In re People v. Subjack & No. 20SA283, In re People v. Lynch

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ADVANCE SHEET HEADNOTE
February 8, 2021

2021 CO 10

No. 20SA262, In re People v. Subjack & No. 20SA283, In re People v. Lynch—
Preliminary Hearings—Statutory Interpretation.

The supreme court reviews whether a criminal defendant who is unable to

post bond on a class 4 felony charge is “in custody” and therefore entitled to a

preliminary hearing on that charge under section 16-5-301(1)(b)(II), C.R.S. (2020),

and Crim. P. 7(h)(1), even if that defendant is also in custody for separate,

unrelated offenses. The court overrules People v. Taylor, 104 P.3d 269 (Colo. App.

2004), and People v. Pena, 250 P.3d 592 (Colo. App. 2009), and holds that such a

defendant is “in custody for the offense for which the preliminary hearing is

requested” for purposes of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1) and is

therefore entitled to a preliminary hearing on the current charges. The court

therefore makes the rule to show cause in each case absolute.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2021 CO 10

Supreme Court Case No. 20SA262
Original Proceeding Pursuant to C.A.R. 21
Fremont County District Court Case No. 20CR54
Honorable Ramsey Lama, Judge

In Re
Plaintiff:
The People of the State of Colorado,
v.
Defendant:
David Subjack.

Rule Made Absolute
en banc

*****
Supreme Court Case No. 20SA283
Original Proceeding Pursuant to C.A.R. 21
Fremont County District Court Case No. 20CR228
Honorable Ramsey Lama, Judge

In Re
Plaintiff:
The People of the State of Colorado,
v.
Defendant:
Darryl Lewis Lynch.
 Rule Made Absolute
en banc
February 8, 2021

Attorneys for Plaintiff:
Kaitlin B. Turner, District Attorney, Eleventh Judicial District
Aaron F. Pembleton, Deputy District Attorney
Cañon City, Colorado

Attorneys for Defendant David Subjack:
Megan A. Ring, Public Defender
Kyle Robert Nettleblad, Deputy Public Defender
Salida, Colorado

Attorneys for Defendant Darryl Lewis Lynch:
CS Law, PLLC
Carrie E. Skahan
Colorado Springs, Colorado

Attorneys for Respondent the Honorable Ramsey Lama:
Philip J. Weiser, Attorney General
Grant T. Sullivan, Assistant Solicitor General
Denver, Colorado

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

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¶1 In these two original proceedings pursuant to C.A.R. 21, we address

whether a criminal defendant who is unable to post bond on a class 4 felony charge

is “in custody” and therefore entitled to a preliminary hearing on that charge

under section 16-5-301(1)(b)(II), C.R.S. (2020), and Crim. P. 7(h)(1), even if that

defendant is also in custody for separate, unrelated offenses.

¶2 While serving sentences in the Department of Corrections (“DOC”) for

unrelated offenses, David Subjack and Darryl Lynch were each arrested and

charged with possession of contraband in the first degree, which is a class 4 felony.

In both cases, the court set cash-only bonds, which neither defendant posted.

Subjack and Lynch each requested a preliminary hearing pursuant to

section 16-5-301(1)(b)(II) (“Any defendant accused of a class 4, 5, or 6

felony . . . may demand and shall receive a preliminary hearing . . . if the

defendant is in custody for the offense for which the preliminary hearing is

requested.”) and Crim. P. 7(h)(1) (same). The district court denied their requests,

reasoning that the current charges did not form the “primary basis” of their

custody.

¶3 We issued a rule to show cause in each case. We conclude that, under the

facts of these cases, Subjack and Lynch are “in custody for the offense for which

the preliminary hearing is requested” for purposes of section 16-5-301(1)(b)(II) and

Crim. P. 7(h)(1) and are therefore entitled to a preliminary hearing on the current

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charges. In so concluding, we reject the “primary basis” approach articulated in

People v. Taylor, 104 P.3d 269 (Colo. App. 2004), and People v. Pena, 250 P.3d 592

(Colo. App. 2009), and relied upon by the district court in these cases.

Accordingly, we make the rule to show cause in each case absolute and remand

for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶4 These original proceedings arise from two unrelated cases pending before

the same district court judge in the Fremont County District Court.

¶5 Subjack and Lynch are in the custody of the DOC serving sentences at the

Colorado State Penitentiary. In separate incidents, correctional officers discovered

each inmate in possession of a dangerous instrument. Both were charged with

possession of contraband in the first degree, in violation of section 18-8-204.1(1),

(3), C.R.S. (2020), which is a class 4 felony. In Case No. 2020CR54, Subjack’s bond

was set at $10,000 cash-only, and in Case No. 2020CR228, Lynch’s bond was set at

$5,000 cash-only. Neither posted bond.

A. People v. Subjack

¶6 Subjack requested a preliminary hearing on the contraband charge. On

April 20, 2020, the court set the case for preliminary hearing. On June 1, 2020,

however, the district court granted the People’s request for a continuance. At that

time, the People also orally requested that the court vacate any future preliminary

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hearing, arguing that under Taylor and Pena, Subjack was not entitled to a

preliminary hearing because the offense charged was not the “primary basis” for

his custodial status. See Taylor, 104 P.3d at 272; Pena, 250 P.3d at 594–96.

¶7 In response, Subjack argued that Taylor and Pena were incorrectly decided

and that section 16-5-301(1)(b)(II) does not limit the availability of a preliminary

hearing to cases serving as the “primary basis” or having a “substantial nexus” to

an individual’s confinement. Subjack reasoned that, in the absence of all other

cases and sentences, he was unable to post bond and thus was “in custody” for the

offense for which the preliminary hearing was requested.

¶8 On June 13, 2020, the district court ruled that, under the court of appeals’

decisions in Taylor and Pena, Subjack was not entitled to a preliminary hearing.

The court observed that Subjack was entitled to a preliminary hearing under the

statute only if he was “in custody for the offense for which a preliminary hearing

is requested.” But the court reasoned that the current charge was not the “primary

basis” of Subjack’s confinement:

Applying the holdings of Pena and Taylor, I do not find that the
Defendant is in custody for purposes of demanding or requesting a
preliminary hearing. The Defendant is in the custody of the
Department of Corrections. Even were the Defendant to post bond, it
would have no effect on his in-custody status. . . . Even were the
[c]ourt to proceed to preliminary hearing today and find no probable
cause for the offense charged, he would still remain in custody. At
most, Mr. Subjack is concurrently held in Fremont and DOC
custodies. But this Fremont County [c]ase is certainly not the primary

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 basis of the Defendant’s custodial status, where, here, the Defendant
is serving a sentence in DOC.

Subjack filed a motion to reconsider, which the district court denied.

B. People v. Lynch

¶9 Lynch similarly requested a preliminary hearing on his contraband charge,

which a magistrate granted. The People moved to vacate the preliminary hearing,

however, arguing that Lynch was not entitled to a preliminary hearing under

Taylor and Pena because “[a]t all time[s] during the proceedings, [he] will be in the

primary custody of DOC.” The magistrate denied this motion, reasoning, “The

Defendant has not posted bond and he cannot be released from his DOC sentence

in the meantime without posting bond. This Defendant is, therefore, held in

custody on this case.”

¶10 The People petitioned the district court for review. The district court

vacated the magistrate’s ruling and granted the People’s motion to vacate the

preliminary hearing. The court took issue with the magistrate’s reasoning,

observing that “[p]osting bond in this case would have no practical effect on the

Defendant’s release from his DOC sentence.” It then concluded that the present

case was not the “primary basis” for Lynch’s custodial status and that, under

Taylor and Pena, Lynch was not entitled to a preliminary hearing.

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¶11 Subjack and Lynch filed separate petitions invoking our original jurisdiction

under C.A.R. 21. We issued a rule to show cause in each case and now make the

rule in each case absolute.

II. Original Jurisdiction
¶12 Whether to exercise our original jurisdiction pursuant to C.A.R. 21 is within

our sole discretion. C.A.R. 21(a)(1) (“Relief under this rule . . . is a matter wholly

within the discretion of the supreme court.”). In exercising our discretion, we are

mindful that such relief “is extraordinary in nature,” id., and “is limited in both

purpose and availability,” People v. Lucy, 2020 CO 68, ¶ 11, 467 P.3d 332, 335

(quoting People v. Rosas, 2020 CO 22, ¶ 19, 459 P.3d 540, 545). In light of this

narrow scope, “we have exercised our jurisdiction pursuant to C.A.R. 21 when an

appellate remedy would be inadequate, when a party may otherwise suffer

irreparable harm, or when a petition raises ‘issues of significant public importance

that we have not yet considered.’” People v. Rowell, 2019 CO 104, ¶ 9, 453 P.3d

1156, 1159 (citations omitted) (quoting Wesp v. Everson, 33 P.3d 191, 194 (Colo.

2001)).

¶13 We exercise our original jurisdiction in this case because the interpretation

of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1) raises an issue of first impression

that is of significant public importance. Moreover, ordinary appellate processes

are inadequate here given that the relief Subjack and Lynch seek—a preliminary

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hearing on the charges against them—will be moot after trial. See People v. Tafoya,

2019 CO 13, ¶ 15, 434 P.3d 1193, 1195.

III. Standard of Review

¶14 The interpretation of a statute or rule is a question of law that we review de

novo. Lucy, ¶ 19, 467 P.3d at 336. “In construing a statute, our primary purpose

is to ascertain and give effect to the legislature’s intent.” McCoy v. People, 2019 CO

44, ¶ 37, 442 P.3d 379, 389 (citing Doubleday v. People, 2016 CO 3, ¶ 19, 364 P.3d 193,

196). In so doing, we first look to the plain language of the statute, reading the

“words and phrases in context . . . according to the rules of grammar and common

usage.” Id. We must construe the statute as a whole to give “consistent,

harmonious, and sensible effect to all of its parts.” Id. at ¶ 38, 442 P.3d at 389. If

the plain language is unambiguous, we apply the statute as written. Id. Similarly,

when construing our rules of criminal procedure, “[w]e employ the same

interpretive rules applicable to statutory construction.” People v. Steen, 2014 CO 9,

¶ 10, 318 P.3d 487, 490 (citing Kazadi v. People, 2012 CO 73, ¶ 11, 291 P.3d 16, 20).

IV. Analysis

¶15 In Colorado, a person charged with a class 4, 5, or 6 felony is not

automatically entitled to a preliminary hearing unless the felony charged requires

mandatory sentencing, is a crime of violence, or is a sexual offense. See

§ 16-5-301(1)(a), (1)(b)(I); see also § 18-1-404(1), (2)(a), C.R.S. (2020). However,

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“[a]ny defendant accused of a class 4, 5, or 6 felony . . . who is not otherwise

entitled to a preliminary hearing . . . may demand and shall receive a preliminary

hearing . . . if the defendant is in custody for the offense for which the preliminary hearing

is requested.” § 16-5-301(1)(b)(II) (emphasis added); see also § 18-1-404(2)(b)

(allowing a defendant to demand and receive a preliminary hearing “if the

defendant is in custody”).1

¶16 Subjack and Lynch assert that because they have not posted bond, they are

in custody for the contraband charges against them, and therefore, under the plain

language of the statute, they are entitled to a preliminary hearing on those charges.

They argue that Taylor and Pena were erroneously decided and that the “primary

basis” approach to the custody analysis articulated in those cases goes beyond the

plain language of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1).

¶17 The People, by contrast, argue that Subjack and Lynch are not in custody for

the contraband charges in the Fremont County cases; instead, the primary basis of

their incarceration is the DOC sentences they are serving for unrelated convictions.

1 Crim. P. 7(h)(1) similarly provides that “any defendant accused of a class 4, 5, or
6 felony . . . who is not otherwise entitled to a preliminary hearing may request a
preliminary hearing if the defendant is in custody for the offense for which the
preliminary hearing is requested.” (Emphasis added.) See also Crim. P. 5(a)(4)
(comparable rule for county court procedures).

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Moreover, the People contend, the purpose of a preliminary hearing is to protect

the defendant’s pretrial liberty interest where no probable cause exists for the

charges against him. Because Subjack and Lynch will remain in custody on their

DOC sentences throughout these proceedings, a preliminary hearing on the

contraband charges will not further that purpose.

¶18 We agree with Subjack and Lynch.

¶19 First, nothing in the plain language of section 16-5-301(1)(b)(II) and

Crim. P. 7(h)(1) requires the offense for which a preliminary hearing is

sought—here, possession of contraband—to be the “primary basis” of the

defendant’s custodial status. Instead, a defendant is entitled to a preliminary

hearing on an offense so long as he is “in custody for [that] offense.” And here,

although Subjack and Lynch are in DOC custody for unrelated convictions, they

are also in custody for possession of contraband in Fremont County. Arrest

warrants were issued for both Subjack and Lynch on these charges, and bond was

set at $10,000 cash-only and $5,000 cash-only, respectively. Neither defendant has

posted bond. On these facts, Subjack and Lynch are in custody on the Fremont

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County charges. Put simply, absent their DOC sentences, Subjack and Lynch

would remain confined and in custody on the contraband charges in these cases.2

¶20 The People argue that the purpose of a preliminary hearing is to preserve

the defendant’s pretrial liberty where there is no probable cause for the charge

against him. But this purpose-based argument cannot override the plain language

of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1). True, section 16-5-301(1)(b)(II)

and Crim. P. 7(h)(1) require the court to vacate a scheduled preliminary hearing if

there is a reasonable showing that the defendant has been released. And the

availability of a preliminary hearing generally corresponds to situations in which

the defendant’s pretrial liberty is at greater risk—high-level felonies, see

§ 16-5-301(1)(a); certain felonies of a particular nature, see § 16-5-301(1)(a), (1)(b)(I);

and low-level felonies for which the defendant is in custody, see

§ 16-5-301(1)(b)(II). Nevertheless, we decline to import a “primary basis” qualifier

into section 16-5-301(1)(b)(II) where that phrase does not exist. See People v. Brown,

2019 CO 50, ¶ 17, 442 P.3d 428, 432 (explaining that it is not the court’s role to add

2 The People point out that Subjack and Lynch will remain incarcerated on their
DOC sentences even if, at the preliminary hearing, the district court determines
that probable cause is lacking. While this is true, Subjack is eligible for parole on
his current sentence, and a preliminary hearing could ensure that the current
charge does not act as an impediment to his possible release.

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language to a statute); People v. Diaz, 2015 CO 28, ¶ 12, 347 P.3d 621, 624 (“We do

not add words to the statute or subtract words from it.” (quoting Turbyne v. People,

151 P.3d 563, 567 (Colo. 2007))).

¶21 Moreover, the People’s argument incorrectly assumes that a preliminary

hearing functions solely to protect a defendant’s pretrial liberty. A preliminary

hearing also serves to determine whether probable cause exists to support the

prosecution’s charges against the defendant. Maestas v. Dist. Ct., 541 P.2d 889, 891

(Colo. 1975). It thus acts as a “screening device” by testing “the sufficiency of the

prosecution’s case before an impartial judge” and “weed[ing] out the fatally weak

case.” Id.; see also People v. Brothers, 2013 CO 31, ¶ 16, 308 P.3d 1213, 1216 (“[T]he

‘restricted purpose’ of the preliminary hearing ‘is to screen out cases in which

prosecution is unwarranted by allowing an impartial judge to determine whether

there is probable cause to believe that the crime charged may have been committed

by the defendant.’” (quoting Rex v. Sullivan, 575 P.2d 408, 410 (Colo. 1978)));

Holmes v. Dist. Ct., 668 P.2d 11, 15 (Colo. 1983) (“The preliminary hearing is

designed to weed out groundless or unsupported charges . . . .”).

¶22 In this way, a preliminary hearing serves to

prevent hasty, malicious, improvident, and oppressive prosecutions,
to protect the person charged from open and public accusations of
crime, to avoid both for the defendant and the public the expense of
a public trial, to save the defendant from the humiliation and anxiety
involved in public prosecution, and to . . . [ensure that] there are
substantial grounds upon which a prosecution may be based.

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Wayne R. LaFave, 4 Crim. Proc. § 14.1(a) (4th ed. 2020) (alteration in original)

(quoting Thies v. State, 189 N.W. 539, 541 (Wisc. 1922)); see also Holmes, 668 P.2d at

15 (explaining that a preliminary hearing “relieve[s] the accused of the

degradation and expense of a criminal trial”); Hunter v. Dist. Ct., 543 P.2d 1265,

1267 (Colo. 1975) (explaining that a preliminary hearing “protects the accused by

avoiding an embarrassing, costly and unnecessary trial” and “benefits the interests

of judicial economy and efficiency”). Thus, while a preliminary hearing may

relieve a defendant of an unwarranted restriction of personal liberty, People v.

Macrander, 756 P.2d 356, 361–62 (Colo. 1988), it is, at its core, a screening

mechanism.

¶23 In concluding that the defendants were not entitled to a preliminary

hearing, the district court relied on Taylor and Pena. In Taylor, a division of the

court of appeals held that the defendant was not entitled to a preliminary hearing

because he was in the custody of another judicial district at the time and “remained

in the primary custody of that judicial district throughout the proceedings” at

issue. 104 P.3d at 272. Therefore, the division concluded, the offense charged was

not the primary basis for the defendant’s custodial status, and he “was never ‘in

custody’ for th[at] offense.” Id. In Pena, another division of the court of appeals

adopted the Taylor analysis to come to a similar conclusion. 250 P.3d at 595–96.

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¶24 Although the district court correctly noted it was bound by these court of

appeals decisions, we conclude that these cases were erroneously decided. First,

as explained above, nothing in the plain language of section 16-5-301(1)(b)(II) and

Crim. P. 7(h)(1) requires an offense to form the “primary basis” of the defendant’s

custodial status for the defendant to be entitled to a preliminary hearing on that

offense. Moreover, the Taylor division likened its “primary basis” approach to the

“substantial nexus” test applied in the context of presentence confinement credit

(“PSCC”). See 104 P.3d at 272 (citing People v. Fitzgerald, 973 P.2d 708, 710–11

(Colo. App. 1998)). However, PSCC and preliminary hearings serve different

purposes. PSCC applies after a defendant is convicted and ensures that the

defendant receives appropriate credit, but not duplicative credit, for time served

against his sentence in a particular case. See § 18-1.3-405, C.R.S. (2020); People v.

Russell, 2020 CO 37, ¶¶ 21–27, 462 P.3d 1092, 1096–98. A preliminary hearing, by

contrast, occurs while the defendant maintains the presumption of innocence as to

pending charges and, as discussed above, serves to screen out unwarranted

prosecutions when charges are unsupported by sufficient evidence. Thus, the

Taylor division’s analogy to PSCC is questionable.

¶25 Even assuming an analogy to PSCC is appropriate, Taylor and Pena predate

and are inconsistent with more recent developments in our PSCC jurisprudence.

As noted above, the Taylor division relied upon Fitzgerald, in which a division of

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the court of appeals concluded that a defendant was not entitled to additional

PSCC because his “confinement necessarily [was] attributable to the sentence

imposed” on an unrelated charge, rather than his failure to post bond on the

pending charges. 973 P.2d at 711.

¶26 But our PSCC jurisprudence has since shifted. In Russell, we made clear that

the charge for which the sentence is to be imposed need not be the exclusive cause

of the defendant’s confinement for the defendant to receive PSCC. ¶ 22, 462 P.3d

at 1097. We explained that “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 . . . .” Id. at ¶ 25, 462 P.3d at 1097.

Importantly, we clarified that the relevant question under the “substantial nexus”

test is whether “the defendant would have remained confined on the charge or

conduct for which credit is sought in the absence of any other charge.” Id. at ¶ 24,

462 P.3d at 1097. 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?’” Id. (quoting People v. Torrez, 2017 CO 91, ¶ 51, 403 P.3d 189,

200 (Márquez, J., dissenting)).

¶27 Thus, if anything, this court’s current case law on PSCC actually supports

Subjack and Lynch’s position. Under our reasoning in Russell, Subjack and Lynch

15
are “in custody” for purposes of section 16-5-301(1)(b)(II) and Crim. P. 7(h)(1). If

only the Fremont County charges existed—that is, if Subjack and Lynch were not

serving prison sentences—they would remain in the custody of Fremont County

on charges of possession of contraband because they have not posted bond on

those charges.

¶28 Finally, we note that in practice, the “primary basis” approach urged by the

People would be difficult to apply because it would require trial courts to identify,

in often fluid circumstances, the “primary basis” of a defendant’s custody. Courts

would need to constantly reevaluate whether a defendant is entitled to a

preliminary hearing in light of changed circumstances—for example, when cases

are resolved, bonds are changed, or parole is granted or denied. Moreover, courts

may not have access to information in real-time in order to make accurate

determinations. By contrast, the plain language of section 16-5-301(1)(b)(II) and

Crim. P. 7(h)(1) provides a bright-line rule that is easy and straightforward to

administer.

¶29 In sum, we conclude that, on the facts before us, Subjack and Lynch are

entitled to a preliminary hearing under section 16-5-301(1)(b)(II) and

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Crim. P. 7(h)(1). In reaching this conclusion, we overrule Taylor and Pena and

reject the “primary basis” approach as inconsistent with the statutory language.3

V. Conclusion

¶30 For the foregoing reasons, we hold that Subjack and Lynch are entitled to a

preliminary hearing. Accordingly, we make the rule to show cause in each case

absolute and remand for further proceedings consistent with this opinion.

3 In light of our conclusion, we need not address Subjack and Lynch’s assertions
that the district court’s rulings denied them of due process and violated principles
of equal protection.

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