Peo v. Bouchard

24CA0507 Peo v Bouchard 12-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0507
Mesa County District Court No. 18CR252
Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Leilani Mae Bouchard,

Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE LIPINSKY
Dunn and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 4, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sean James Lacefield, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Leilani Mae Bouchard appeals the postconviction court’s order

denying her postconviction motion requesting a sentence reduction

— specifically, a reduction in the victims assistance surcharge that

the district court imposed under section 24-4.2-104(1)(a)(I), C.R.S.

2025.

¶2 Because we agree that the district court incorrectly levied a

surcharge on each of her fifteen convictions, rather than a single

surcharge for the entire criminal action, we reverse that part of the

postconviction court’s order and remand the case for correction of

the mittimus. The order is otherwise affirmed.

I. Background

¶3 A jury found Bouchard guilty of fourteen felony counts and

one misdemeanor count. The district court sentenced her to an

aggregate term of twenty years on probation and imposed

restitution. As relevant here, the district court also imposed a $163

surcharge on each of the fourteen felonies and a $78 surcharge on

the single misdemeanor. A division of this court affirmed the

judgment of conviction, reversed the district court’s restitution

order, and remanded the case for amendment of such order. See

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People v. Bouchard, (Colo. App. No. 19CA2071, Dec. 8, 2022) (not

published pursuant to C.A.R. 35(e)).

¶4 Bouchard later filed the Crim. P. 35(b) motion that is the

subject of this appeal. In addition to requesting a sentence

reduction, she argued that the district court erred by levying a

surcharge on each of her fifteen convictions because the statute

only permitted the imposition of a single surcharge for the entire

criminal action. The postconviction court denied Bouchard’s

request for a sentence reduction and found that the district court

had correctly applied the surcharge to each conviction because the

statute said that the surcharge should be levied “for each felony.”

II. Standard of Review and Legal Authority

¶5 Although Bouchard asserted her challenge to the surcharges

through a Crim. P. 35(b) motion, she clearly sought correction of a

sentence not authorized by law, which is cognizable under Crim. P.

35(a). See People v. Knoeppchen, 2019 COA 34, ¶ 6, 459 P.3d 679,

681 (“[T]he substantive issues raised in a motion, rather than the

label placed on such motion, . . . determine how the matter should

be characterized.”), overruled on other grounds by, People v. Weeks,

2021 CO 75, ¶ 47 n.16, 498 P.3d 142, 157 n.16; see also Tennyson

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v. People, 2025 CO 31, ¶ 25, 569 P.3d 815, 823 (“[A]n illegal

sentence includes a sentence that is not authorized by law because

it fails to comply in full with statutory requirements.”); Waddell v.

People, 2020 CO 39, ¶¶ 1-2, 24-27, 462 P.3d 1100, 1103, 1107-08

(holding that the court’s failure to impose the statutorily-mandated

victims assistance surcharge rendered the defendant’s sentence

illegal and subject to correction under Crim. P. 35(a)).

¶6 A court may correct an illegal sentence at any time. Crim. P.

35(a). We review the legality of a sentence de novo. Magana v.

People, 2022 CO 25, ¶ 33, 511 P.3d 585, 592. And “[w]hen the

legality of a sentence turns on an issue of statutory interpretation,

we review that issue de novo as well.” People v. Bice, 2023 COA 98,

¶ 12, 542 P.3d 709, 713.

¶7 When interpreting a statute, our primary purpose is to

ascertain and give effect to the General Assembly’s intent. Cowen v.

People, 2018 CO 96, ¶ 12, 431 P.3d 215, 218. “To do so, we look

first to the language of the statute, giving its words and phrases

their plain and ordinary meanings.” McCoy v. People, 2019 CO 44,

¶ 37, 442 P.3d 379, 389. “We read statutory words and phrases in

context, and we construe them according to the rules of grammar

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and common usage.” Id. “[I]f the language in a statute is clear and

unambiguous, we give effect to its plain meaning and look no

further.” Cowen, ¶ 12, 431 P.3d at 218.

III. Analysis

¶8 Bouchard contends, the People concede, and we agree that the

district court improperly imposed fifteen separate surcharges — one

for each of Bouchard’s convictions. We conclude that, in this case,

the plain language of the victims assistance surcharge statute

requires the imposition of a single surcharge.

¶9 As relevant here, section 24-4.2-104(1)(a)(I) says that “[a]

surcharge equal to thirty-seven percent of the fine imposed for each

felony . . . or a surcharge of one hundred sixty-three dollars for

felonies, seventy-eight dollars for misdemeanors . . . , whichever

amount is greater . . . , is levied on each criminal action resulting in

a conviction.”

¶ 10 First, the district court’s reliance on the “for each felony”

statutory language was misplaced because that clause only applies

when a surcharge is based on a percentage of an imposed fine.

Because the district court did not impose a fine on any of

Bouchard’s convictions, the flat $163 surcharge for felonies in “each

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criminal action” — the greatest of the enumerated surcharge

amounts — applies. See id.

¶ 11 We agree with Bouchard’s argument that a plain reading of the

statutory reference to “each criminal action resulting in a

conviction” means that, when the court does not impose a fine in a

criminal case that results in multiple convictions, it must impose a

single surcharge and not a separate surcharge on each conviction.

Id.; see McCoy, ¶ 37, 442 P.3d at 389; Cowen, ¶ 12, 431 P.3d at

218.

¶ 12 Specifically, we are convinced that “each criminal action” in

the statute means a single criminal case, rather than each discrete

jury finding of guilt. See Cowen, ¶ 14, 431 P.3d at 218 (In the

absence of a statutory definition, we construe a statutory term in

accordance with its ordinary and plain meaning, which may be

drawn from “a definition in a recognized dictionary.”); Black’s Law

Dictionary 36 (12th ed. 2024) (“[A]ction” means “[a] civil or criminal

judicial proceeding.”); see also People v. Sterns, 2013 COA 66,

¶¶ 11-12, 318 P.3d 535, 537-38 (“[T]he term ‘action’ is generally

considered synonymous with the term ‘case’”; “[t]he terms ‘case’ and

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‘action’ are not synonymous, however, with the terms ‘charge’ or

‘claim.’”).

¶ 13 Additionally, we note that the reference to “each criminal

action” in section 24-4.2-104(1)(a)(I) differs significantly from the

language in the drug offender surcharge statute, which requires the

imposition of that surcharge “[f]or each . . . felony or . . . drug felony

of which a person is convicted.” § 18-19-103(1), C.R.S. 2025; see

People v. Cattaneo, 2020 COA 40, ¶¶ 44, 47, 471 P.3d 1186,

1195-96 (holding that section 18-19-103 required the imposition of

a drug offender surcharge on each of the defendant’s two drug

convictions); see also Hendricks v. People, 10 P.3d 1231, 1238

(Colo. 2000) (“The legislative choice of language may be concluded

to be a deliberate one calculated to obtain the result dictated by the

plain meaning of the words.” (quoting City & County of Denver v.

Gallegos, 916 P.2d 509, 512 (Colo. 1996))). If the General Assembly

had intended that persons convicted of multiple felonies in a single

criminal action, but not ordered to pay a fine, pay a surcharge for

each felony conviction, it could have employed the language in

section 18-19-103(1) and referred to a surcharge “[f]or each . . .

felony of which a person is convicted.”

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¶ 14 Lastly, we deem abandoned, and do not address, any claim

that Bouchard made in her motion but did not specifically reassert

on appeal. See People v. Brooks, 250 P.3d 771, 772 (Colo. App.

2010).

IV. Disposition

¶ 15 The order is affirmed in part and reversed in part, and the

case is remanded for the district court to correct the mittimus to

reflect a victims assistance surcharge in the amount of $163.

JUDGE DUNN and JUDGE GRAHAM concur.

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