Townsend v. People

252 P.3d 1108, 2011 WL 2139905

• Court: Supreme Court of Colorado
• Decided: May 31, 2011
• Docket: 09SC652
• Status: Published

Opinions

Justice RICE

delivered the Opinion of the Court.

Petitioner Terry Townsend appeals the judgment of the court of appeals affirming his conviction for escape by means of failing to remain within the extended terms of his confinement as established under his participation in an intensive supervision program ("ISP") as a condition of his parole. We agree with the court of appeals that the jury instructions issued by the trial court did not include any reversible error and that the ISP escape statute, section 17-27.5-104, C.R.S. (2010), is not unconstitutionally vague as applied to Townsend. We also conclude that Townsend waived his argument that the statute violates the separation of powers and nondelegation doctrines of the Colorado Constitution. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural Posture

The Colorado State Board of Parole placed Townsend on parole for one year starting November 5, 2004. Townsend's parole agreement required that he serve 180 days of his parole in an ISP under article 17-27.5, C.R.S. (2010).

On November 9, Townsend met with a parole officer to review his parole agreement, and signed several forms certifying, among other things, that he understood all of the conditions and directives of his parole, including required weekly meetings with his parole officer and assigned curfew hours at his residence of record, and that he understood he could be prosecuted for felony escape under sections 17-27.5-104 and 18-8-208, C.R.S. (2010), if he failed to remain within the extended limits on his confinement under the ISP. Because Townsend was homeless, he and the parole officer set his residence of record as the Denver New Genesis homeless shelter. The officer faxed New Genesis the proper paperwork to arrange payment for two weeks of housing for Townsend.

Several days later, Townsend was arrested and jailed on an unrelated charge. On November 16, Townsend's parole officer filed a complaint seeking to revoke Townsend's parole. The new charge was dropped, and at a hearing on March 3, 2005, the parole board dismissed the complaint and reinstated Townsend's parole, restarting the 180~-day ISP period. Townsend verbally agreed that he understood the terms of the ISP.

After the parole board hearing, Townsend's parole officer arranged for his release from jail later that day. The officer ordered Townsend to report immediately to the parole office to review his original parole paperwork if he was released during the office's business hours. The officer alternatively ordered Townsend to report that evening to New Genesis and at 8 a.m. the next day to the parole office if he was released after business hours. Townsend signed a form certifying that he understood the requirements that he report to the parole office and/or his residence of record.

Although it is unclear when Townsend was released, he never reported either to the parole office or to New Genesis. On March 15, his parole officer filed another complaint, and on March 24, Townsend was arrested again. The People charged Townsend with class 3 felony escape under section 18-8-208(2). A jury found him guilty, and the trial court sentenced him to five years imprisonment. Townsend appealed to the court of appeals, which affirmed his conviction. We granted Townsend's petition for certiorari review.¹

II. Analysis

Townsend contends that reversal of his conviction is warranted: (A) because the trial court's jury instructions were erroneous; (B) because section 17-27.5-104 is unconstitutional as applied to him; and (C) because section 17-27.5-104 violates the separation of powers and nondelegation doctrines of the Colorado Constitution. We find these arguments unpersuasive.

A. Jury Instructions

A trial court must correctly instruct the jury on applicable law, but retains substantial discretion over the form and style of jury instructions. Krueger v. Ary, 205 P.3d 1150, 1157 (Colo.2009) (citing Jordan v. Bogner, 844 P.2d 664, 667 (Colo.1998); Montgomery Ward & Co. v. Kerns, 172 Colo. 59, 63-64, 470 P.2d 34, 86-37 (1970). Accordingly, we review legal conclusions implicit in jury instructions de novo, see Romero v. People, 179 P.3d 984, 986 (Colo.2007), but review issues of form and style for an abuse of discretion, see Krueger, 205 P.3d at 1157.

1. Elements of Escape

Townsend first contends that the trial court's jury instructions failed to set forth all the elements of escape under the combined meaning of sections 18-8-208(2) and 17-27.5-104. We disagree.

The People charged Townsend under seetion 18-8-208(2), which provides that "[a] person commits a class 3 felony if, while being in custody or confinement ..., he knowingly escapes from said custody or confinement." Accordingly, the trial court instructed the jury that "[the elements of the crime of Escape are ... [that [Townsend] . was in custody or confinement, and knowingly escaped from custody or confinement."

The People's specific theory of Townsend's escape rested on section 17-27.5-104, which provides that "[if an offender fails to remain within the extended limits on his confinement as established under the [ISP] ..., he shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208." Accordingly, the trial court instructed the jury that " '[elustody or confinement' includes the extended limits of confinement as established under the [ISP]."

Read together, these instructions plainly set forth the elements of escape under sections 18-8-208(2) and 17-27.5-104; that Townsend was within the extended limits on his confinement as established under the ISP and that he knowingly escaped from those limits. While the jury instructions did not specifically equate the term "escaped" to the statutory language of "failed to remain," the plain and ordinary definitions of the terms convey substantially the same legal meaning. Accordingly, we reject Townsend's contention that the instructions did not set forth the elements of escape.

2. Definition of "Extended Limits of Confinement"

Townsend also argues that the trial court's definitional instruction encompassed conduct that did not rise to the level of escape under the meaning of sections 18-8-208(2) and 17-27.5-104. In particular, Townsend contends that the instruction impermissibly allowed the jury to consider parole limitations that are not judicially recognized "extended limits on confinement" as a part of the "custody or confinement" from which he could have escaped.

Townsend first contends that the definitional instruction permitted the jury to con-viet him for failing to report to a residence of record despite his contentions that he was not subject to ISP when he was released from jail on March 3, 2005, and that he did not have a residence of record at that time in any case. This contention, however, is a thinly veiled attempt to challenge the court of appeals' conclusion that there was sufficient evidence that, on March 3, Townsend was on ISP according to the terms of his original parole agreement, that he was on notice of the terms, and did have a residence of record to which he failed to report. We denied certiorari review of this issue and reject Townsend's attempt to revisit it.

Townsend concedes that a parolee's failure to report to his residence of record constitutes escape under sections 18-8-208(2) and 17-27.5-104 in light of a long line of precedent from the court of appeals, including People v. Sa'ra, 117 P.3d 51, 55 (Colo.App.2004); People v. Smith, 77 P.3d 751, 754-56 (Colo.App.2003); People v. Taylor, 74 P.3d 396, 399-400 (Colo.App.2002); People v. Perea, 74 P.3d 326, 331 (Colo.App.2002); and People v. Williams, 33 P.3d 1187, 1188-89 (Colo.App.2001). Accordingly, we perceive no error in the possibility that he was con-viected for escape for failing to report to his residence of record under the terms of the ISP.

Second, Townsend contends that the definitional instruction permitted the jury to convict him for failing to report to his parole officer and establish a residence of record as required under the terms of the ISP, failures which he concedes violate the conditions of his parole but which he contends do not rise to the level of escape under the meaning of sections 18-8-208(2) and 17-27.5-104.

Townsend, however, tendered the portion of the instruction that defined "extended limits of confinement" as "the geographic, time limits [sic] and other established ISP directives placed on the defendant under the [ISP]" (emphasis added). Under the invited error doctrine, we will not review alleged errors in jury instructions drafted and tendered by the defense. People v. Zapata, 779 P.2d 1307, 1308-09 (Colo.1989). Accordingly, we decline to address whether a parolee's failure to report to his parole officer and establish a residence of record constitutes escape under the meaning of sections 18-8-208(2) and 17-27.5-104 because any error in the possibility that Townsend was convicted on that basis is attributable to his tendered jury instruction.²

3. Definition of "Escape"

Finally, Townsend contends that the trial court's definition of "escape" as "a continuing activity commencing with the conception of the design to escape" could have permitted the jury to convict him for merely thinking about failing to remain within the extended limits on his confinement under the ISP, rather than actually failing to do so. The People, however, alleged that Townsend escaped by failing to remain within the extended limits on his confinement, not merely by thinking about failing to remain within them. Accordingly, the error in the definition, if any, was harmless, and we need not address it further. See Key v. People, 715 P.2d 319, 323 (Colo.1986) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), Graham v. People, 705 P.2d 505 (Colo.1985); People v. Myrick, 638 P.2d 34 (Colo.1981); People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978)). Moreover, because we recognize only the mere possibility of a single harmless error in one jury instruction, we find no cumulative error warranting the reversal of Townsend's convietion.

B. The Constitutionality of Section 17-27.5-104 as Applied to Townsend's Conduct

Like the court of appeals, we doubt that Townsend properly preserved his as-applied constitutional challenge to section 17-27.5-104 at trial. In Townsend's motion to dismiss, he asserted that the statute was facially unconstitutional unless the term "extended limits on confinement" in the statute referred to "the Denver Metro Area" or had some other ambiguous meaning that the trial court was obliged to construe as "the Denver Metro Area." On appeal, he argued instead that the statute was unconstitutional as applied to him because he had not received timely written notice that he could be liable for escape for failing to report to his residence of record upon his release from jail on March 3, 2005. We will not consider constitutional arguments raised for the first time on appeal. Martinez v. People, 244 P.3d 135, 139 (Colo.2010).

Even affording Townsend the benefit of the doubt that he somehow preserved this argument, we find it unavailing because it is yet another thinly veiled attempt to revisit his argument that there was insufficient evidence to conclude that he knowingly failed to report to his residence of record. Again, the court of appeals rejected this argument, and we denied certiorari review and decline to address it further here. Accordingly, we have no premise upon which to conclude that section 17-27.5-104 is unconstitutional as applied to Townsend's actions, and will not reverse his conviction on that basis.

C. The Constitutionality of Section 17-27.5-104 under the Separation of Powers and Nondelegation Doctrines

Lastly, Townsend argues that section 17-27.5-104 violates the separation of powers and nondelegation doctrines of the Colorado Constitution by leaving the task of defining the meaning of "extended limits of confinement" to the Department of Corree-tions ("DOC"). We need not reach that contention, however, because Townsend waived it when he tendered a jury instruction that defined the meaning of "extended limits of confinement" to include "other established ISP directives placed on [Townsend] under the [ISP]" (emphasis added). By tendering that instruction, Townsend tactically conceded that section 17-27.5-104 proscribes escape from limitations established by his parole officer, a DOC employee.³ Townsend cannot retract his concession now simply because it was of constitutional dimension. See Zapata, 779 P.2d at 1309-10 (quoting Patterson v. State, 233 Ga. 724, 213 S.E.2d 612, 617-18 (1975). Accordingly, we decline to reverse Townsend's conviction on constitutional grounds.

III. Conclusion

Because Townsend presents no tenable basis for reversing his conviction, we affirm the judgment of the court of appeals.

Chief Justice BENDER concurs in part and dissents in part, and Justice MARTINEZ joins in the concurrence and dissent.

1 . Specifically, we granted certiorari to review:

1) Whether reversal is required where the jury instructions encouraged a jury verdict based on parole violations that do not constitute escape as a matter of law;

2) Whether section 17-27.5-104, CR.S. is unconstitutional because it is vague as applied; and

3) Whether section 17-27.5-104, C.R.S., is unconstitutional because it violates the separation of powers and nondelegation doctrines of the Colorado Constitution.

2 . Townsend contends that his tender of the definition was a mistake rather than a part of his trial strategy, and urges that application of the invited error doctrine is inappropriate under this court's holding in People v. Stewart, 55 P.3d 107, 119 (Colo.2002). We are unpersuaded. The trial court instructed the jury on Townsend's tendered theory-that he was not subject to the original terms of the ISP when he was released from jail on March 3, 2005. It is hardly inconceivable that Townsend strategically chose to concede that the "extended limits of his confinement'"' included "established ISP directives" when his primary argument was that no ISP directives had been established for him.

3 . See discussion supra, note 2.