A.S. v. People

JUSTICE BOATRIGHT,

dissenting.

145 In interpreting the aggravated juvenile offender sentencing rules, the majority translates the phrase, "the court may commit the juvenile to the department of human services for a determinate period of up to five years," into, "the juvenile may be sentenced to probation." Under the majority's construction, the juvenile in this case will be treated more leniently than if he were adjudicated a less serious category of juvenile offender. I do not believe that the General Assembly intended such an inequitable result. I interpret the sentencing provision at *181issue in this case as requiring a court to commit an aggravated juvenile offender to the department of human services for a specific term that can be for as long as five years and that the juvenile may not instead be sentenced to probation. Hence, I respectfully dissent.

¶ 46 When the sentencing provisions for an aggravated juvenile offender are read in the context of the entire juvenile sentencing scheme, itis evident that the General Assembly identified this class of juveniles as posing the most serious risk to public safety in the juvenile system. As a result, aggravated juvenile offenders are treated differently than any other juveniles within the juvenile system. While they are still treated as juveniles and their best interest remains a strong consideration, by adjudicating them as aggravated juvenile offenders, the most serious classification in the juvenile system, the General Assembly excluded them from being eligible for any sentence other than a commitment to the department of human services. Hence, the court must impose a sentence that includes commitment to the department of human services for a determinate period of time and the only discretion the court has in sentencing an aggravated juvenile offender is the length of the commitment.

¶ 47 I reach my conclusion that the General Assembly intended to impose a mandatory sentence of commitment to the department of human services for a determinate period of time for aggravated juvenile offenders by first considering the general purpose of the Children's Code. From there I examine the way that the Children's Code distinguishes between a delinquent act, repeated delinquent acts, delinquent acts that are escalating in severity, and delinquent acts that would be felonies if committed by an adult. Next, I evaluate how the Children's Code treats and sentences juveniles adjudicated of acts of increasing severity. I also review the section of the Children's Code related to sentencing a juvenile to probation and conclude that the General Assembly intended that this section not apply to juveniles adjudicated aggravated juvenile offenders. I conclude by contrasting my interpretation of the Children's Code with the majority's interpretation by applying each to the facts of this case.

I. General Purpose of Article II of the Children's Code

¶ 48 The General Assembly intended for the Children's Code to serve the welfare of children and the best interest of society, § 19-1-102(2), C.R.S. (2018). 'As such, the General Assembly recognized that juveniles who violate the law should be treated differently than adults. To that end, the General Assembly created a separate statutory system within the Children's Code, Article II, to handle the treatment and sentencing of juveniles who commit a delinquent act.1 § 19-2-102. Article II of the Children's Code focuses on both the rehabilitation and accountability of the juvenile delinquent while holding public safety paramount. Id.; Bostelman v. People, 162 P.3d 686, 692 (Colo.2007). Thus, the Children's Code's treatment of juveniles adjudicated delinquents stands in sharp contrast to the adult criminal system which focuses primarily on punishment, deterrence, and retribution. Bosteliman, 162 P.3d at 692.

¶ 49 To promote its goal of rehabilitating juvenile delinquents, the Children's Code generally provides a court with broad disceretion to craft an appropriate sentence: one that will best encourage rehabilitation of the Juvenile while also protecting the public welfare. Id.; People v. J.J.H., 17 P.3d 159, 163-64 (Colo.2001). Therefore, normally a court's discretion when sentencing a juvenile adjudicated a delinquent is very broad and ranges all of the way from simply requiring a juvenile to write a letter of apology to, at the upper limit, sentencing a juvenile to commitment to the department of human services for a period not to exceed two years. See §§ 19-2-907, -909, C.R.S. (2018). For example, a court could find that under a certain set of cireumstances, an appropriate sentence for a juvenile adjudicated a delinquent for spray painting or "tagging" a wall, an act that constitutes criminal mischief, is requiring that the juvenile repaint the wall and write a letter of apology. *182that constitutes criminal mischief, is requiring that the juvenile repaint the wall and write a letter of apology.

IL - Characterization of Juvenile Delinquents: Special Offenders

¶ 50 While the courts have broad discretion when dealing with juvenile offenders in most situations, the General Assembly recognized that in some instances, when a juvenile's behavior is severe enough, it was necessary to narrow the court's discretion. Hence, the General Assembly created the category, "special offenders," which identifies juveniles who have acted in such a way that, in order to ensure the appropriate balance between the best interest of the juvenile and protecting the public, the General Assembly restricted the court's sentencing discretion. §§ 19-2-516, -908, C.R.S. (2013).

¶ 51 Within the category of special offenders, there are four subcategories of increasing severity. § 19-2-516. The categories only apply in situations where a juvenile has been adjudicated either of multiple offenses or a particularly serious offense. Each subcategory is defined based on a juvenile's prior adjudications and the severity of subsequent delinquent acts. Id.

1. Mandatory Sentence Offender

¶ 52 "Mandatory sentence offender" is the least serious category of special offender. § 19-2-516(1). To be adjudicated a mandatory sentence offender, a juvenile must be adjudicated a delinquent on two separate occasions. Id. In other words, the juvenile must have shown repeated delinquent behavior. -

2. Repealt Juvenile Offender

¶ 53 One step more serious than mandatory sentence offender is "repeat juvenile offender." § 19-2-516(2). A repeat juvenile offender is a juvenile who has been previously adjudicated delinquent and is subsequently either adjudicated delinquent or has his or her probation revoked for an act that constitutes a felony. Id. The repeat juvenile offender has not only shown repeated delinquent behavior, but that subsequent behavior is so serious that it would be a felony if committed by an adult.

3. Violent Juvenile Offender

¶ 54 The third type of special offender is a "violent juvenile offender." § 19-2-516(8). A juvenile may be adjudicated a violent juvenile offender for an act that constitutes a crime of violence, as defined under section 18-1.3-406(2), C.R.S. (2018). Id. This classification is reserved for juveniles who commit an act which would be a felony if committed by an adult and either use a deadly weapon or cause serious bodily injury or death during the act. An example of a violent juvenile offender is a juvenile who commits an aggravated robbery of a convenience store with a gun.

4, Aggravated Juvenile Offender

¶ 55 Finally, the most serious category of special offender is an "aggravated juvenile offender." § 19-2-516(4). © This designation is reserved for the most serious offenses and it operates as the last chance for a juvenile to participate in the rehabilitative juvenile system rather than being tried as an adult under either the direct file or transfer statute. A juvenile may be adjudicated an aggravated juvenile offender in three instances. First, a juvenile may be adjudicated an aggravated juvenile offender if he or she is either adjudicated a juvenile delinquent or has probation revoked for an act that constitutes a class 1 or class 2 felony. § 19-2-516(4)(a)(D). This category applies to a juvenile who commits an act such as murder or kidnapping with a sexual assault. Second, a juvenile may be adjudicated an aggravated juvenile offender if he or she is adjudicated a juvenile delinquent for an act that constitutes a felony and is subsequently either adjudicated a juvenile delinquent or has probation revoked for an act that constitutes a crime of violence, as defined by section 18-1.8-406(2). § 19-2-516(4)(a)(II). Again, the subsequent crime of violence must be a felony that is committed with a deadly weapon or that results in serious bodily injury or death. Finally, third, a juvenile may be adjudicated an aggravated juvenile offender if he or she is adjudicated a juvenile delinquent or has probation revoked *183for an act that constitutes incest, aggravated incest, felonious sexual assault, unlawful sexual contact using force, or sexual assault on a child.2 § 19-2-516(4)(a)(IID).

¶ 56 The severity of an adjudication as an aggravated juvenile offender is not only apparent in the description of the acts that constitute an aggravated juvenile offense, but also in the fact that the General Assembly created significant procedural safeguards that must be followed before a juvenile may be adjudicated an aggravated juvenile offender. § 19-2-601, C.R.S. (2018). Hlustrative of the difference between the way the General Assembly views aggravated juvenile offenders and other juvenile delinquents, including other juveniles who fall into the other special offender classifications, is that in an action alleging that a juvenile is an aggravated juvenile offender, the alleged offender has a right to a jury of twelve people § 19-2-601(8)(a). By contrast, most other juvenile proceedings are intended to be informal and there is generally no right to a jury trial.3 A.C., IV v. People, 16 P.3d 240, 244-45 (Colo.2001). Additionally, the prosecutor must plead that the juvenile is an aggravated juvenile offender as a separate count and the jury must find beyond a reasonable doubt that the juvenile meets the criteria for an aggravated juvenile offender classification. § 19-2-601(1)(a); see People in re D.G.P., 194 Colo. 238, 242, 570 P.20 1293, 1295 (1977) ("Material elements of the offenses alleged in a delinquency petition must be proved beyond a reasonable doubt.").

¶ 57 The additional procedural safeguards for juveniles alleged to be aggravated juvenile offenders not only serve to distinguish aggravated juvenile offenders as the most serious classification for a juvenile delinquent, but are also necessary because the sentences for an aggravated juvenile offender are much more severe than the sentences for a juvenile adjudicated of a less serious offense.

III. Sentencing Juvenile Delinquents

¶ 58 Onee a juvenile is adjudicated a delinquent, the court must next determine an appropriate sentence. The Children's Code is structured so that more severe patterns of behavior are met with more significant intervention in order to simultaneously protect community safety and rehabilitate the juvenile. At the most basic level, for the majority of juveniles adjudicated delinquents, the court has discretion to craft a sentence that will accomplish the Children's Code's dual goals of serving the interests of both the community and the juvenile. See § 19-2-907 (listing twelve sentencing options available to courts, ranging from commitment to the department of human services to participation in a restorative justice program). However, the code restricts a court's discretion and provides more detailed direction for a court sentencing a juvenile adjudicated a special offender. § 19-2-908.

¶ 59 For the two least serious categories of special offenders, mandatory sentence offenders and repeat offenders, the minimum sentence must include an out of the home sentence for at least one year unless the court finds that a different sentence would better strike the necessary balance between protecting the public and serving the best interest of the juvenile: *184§ 19-2-908(1)(a), (b). For these two categories, the General Assembly directs that the juvenile be removed from the home but also specifically tells the court that it has diseretion to craft a different sentence if it finds that a different sentence would be more appropriate. Therefore, by its plain language, the statute does not prohibit a sentence to probation and it gives the court discretion to not remove the juvenile from the home if appropriate. |

*183The court shall place or commit ... .[the juvenile] out of the home for not less than one year, unless the court finds that an alternative sentence or a commitment of less than one year out of the home would be more appropriate. ..,4

*184¶ 60 The third category of special offender, in order of increasing severity, is violent juvenile offender, and accordingly, the sentencing directions applicable to this category provide a court with less discretion than the directions for the two less serious categories of special offenders. In fact, unlike with mandatory sentence offenders and repeat offenders where, regardless of the juvenile's age, the court has discretion to not place the juvenile out of the home if an alternative sentence "would be more appropriate," a court sentencing a violent juvenile offender may only exercise that discretion in the limited situation where the offender is between the ages of ten and twelve: |

[TJhe juvenile shall be placed or committed out of the home for not less than one year except that this sub-subparagraph (A) shall not apply to a juvenile who is ten years of age or older, but less than twelve years of age, when the court finds that an alternative sentence or a commitment of less than one year out of the home would be more appropriate.

§ 19-2-908(1)(c)(ID)(A). If the violent juvenile offender is not between the ages of ten and twelve, the court's only option is to impose a sentence that places the juvenile in a facility or center licensed by the department of human services for at least one year.

¶ 61 While the Children's Code prescribes certain limited cireumstances in which a court may craft an alternate sentence for any of the three least serious categories of special offender, the Children's Code contains no such grant of discretion to craft an alternative sentence in the sentencing directions applicable to aggravated juvenile offenders. Rather, the aggravated juvenile offender sentencing directions require a commitment to the department of human services and only permit the court to exercise discretion in determining the length of that commitment:

(A) For an offense other than an offense that would constitute a class 1 or 2 felony if committed by an adult, the court may commit the juvenile to the department of human services for a determinate period of up to five years;
(B) For an offense that would constitute a class 2 felony if committed by an adult, the court shall commit the juvenile to the department of human services for a determinate period of at least three but not more than five years;
(C) For an offense that would constitute a class 1 felony if committed by an adult, the court shall commit the juvenile to the department of human services for a determinate period of at least three but not more than seven years....

§ 19-2-601(b)(a)(D(A). to (C). The lack of a grant of discretion to craft an alternative sentence in the aggravated juvenile offender statute stands in stark contrast to the explicit grants of limited discretion contained in the other special offender sentencing provisions. Because the sentencing directions for each of the three less serious categories of special offenders contain an explicit grant of discretion, the absence of comparable language in the aggravated juvenile offender statute must be interpreted to mean that the court has no discretion to craft an alternative sentence for juveniles adjudicated of the most serious category of offense in the juvenile system.5 Hence, to be a consistent and *185harmonious part of the Children's Code, subsection A of the sentencing directions must be read to mandate that a court impose a sentence of a determinate period of time up to five years and to preclude a court from either imposing an alternate sentence, such as probation, or suspending the sentence. See People v. Hummel, 181 P.8d 1204, 1207-08 (Colo.App.2006) (if a defendant is sentenced under a mandatory sentencing provision, the district court has no authority to suspend the sentence).

¶ 62 Rather than interpreting the aggravated juvenile offender sentencing directions by reading the Children's Code as a single statutory scheme, the majority reaches its conclusion that a court has complete discretion under subsection A to craft an alternative sentence by ignoring the overall strue-ture of the Children's Code. Instead, the majority elects to rely heavily on the aggravated juvenile offender sentencing section and historical changes to the Children's Code to conclude that a court has complete discretion under subsection A to craft an alternative sentence because the section says that the court "may commit the juvenile to the department of human services for a determinate period of up to five years." Maj. op. 11 28-31. However, this interpretation is untenable because it overlooks the structure and patterns in the Children's Code as it currently exists and it creates incongruences within the Children's Code. Specifically, under the majority's construction, if a juvenile is over age twelve, a court has more discretion when sentencing the more serious aggravated juvenile offender under subsection A than when sentencing the less serious violent juvenile offender. §§ 19-2-516, - 601(5)(a)(ID)(A), - -908(1)(c)(D)(A). _ Furthermore, given that the special offender sentencing directions for the three least serious categories of special offenders-mandatory sentence offender, repeat offender, and violent juvenile offender-all impose limits on the court's discretion, it is improbable that the General Assembly intended to grant the sentencing court unfettered discretion when sentencing an aggravated juvenile offender under subsection - A. §§ 19-2-516, - 908(1)(a), -908(1)(b).

¶ 63 In addition to relying heavily on history, the majority also supports its interpretation by placing undue weight on the General Assembly's use of "may" in subsection A ("the court may commit the juvenile to the department of human services for a determinate period of up to five years") and "shall" in subsections B ("the court shall commit the juvenile to the department of human services for a determinate period of at least three but not more than five years") and C ("the court shall commit the juvenile to the department of human services for a determinate period of at least three but not more than seven years") of the aggravated juvenile offender sentencing directions. The majority concludes that reading subsection A to require a mandatory sentence of commitment to the department of human services for a juvenile adjudicated an aggravated juvenile offender treats the term "may" as "shall." < Maj. op. (29. However, this argument unnecessarily discounts the logical interpretation that the term "shall" is used in subsections B and C because there is both a lower and upper limit to the sentence. By comparison, "may" is used in subsection A because there is no lower bound. Interpreting "may" as pertaining to the length of the commitment, rather than the type of sentence, is consistent with both the commonly accepted meaning of the term and the rest of the code.

IV. Probationary Sentence Prohibited by Statute

1 64 Reading subsection A of the aggravated juvenile offender sentencing directions to require commitment to the department of human services for a determinate period of time and precluding the court from imposing an alternate sentence, such as probation, not only is consistent with the sentencing directions for the other categories of special offenders, but is also supported by the language of the sections defining the sentencing options generally available to a court for juvenile offenders, §§ 19-2-907 through 19-2-917, - C.R.S. (2018) The section of the Children's Code which details what a proba*186tion sentence looks like in the juvenile system begins with the phrase, "Except as otherwise provided in section 19-2-601 for an aggravated juvenile offender ...."6 § 19-2-913. This opening phrase, which limits when a court may sentence a juvenile to probation, does not say "except as otherwise provided in sections 601(5)(a)(I)(B) and 601(b)(a){(D(C)," but rather refers to the section as a whole. Thus, the most straightforward interpretation of this provision is that, although generally the court has significant discretion in crafting an appropriate sentence, the General Assembly intended to curtail that discretion by excluding all juveniles adjudicated as aggravated juvenile offenders from being eligible for a sentence of probation.

V. Application

T 65 The facts of this case illustrate why the inconsistencies created by the majority's interpretation make such a construction unreasonable. In this case, the relevant facts are that A.S., who was over the age of twelve at all times relevant to this case, pled guilty to one count of sexual assault on a child, a class 4 felony if committed by an adult, and adjudication as an aggravated juvenile offender. Because he was adjudicated of an act that would be a class 4 felony if committed by an adult, he was sentenced under subsection A of the aggravated juvenile offender sentencing directions.

T 66 Under the majority's interpretation of the statute, a court would have unfettered discretion to sentence A.S. to probation, suspend a sentence, or impose any other sentence which it deems appropriate. The court would not even have any obligation to place the juvenile out of the home for a period of time. This leads to the perplexing situation where A.S. would have been in a worse position if he were adjudicated a violent juvenile offender, a less serious classification, than if he were adjudicated an aggravated juvenile offender, the most serious classification, because as an adjudicated violent juvenile offender, A.S. would have to be, at the very least, placed out of the home for one year.

1 67 By contrast, as I construe the statute, the court must sentence A.S. to commitment to the department of human services for a determinate period of up to five years and the juvenile who is adjudicated as the less serious violent juvenile offender would not be in a worse position. Therefore, I would find that A.S. is not eligible for either a sentence that does not include a commitment to the department of human services or a suspended sentence.

1 68 For the foregoing reasons, I respectfully disagree with the majority's interpretation. Because I would affirm the court of appeals' decision holding that the magistrate does not have discretion to sentence a juvenile adjudicated an aggravated juvenile offender to probation, I respectfully dissent.

I am authorized to state that Justice EID joins in this dissent.

. A delinquent act is a violation of any statute, any ordinance, or certain enumerated orders. § 19-1-103(36), C.R.S. (2013).

. In this case, the state charged A.S. with eleven counts: four counts of sexual assault on a child, four counts of sexual assault on a child as a pattern of abuse, two counts of aggravated incest, and classification as an aggravated juvenile offender. In a plea deal, A.S. entered a guilty plea to one count of sexual assault on a child and aggravated juvenile offender status.

. While there is generally no right to a jury trial in juvenile court, a court in its discretion may order a jury trial if the juvenile is charged with having committed an act that would constitute a felony if, committed by an adult. § 19-2-107, C.R.S. (2013). Further, in an action where a juvenile is charged with having committed a delinquent act that would be a crime of violence if committed by an adult, either the juvenile or the district attorney may demand a trial by a jury of not more than six people. Id.

. The out of home placement can only be accomplished by either committing the juvenile to the department of human services or placing the juvenile in a residential facility operated or li*184censed by the department of human services. § 19-1-103(85).

. Where the intent of the General Assembly is unclear from the language of the statute alone, we read the statute in pari materia, meaning in conjunction with the other related provisions, to determine the General Assembly's intent. Martinez v. People, 69 P.3d 1029, 1031 (Colo.2003); REN. v. City of Colorado Springs, 823 P.2d 1359, 1364 n. 5 (Colo.1992) ("The children's code must be construed in pari materia in order to effectuate legislative intent."). We construe a statute in pari materia to "give consistent, harmonious and sensible effect to all its parts." REN., $23 P.2d at 1364 n. 5 (quoting Walgreen *185Co. v. Charnes, 819 P.2d 1039, 1043 (Colo.1991) (internal quotation omitted)).

. Each section providing details about the sentencing options generally available to the court, sections 19-2-909 through 19-2-917, with the exception of section 19-2-909, begins with the same phrase. Section 19-2-909 begins: "Except as otherwise provided in section 19-2-601 and 19-2-921 for an aggravated juvenile offender...." Because only a probation sentence is at issue in this case, my analysis focuses specifically on section 19-2-913.