v. Trujillo

2019 COA 74

• Court: Colorado Court of Appeals
• Decided: May 16, 2019
• Docket: 16CA2176, People
• Status: Published

Opinion

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 May 16, 2019

2019COA74

No. 16CA2176, People v. Trujillo — Crimes — Offenses Involving Family Relations — Domestic Violence — Domestic Violence Treatment Programs

A division of the court of appeals addresses the issue whether

a defendant sentenced to jail can also be required to complete a

domestic violence treatment program under section 18-6-801(1)(a),

C.R.S. 2018. The division first concludes that section

18-6-801(1)(a) provides a general rule: a trial court must, in

addition to any sentence that it may impose, order a defendant who

has committed a crime of domestic violence to complete a domestic

violence treatment program. But, second, section 18-6-801(2)

provides an exception to the general rule: if the court sentences a defendant to prison, it cannot order the defendant to complete a

domestic violence treatment program.

The division concludes that, because the trial court in this

case sentenced defendant to jail, the exception in section

18-6-801(2) does not apply. As a result, the trial court properly

denied defendant’s Crim. P. 35(a) motion. COLORADO COURT OF APPEALS 2019COA74

Court of Appeals No. 16CA2176 Pueblo County District Court No. 14CR2131 Honorable Larry C. Schwartz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mario Trujillo,

Defendant-Appellant.

ORDER AFFIRMED

Division V Opinion by CHIEF JUDGE BERNARD Pawar and Davidson*, JJ., concur

Announced May 16, 2019

Philip J. Weiser, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Denver, Colorado, Alex San Filippo-Rosser, Deputy State Public Defender, Pueblo, 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. 2018. ¶1 This appeal calls on us to decide whether an express exception

to a general statutory rule applies to an arguably related

circumstance that is not mentioned in the exception.

¶2 The general rule appears in section 18-6-801(1)(a), C.R.S.

2018. This subsection (1)(a), which addresses crimes that include

acts of domestic violence, requires a court to order a defendant who

has committed such a crime to “complete a treatment program and

a treatment evaluation that conform with the standards adopted by

the domestic violence offender management board.”

¶3 The exception appears in section 18-6-801(2). This subsection

(2) states that the requirements of subsection (1) “shall not apply to

persons sentenced to the department of corrections.” In other

words, a court that has sentenced a defendant to prison for a

domestic violence crime cannot order him to complete a treatment

program as described in subsection (1).

¶4 The question we must answer in this appeal is: Does the

exception in subsection (2) prevent a court from ordering a

defendant to complete a treatment program if the court has

sentenced the defendant to jail? We answer that question “no.” We

conclude, because of the reasons that we explain below, that

1 subsection (1)(a) applies to all sentences except for prison

sentences.

¶5 In this case, the trial court imposed a two-year jail sentence on

defendant, Mario Trujillo, for a misdemeanor involving domestic

violence. The court also ordered him to complete a certified

domestic violence treatment program. He appeals. We affirm.

I. Background

¶6 The prosecution originally charged defendant with third degree

assault, menacing, harassment, being a domestic violence habitual

offender, and obstruction of telephone service. It also alleged that

the facts of the case met the definition of domestic violence in

section 18-6-800.3, C.R.S. 2018.

¶7 Defendant agreed to plead guilty to third degree assault.

Under the plea agreement, he stipulated that the crime involved an

act of domestic violence, that the court would sentence him to two

years in jail, and that he would complete “a court certified domestic

violence treatment and/or education program.”

¶8 The trial court accepted defendant’s plea. It then sentenced

him to two years in jail, which was the maximum possible jail

sentence; it ordered him to complete a domestic violence treatment

2 program; and it set a review hearing for a year later to determine

whether he had complied with the treatment order.

¶9 Defendant then filed a Crim. P. 35(a) motion, which alleged

that the treatment order was illegal and asked the trial court to

vacate it. The court held a hearing on the motion. Relying, in part,

on section 18-6-801(1)(a), the court decided that it had the

authority to enter the treatment order because the order was “in

addition to,” not part of, defendant’s sentence.

¶ 10 The court then offered to set a review hearing. Defendant

objected, arguing that the court did not have the authority to set

further review hearings because they would be “akin to some sort of

probationary sentence.” He added that the prosecution could

“initiate proceedings” for contempt, but the court did not have “the

authority to order [him] to appear . . . when no contempt proceeding

[was] ongoing.” The court agreed, and it set an internal review as a

presumptive deadline for defendant to file some proof of his

enrollment in a treatment program. The court then noted that it

would be, at that point, “up to the [prosecution] to take any action”

if he had not completed the program.

3 II. Subsection (1)(a)’s Plain Language Requires the Trial Court to Order Domestic Violence Treatment

¶ 11 Defendant contends that the legislature did not intend for the

general rule in subsection (1)(a) to apply to jail sentences. We

disagree.

A. Standard of Review and Statutory Interpretation Principles

¶ 12 This appeal requires us to interpret statutes. We review such

issues de novo. People v. Ortiz, 2016 COA 58, ¶ 15.

¶ 13 When we interpret statutes, we must ascertain and give effect

to the legislature’s intent. Colo. Dep’t of Revenue v. Creager

Mercantile Co., 2017 CO 41M, ¶ 16. In doing so, “[w]e give effect to

words and phrases according to their plain and ordinary

meaning[s].” Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo.

2011). And “we will not interpret a statute to mean that which it

does not express.” Carruthers v. Carrier Access Corp., 251 P.3d

1199, 1204 (Colo. App. 2010).

¶ 14 If a statute’s language is clear, we apply it as the legislature

wrote it. Denver Post Corp., 255 P.3d at 1089. We “must read and

consider the statutory scheme as a whole to give consistent,

harmonious and sensible effect to all its parts.” Charnes v. Boom,

4 766 P.2d 665, 667 (Colo. 1988). “In interpreting a comprehensive

legislative scheme, we must construe each provision to further the

overall legislative intent behind the statutes.” Martin v. People, 27

P.3d 846, 851-52 (Colo. 2001). And, “when interpreting more than

one statute, we will favor a construction that avoids potential

conflict between the relevant provisions.” People v. Smith, 971 P.2d

1056, 1058 (Colo. 1999).

B. Crim. P. 35(a) versus Crim. P. 35(c)

¶ 15 The prosecution contends that defendant rode the wrong

horse — Crim. P. 35(a) — to the courthouse; he should have relied

on Crim. P. 35(c) instead. Crim. P. 35(a) provides that a “court may

correct a sentence that was not authorized by law or that was

imposed without jurisdiction at any time . . . .” Crim. P. 35(c) is

“the proper postconviction route in which to challenge . . .

sentences as unconstitutional.” People v. Collier, 151 P.3d 668, 670

(Colo. App. 2006). And a defendant may assert that a court

“rendering judgment was without jurisdiction over . . . the subject

matter” in a Crim. P. 35(c) motion. Crim. P. 35(c)(2)(III).

¶ 16 The prosecution supports its contention by asserting that the

treatment order was not part of defendant’s sentence. We agree.

5 ¶ 17 In subsection (1)(a), the legislature characterized a treatment

order as something other than a sentence. Section 18-6-801(1)(a)

states that, “[i]n addition to any sentence” imposed, the trial court

“shall” order the defendant to “complete a treatment program.”

(Emphasis added.)

¶ 18 Plus, domestic violence treatment, as contemplated by

subsection (1)(a), “is not a form of punishment,” and subsection

(1)(a) “does not mandate a ‘penalty.’” People v. Heisler, 2017 COA

58, ¶ 45; see Allen v. People, 2013 CO 44, ¶ 7 (“Unlike a criminal

sentence, the [sexually violent predator] designation is not

punishment. . . . [A] trial court’s decision to designate an offender

as [a sexually violent predator] is legally and practically distinct

from its sentencing function.”).

¶ 19 We therefore conclude that the contentions defendant raises

on appeal are cognizable under Crim. P. 35(c) instead of under

Crim. P. 35(a). But, as the prosecution concedes, we must

nonetheless address the merits of these contentions because

defendant timely filed his motion.

6 C. Analysis

¶ 20 Section 18-6-801(1)(a) provides that, “[i]n addition to any

sentence” imposed, the trial court “shall” order the defendant to

“complete a treatment program.” Subsection (2) provides that the

provisions of subsection (1)(a) do “not apply to persons sentenced to

the department of corrections.” When we read these two

subsections together, we conclude that they are clear and

unambiguous.

¶ 21 The legislature’s use of the word “shall” requires the trial court

to order a defendant convicted of a domestic violence crime to

complete a treatment program. See People v. Dist. Court, 713 P.2d

918, 921 (Colo. 1986)(“[T]he use of the word ‘shall’ in a statute is

usually deemed to involve a mandatory connotation.”). The use of

the word “any” means that the statute applies to all sentences. See

Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo. 2007)(“When used as

an adjective in a statute, the word ‘any’ means ‘all.’”).

¶ 22 The legislature provided a single, explicit exception in

subsection (2): if the trial court sentences a defendant to prison, it

cannot also order him to complete a treatment program. See

Partners in Change, L.L.C. v. Philp, 197 P.3d 232, 235-36 (Colo.

7 App. 2008)(“[W]hen the General Assembly intended to exempt

certain domestic violence offenders from treatment . . . it did so

expressly” in subsection (2).); People v. Torres, 141 P.3d 931, 937

(Colo. App. 2006)(noting that the trial court could not order

treatment because it sentenced the defendant to prison). Generally,

we interpret the legislature’s “inclusion of a single, specific, narrow

exception to mean that the [legislature] intended that there be no

other exceptions to the rule.” Cain v. People, 2014 CO 49, ¶ 13.

¶ 23 The trial court sentenced defendant to jail, not to prison. Jail

and prison are decidedly different. Prison “has long been

recognized as the proper place for the incarceration of those

convicted of the graver offenses[,] . . . while county jails have been

utilized for the confinement of those convicted of minor offenses.”

Brooks v. People, 14 Colo. 413, 414, 24 P. 553, 553 (1890).

¶ 24 Because the court sentenced defendant to jail instead of

prison, we reject his assertion that subsection (1)(a) did not require

the court to order him to complete a treatment program. To agree

with him would be to “create an exception to a statute that the plain

meaning does not suggest or demand.” A.C. v. People, 16 P.3d 240,

243 (Colo. 2001).

8 ¶ 25 When defendant pled guilty to third degree assault, he

stipulated that (1) the offense involved domestic violence; (2) he

would be incarcerated in a jail for two years; and (3) he would

participate in a certified domestic violence treatment program. His

plea and the three stipulations accompanying it triggered the

requirements of subsection (1)(a). We therefore reject his assertion

that subsection(1)(a) did not require the trial court to issue the

treatment order.

¶ 26 We are not otherwise persuaded by defendant’s contention

that section 16-11.8-103(4)(a)(II), C.R.S. 2018, modifies subsection

(1)(a) to exclude jail sentences from the treatment requirement.

This assertion begins by pointing to additional language in section

18-6-801(1)(a), which declares that a defendant must complete a

treatment program that “conform[s] with the standards adopted by

the domestic violence offender management board as required by

section 16-11.8-103(4).” Section 16-11.8-103(4)(a)(II), defendant

continues, decrees that the domestic violence treatment board shall

adopt treatment programs for “offenders . . . who are placed on

probation, placed on parole, or placed in community corrections or

who receive a deferred judgment and sentence.” This statute does

9 not, defendant wraps up, refer to offenders whom courts have

sentenced to jail.

¶ 27 But “we must avoid statutory constructions that render

statutory provisions a nullity,” People v. Morales, 2012 COA 2, ¶ 60,

and constructions that would create “potential conflict between the

relevant provisions” that does not necessarily exist, see Smith, 971

P.2d at 1058. We conclude, for the following reasons, that

defendant’s contention would render the general rule found in

subsection (1)(a) a nullity and that it would create a conflict

between subsection (1)(a) and section 16-11.8-103(4)(a)(II) that does

not exist.

1. The language of section 16-11.8-103(4)(a)(II) on which

defendant relies only addresses a duty of the domestic

violence offender management board; it does not address

the authority of courts.

2. Section 16-11.8-103(4)(a)(II) does not refer to the court’s

obligation in section 18-6-801(1)(a) to order defendants to

participate in treatment programs, and it does not

incorporate or add to the exception to the general rule in

section 18-6-801(2).

10 3. Defendant’s contention omits additional language in

section 16-11.8-103(4)(a)(II), which mandates that “the

programs shall be developed in such a manner that, to

the extent possible, [they] may be accessed by all

offenders in the criminal justice system.” (Emphasis

added.) An offender whom a court has sentenced to jail

falls within the broad class of all the offenders in the

criminal justice system.

4. Section 18-6-801(1)(c) states that “[n]othing in this

subsection (1) shall preclude the court from ordering

domestic violence treatment in any appropriate case.”

(Emphasis added.) This language reinforces the general

rule in subsection (1)(a).

5. Although section 16-11.8-103(4)(a)(II) requires the board

to adopt guidelines and standards for use in treatment

programs, it does not declare that such programs are

only available to defendants whom courts have “placed

on probation, placed on parole, or placed in community

corrections or who receive a deferred judgment and

sentence.” Rather, the guidelines and standards “shall”

11 apply to those individuals, but they need not only apply

to them.

III. Defendant’s Other Contentions

¶ 28 Defendant raises three other attacks on the treatment order.

We review these contentions de novo. See People v. Davis, 2012

COA 14, ¶ 6.

A. Court Probation

¶ 29 Defendant submits that the trial court placed him on

something called “court probation” when it entered the treatment

order because he would have to complete his treatment after his jail

term. “Court probation” is a form of probation “in which the

offender . . . reports only to the sentencing judge rather than [to] a

probation officer.” Black’s Law Dictionary 1396 (10th ed. 2014).

We conclude that this contention mischaracterizes what the court

did.

¶ 30 Generally, a court cannot sentence a defendant to both jail

and to probation because probation is considered an alternative to

imprisonment. See Faulkner v. Dist. Court, 826 P.2d 1277, 1279

(Colo. 1992). A court can order a defendant to serve jail time as a

condition of probation, but, in such a case, a defendant convicted of

12 a misdemeanor can spend no more than sixty days in jail.

§ 18-1.3-202(1)(a), C.R.S. 2018.

¶ 31 Probation is a “form of sentence.” People v. Turner, 644 P.2d

951, 953 (Colo. 1982); accord People v. Anderson, 2015 COA 12,

¶ 14 (“Probation is one of the sentencing alternatives available to a

court when entering a judgment of conviction.”). But, as we have

already concluded, an order requiring a defendant to complete

domestic violence treatment is not a sentence because it is neither

punishment nor penalty. § 18-6-801(1)(a) (a court orders domestic

violence treatment “[i]n addition to” the sentence); Allen, ¶ 7;

Heisler, ¶ 45.

¶ 32 And the trial court did not require defendant to “report” back

to it after the Crim. P. 35(a) hearing. Recall that the court intended

to set a review hearing after denying defendant’s motion. But, after

defendant objected, the court decided that it would not set such a

hearing, which meant that it did not have a supervisory role in

ensuring that defendant completed domestic violence treatment.

13 B. Jurisdiction

¶ 33 Defendant next contends that the court could not enter the

treatment order because it lost jurisdiction over him after he had

finished his jail sentence. We disagree.

¶ 34 “A trial court loses jurisdiction upon imposition of a valid

sentence except under the circumstances specified in Crim. P. 35.”

People v. Wiedemer, 692 P.2d 327, 329 (Colo. App. 1984). But the

court issued the order during the sentencing hearing, when it

clearly had jurisdiction over defendant. The law clearly authorized

this process.

C. Contempt Proceeding

¶ 35 Defendant asserts that the trial court could not enforce the

treatment order through a contempt proceeding because, by doing

so, any additional jail time that the court might impose would result

in a sentence exceeding the maximum penalty for third degree

assault. The prosecution counters by maintaining that this issue is

not ripe. We agree with the prosecution.

¶ 36 “Ripeness tests whether the issue is real, immediate, and fit

for adjudication.” Bd. of Dirs., Metro Wastewater Reclamation Dist.

v. Nat’l Union Fire Ins. Co., 105 P.3d 653, 656 (Colo. 2005). “Courts

14 should refuse to consider uncertain or contingent future matters

that suppose speculative injury that may never occur.” Id.

¶ 37 The record does not contain any information indicating that

defendant has refused to comply with the treatment order, that the

prosecution has asked the trial court to issue a contempt citation,

that the court has held a contempt hearing, or that the court

punished defendant’s putative contempt by imposing a jail

sentence. As a result, (1) the issue whether contempt is an

appropriate enforcement mechanism has not been presented in this

case in the context of an existing contempt proceeding; (2) the

question whether the court will hold a contempt hearing is

presently uncertain; (3) such a hearing would be contingent on an

unknown, which is whether defendant has complied with the

treatment order; and (4) the putative injury to which defendant

points — incarceration for contempt — is, as of now, speculative

and may never occur.

¶ 38 We therefore conclude that this issue is not ripe, see id., so we

will not address it.

¶ 39 The order is affirmed.

JUDGE PAWAR and JUDGE DAVIDSON concur.