COLORADO COURT OF APPEALS 2016COA98
Court of Appeals No. 14CA1549
Pueblo County District Court No. 12CR83
Honorable Victor I. Reyes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Tony James Reyes,
Defendant-Appellant.
SENTENCE AFFIRMED
Division VII
Opinion by JUDGE LICHTENSTEIN
J. Jones and Dunn, JJ., concur
Announced June 30, 2016
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellan
¶1 Defendant, Tony James Reyes, asks us to decide whether a
district court can set a resentencing hearing sua sponte and impose
an increased sentence after an offender is terminated from a
community corrections program. Because we conclude that it can,
we affirm his sentence.
I. Background
¶2 Reyes was charged with second degree burglary, a class 3
felony, and misdemeanor theft. Pursuant to his plea agreement, he
pleaded guilty to the theft count and received a two-year deferred
sentence for second degree burglary. The district court imposed a
two-year probationary sentence, with a suspended jail term.
¶3 Near the end of those two years, his probation officer filed a
revocation complaint. In a new plea agreement, Reyes admitted to
violating the terms of his probation and agreed to a sentence with a
cap of eight years in the custody of the Department of Corrections.
The district court resentenced him to four years in community
corrections.
¶4 Reyes was subsequently terminated from the community
corrections program for violating its policies. Reyes appeared before
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a different judge for resentencing. The judge questioned whether
the original four-year community corrections sentence imposed by
the previous judge was sufficient, and noted that, by statute, the
court could set a resentencing hearing if it wanted to impose a
higher sentence to the custody of the Department of Corrections.
¶5 Defense counsel objected, asserting that the court was not
statutorily authorized to set a hearing sua sponte, and also argued
that the court was treating his client differently from “hundreds of
other defendants.” The court disagreed, and after holding a
resentencing hearing it imposed a five-year sentence in the custody
of the Department of Corrections.
¶6 Reyes raises four contentions on appeal. First, he argues that
the court lacked statutory authority under the community
corrections statute to set a resentencing hearing sua sponte.
Second, he contends that the court violated separation of powers
principles when it set the hearing despite the fact that the
prosecution never requested one. Third, he asserts that the court
violated his right to equal protection when it singled him out for a
sua sponte resentencing hearing just because it disagreed with the
previous judge’s sentence. Finally, he claims the court abused its
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discretion when it set a resentencing hearing for that same reason.
We discuss and reject each contention in turn.
II. Court’s Statutory Authority to Set Resentencing Hearing Sua
Sponte
¶7 Reyes contends that the court lacked the statutory authority
to set a resentencing hearing without a request from one of the
parties. We disagree with Reyes’s contention because the statutes
governing the resentencing of an offender after a termination from
community corrections do not condition the court’s authority to set
a hearing on a request from one of the parties, and we will not read
such a requirement into them.
A. Standard of Review and Relevant Law
¶8 Statutory interpretation is a question of law that we review de
novo. Romero v. People, 179 P.3d 984, 986 (Colo. 2007). Our main
goal when interpreting any statute is to give effect to the General
Assembly’s intent. Id. To do so, we start by looking at the statute’s
plain language. Id. “When a statute is part of a complex of
sentencing prescriptions, the entire scheme should be construed to
give consistent, harmonious, and sensible effect to all its parts.”
3
People in Interest of J.S.R., 2014 COA 98, ¶ 13 (quoting A.S. v.
People, 2013 CO 63, ¶ 11).
¶9 Section 18-1.3-301, C.R.S. 2015, governs the district court’s
authority over community corrections sentences. Subsection (1)(e)
addresses the court’s authority to resentence an offender who has
been terminated from a community corrections program. It
provides that, if an offender is rejected from a community
corrections program after he or she was initially accepted, “the
court may resentence the offender without any further hearing so
long as the offender’s sentence does not exceed the sentence which
was originally imposed upon the offender.” § 18-1.3-301(1)(e).
¶ 10 In Romero, our supreme court was asked to resolve whether
this language authorized a court to increase an offender’s sentence
if it held a resentencing hearing, or whether the language simply
authorized a court to convert a community corrections sentence to
an equivalent (or shorter) Department of Corrections sentence
without having to hold a hearing. The Romero court construed the
plain language of subsection (1)(e) to mean that the district court
can increase an offender’s sentence so long as it holds a
resentencing hearing. Romero, 179 P.3d at 986-87. It found
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support for this construction in another subsection of the
community corrections statute, section 18-1.3-301(1)(h)(I), which
gives the sentencing court authority “to modify” a community
corrections sentence “in the same manner as if the offender had
been placed on probation.” The court determined that it “must look
to what sentence [a defendant] could have been given had he
violated a condition of probation rather than a condition of his
community corrections sentence.” Romero, 179 P.3d at 987. In
this inquiry, the supreme court concluded that it must apply
section 16-11-206(5), C.R.S. 2015, of the probation revocation
statute, because that subsection governs the resentencing of an
offender who has violated a condition of probation. Id. And, under
section 16-11-206(5), a court may impose any sentence “which
might originally have been imposed or granted.”
B. Discussion
¶ 11 Reyes does not dispute that Romero permits a court to
increase a sentence after holding a hearing, but contends that the
court can hold a resentencing hearing only if the prosecutor or
defendant requests it. He reasons that because subsection (1)(h) of
the community corrections statute allows the court “to modify” a
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community corrections sentence in the same manner as a probation
sentence, we ought to look to the probation modification statute,
section 18-1.3-204(4)(a), C.R.S. 2015, which, he contends, does not
permit a court to set a resentencing hearing sua sponte. The
probation modification statute states in pertinent part:
For good cause shown and after notice to the
defendant, the district attorney, and the
probation officer, and after a hearing if the
defendant or the district attorney requests it,
the judge may reduce or increase the term of
probation or alter the conditions or impose
new conditions.
Id. (emphasis added). Reyes concludes, from this highlighted
language, that the court can hold a resentencing hearing only if the
prosecutor or the defendant requests it. We are not persuaded that
the probation modification statute applies here.
¶ 12 When the supreme court in Romero construed subsection
(1)(h) of the community corrections statute, it first “look[ed] to the
facts of the case at hand to determine which provision of the
probation statute would apply.” See 179 P.3d at 987 n.3. It then
determined that a resentencing on a termination from community
corrections is analogous to resentencing on a probation revocation,
and therefore it was required to limit its review to the probation
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revocation sentencing statute to determine if a sentencing court has
authority to increase the sentence. See id.
¶ 13 We are bound to follow this limit placed by our supreme court.
We may not, therefore, apply the resentencing provisions of the
probation modification statute because a “modification of probation
is not analogous to a probation revocation proceeding.” People v.
Hotle, 216 P.3d 68, 70 (Colo. App. 2008) (stating that a modification
of probation occurs “prior to the commencement of revocation
proceedings and provides a defendant with another opportunity to
complete his probation without having it revoked”).
¶ 14 Accordingly, we conclude that section 16-11-206(5), and not
the modification statute in section 18-1.3-204(4)(a), applies to the
resentencing here. See Romero, 179 P.3d at 987-88; see also People
v. Griego, 207 P.3d 870, 871 (Colo. App. 2008) (looking to the
probation revocation statute when offender was terminated from
community corrections).
¶ 15 Section 16-11-206(5) provides in pertinent part, “If probation
is revoked, the court may then impose any sentence or grant any
probation pursuant to the provisions if this part 2 which might
originally have been imposed or granted.” Id.
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¶ 16 The plain language of this resentencing provision in section
16-11-206(5) does not state, much less suggest, that the prosecutor
or defendant must request a resentencing hearing before the court
can hold one. See id.
¶ 17 Reading section 16-11-206(5) together with section
18-1.3-301(1)(e), we perceive no legislative intent in either statute to
restrict the court’s ability to set a resentencing hearing only if the
prosecutor or the defendant requests it. See Carruthers v. Carrier
Access Corp., 251 P.3d 1199, 1204 (Colo. App. 2010) (“[W]e will not
interpret a statute to mean that which it does not express. Nor will
we add or substitute language in an otherwise clear statute.”)
(citations omitted). As a result, we conclude that section
18-1.3-301(1)(e) does not condition a district court’s authority to set
a resentencing hearing on a request from one of the parties.
¶ 18 Our conclusion is consistent with the legislative purpose
underlying section 18-1.3-301(1)(e). In Romero, the supreme court
noted that “it is reasonable that the legislature would give courts
flexibility to increase a sentence when the circumstances merit it.”
179 P.3d at 987.
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¶ 19 Reyes nonetheless points to language in People v. James, 940
P.2d 1092 (Colo. App. 1996), to argue that a hearing cannot be held
absent a request from one of the parties. In James, a division of
this court stated that a district court has “discretion to grant a
hearing at the time of resentencing” under the community
corrections statute. Id. at 1095 (emphasis added). Reyes argues
that a court cannot “grant” something unless it was first requested
by a party.
¶ 20 We are not persuaded by this argument. The issue in James
was the constitutionality of the community corrections statute
allowing the court to resentence a terminated offender without a
hearing. Id. The division never addressed whether a district court
has authority under the statute to set a hearing absent a request to
do so. As a result, we will not read the language in James so
broadly without clear statutory guidance to the contrary.
¶ 21 Accordingly, we conclude that section 18-1.3-301(1)(e) of the
community corrections statute does not condition a district court’s
authority to set a resentencing hearing on a request from one of the
parties.
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III. Separation of Powers
¶ 22 Next, Reyes contends that the court violated separation of
powers principles when it set a resentencing hearing sua sponte.
We do not agree with this contention.
A. Standard of Review and Relevant Law
¶ 23 Whether the district court violated separation of powers
principles is a question of law that we review de novo. People v.
Renander, 151 P.3d 657, 659 (Colo. App. 2006).
¶ 24 The separation of powers doctrine “bars the judiciary from
interfering with the executive or legislative branches.” Id. As a
member of the executive branch, a prosecuting attorney retains
discretion “to initiate, alter, or dismiss charges.” Id. (citing People v.
Dist. Court, 632 P.2d 1022, 1024 (Colo. 1981)); People v. Dist. Court,
186 Colo. 335, 339, 527 P.2d 50, 52 (1974)). Prosecutorial
discretion extends to the power to investigate, to decide whom to
prosecute, and to choose which charges to file. Dist. Court, 632
P.2d at 1024.
B. Discussion
¶ 25 Reyes claims that both the community corrections statute and
separation of powers principles give the prosecutor discretion to
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request a resentencing hearing after an offender is terminated from
community corrections. He reasons that the court violated the
separation of powers doctrine when it set a resentencing hearing
after the prosecutor exercised her discretion not to request one.
¶ 26 Reyes first argues that the community corrections statute, by
way of the probation modification statute, confers prosecutorial
discretion to request a resentencing hearing. We are not
persuaded. As we have concluded above, the probation
modification statute is not applicable when an offender is
terminated from community corrections and resentenced.
¶ 27 Reyes also relies on People v. Storlie, 2014 CO 47, to support
his claim. His reliance is misplaced.
¶ 28 In Storlie, the supreme court addressed the district court’s
authority to deny a prosecutor’s good faith motion to dismiss a
case. Id. at ¶¶ 10, 11. It is well-established that “the discretion to
dismiss criminal charges lies with the prosecution, not the court.”
Id. at ¶ 10. But Reyes points to no similar authority, and we have
found none, that suggests that the discretion to request a
resentencing hearing under these circumstances lies solely with the
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prosecution. We decline to extend the separation of powers
doctrine so far in this case.
¶ 29 Accordingly, we conclude that the district court did not violate
separation of powers principles when it set the resentencing hearing
sua sponte.
IV. Equal Protection
¶ 30 Reyes also argues that the court violated his right to equal
protection under the laws when it singled him out from hundreds of
other defendants and set a resentencing hearing just because it
disagreed with the prior judge’s four-year sentence. We perceive no
equal protection violation.
A. Standard of Review and Relevant Law
¶ 31 We review equal protection challenges de novo. See People v.
Firm, 2014 COA 32, ¶ 6.
¶ 32 “Equal protection of the laws assures the like treatment of all
persons who are similarly situated.” Dean v. People, 2016 CO 14,
¶ 11; see U.S. Const. amend. XIV, § 1; Colo. Const. art. II, § 25.
Where, as here, the challenged state action does not affect a
fundamental right or a traditionally suspect class, we apply a
rational basis review. Dean, ¶ 12. Under this standard, the
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challenging party bears the burden of proving that the action “bears
no rational relationship to a legitimate legislative purpose or
government objective, or that the classification was otherwise
unreasonable, arbitrary, or capricious.” Id.; see also Tassian v.
People, 731 P.2d 672, 675 (Colo. 1987) (“[A] governmental
classification which singles out a group of persons for disparate
treatment [must] be rationally founded on differences that are real
and not illusory and that such classification be reasonably related
to a legitimate state interest.”).
B. Discussion
¶ 33 Reyes contends that the court singled him out for a
resentencing hearing based solely on its disagreement with the prior
court’s original four-year sentence. He argues that this is an
arbitrary distinction that violates his right to equal protection.
¶ 34 At Reyes’s first court appearance for resentencing, the judge
stated that it was setting a hearing because he thought “the four-
year sentence that was originally given by the Judge, when I wasn’t
here, is [in]sufficient, as far as this Class 3 felony.” At the next
appearance, defense counsel sought to clarify the court’s motivation
for setting the resentencing hearing:
13
[Defense Counsel]: [T]he rationale that the
Court gave last Monday was that it didn’t
necessarily agree with [the previous judge’s]
sentence. That was my recollection.
[Court]: What I’m saying is that, based upon
the revocation that he had, I believe that he
should have a longer sentence than four years.
And without giving him a hearing, I can’t
impose a longer sentence than four years.
....
[Defense Counsel]: But the Court stated last
week the reason for doing this, and setting this
hearing, is because you didn’t agree with what
[the previous judge] gave him in the first place.
[Court]: The only way I can sentence him . . .
to a longer sentence is by giving him a hearing.
[Defense Counsel]: I understand. But I want
to get on the record why the Court wants to
give him a longer sentence. And the reason
the Court gave last week was that it did not
agree with [the previous judge’s] sentence of
four years.
[Court]: That I don’t think it’s proper, at this
point?
[Defense Counsel]: Yes.
[Court]: Absolutely, or else we wouldn’t be
having a hearing.
¶ 35 Read in context of its further explanation, we are persuaded
that the court set a resentencing hearing because it knew that,
14
pursuant to statute, the original four-year sentence would restrict
its ability to impose a lengthier prison sentence, and it believed that
four years was no longer appropriate in light of the circumstances
of Reyes’s case, particularly his prior probation violations and his
violations of the community corrections program’s policies.
¶ 36 This reason is rationally related to a legitimate government
objective: giving courts that are resentencing offenders terminated
from community corrections the “flexibility to increase a sentence
when the circumstances merit it.” Romero, 179 P.3d at 987.
Indeed, “the sentencing court’s responsibility is to individualize and
tailor a sentence to fit the crime and the particular defendant before
the court. . . . The exercise of this discretionary power does not
deny a defendant equal protection under the laws.” People v.
Garberding, 787 P.2d 154, 158 (Colo. 1990).
¶ 37 Therefore, we are persuaded that the court’s decision to set a
resentencing hearing was rationally related to a legitimate
governmental objective and did not violate Reyes’s right to equal
protection.
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V. Whether Setting a Resentencing Hearing Was an Abuse of
Discretion
¶ 38 Finally, Reyes asserts that even if the court did not violate his
equal protection rights, the court abused its discretion when it set
the resentencing hearing because its decision was manifestly
arbitrary and abrogated the previous judge’s sentence, which was
the law of the case. We are not persuaded.
¶ 39 As discussed above, we conclude that the court’s decision to
set a hearing was not arbitrary, but rationally based on the
particular circumstances of Reyes’s case. And the prior judge’s
four-year sentence was not binding as the law of the case because
of changed conditions. See People v. Roybal, 672 P.2d 1003, 1005
n.5 (Colo. 1983) (“However, the law of the case as established by
trial court rulings is not binding if it . . . is no longer sound due to
changed conditions . . . .”). After the original judge imposed the
four-year community corrections sentence, Reyes violated its
policies and was terminated from the program. Thus, by statute,
the court was required to resentence Reyes, and, by setting a
hearing, it had the authority to impose any sentence that could
have been originally imposed. § 16-11-206(5); § 18-1.3-301(1)(e);
16
Romero, 179 P.3d at 987. Therefore, we conclude that the court did
not abuse its discretion when it set the resentencing hearing.
VI. Conclusion
¶ 40 Reyes’s five-year sentence to the custody of the Department of
Corrections is affirmed.
JUDGE J. JONES and JUDGE DUNN concur.
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