People v. Torrez

JUDGE J. JONES

dissenting in part from the denial of rehearing.

The People have petitioned for rehearing, contending that the division erred in construing _ subsection _ 18-1.3-1004(5)(a), C.R.S. 2012, which requires that any sentence for a sex offense be served consecutively to the sentences for any "additional crimes arising out of the same incident as the sex offense ...."1 The majority opinion, as now modified, holds that "additional" should be construed as divisions of this court have construed "separate" in the crime of violence statute, subsection 18-1.8-406(1)(a), C.R.S. 2012, such that a crime is "additional" for purposes of subsection 18-1.3-1004(5)(a) only if it is supported by different evidence than that supporting the sex offense. It therefore holds that subsection 18-1- 4088), C.R.S. 2012, the general sentencing statute applying to convictions supported by identical evidence, applies to pairings of defendant's multiple sexual assault convictions.

1 97 I now believe that conclusion is wrong. Indeed, it appears to me that the majority's interpretation of subsection 18-1.3-1004(5)(a) contravenes no fewer than five well-established canons of statutory construction, namely: (1) unless terms in a statute are specifically defined, we must give them their plain and ordinary meanings; (2) where the General Assembly uses different terms in different statutes, we presume the General Assembly intended different meanings; (8) we cannot limit the effect of a statute in a way not suggested or demanded by its text; (4) we must construe a statute so that no part of it is rendered meaningless or superfluous; and (5) where two statutes address a particular subject, and conflict, we must apply the one that addresses the subject more specifically.

1198 Subsection 18-1.3-1004(5)(a) provides:

Any sex offender sentenced pursuant to subsection (1) of this section and convicted of one or more additional crimes arising *42out of the same incident as the sex offense shall be sentenced for the sex offense and such other crimes so that the sentences are served consecutively rather than concurrently.

99 In construing this statutory provision, we must strive to discern and give effect to the General Assembly's intent. Romero v. People, 179 P.3d 984, 986 (Colo.2007). To do this, we first look to the statute's plain language, giving the words and phrases therein their plain and ordinary meanings. People v. Perez, 238 P.3d 665, 669 (Colo.2010).

4 100 The majority notes the plain meaning of "additional," quoting a dictionary definition: "existing or coming by way of addition: ADDED, FURTHER." Webster's Third New International Dictionary 24 (2002). This definition seems straightforward enough, and I see nothing in the context in which the statute uses the term that leads me to believe this definition should not apply. See United States v. Castello, 666 F.3d 1040, 1048-44 (7th Cir.2012) (noting that meaning depends largely on context, and that dictionary definitions therefore should be used with great caution); see also People v. Janousek, 871 P.2d 1189, 1196 (Colo.1994) (looking to dictionary definitions to discern the meanings of undefined terms in a eriminal statute). Other than noting that the term "additional" modifies the word "crime," the majority says nothing else about the context in which the term is used that justifies its limiting construction. With all due respect, I do not see why the fact "additional" modifies "crime" means the statute applies only to crimes not supported by identical evidence.

' 101 In my view, applying the plain meaning of "additional" to subsection 18-1.3-1004(5)(a), "additional crimes" are any crimes arising out of the same incident as the sex offense for which the defendant is sentenced under subsection 18-1.3-1004(1)(a). That is, they are crimes in addition to - one could say, other than - the subject sex offense if they arose out of the same incident as the subject sex offense.

1102 The majority does not apply this plain meaning of the term. Instead, it elects to construe the term in the same way as "separate" has been construed in subsection 18-1.3-406(1)(a), the crime of violence sentencing statute, because the People have not provided any support for their argument beyond citing the dictionary definition - the commonly understood meaning - of "additional." That reasoning is flatly contrary to the principle that we apply the plain meaning of a term unless a contrary intent is manifest. And I disagree with the majority that the fact there is a general rule - as set forth in section 18-1-408(8) - expresses such an intent. A rule may be subject to exceptions, and it seems to me the General Assembly created such an exception in subsection 18-1.3- 1004(5)(a).

{103 This leads to the second canon of statutory construction contravened by the majority's interpretation. Subsection 18-1.3-406(1)(a) uses the term "separate" but subsection 18-1.3-1004(5)(a) uses the term "additional." As the majority notes, we must presume that the General Assembly's choice of language was deliberate. See People v. Guenther, 740 P.2d 971, 976 (Colo.1987); People v. Gookins, 111 P.3d 525, 528 (Colo.App.2004). Where the General Assembly uses different terms in different statutes, that "signals an intent on the part of the General Assembly to afford those terms different meanings." Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010 (Colo.2008); accord Carlson v. Ferris, 85 P.3d 504, 509 (Colo.2008) (terms "safety belt" and "safety belt system" have different meanings); see also Colo. Oil & Gas Conservation Comm'n v. Grand Valley Citizens' Alliance, 2012 CO 52, ¶13, 279 P.3d 646; Colo. Div. of Employment & Training v. Accord Human Resources, Inc., 2012 CO 15, ¶¶ 16-18, 270 P.3d 985 (applying this principle and holding that the terms "employer" and "employing unit" have different meanings).

1 104 Though the term "separate," as used in the crime of violence statute, may be susceptible of an interpretation meaning not supported by identical evidence, the term "additional," as used in subsection 18-1.3-1004(5)(a), is not, and the majority cites no authority of any kind supporting such an interpretation of that term. Any crime arising out of the same incident as a subject sex offense is in addition to the subject sex of*43fense. This is so regardless whether the other crime is supported by evidence identical to that supporting the sex offense. Simply put, the terms "separate" and "additional" have different meanings: "additional" is broader than "separate." I think we must presume that the General Assembly was aware of the difference and acted deliberately in using "additional" in subsection 18-1.8-1004(5)(a). It appears that in choosing a different term with a different, broader meaning, the General Assembly sought to treat sex offenses in a particular way. We should give effect to that intent.

¶ 105 The majority's interpretation of subsection 18-1.3-1004(5)(a) allows consecutive sentencing in some cases where an additional crime arises out of the same incident as the subject sex offense, but not others. The majority's interpretation thus has the effect of adding the clause "unless the additional crimes are supported by evidence identical to that supporting the sex offense" to the end of the subsection. I see no textual (or extratex-tual) support for imposing that limitation. A statutory term used in its ordinary sense should not be limited by a forced, subtle, or technical construction. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 152 Colo. 256, 260, 381 P.2d 267, 269 (1963). Similarly, we may not "create an addition to a statute that the plain language does not suggest or demand." Spahmer v. Gullette, 113 P.3d 158, 162 (Colo.2005); see also Jones v. People, 155 Colo. 148, 154, 398 P.2d 366, 369 (1964) (a court may not change a law enacted by the legislature); People v. Adams, 128 P.3d 260, 262 (Colo.App.2005) ("[W]e will not create an exception to a statute that its plain meaning does not suggest or demand.") (citing A.C. v. People, 16 P.3d 240, 243 (Colo.2001)).

T105 The majority's interpretation also has the effect of rendering subsection 18-1.3-1004(5)(a) meaningless where, as in this case, the "additional crimes" are crimes of violence. This is because the majority's interpretation of subsection 18-1.3-1004(5)(a) means that it will apply no differently than subseetion 18-1.3-406(1)(a) applies in such ciream-stances. And such cireumstances will exist in many cases. I would read subsection 18-1.3-1004(5)(a) so that it is not rendered meaningless or superfluous in those cireumstances. See People v. Cross, 127 P.3d 71, 79 (Colo.2006); Spahmer, 118 P.3d at 162.

T 106 Of the two statutes potentially applicable here, subsections 18-1-4088) and 18-1.3-1004(5)(a), the latter is obviously more specific. Because subsection 18-1.8-1004(5)(a) allows for consecutive sentencing in cireum-stances in which subsection 18-1- 408(8) does not, and therefore the two are in conflict, we must apply it rather than subsection 18-1-408(8) in this case. § 2-4-205, C.R.S. 2012; People v. Cooper, 27 P.3d 348, 355-57 (Colo.2001) (holding the specific sentencing statute relating to sex offenders applied over a general sentencing statute pertaining to felony convictions); People v. J.J.H., 17 P.3d 159, 163 (Colo.2001); People v. Weller, 679 P.2d 1077, 1082 (Colo.1984).

107 For these reasons, I respectfully dissent, in part, from the majority's decision to deny the People's petition for rehearing.

. The People also contend in their petition that the division erred in considering various sources of information in determining whether the paired offenses were supported by identical evidence. Because of my resolution of the statutory interpretation issue, I need not address that contention. But I would not grant rehearing to address it.