People v. Ostuni

Justice MARTINEZ

dissenting:

The Majority’s interpretation of the trial court’s mittimus detailing Ostuni’s presen-tence confinement credit is contrary to the clear language of the mittimus. Common sense requires that we review the language of the mittimus before resorting to any construction. Because the mittimus clearly allocated presentence confinement credit to Os-tuni’s two new offenses, I conclude that the DOC violated the trial court’s order. Accordingly, I respectfully dissent.

I. The Mittimus Awards Credits to the New Offenses

While Ostuni was serving a period of discretionary parole on a conviction for assault in the second degree, he committed and was later convicted of forgery and aggravated motor vehicle theft. Upon these convictions, the trial court sentenced him to two concurrent six-year terms of imprisonment, to be served concurrently with his parole violation on the assault conviction.

Between arrest and sentencing, Ostuni spent 420 days in confinement. On the mitti-mus, the trial court specifically granted credit for time served of 420 days on the forgery count and separately granted credit for time served of 420 days on the aggravated motor vehicle theft count. After the Colorado Department of Corrections (DOC) refused to comply with the trial court’s order awarding 420 days of presentence confinement credit, Ostuni asked the trial court for an order to compel. In an order determining that it no longer had jurisdiction, the trial court reiterated that it had awarded “420 days pre-sentence confinement credit for each count ” (emphasis added).

The court clearly had the opportunity to note on the mittimus that any credit for time served was to be awarded only on the parole violation, but it did not. Similarly, the court did not state that it was merely finding that Ostuni had been confined for 420 days before sentencing; rather, it granted credit on the new counts. The mittimus and the court’s later order indisputably show that the pre-sentence confinement credit was granted to the new sentences and not the old conviction.

II. The Majority’s Interpretation Ignores the Mittimus

I believe that the Majority ignores the clear direction in the trial court’s order and misconstrues the mittimus. The Majority’s interpretation relies solely on its finding of implicit authority delegated to the DOC, within section 18-1.3^405, 6 C.R.S. (2002), to determine to which sentence a trial court’s finding of presentence confinement credit applies. Maj. Op. at .534. Its reasoning implies, that however clear the mittimus, it could not have meant what it plainly stated.

I leave for another case the discussion on the presence or absence of authority implicitly delegated to the DOC to allocate presen-tence confinement credit between new and old offenses. Instead, this dissent rests on *536the belief that the Majority is simply recasting the same argument that we have previously considered and rejected in People v. Grangruth, 990 P.2d 697 (Colo.1999); Meredith v. Zavaras, 954 P.2d 597 (Colo.1998); and Bullard v. Department of Corrections, 949 P.2d 999 (Colo.1997). These cases have in common the issue of whether the DOC can disregard a trial court’s order that it believes is contrary to legislation. In our prior cases, we made it clear that the DOC must enforce sentencing orders directing it to apply time credits absent further judicial action. Maj. Op. at 533-534.

In Bullard, the defendant sought a writ of mandamus against the DOC for its failure to discharge him from custody contrary to the trial court’s order. 949 P.2d at 1000-01. The sentencing court found that Bullard had served his two-year stipulated sentence and should be discharged from DOC custody. Id. at 1000. Despite the order of the trial court, the DOC refused to discharge Bullard, arguing that the order was void. Id. We did not reach the propriety of the district court’s application of law to Bullard’s case. Id. at 1002. Instead, we found that since the trial court’s order was final, the DOC must comply with it absent further judicial action. Id.

In Meredith, the DOC failed to comply with the trial court’s order to apply presen-tence confinement credit to defendant’s new offenses. 954 P.2d 597. The DOC argued that the precursor to section 18-1.3-405, section 16-11-306, precluded the trial court from applying the presentence confinement credit to the new sentence. Id. at 599-600. After many attempts to compel the DOC to comply with the trial court’s order, the defendant sought a writ of mandamus against the DOC. Id. at 601. Consistent with our holding in Bullard, we found that the DOC could not elect to ignore the trial court’s order when it had not been relieved of that obligation by further judicial action. Id. at 602.

Finally, in Grangruth, we repeated our admonition to the DOC. 990 P.2d 697. In Grangruth, the DOC proceeded to transfer the presentence confinement credit to the previous sentence upon which the defendant had violated parole, consistent with the precursor to section 18-1.3^105, section 16 — 11— 306, and contrary to the trial court’s mitti-mus order. Id. at 698. Defendant requested an order from the trial court to compel the DOC to apply the presentence confinement credit consistent with the mittimus. Id. The trial court ordered that the presentence confinement credit apply to the latter, newer conviction, but the DOC made no effort to comply. Id. at 698-99. When Grangruth requested a writ of mandamus, the DOC argued that the trial court’s grant of credit was contrary to the plain meaning of section 18-1.3-405. Id. at 700. We refused to address that issue because the DOC had not relieved its obligation to comply with the trial court’s order. Id. at 701.

We have made it abundantly clear that the DOC may not disregard a final order with impunity. Once again, the DOC has refused to acknowledge the clear mandate of the trial court. To circumvent Bullard and its progeny, the Majority reasons that since the trial court did not have authority to allocate pre-sentence confinement credit, any findings of fact within the mittimus must necessarily be consistent with the absence of that authority. The Majority ignores the trial court’s clear language in the mittimus. The Majority finds that, notwithstanding the clarity of the mittimus, the interpretation of the mittimus must be first guided by looking outside the mittimus, thus nullifying the final sentencing order of the trial court. While I cannot dispute that the trial court’s grant of presen-tence confinement credit is contrary to section 18-1.3-405, the proper course to resolve any possible discrepancy is not through a faulty interpretation of the trial court’s order. Therefore, I respectfully dissent.

I am authorized to say that Justice HOBBS and Justice BENDER join in this dissent.