People v. Steen

JUSTICE COATS,

dissenting.

T 27 While today's holding may be of little significance, both because the effect of the majority's opinion is merely to shift discretion from the trial to the reviewing court and because the legislature can simply amend the applicable statutes in any event, I feel compelled to take issue with the majority's application of (or perhaps failure to apply) accepted principles of statutory construction. Unlike the majority, I believe those principles require the harmonization of the simplified county court procedures governing stays of execution with the statutes governing sentences to probation by construing the former to reasonably comprehend only imprisonment, fines, and costs; and in the event such harmonization were not possible, to resolve any conflict in favor of the probationary statute as both the more recent and more specific of the two.

{28 As the majority largely accepts, it is universally held that statutes must be interpreted to give effect to legislative intent; but where the language chosen by the legislature to express itself is susceptible of more than a single reasonable interpretation, or if it conflicts with another legislative provision, a body of intrinsic and extrinsic aids has been developed over many years to assist in resolving the uncertainty. See Dep't of Transp. v. Gypsum Ranch Co., 244 P.3d 127, 131 (Colo.2010). In addition, the legislature has itself promulgated a number of rules for deciphering its intent and priorities with regard to various ambiguities or apparent conflicts in its provisions. Of particular relevance here, the legislature specifies that conflicting general and specific provisions should be construed to give effect to both wherever possible, and if not possible, that the specific, or special, provision should prevail unless the general provision is the later adoption and manifests an intent to control. § 2-4-205, C.R.S. (2018).

129 In brief, the majority finds that seetion 16-2-114(6), C.R.S. (2018), can be reasonably understood only as governing every aspect of a county court sentence, including probation, and that it must prevail over the general sentencing provisions, which include more specific provisions governing the imposition of probation, as a procedure prescribed specifically for county courts. Initially, I believe the language of section 16-2-114(6) is susceptible of more than one reasonable understanding. Although the first sentence of the statute refers only to "a stay of execution," without further elaboration, the statute immediately follows up by detailing the specific effects of staying judgments imposing imprisonment, fines, and costs, but nothing else. See id. Not only does this structure strongly suggest that only the enumerated *495sanctions were contemplated as being subject to a mandatory stay of execution, but at the time these words were written, the statutory scheme did not even include an order of probation as a separate sentencing alternative.

130 Although such county court stays became mandatory only in 1972 with the adoption of our current Criminal Procedure Code, see Senate Bill 72-44, 1972 Colo. Sess. Laws 196, the statute as a whole, including its reference to "a stay of execution," "imprisonment," "fine," and "costs," was drafted and made applicable during the pre-Criminal Procedure Code sentencing regime, see Senate Bill 64-15, 1964 Colo. Sess. Laws 484. As we have extensively detailed elsewhere, see Fierro v. People, 206 P.3d 460, 462 (Colo.2009), at the time this language was enacted, probation was not a separate sentencing alternative at all and instead became available to a defendant only upon suspending the statutorily required sentence, pending satisfaction of specific conditions of probation. See People v. Flenniken, 749 P.2d 395, 897 (Colo.1988). While the word "may" was amended to "shall" with the adoption of the Criminal Procedure Code, Senate Bill 72-44, 1972 Colo. Sess. Laws 196, which in a completely separate article simultaneously characterized probation for the first time as a sentencing alternative of its own, id. at 239, the effect of that recharacterization on the requirement to first suspend a statutorily imposed sentence did not become apparent for some dozen more years, see Fierro, 206 P.3d at 461-65.

131 In view of the statute's failure to include probation in its express enumeration of adverse consequences to be mandatorily stayed by the county court upon the docketing of an appeal, in conjunction with the understanding of probation at the time and the legislature's admonition to avoid conflicts by construction where possible, I would not only find this reconciling construction of seetion 16-2-114(6) possible but in fact required. Such a construction would lead inexorably to the conclusion that the mandatory stay provision of the simplified county court procedures was never intended to apply to the imposition of probation and therefore in no way conflicts with the later-adopted, specific statutory provision for stays of probationary sentences. Were such a reconciliation not possible, however, I nevertheless believe the legislature's prescription for resolving conflicting statutory provisions would lead to a different result from that reached by the majority.

32 Because article 1.8 of title 18 governs sentencing for both felony and misdemeanor crimes, and part 2 of that article governs the probationary power of courts over both felonies and misdemeanors, the majority apparently views each individual probationary provision that conflicts with the simplified procedure as a general provision in relation to a special or local provision, for purposes of section 24-205. I, on the other hand, find it more meaningful to view a statute governing stays of execution generally, without reference to probation in particular, as the general provision, and to view a separate statute governing stays of only probationary sentences as the more specific of the two. It seems clear, at least to me, that the significant comparison is not between a general sentencing provision applying to all crimes and a procedural provision applying only to county courts, but rather between a provision governing stays generally and one limited to stays of probationary sentences.

33 Finally, even if the probation statute, section 18-1.3-202(1), C.R.S. (2018), could reasonably be characterized as the more general provision, I would still find that the manifest intent of the legislature was for it, in conjunction with section 16-4-201(2), C.R.S. (20183), to control stays of all probationary sentences, regardless of the particular court imposing probation. The simplified procedures for county courts, including the vast majority of section 16-2-114(6), pre-date the adoption of the modern Criminal Procedure Code, and even the amendment making stays in county court mandatory occurred in 1972, a time when misdemeanor cases actually were considerably more simple. By contrast, the specific stay provision of section 18-1.3-202(1) governing sentences to probation was adopted in 1994, in conjunction with a corresponding amendment to the bail bond provisions, making them expressly applicable *496to stays of probationary sentences, see § 16-4-201(2). House Bill 94-1068, 1994 Colo. Sess. Laws 97-98. These 1994 amendments clearly, and obviously intentionally, altered the existing default position expressed by C.A.R. 8.1(a)(d) from one of automatic stay of probation upon notice of appeal to one of probationary sentences remaining in effect from entry of judgment through appeal, unless a stay were to be granted, as permitted by the bail bond statutes. In addition to being the later adoptions, the probation and bail amendments were clearly directed at all probationary sentences, regardless of the sentencing court.

1 34 The majority finds meaningful the fact that following the 1994 amendments this court modified C.A.R. 8.1(a)(4), but not Crim. P. 37(f). Unlike the county court rule, which did not reference stays of probation at all, however, the appellate rule expressly required that any order placing a defendant on probation had to be stayed upon the filing of a notice of appeal, putting it in direct conflict with the applicable statutory amendments. I consider the fact that the appellate rule was the clear precipitating cause of the statutory amendments, while the county court rule failed to even reference probation, to be a more persuasive explanation for amending the one and not the other than attributing to this court a belief that the 1994 statutory amendments were intended to apply only to felony courts. In any event, I am unaware of any principle of statutory interpretation suggesting that a high court's. prior exercise of its rulemaking authority has any limiting ef-feet on its subsequent statutory construction.

' 35 In addition to the application of these accepted, objective rules of construction, I also simply consider it too contrived to find, as the majority appears to have done, a legislative intent to grant the county court discretion whether to order probation in the first place and to impose conditions of bond pending appeal, but to deny it, in favor of the reviewing court, any discretion to order that specific conditions of probation must continue during the pendency of appellate review. I therefore respectfully dissent.

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