v. People

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ADVANCE SHEET HEADNOTE
May 11, 2020

2020 CO 37

No. 18SC646, Russell v. People—Criminal Law—Sentencing and Punishment—
Presentence Confinement Credit.

Because the supreme court determines that its prior decisions interpreting

the presentence confinement credit (“PSCC”) statute are not consistent with the

language of the statute and cannot be reconciled with each other, the court here

identifies three principles for determining when a defendant is entitled to PSCC

and resolves inconsistencies in its previous interpretations of the PSCC statute and

the related substantial nexus test.

First, a defendant is entitled to PSCC for each day served where there is a

substantial nexus between the conduct or charges for which he is confined and the

sentence ultimately imposed. A substantial nexus exists where the defendant

would have remained confined on the charge or conduct for which credit is sought

in the absence of any other charge. Second, causation, not geography, is the defining
question in determining if there is a substantial nexus. And third, a defendant is

not entitled to duplicative PSCC.

Applying these principles here, the supreme court concludes that Derick

Wayne Russell is entitled to additional PSCC against his Douglas County sentence

for the period that he was confined after he was resentenced in Jefferson County

until he was resentenced in Douglas County. Accordingly, the judgment of the

court of appeals is reversed and the case is remanded with instructions to return

it to the district court for correction of the PSCC award consistent with this

opinion.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2020 CO 37

Supreme Court Case No. 18SC646
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA2073

Petitioner:

Derick Wayne Russell,

v.

Respondent:

The People of the State of Colorado.

Judgment Reversed
en banc
May 11, 2020

Attorneys for Petitioner:
Megan A. Ring, Public Defender
Lisa Weisz, Deputy Public Defender
Denver, Colorado

Attorneys for Respondent:
Philip J. Weiser, Attorney General
Grant R. Fevurly, Assistant Attorney General
Denver, Colorado

JUSTICE HART delivered the Opinion of the Court.
JUSTICE BOATRIGHT concurs in the judgment only, and CHIEF JUSTICE
COATS joins in the concurrence in the judgment only.
¶1 The issue here—whether Derick Wayne Russell is entitled to presentence

confinement credit (“PSCC”) in Douglas County1—stems from the interplay

between two unrelated criminal cases, one in Douglas County and another in

Jefferson County.

¶2 Russell was sentenced to six years in community corrections for an offense

in Douglas County to be served concurrently with a three-year sentence incurred

in Jefferson County. Before completing his concurrent sentences, on May 26, 2016,

Russell was unsuccessfully terminated from community corrections in both cases

and immediately confined in the Denver County Jail. On June 1, 2016, the Jefferson

County District Court resentenced Russell to serve the remainder of his three-year

sentence in the custody of the Department of Corrections. Four months later, on

October 13, 2016, the Douglas County District Court also resentenced Russell to

the Department of Corrections to serve the remainder of his six-year Douglas

County sentence, again to be served concurrently with the Jefferson County

1 We granted certiorari to review the following issue:
When the defendant was terminated from his concurrent community
corrections sentences from Jefferson and Douglas Counties, and
resentenced to concurrent prison sentences in both counties, whether
he is entitled to presentence confinement credit in Douglas County
for time served in prison after his Jefferson County resentencing but
before his Douglas County resentencing.

2
sentence. The Douglas County District Court, however, did not award Russell any

PSCC for the time he was confined between his Jefferson County resentencing on

June 1 and his Douglas County resentencing on October 13.

¶3 A division of the court of appeals affirmed this decision not to award PSCC,

relying on the substantial nexus test outlined in People v. Torrez, 2017 CO 91,

403 P.3d 189. People v. Russell, No. 16CA2073, ¶¶ 15–19 (Aug. 23, 2018). In doing

so, the division noted that the Torrez substantial nexus test departed from our prior

decisions on the calculation of PSCC. Id. at ¶ 16 n.2. It further noted that under

previous iterations of the substantial nexus test, Russell would be entitled to PSCC.

See id. at ¶ 17; see also Massey v. People, 736 P.2d 19, 23 (Colo. 1987).

¶4 This case highlights that our prior decisions applying the PSCC statute are

not easy to reconcile with each other and are inconsistent with the statutory

language. Torrez broke from Massey and Massey’s companion case, People v.

Freeman, 735 P.2d 879 (Colo. 1987), by establishing a but-for causation test for

PSCC that is not supported by the plain language of the statute. See Torrez, ¶¶ 3,

24, 403 P.3d at 190, 194. And the causation test outlined in Massey and Freeman

relied on a geography-based distinction that finds no purchase in the statutory

language and that we disavowed in Torrez. See id. at ¶ 25, 403 P.3d at 194–95.

While we recognize the importance of stare decisis, our prior cases construing the

PSCC statute cannot be squared with each other or with the language of the

3
statute. Here, consequently, we conclude that sound reasons exist for sorting out

the confusion created by our prior caselaw by setting out the following principles

that must apply in every PSCC case.

¶5 First, a defendant is entitled to PSCC for each day served where there is a

substantial nexus between the conduct or charges for which he is confined and the

sentence ultimately imposed. Second, causation, not geography, is the defining

question in determining if there is a substantial nexus. And third, a defendant is

not entitled to duplicative PSCC.

¶6 We also clarify that a substantial nexus exists where the defendant would

have remained confined on the charge or conduct for which credit is sought in the

absence of any other charge. In other words, the court should ask what would

happen if only the sentencing charge existed; in such a scenario, would the

defendant have remained confined? If the answer to this question is yes, a

substantial nexus exists, and the defendant is entitled to PSCC so long as it is not

duplicative.

¶7 Applying these principles, we conclude that there is a substantial nexus

between the period that Russell was confined while he awaited resentencing in

Douglas County and his Douglas County sentence. And because an award of

PSCC for this period is not duplicative, he is entitled to additional PSCC.

4
Consequently, we reverse the judgment of the court of appeals and remand for

correction of Russell’s PSCC award consistent with this opinion.

I. Facts and Procedural History

¶8 In October 2015, Russell pleaded guilty to theft, a class five felony, in

Douglas County. For this offense, the Douglas County District Court sentenced

Russell in January 2016 to six years in community corrections. This sentence was

to be served concurrently with a three-year community corrections sentence that

Russell received in December 2015 for an unrelated offense in Jefferson County.

¶9 Russell entered a community corrections program located in Denver in

February 2016. But on May 26, 2016, he was terminated from the program, and he

was taken into the custody of the Denver County Jail. The next day, the probation

department issued a notice of rejection requesting transfer of sentence in Douglas

County. And, on May 31, 2016, the Douglas County District Court issued a no-

bond arrest warrant for Russell. Defense counsel received no notice of the

community corrections termination or the arrest warrant.

¶10 Meanwhile, on June 1, 2016, the Jefferson County District Court resentenced

Russell to the Department of Corrections, where he would serve the remainder of

his three-year sentence for the Jefferson County offense.

¶11 Two months later, while preparing for a previously scheduled restitution

hearing in the Douglas County case, Russell’s defense counsel learned of Russell’s

5
termination from community corrections and of the notice of rejection.

Consequently, at the restitution hearing in August, Russell’s defense counsel

requested that the court set a transfer hearing in the Douglas County case.

¶12 The Douglas County District Court held a transfer hearing on October 13,

2016, and resentenced Russell to six years in the custody of the Department of

Corrections to run concurrently with his Jefferson County sentence. The court also

granted Russell PSCC for the time he was confined before his sentence to

community corrections, the time he served in residential community corrections,

and the days he spent in the Denver County Jail before he was resentenced in the

Jefferson County case. However, the court declined to award Russell PSCC

against the Douglas County sentence for his confinement from June 1 to October

13, 2016, concluding that once Russell was resentenced to the Department of

Corrections for his Jefferson County offense on June 1, he could no longer be

credited PSCC against his Douglas County offense.

¶13 Russell appealed, arguing that pursuant to section 18-1.3-405, C.R.S. (2019),

he was entitled to PSCC against his Douglas County offense for his incarceration

in the Denver County Jail and the Department of Corrections between May 26 and

October 13, 2016. A division of the court of appeals disagreed with Russell and

affirmed. Citing Torrez, the division held that because the Jefferson County

sentence provided an alternate source for his confinement, Russell’s Douglas

6
County case was not the but-for cause of his confinement after he was resentenced

in Jefferson County. Russell, ¶¶ 15–17. Therefore, he was not entitled to PSCC for

the period from June 1, 2016, to October 13, 2016. Id. Though bound by our

decision in Torrez, the division noted that the Torrez substantial nexus test differed

from the previous substantial nexus test outlined by this court in Massey, id. at ¶ 16

n.2, and that Russell would have been entitled to credit under the Massey test, see

id. at ¶ 17.2

¶14 Russell petitioned this court for certiorari, and we granted review.

II. Analysis

¶15 We begin by discussing the standard of review and the doctrine of stare

decisis. We then turn to Colorado’s PSCC statute and our previous decisions

2 We recognize that the credit requested and denied here may reasonably be
described as credit for time served. However, the trial court, the division, and the
parties all have referred to it as presentence confinement credit, and no argument
has been presented to the contrary. Indeed, at oral argument, the People were
asked on multiple occasions whether this was really just a continuation of Russell’s
sentence. Each time, they said it was not and that this time should be evaluated as
presentence confinement. Moreover, section 18-1.3-301(1)(e), C.R.S. (2019),
specifically references the trial court’s obligations with regard to resentencing after
termination from community corrections. Finally, our caselaw has at times used
the terms “credit for time served” and “presentence confinement credit”
interchangeably with regard to crediting a defendant for time spent in community
corrections prior to resentencing. See, e.g., Beecroft v. People, 874 P.2d 1041,
1045–46 (Colo. 1994) (describing one case from the court of appeals as requiring
“presentence confinement credit” and another as requiring “credit for time
served”).
7
interpreting it. Here, because we determine that our prior decisions are not

consistent with the language of the statute and cannot be reconciled with each

other, we conclude that sound reasons exist for clarifying this area of the law, even

if it requires departing from the norm of stare decisis.

¶16 We therefore take this opportunity to identify three clear principles for

determining when a defendant is entitled to PSCC and to resolve inconsistencies

in our previous interpretations of the PSCC statute and the related substantial

nexus test. First, a defendant is entitled to PSCC for each day served where there

is a substantial nexus between the charge or conduct for which he is confined and

the sentence that is ultimately imposed. A substantial nexus exists when the

defendant would have remained confined on the charge or conduct for which credit

is sought in the absence of any other charge. Second, regarding whether a

substantial nexus exists, causation, not geography, is the defining question. And

third, a defendant is not entitled to duplicative PSCC.

¶17 Applying these principles here, we conclude that Russell is entitled to

additional PSCC against his Douglas County sentence for the period that he was

confined after he was resentenced in Jefferson County until he was resentenced in

Douglas County.

8
 A. Applicable Law

1. Standard of Review and Stare Decisis
¶18 Whether a district court properly denied PSCC is a legal question that we

review de novo. Fransua v. People, 2019 CO 96, ¶ 11, 451 P.3d 1208, 1210.

¶19 Issues of statutory interpretation are also subject to de novo review.

People v. Baker, 2019 CO 97M, ¶ 13, 452 P.3d 759, 762. Our primary responsibility

when interpreting a statute is “to ascertain and give effect to the General

Assembly’s purpose and intent.” Id. “To do so, we look to the plain language of

the statute, the context of words and phrases, and their common usage.” Id.

¶20 With regard to case law, the doctrine of stare decisis requires that we adhere

to precedent in order to promote “uniformity, certainty, and stability of the law.”

People v. Porter, 2015 CO 34, ¶ 23, 348 P.3d 922, 927 (quoting People v. LaRosa,

2013 CO 2, ¶ 28, 293 P.3d 567, 574). This rule, however, “is not so rigid as to

prevent us from reevaluating our precedent.” Id. And we will depart from

precedent where sound reasons exist for doing so. People v. Kutlak, 2016 CO 1,

¶ 18, 364 P.3d 199, 205 (quotation omitted); People v. Novotny, 2014 CO 18, ¶ 24,

320 P.3d 1194, 1202.

2. PSCC

¶21 Pursuant to Colorado’s PSCC statute, section 18-1.3-405, “A person who is

confined for an offense prior to the imposition of sentence for said offense is

9
entitled to credit against the term of his or her sentence for the entire period of

such confinement.” We clarify today that courts should apply this statute

consistent with three principles.

¶22 The first principle flows from the statutory mandate that a defendant receive

credit for each day or “the entire period” of presentence confinement served.

What this means is that a defendant is entitled to PSCC if “the presentence

confinement [was] actually caused by the charge or conduct for which the defendant

is to be sentenced.” Massey, 736 P.2d at 22. From our earliest interpretation of the

PSCC statute, we have been clear that “causation in this context does not mean

that the charge or conduct for which the sentence is to be imposed must be the

exclusive cause of the offender’s confinement.” Schubert v. People, 698 P.2d 788,

795 (Colo. 1985); see also People v. Johnson, 797 P.2d 1296, 1298 (Colo. 1990); Massey,

736 P.2d at 22; Freeman, 735 P.2d at 881; Torand v. People, 698 P.2d 797, 800 (Colo.

1985). And we explained in Massey that “where two or more charges form

multiple bases for the defendant’s presentence confinement, the defendant is

entitled to credit against each sentence imposed on those charges, as long as the

credit would not be duplicative.” 736 P.2d at 23. Yet, in Torrez, we departed from

these earlier holdings, concluding that but-for causation was required for an

award of PSCC. ¶¶ 3, 24, 403 P.3d at 190, 194; see also People v. Torrez, 2017 CO 91,

¶ 32, 403 P.3d 189, 196 (Márquez, J., dissenting); People v. Torrez, 2017 CO 91,

10
¶¶ 60–63, 403 P.3d 189, 201–02 (Hood, J., dissenting). Instead of asking, as we had

in previous cases, whether the defendant would have remained confined in the

absence of any other charge, Torrez flipped the test and asked whether “the

defendant would have been released from the confinement had that offense not

existed.” ¶ 3, 403 P.3d at 190.

¶23 The Torrez but-for causation test is inconsistent with the language of the

PSCC statute. The statute does not limit a defendant’s entitlement to PSCC to

those situations in which the sentencing offense is the exclusive basis for

confinement. Moreover, under the test set forth in Torrez, a defendant sentenced

on multiple charges would be entitled to no PSCC because none of the charges

would alone be the but-for cause of his confinement. This is inconsistent with the

intent of the PSCC statute, which makes PSCC mandatory.

¶24 As noted, Torrez also cannot be reconciled with our earlier precedent, which

made it clear that the causation required under the PSCC statute was not but-for

causation. Therefore, there are sound reasons to overrule Torrez’s but-for

causation test and return to a substantial nexus test that ensures a defendant will

receive the PSCC to which he is statutorily entitled. Under that test, a substantial

nexus exists where the defendant would have remained confined on the charge or

conduct for which credit is sought in the absence of any other charge. Put another

way, the court should ask “what would happen if only the sentencing charge

11
existed; in such a scenario, would the defendant have remained confined?” Torrez,

¶ 51, 403 P.3d at 200 (Márquez, J., dissenting). If the answer to this question is yes,

a substantial nexus exists, and the defendant is entitled to PSCC so long as the

credit would not be duplicative.

¶25 We agree, however, with the court’s observation in Torrez that “[t]he

substantial nexus test is about causation, not geography.” ¶ 25, 403 P.3d at 195.

And this leads us to the second principle that courts should apply in awarding

PSCC: When determining whether a substantial nexus exists, causation, not

geography, is the defining question. The PSCC statute supports this principle,

saying nothing about geographic limitations on credit for confinement. See

§ 18-1.3-405. Furthermore, when a defendant is confined on charges from two

different jurisdictions, he will necessarily have to be physically confined in only

one of the two jurisdictions at any given time. His confinement, however, may be

caused by the charges in both jurisdictions, and he is still entitled to nonduplicative

credit as mandated by the PSCC statute. Consequently, to the extent that our prior

caselaw imported a geographic component into the PSCC analysis, we conclude

here that there is no basis in the statutory language for doing so, and we clarify

that geography does not play a role in the calculation of PSCC.

¶26 Third, and finally, a defendant is not entitled to duplicative PSCC. The

PSCC statute addresses directly one of the most likely risks of duplication. When

12
a defendant commits a new crime while already serving a sentence or on parole,

the period of confinement prior to sentencing on the new offense will be credited

only against the original sentence. Id. In circumstances not covered explicitly by

the statute, courts should take care when sentencing to give the defendant a day

of credit, and only a day of credit, for each day he was confined prior to sentencing.

¶27 These three principles clarify inconsistencies in our precedent interpreting

the PSCC statute and should allow courts to award PSCC in a manner consistent

with the language of the statute. A defendant is entitled to PSCC when he would

have remained confined on the charge or conduct for which credit is sought in the

absence of any other charge, whether that charge is in the same or a different

jurisdiction, so long as the PSCC is not duplicative.

B. Russell Is Entitled to Additional PSCC Against His
Douglas County Sentence

¶28 Russell argues that he is entitled to PSCC against his Douglas County

sentence for the period that he was confined after his termination from community

corrections until his Douglas County resentencing. Because there is a substantial

nexus between Russell’s confinement and his Douglas County offense, and

because this additional PSCC would not be duplicative, we agree.

¶29 Russell would have remained confined on the Douglas County offense

pursuant to section 17-27-104(6), C.R.S. (2019), and the Douglas County no-bond

arrest warrant. When a defendant is terminated from a community corrections
13
program, he must be confined without bond until the court determines whether

to remove him from the program. § 17-27-104(6). Accordingly, after Russell was

terminated from community corrections, the probation department filed a notice

of rejection requesting transfer of sentence, and the Douglas County District Court

issued a no-bond arrest warrant for Russell. In the absence of the Jefferson County

charge, pursuant to both section 17-27-104(6) and the related Douglas County

arrest warrant, Russell would have remained confined without bond on the

Douglas County charge until the court transferred the balance of Russell’s six-year

sentence to the Department of Corrections. In other words, if only the Douglas

County theft charge had existed, Russell would have remained confined after his

termination from community corrections until his Douglas County resentencing.

Thus, there is a substantial nexus between his confinement and the Douglas

County theft offense that he was ultimately resentenced on.

¶30 Also, because Russell was sentenced to concurrent sentences, awarding him

PSCC against his Douglas County sentence would not be duplicative. In fact, if

PSCC is not applied against Russell’s Douglas County sentence, as a practical

matter, he would receive no credit for the months that he was confined while

awaiting resentencing. This is because Russell’s six-year Douglas County sentence

was the longer of his two concurrent sentences; thus, applying the credit against

his three-year Jefferson County sentence would have no impact on the actual

14
length of his term of incarceration. Here, only by giving Russell PSCC against his

Douglas County sentence will he be guaranteed to receive credit for the full period

of his presentence confinement against his total term of imprisonment.

III. Conclusion
¶31 We conclude that Russell is entitled to PSCC against his Douglas County

sentence for the period that he was confined after his Jefferson County

resentencing until his Douglas County resentencing. Accordingly, we reverse the

judgment of the court of appeals and remand the case with instructions to return

it to the district court for correction of the PSCC award consistent with this

opinion.

JUSTICE BOATRIGHT concurs in the judgment only, and CHIEF JUSTICE
COATS joins in the concurrence in the judgment only.

15
JUSTICE BOATRIGHT, concurring in the judgment only.

¶32 I agree with the majority that the defendant should be given credit for the

time he spent in jail awaiting his transfer to the Department of Corrections

(“DOC”). I disagree, however, with the majority’s characterization that the credit

qualifies as presentence confinement credit. In my view, although the majority and

the parties did not recognize the distinction between presentence confinement and

postsentence credit for time served, the time that the defendant spent in jail

between his arrest on May 26, 2016, until he was transferred to the DOC on

October 13, 2016, should be classified as time served. Simply put, presentence

confinement and credit for time served are not interchangeable terms. Hence, we

should not be analyzing presentence confinement jurisprudence. Therefore, I

concur in the judgment only.

¶33 To explain my position, I briefly go back over the events of the defendant’s

sentencing journey as laid out in more detail in the majority opinion. In January

2016, the defendant was sentenced to community corrections for six years in

Douglas County. Presumably, the defendant spent time in jail awaiting the

resolution of this case as community corrections was deemed appropriate, and he

had another case pending in Jefferson County at the same time. As the majority

noted, the defendant did not begin the community corrections sentence until

February 2016. Therefore, he was in jail waiting for bed space in community

1
corrections between the time he was sentenced and the time he actually entered

community corrections. He then began serving time in community corrections.

His Douglas County community corrections sentence was revoked on May 26,

2016. Finally, he waited until October 13, 2016, to be resentenced to the DOC.

¶34 Under these circumstances, at the time of his transfer to the DOC, the court

should have given the defendant the following types of credit: (1) presentence

confinement credit for any time he spent in jail awaiting his original sentence to

community corrections—that presentence confinement is not at issue here;

(2) credit for time served for any time he spent in jail after the sentencing as he

waited for a bed to become available at community corrections; (3) credit for time

served for any time he spent in residence at community corrections—he should

not be given any credit for any time he served in a nonresidential community

corrections, if any, see People v. Hoecher, 822 P.2d 8, 10 (Colo. 1991); and (4) credit

for time served for the time he spent in jail awaiting his transfer to the DOC.

¶35 My point is that the time the defendant spent in jail waiting to be transferred

to the DOC was part of his community corrections sentence. After all, as the

majority correctly points out, the defendant was being held on a no-bond warrant

at that time. Why? Because he was serving a sentence. Hence, it is not presentence

confinement. It is postsentence confinement. As a result, that time should be

treated as time served.

2
¶36 By treating the time that the defendant was incarcerated as time served, the

defendant gets the full credit for the time he served on the sentence itself, and the

court need not engage in the substantial nexus analysis. That avoids questions

about whether the defendant would have remained confined. It only asks whether

the defendant was in fact confined. In my view, treating the time that the

defendant spent in jail from May 26, 2016, to October 13, 2016, waiting to be

transferred to the DOC as part of his community corrections sentence and not as

presentence confinement is less complicated, and it gives the defendant the credit

for the time he actually served on a sentence. Further, treating the time in question

as credit for time served would make overruling the recently decided case of

People v. Torrez, 2017 CO 91, 403 P.3d 189, unnecessary.

¶37 Hence, I concur in the judgment only.

I am authorized to state that CHIEF JUSTICE COATS joins in this

concurrence in the judgment only.

3