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.
15