation that B.B. be taken into custody to
assure her presence at trial.
¶ 18 On August 18, 2014, the prosecution filed a motion to
continue the trial if B.B. was still unavailable. At the motion
hearing, the prosecutor provided additional information on his
efforts to locate and serve B.B. Specifically, the prosecutor
explained that he had three people from the police department
working with local Utah agencies. And, investigators had contacted
B.B. via Facebook and believed they could trace her cell phone,
which they guessed would probably take two to three weeks. The
investigators had also been following her on another Facebook
account she used under a different name. The prosecutor also said
2 Section 16-9-203, C.R.S. 2017, adopted the uniform act to secure the attendance of witnesses from without a state in criminal proceedings, which had also been adopted by Utah. 7 that B.B.’s biological son and the son’s adoptive parents were
cooperating and were still in touch with B.B. The investigators were
also tracking B.B.’s husband who had just been released from jail
and was thought to be with B.B.
¶ 19 The prosecutor also said there was a $25,000 outstanding
warrant in Utah, they were “close to getting her,” and that
“leads . . . on her address in the past two weeks looked very
promising,” but that she was “something of a couch surfer.” It
concluded that “there’s reasonable grounds to believe that we will
have her in the not too distant future.” The court granted the
motion and set Jompp’s trial date for December 1, 2014.
¶ 20 Not long after, B.B. was arrested in Utah based on the
certificate to summon and appeared in court in Colorado on
September 11, 2014. She testified at trial.
D. Statutory Speedy Trial
¶ 21 Section 18-1-405(1) provides a defendant a statutory right to
be brought to trial within six months from the date he or she enters
a not guilty plea. If a trial is not brought within this time frame,
generally the charges against the defendant must be dismissed.
8 § 18-1-405(1); see also People v. Roberts, 146 P.3d 589, 592 (Colo.
2006).
¶ 22 But section 18-1-405(6)(g)(I) allows an additional delay of up to
six months at the prosecution’s request, without the defendant’s
consent, if the prosecution demonstrates that (1) evidence material
to the state’s case is unavailable; (2) the prosecution has exercised
due diligence to obtain the evidence; and (3) there exist reasonable
grounds to believe the evidence will be available at a later date. The
prosecution must make a sufficient record that these three
elements have been met. People v. Trujillo, 2014 COA 72, ¶ 17. The
trial court may rely on the prosecution’s uncontested offers of proof.
Id.
¶ 23 Jompp contends that the court erred in continuing the trial
because the People’s evidence of “‘[p]romising leads’ to merely
contact a witness” wasn’t sufficient under the statute to show
“reasonable grounds to believe the evidence will be available at the
later date.”3 See § 18-1-405(6)(g)(I). We disagree.
3 Jompp doesn’t contest the other two statutory elements. 9 ¶ 24 We reject Jompp’s contention that this means the prosecution
must show that it’s “known or proved to be true” or “incapable of
failing.” To support this proposition, Jompp relies on a case from
another division of this court that said “[t]he prosecution must
prove with some certainty that the unavailable evidence will become
available at a later date,” but the Supreme Court has vacated that
opinion. People v. Valles, 2013 COA 84, ¶ 41, cert. granted,
judgment vacated, and case remanded, No. 13SC551, 2015 WL
4999239 (Colo. Aug. 24, 2015) (unpublished order). And the
statute simply requires that “there are reasonable grounds to
believe that this evidence will be available at the later date.” § 18-1-
405(6)(g)(I).
¶ 25 We also reject Jompp’s argument that prior case law effectively
requires the prosecution to provide evidence of a “cooperative
witness, known facts about later availability, or circumstances
within the State’s control.” In Trujillo, a division of this court found
that reasonable grounds existed that a witness’s testimony would
be available at a later date based on the prosecution’s statement
that “it believed a plea agreement with [the witness] would soon be
reached.” ¶ 23 (emphasis added); see also People v. Koolbeck, 703
10 P.2d 673, 677 (Colo. App. 1985) (“The court was entitled to believe
that if either the accomplice was acquitted or if he was convicted
but did not appeal, then his testimony would be available for trial at
the later date.”).
¶ 26 And, Jompp didn’t challenge the prosecution’s evidence or
otherwise show that its belief that it would secure the witness for
trial wasn’t reasonable. “Accordingly, the trial court acted within its
discretion by relying on the prosecution’s offer of proof and by
finding that there was a reasonable possibility [the witness] would
be available to testify.” Valles, ¶ 42.
¶ 27 We conclude that sufficient record evidence supported the
court’s granting of the prosecution’s request for a continuance. See
Marquez v. Dist. Court, 200 Colo. 55, 57-58, 613 P.2d 1302, 1304
(1980) (“The burden [of compliance with the speedy trial statute]
includes making a record sufficient for an appellate court to
determine statutory compliance.”).
E. Constitutional Speedy Trial
¶ 28 A defendant has a constitutional speedy trial right under the
United States Constitution’s Sixth Amendment and article II,
section 16 of the Colorado Constitution. Small, 631 P.2d at 154.
11 “The analysis of whether the constitutional right was violated differs
from the analysis of whether the statutory right was violated.”
People v. Nelson, 2014 COA 165, ¶ 21. Under both the Federal and
State Constitutions, “the right to a speedy trial attaches with the
filing of a formal charge or with a defendant’s arrest.” People v.
Glaser, 250 P.3d 632, 635 (Colo. App. 2010) (citing United States v.
Marion, 404 U.S. 307, 320 (1971), and People v. Chavez, 779 P.2d
375, 376 (Colo. 1989)). Under both provisions, compliance is
determined by considering four factors: (1) the length of the delay;
(2) the reasons for the delay; (3) the defendant’s assertion of the
right; and (4) the prejudice to the defendant resulting from the
delay. Barker, 407 U.S. at 530; Chavez, 779 P.2d at 376. A
defendant bears the burden of showing that his constitutional right
to a speedy trial was violated. Valles, ¶ 45.
¶ 29 Under the four Barker factors, we conclude that the trial court
didn’t plainly err by granting the prosecution’s requested
continuance.
¶ 30 First, the length of the delay was thirteen months. A delay
over a year is presumptively prejudicial. See Doggett v. United
States, 505 U.S. 647, 652 n.1 (1992). “This delay, however, was by
12 no means extreme.” Nelson, ¶ 33 (discussing delay just short of
fourteen months); see also People v. Fears, 962 P.2d 272, 279 (Colo.
App. 1997) (the defendant’s constitutional right wasn’t violated by
three-year delay between charge and trial). Still, Jompp was
incarcerated during this time. So this factor weighs in his favor.
¶ 31 Second, while the delay is attributable to the prosecution, the
delay was justified. See Barker, 407 U.S. at 531 (“Finally, a valid
reason, such as a missing witness, should serve to justify
appropriate delay.”). So this factor favors the prosecution.
¶ 32 Third, while Jompp asserted his right to a speedy trial, he “did
not expand upon that argument” at any time. Valles, ¶ 49. This
factor may slightly favor Jompp because he generally asserted his
right.
¶ 33 Fourth, Jompp asserts he was prejudiced by “oppressive
pretrial incarceration” because he was incarcerated from arrest
until trial. The Supreme Court in Barker identified three interests
of a defendant to consider in assessing prejudice: (1) preventing
oppressive pretrial incarceration; (2) minimizing the accused’s
anxiety and concern; and (3) limiting the possibility the defense will
be impaired. 407 U.S. at 532. “Of these, the most serious is the
13 last, because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system.” Id. Jompp doesn’t
describe how his incarceration was oppressive or unjustified and
doesn’t establish any prejudice to his defense from his
incarceration. See Nelson, ¶ 41 (“[H]e presented no evidence or offer
of proof to establish any such anxiety or concern beyond that
normally to be expected from the fact of a criminal prosecution.
And he did not allege, much less establish, any prejudice to the
defense resulting from the delay.”); People v. Fennell, 32 P.3d 1092,
1095 (Colo. App. 2000) (“[S]ignificantly, defendant has not asserted
any specific prejudice resulting from the delays. In this context, the
fact that defendant was incarcerated is given slight weight absent a
showing that his ability to present a defense was impaired.”). So
this factor favors the People.
¶ 34 Having reviewed the four factors, we conclude the trial court
didn’t plainly err because Jompp’s constitutional right to a speedy
trial wasn’t obviously violated.
III. Sufficient Evidence Supported the Robbery Conviction
¶ 35 Jompp contends that the prosecution “presented insufficient
evidence” that he committed robbery, as either a principal or
14 accomplice, because it (1) failed to show that he “applied physical
violence against [the victim] during the course of an unlawful taking
of property from his person or presence”; and (2) “presented nothing
more than speculation . . . that [the theft] was even conceived,
much less started, until after the assault.” We disagree.
A. Standard of Review and Governing Law
¶ 36 We review the evidence’s sufficiency de novo. Dempsey v.
People, 117 P.3d 800, 807 (Colo. 2005). We must determine
whether the evidence, when viewed as a whole and in the light most
favorable to the prosecution, is substantial and sufficient to support
a conclusion by a rational fact finder that the defendant is guilty
beyond a reasonable doubt. Clark v. People, 232 P.3d 1287, 1291
(Colo. 2010). We give the prosecution the benefit of every
reasonable inference that can fairly be drawn from the evidence, so
long as any inference is supported by a convincing logical
connection between the facts established and the conclusion
inferred. People v. Perez, 2016 CO 12, ¶ 25; People v. Villalobos,
159 P.3d 624, 627 (Colo. App. 2006) (“[W]here reasonable minds
could differ, the evidence is sufficient to sustain a conviction.”).
15 ¶ 37 A person commits robbery if he “knowingly takes anything of
value from the person or presence of another by the use of force,
threats, or intimidation.” § 18-4-301(1), C.R.S. 2017. “The
gravamen of robbery is the application of physical force or
intimidation against the victim at any time during the course of a
transaction culminating in the taking of property from the victim’s
person or presence.” People v. Bartowsheski, 661 P.2d 235, 244
(Colo. 1983). “There is no requirement that the application of force
or intimidation must be virtually contemporaneous with the
taking.” Id. at 244-45.
¶ 38 In Bartowsheski, the supreme court held that the evidence
was sufficient to support a conviction for robbery where the
defendant entered a house to steal guns; killed a child who was
awakened and had gotten into his path; and, at some point after the
attack, took guns from the house. Id. at 243-45.
B. Analysis
¶ 39 The record contains sufficient evidence to support the jury’s
conclusion beyond a reasonable doubt that Jompp robbed the
victim.
16 ¶ 40 B.B. said that while the group was parked in the car, Jompp
suddenly attacked the victim. After Jompp and the victim
exchanged blows, the victim fell out of the car and onto the ground.
B.B. said she then saw C.P. get out of the car, go over to the victim,
and start digging through his pockets. C.P. then got back in the car
and the group left the scene. And C.P. admitted that she went
through the victim’s pockets to get money at Jompp’s direction and
she gave him the money she found. But she was unsure whether
she took the money after the fight or later when she went back to
check on the victim.
¶ 41 We acknowledge that other evidence may support the contrary
conclusion that the assault resulted solely from the argument
between Jompp and the victim and wasn’t part of “the course of a
transaction culminating in the taking of property from the victim.”
But as to such factual determinations, “[w]e do not sit as a
thirteenth juror to determine the weight of the evidence presented
to the jury.” Clark, 232 P.3d at 1293.
¶ 42 We also reject Jompp’s argument that the prosecution had to
show that the force he used against the victim was “calculated to
take [the victim’s] money.” Robbery isn’t a specific intent crime, so
17 it doesn’t require proof of intent to permanently deprive another
person of the use or benefit of a thing of value. People v. Moseley,
193 Colo. 256, 262, 566 P.2d 331, 335 (1977). And under
Bartowsheski’s “course of the transaction” doctrine, Jompp’s use of
force against the victim during the course of a transaction in which
C.P., as his accomplice,4 took the victim’s money was sufficient to
constitute a robbery. See Bartowsheski, 661 P.2d at 244; People v.
Buell, 2017 COA 148, ¶ 26 (evidence necessarily sufficient to
support aggravated and attempted aggravated robbery convictions
where the defendant committed theft and used a knife to avoid
apprehension) (cert. granted Apr. 23, 2018). Whether Jompp told
C.P. to take the money before, after, or contemporaneous with the
assault, his use of force against the victim made it possible for C.P.
to take the money without resistance. See People v. Davis, 935 P.2d
79, 85 (Colo. App. 1996) (“Thus, the [Bartowsheski] court
essentially set out a ‘but for’ test — but for the force, the victim
would have kept the property, irrespective of how the force was
used.”).
4 The court instructed the jury on accomplice liability. 18 IV. The Court Didn’t Err by Refusing to Give the Resisting Arrest Instruction
¶ 43 Jompp contends that the court erred by failing to instruct the
jury that it could convict him of the lesser nonincluded offense of
resisting arrest. We disagree.
A. Standard of Review
¶ 44 “Colorado cases have not conclusively established the
standard of appellate review applicable to denials of lesser
nonincluded offense instructions.” People v. Wartena, 2012 COA
12, ¶ 29. But whether “the record contains sufficient evidence to
support instruction on a lesser offense is a factual inquiry reviewed
for an abuse of discretion.” Id. at ¶ 30; People v. Nozolino, 2014
COA 95, ¶ 43 (“Because the district court denied [the] instruction
on a factual basis, we review for an abuse of discretion.”); cf. People
v. Montante, 2015 COA 40, ¶ 32 (“We review de novo the trial
court’s refusal to give the lesser nonincluded offense instruction
because the court’s determination that the medical marijuana
registry fraud statute is inapplicable to defendant’s conduct is a
question of law.”). A court abuses its discretion when its decision is
19 “manifestly arbitrary, unreasonable, or unfair.” People v. Ibarra,
849 P.2d 33, 38 (Colo. 1993).
¶ 45 A defendant is entitled to a lesser nonincluded offense
instruction as part of his defense theory if the evidence provides a
rational basis to support a “verdict acquitting [the defendant] of a
greater offense . . . and convicting [the defendant] of the lesser
offense.” People v. Trujillo, 83 P.3d 642, 645 (Colo. 2004) (quoting
Bartowsheski, 661 P.2d at 242).
B. Additional Facts
¶ 46 Two police officers spotted Jompp outside an apartment
complex while interviewing a witness. One officer drew his
handgun and ordered him to the ground. Jompp lay face down
with his arms extended outward. Minutes later, other officers
arrived and handcuffed Jompp behind his back. An officer
searched him. One officer then led Jompp by the arm to the
officer’s patrol car to transport him to jail. While the officer was
checking the patrol car’s backseat before placing Jompp into it, he
briefly let go of Jompp, who ran off while still handcuffed. He was
caught shortly after and transported to jail.
20 ¶ 47 At trial, defense counsel tendered a resisting arrest instruction
as a lesser nonincluded offense of escape. Defense counsel argued
that whether Jompp was under arrest or was in the process of
being arrested when he ran away was a factual question for the jury
to decide. The court rejected the instruction because it found that
the arrest had already been effectuated and it didn’t think the
instruction would be appropriate based on the evidence.
C. The Evidence Didn’t Support Giving the Tendered Instruction
¶ 48 Jompp asserts that “there was a rational basis to acquit [him]
of escape while convicting [him] of resisting arrest because the
distinguishing element between the two offenses was the disputed
point . . . whether police established physical control sufficient to
provide reasonable assurance that Jompp would not leave.”
¶ 49 A person commits escape if “while being in custody or
confinement and held for or charged with but not convicted of a
felony, he knowingly escapes from said custody or confinement.”
§ 18-8-208(3), C.R.S. 2017. “[E]ffecting an arrest, in the sense of
establishing physical control over the arrestee, is required before a
person is ‘in custody’ for the purposes of the escape statute.”
People v. Thornton, 929 P.2d 729, 733 (Colo. 1996). “In custody” is
21 defined as the “physical control of the person by physical restraint
or by the person’s submission to control, which is sufficient to
provide reasonable assurance that he or she will not leave.” People
v. Padilla, 113 P.3d 1260, 1261 (Colo. App. 2005); see Thornton,
929 P.2d at 733.
¶ 50 A defendant commits resisting arrest “if he knowingly prevents
or attempts to prevent a peace officer, acting under color of his
official authority, from effecting an arrest of the actor, by . . . [u]sing
any other means which creates a substantial risk of causing bodily
injury to the peace officer or another.” § 18-8-103(1)(b), C.R.S.
2017.
¶ 51 The undisputed record evidence shows that Jompp was in
custody. He had already submitted to the police officer’s
instructions, was handcuffed, searched, and led by the arm to a
patrol car for transport to jail. By the time he ran from the officer,
he was already under the officer’s sufficient “physical control . . . by
physical restraint” and by his “submission to control” such that
there was a “reasonable assurance that he . . . [would] not leave.”
Padilla, 113 P.3d at 1261; see also People v. Stanley, 56 P.3d 1241,
1245 (Colo. App. 2002) (“The People do not contest that leg shackles
22 bound defendant when he allegedly resisted arrest. Defendant
argues that he was already in custody, and therefore the People
could not establish that he attempted to prevent a police officer
from effecting his arrest. We agree.”). That the officer removed his
hand from Jompp for an instant to prepare the patrol car’s back
seat doesn’t create a disputed factual issue, and “the mere chance
that a jury may reject uncontroverted testimony and convict on the
lesser charge does not require the trial court to instruct the jury on
the lesser charge.” People v. Carey, 198 P.3d 1223, 1234 (Colo.
App. 2008) (quoting People v. Hall, 59 P.3d 298, 300 (Colo. App.
2002)).
¶ 52 We conclude the court didn’t abuse its discretion by declining
to instruct the jury on the crime of resisting arrest.
V. Habitual Criminal Sentencing
¶ 53 Jompp contends the court convicted him in violation of his
Sixth Amendment right to a jury trial when, at sentencing, it, not
the jury, found that he had prior convictions and increased his
sentence under the habitual criminal sentencing statute. We reject
this contention.
23 ¶ 54 We review a sentence’s constitutionality de novo. Lopez v.
People, 113 P.3d 713, 720 (Colo. 2005). But because Jompp failed
to preserve this issue at trial, reversal is required only if the court
plainly erred. People v. Miller, 113 P.3d 743, 750 (Colo. 2005); see
Reyna-Abarca, ¶ 47.
¶ 55 In a nutshell, Jompp’s argument is a criticism of
Almendarez-Torres v. United States, 523 U.S. 224 (1998), where the
United States Supreme Court originally recognized a jury trial
exception for determining prior convictions for sentencing
enhancement purposes. This argument is based on a more recent
Supreme Court opinion in Alleyne v. United States, 570 U.S. 99,
111 (2013), which some have construed as criticizing Almendarez
and its progeny.
¶ 56 But the prior conviction exception remains well-settled law.
See Lopez, 113 P.3d at 723; People v. Parks, 2015 COA 158, ¶ 29;
People v. Poindexter, 2013 COA 93, ¶ 72. So the court didn’t err.
VI. Noncustodial Escape as an Habitual Criminal Current Offense
¶ 57 Jompp contends that his sentence is illegal because his
noncustodial escape conviction can’t be deemed a current offense
under the habitual criminal statute. The People disagree and
24 respond that noncustodial escape convictions are precluded only
from being used as prior convictions. We agree with Jompp.
¶ 58 A sentence that is beyond the court’s statutory authority is
illegal. People v. Anaya, 894 P.2d 28, 31 (Colo. App. 1994). A
sentence’s legality is a question of law that we review de novo.
People v. Bassford, 2014 COA 15, ¶ 20. We review a court’s
statutory construction de novo. People v. Hernandez, 250 P.3d 568,
570-71 (Colo. 2011).
¶ 59 “Our primary purpose in statutory construction is to ascertain
and give effect to the intent of the General Assembly.” Doubleday v.
People, 2016 CO 3, ¶ 19. We look first to the statute’s language,
giving words and phrases their plain and ordinary meanings. Id.
We read statutory words and phrases in context and construe them
according to the rules of grammar and common usage. Id.;
Marquez v. People, 2013 CO 58, ¶ 8 (“It is widely accepted that
where the legislature has not expressly defined a statutory term or
otherwise limited its meaning, that term must be given its ordinary
meaning.”). If the statute is unambiguous, we needn’t conduct any
further statutory analysis. Doubleday, ¶ 20.
25 B. Additional Facts
¶ 60 The jury convicted Jompp of escape, a class 4 felony. The
conviction had a presumptive sentencing range of two to six years.
At sentencing, the trial court found that the prosecution had proved
six habitual criminal counts and sentenced Jompp to twenty-four
years for the escape conviction under section 18-1.3-801(2)(a),
C.R.S. 2017.5
¶ 61 After Jompp appealed his conviction, he filed a motion for
limited remand with this court to allow the trial court to rule on his
pending Crim. P. 35(a) motion to correct an illegal sentence. A
division of this court granted the motion and, on limited remand,
Jompp challenged the escape sentence as illegal because section
18-1.3-801(5) C.R.S. 2013,6 precluded the court from imposing an
habitual criminal sentence on his escape conviction. The trial court
denied Jompp’s motion, and his appeal was recertified to this court.
5 Jompp was also adjudicated an habitual criminal on his robbery conviction and sentenced to twenty-four years on that conviction. 6 We cite to this statute’s subsection that was in effect at the time of
Jompp’s sentencing as the language relevant to this appeal has been subsequently amended. 26 C. Analysis
¶ 62 The trial court sentenced Jompp as an habitual criminal on
his escape conviction under section 18-1.3-801(2)(a)(I), C.R.S. 2017,
which states in relevant part as follows:
Except as otherwise provided . . . in subsection (5) of this section, every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony . . . shall be adjudged an habitual criminal and shall be punished: . . . For the felony offense of which such person is convicted . . . for a term of four times the maximum of the presumptive range.
So, to be “adjudged an habitual criminal” requires: (1) a current
conviction “of any felony” in Colorado and (2) three prior felony
convictions on charges separately brought and tried and arising out
of separate and distinct criminal episodes. Id.; see People v.
Hampton, 876 P.2d 1236, 1242 (Colo. 1994) (“An adjudication of
habitual criminality — a component of sentencing — is an integral
part of a conviction, not a separate conviction.”).
27 ¶ 63 Subsection (5) precludes certain escape convictions from being
used in habitual criminal adjudications, and the statute in effect at
the time of Jompp’s adjudication stated in relevant part as follows:
A conviction for escape . . . shall not be used for the purpose of adjudicating a person an habitual criminal as described in . . . subsection (2) of this section unless the conviction is based on the offender’s escape or attempt to escape from a correctional facility . . . or from physical custody within a county jail.
§ 18-1.3-801(5), C.R.S. 2013.7 Because Jompp didn’t escape from a
correctional facility or from within a county jail, for our purposes
here, subsection (5) can be boiled down as follows: “A conviction for
escape . . . shall not be used for the purpose of adjudicating a
person an habitual criminal as described in . . . subsection (2) of
this section.” Id.
¶ 64 We conclude that the statute’s plain language precluding
noncustodial escape convictions from being “used for the purpose of
7 We also note that the General Assembly has since amended subsection (5) to read: “A current or prior conviction for escape . . . may not be used for the purpose of adjudicating a person an habitual criminal as described in . . . subsection (2) of this section.” Ch. 374, sec. 1, § 18-1.3-801, 2017 Colo. Sess. Laws 1937 (emphasis added). Neither party contends that this should make a difference in our analysis. We don’t think it should. 28 adjudicating a person an habitual criminal,” id., applies to both
prior and current noncustodial convictions.
¶ 65 The word “purpose” is generally defined as “[a]n objective, goal,
or end.” Black’s Law Dictionary 1431 (10th ed. 2014). “The
purpose of the Habitual Criminal Act is to punish more severely
those individuals who show a propensity toward repeated criminal
conduct.” People v. Dist. Court, 711 P.2d 666, 670 (Colo. 1985). To
effectuate this purpose, that is to adjudicate a defendant as an
habitual criminal, requires that a defendant be convicted of a
qualifying current offense and of qualifying prior offenses. See § 18-
1.3-801(2)(a)(I), C.R.S. 2017; § 18-1.3-801(2)(b) (exempting certain
level 4 drug felonies as current offenses from habitual adjudication);
§ 18-1.3-801(3) (exempting certain “drug law conviction[s]” as prior
offenses for habitual adjudication). So under the statute’s plain
language, by definition, a conviction is “used for the purpose” of
adjudicating a person an habitual criminal whether it is used as the
current conviction or as a prior conviction. After all, both types of
convictions are necessarily used to achieve the statute’s purpose —
habitual criminal adjudication.
29 ¶ 66 To construe subsection (5)’s language as exempting only prior
noncustodial escape convictions from the habitual adjudication
process would be contrary to its common meaning. And “unless
[the language has] acquired a technical meaning by legislative
definition,” we must read “words and phrases in context and
construe them literally according to common usage.” People v.
Yascavage, 101 P.3d 1090, 1093 (Colo. 2004); see also Dep’t of
Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004) (“[W]e presume
that in using the phrase ‘state highway purposes,’ the General
Assembly intended that CDOT have a condemnation authority
which was broader than that needed simply for constructing ‘state
highways.’ To read the grant of authority as restricted to the list of
structures included in the definition of ‘highway’ under section 43-
1-203, as urged by the Respondent, would render the word
‘purposes’ in section 43-1-208(3) superfluous.”) (emphasis added).
¶ 67 The statute’s other subsections support our reading of
subsection (5)’s broad language. Where the General Assembly
intends to exempt only certain convictions from being prior offenses
for habitual adjudication purposes, it has specifically done so. See
§ 18-1.3-801(3) (“No drug law conviction shall be counted as a prior
30 felony conviction under this section unless such prior offense would
be a felony if committed in this state at the time of the commission
of the new offense.”) (emphasis added). And the General Assembly
has exempted certain convictions as current offenses using specific
language. § 18-1.3-801(2)(b) (“The provisions of paragraph (a) of
this subsection (2) shall not apply to a conviction for a level 4 drug
felony . . . even if the person has been previously convicted of three
or more qualifying felony convictions.”).
¶ 68 The People argue that if the General Assembly meant to
exempt noncustodial escape convictions as current convictions, it
could have used language similar to that in subsection (2)(b)
exempting level 4 drug felonies. But even though it didn’t, that
doesn’t alter the ordinary meaning of subsection (5)’s language.
Sometimes the legislature uses different language to achieve similar
results. See, e.g., Marquez, ¶ 15 (“[W]e find that the phrase ‘arising
out of the same incident’ . . . was not intended to convey any
meaning different from ‘arising from the same criminal episode.’”)
(citations omitted).
¶ 69 To be clear, we hold that section 18-1.3-801(5), C.R.S. 2013
precluded a noncustodial escape conviction from being used as a
31 current conviction for the purpose of adjudicating a person an
habitual criminal under subsection (2) of that section. We conclude
that the trial court erred in adjudicating Jompp an habitual
criminal on his noncustodial escape conviction.
VII. Conclusion
¶ 70 We affirm the trial court’s judgment of conviction. We vacate
the part of the sentence based on Jompp’s escape conviction and
remand for resentencing on that conviction. We affirm the
remainder of the sentence.
JUDGE BERGER and JUDGE MILLER concur.