People v. Reyes

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

10
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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