People v. Andrews

Justice VOLLACK

dissenting:

The majority holds that the sentence enhancement provision of section 18-1-*1204105(9)(a)(V), 8B C.R.S. (1986 & 1993 Supp.),1 is not applicable to the crime of escape or attempted escape because the legislature did not intend to apply statutory aggravators to those crimes. The majority concludes that, for the crime of escape,2 an element of the crime cannot also be an aggravating factor in sentencing, and adopts the court of appeals decision in People v. Russell, 703 P.2d 620 (Colo.App.1985). Because I believe that the legislature clearly intended that section 18-1 — 105(9)(a)(V) should apply to the crime of escape, and because I believe that Bussell should be disapproved, I dissent.

I.

The crux of the majority opinion is that, for the crime of escape, an element of the crime cannot also be an aggravating factor for sentence enhancement purposes. That is, because lawful confinement is an element of the crime of escape, the aggravating factor— that the defendant was a prison inmate when the crime was committed — should not be applied to increase his sentence. The majority implicitly adopts the holding of the court of appeals in People v. Bussell, 703 P.2d 620 (Colo.App.1985). Although the majority states that it does not rely on the “same element” rationale of Bussell for its conclusion, Op. at 1202, the opinion employs the same analysis used in Bussell and reaches the same conclusion.

The majority concedes that other decisions of this court have found that “an element of an underlying offense may also provide the basis for an increased sentence, effectively mandating an escalated penalty for that offense,” and cites People v. Sanchez, 769 P.2d 1064 (Colo.1989), People v. Leonard, 755 P.2d 447 (Colo.1988), and People v. Haymaker, 716 P.2d 110 (Colo.1986). Op. at 1202-1203. However, the majority claims, in those cases the intent of the legislature was clear, while in this ease it is not. According to the majority, the principal difference between those cases and the one we address today is the clarity "with which the legislature has expressed its intent.

II.

The majority provides several reasons that the legislature’s intent is not clear on the question of whether the sentence enhancement provision applies to the underlying felony of escape.

Following the first step of the analysis in Bussell, the majority notes that, if the sentence enhancement provision applied to the crime of escape, the defendant would always be subject to an increased sentence. Doing so would change the penalty imposed by the legislature, and render it meaningless. The majority notes that “[s]uch a construction is contrary to the presumption that an entire statute, giving force and effect to all its parts, is intended to be effective,” citing People v. District Court, 713 P.2d 918 (Colo.1986), and Ingram v. Cooper, 698 P.2d 1314 (Colo.1985). Op. at 1202. Bussell also reached the same conclusion: “Such a construction would be contrary to the presumption that an entire statute is intended to be effective.” Russell, 703 P.2d at 622. I point out, however, that this portion of Bussell has been implicitly overruled by our later decisions. See, e.g., People v. Sanchez, 769 P.2d 1064 (Colo.1989); People v. Haymaker, 716 P.2d 110 (Colo.1986).

Second, the majority contends, the legislature did not intend to punish the crime of *1205escape in section 18-l-105(9)(a)(V) because it has already provided for enhanced punishment for the crime of escape in section 18-8-209, 8B C.R.S. (1986). That section states that, on conviction for escape, the sentence imposed will run consecutively and not concurrently with any sentence the offender was serving at the time of the escape.3 The majority posits that this mandate that the sentence run consecutively is the legislature’s sole imposition of sentence enhancement for escape. Op. at 1202-1203. Because of the existence of this section, the majority reasons, the legislature could not have intended to provide for additional punishment for escape in other statutes. I disagree. First, section 18-8-209 is not a sentence enhancement statute, but, rather, is part of the sentencing scheme itself. In its absence, a convicted escapee might receive a concurrent sentence, which, in effect, is no sentence at all. Section 18-8-209 ensures that the inmate convicted of escape is actually punished for his crime. Second, section 18-8-209 also imposes consecutive sentences on inmates who commit other crimes during their incarceration, in addition to the crime of escape. The majority’s logic that section 18-8-209 is the final and sole word of the legislature on sentence enhancement would nullify sentence enhancement for crimes such as assault during escape,4 introducing contraband into a detention facility,5 or possession of contraband in a detention facility.6 Yet, we have already ruled that section 18-l-105(9)(a)(V) provides for enhanced sentences for these crimes. See, e.g., People v. Leonard, 755 P.2d 447 (Colo.1988); People v. Chavez, 764 P.2d 356 (Colo.1988). I do not agree that the existence of section 18-8-209 means that the legislature did not intend to provide for sentence enhancement through other statutes.

The majority maintains that Russell, at most, applies to the crimes of escape and attempted escape. However, I can discern no difference in legislative clarity between the way the statutes address these crimes and how they address other crimes that are unquestionably subject to sentence enhancement. There is no difference, for example, between this case and People v. Leonard, 755 P.2d 447 (Colo.1988), where an inmate was convicted of unlawful possession of contraband while confined in a detention facility.7 There, an element of the crime was that the defendant had been confined in a detention facility. We approved the application of the sentence enhancement of section 18 — 1— 105(9)(a)(V) because the crime was committed while the defendant was under confinement. The crime of unlawful possession of contraband while confined in a detention facility is described in less detail in the statutes than the crime of escape. And, like the crime of escape, there is no separate provision in the criminal code for enhancing the sentence of an inmate convicted of that crime.

III.

The majority states that, although we have severely narrowed the application of Russell since it was decided, we have never disapproved of it. However, this is the first case to be decided by either this court or the court of appeals on the specific question of applying section 18-l-105(9)(a)(V) to the crime of escape since Russell in 1985.

The court of appeals in Russell ruled that section 18-l-105(9)(a)(V) did not apply to the crime of escape because an element of the crime could not also be an aggravating factor in sentencing. In 1986, the year after Russell was decided, the General Assembly amended section 18-1-105(9). The change reflected the ruling by the court of appeals in *1206Russell and allowed a court to consider aggravating circumstances associated with the commission of a crime, notwithstanding the fact that the aggravating factors constituted elements of the offense.8 We have applied that amendment, section 18-1-105(9)©, in several cases, including situations in which the statutory aggravator of section 18 — 1— 105(9)(a)(V) — that the crime was committed when the defendant was in prison — was also an element of the crime. See, e.g., People v. Leonard, 755 P.2d 447 (Colo.1988) (unlawful possession of contraband in a detention facility); People v. Chavez, 764 P.2d 356 (Colo.1988) (attempt to introduce contraband into a detention facility). We are now faced with applying section 18-l-105(9)(a)(V) and section 18-1-105(9)© to the crime of escape. I see no difference between the crime of escape and the crimes in Leonard and Chavez, in terms of the clarity of the statute and of legislative intent.

In my opinion, the legislature, by the 1986 amendment, nullified Russell on the use of an element of a crime to enhance a sentence. The amendment applies to any crime, including the crime of escape. The legislative intent is clear from the plain language of the statute, and we are required to give effect to this meaning. Danielson v. Castle Meadows, Inc., 791 P.2d 1106 (Colo.1990), rev’d sub nom. State Engineer v. Castle Meadows, Inc., 856 P.2d 496 (Colo.1993).

IV.

I believe that the legislature clearly intended the sentence enhancement statute to apply to the crime of escape, and that this court should disapprove of Russell.

I dissent.

I am authorized to say that Chief Justice ROVIRA and Justice ERICKSON join in this dissent.

. Section 18-1-105(9)(a), 8B C.R.S. (1986 & 1993 Supp.), states:

The presence of any one or more of the following extraordinary aggravating circumstances shall require the court, if it sentences the defendant to incarceration, to sentence the defendant to a term of at least the mid-point in the presumptive range but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony:
(V) The defendant was under confinement, in prison, or in any correctional institution as a convicted felon, or an escapee from any correctional institution for another felony at the time of the commission of a felonyf]

. References to the crime of escape also include the crime of attempted escape.

. The full text of § 18-8-209 states:

Consecutive sentences. Any sentence imposed following conviction of an offense under sections 18-8-201 to 18-8-208 or section 18-8-211 shall run consecutively and not concurrently with any sentence which the offender was serving at the time of the conduct prohibited by those sections.

. § 18-8-206, 8B C.R.S. (1986).

. § 18-8-203, 8B C.R.S. (1986).

. § 18-8-204.2, 8B C.R.S. (1986).

. § 18-8-204.1, 8B C.R.S. (1986).

. Section 18-1-105(9)©, 8B C.R.S. (1986), states:

The court may consider aggravating circumstances such as serious bodily injury caused to the victim or the use of a weapon in the commission of a crime, notwithstanding the fact that such factors constitute elements of the offense.