People v. DeBorde

COLORADO COURT OF APPEALS 2016COA185

Court of Appeals No. 14CA0332
Mesa County District Court No. 13CR1242
Honorable Valerie Jo Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cody Lynn DeBorde,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE HARRIS
Dailey and Furman, JJ., concur

Announced December 29, 2016

Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Inga K. Nelson, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Under Colorado’s so-called “wobbler” statute,1 the court must

vacate the defendant’s felony conviction and enter a misdemeanor

conviction in its place if the defendant successfully completes his

community corrections or probationary sentence. The primary

issue raised in this appeal is whether the felony-level surcharge

imposed as part of the original sentence must be reduced to a

misdemeanor-level surcharge upon entry of the misdemeanor

conviction.

¶2 Cody Lynn DeBorde pleaded guilty to one count of possession

of a controlled substance, a level 4 drug felony. The court imposed

a mandatory $1500 felony drug offender surcharge as part of his

sentence. When DeBorde completed his community corrections

sentence, the court vacated his felony conviction and entered a

conviction for a class 1 misdemeanor. DeBorde contends that once

his conviction was reduced to a misdemeanor, the court should

1 The term “wobbler” usually describes a “hybrid” offense that can
be charged as either a felony or a misdemeanor. See, e.g., People v.
Williams, 57 Cal. Rptr. 2d 448, n.2 (Cal. Ct. App. 1996). Here, the
term describes an offense that “wobbles” from a felony to a
misdemeanor upon the defendant’s successful completion of the
community-based portion of his sentence.

1
have likewise reduced his drug offender surcharge to the

misdemeanor amount of $1000.

¶3 We conclude that the statute contemplates the vacation only of

the felony conviction, not of the sentence. Accordingly, we agree

that the amount of the drug offender surcharge is properly

determined by the initial conviction.

¶4 DeBorde, though, also argues that he has no ability to pay any

surcharge, no matter the amount, and that the court should have

waived it. We determine that DeBorde did not meet his burden of

demonstrating his inability to pay the surcharge.

I. Background

¶5 In 2013, as part of a plea deal, DeBorde pleaded guilty to one

count of possession of a controlled substance and was sentenced to

nine months in community corrections, with a stipulation that he

was eligible for relief under the wobbler statute, section 18-1.3-

103.5, C.R.S. 2016. Thus, if he successfully completed his

community corrections sentence, his felony conviction would be

converted to a misdemeanor conviction.

2
¶6 At the sentencing hearing, the district court also imposed

various court costs and fees, including, in accordance with section

18-19-103, C.R.S. 2016, a drug offender surcharge. Defense

counsel requested that the court waive the drug offender surcharge

because DeBorde was unable to pay it. The court denied the

request and imposed the full $1500 surcharge, noting that it did

not have any evidence of DeBorde’s inability to pay. But, as

detailed in DeBorde’s presentence report, at the time of his arrest,

DeBorde was homeless and unemployed and had been for a

significant period.

¶7 DeBorde also asked the district court to set a review hearing

so that, upon confirmation by the community corrections placement

of his successful completion of the sentence, the court could,

without further request by DeBorde, simply vacate the felony

conviction and enter a misdemeanor conviction in its place. The

court denied this request as well, ruling that DeBorde had to file a

motion and request relief under the wobbler statute.

¶8 Upon his successful completion of his sentence, DeBorde filed

a motion seeking vacation of his felony conviction. The district

3
court granted the motion, vacated the original conviction, and

entered a conviction for a level 1 drug misdemeanor. Most of the

$1500 surcharge remains outstanding.

II. Under the Wobbler Statute, Entry of a Misdemeanor
Conviction Does Not Affect the Court’s Prior Imposition of the
Felony Drug Offender Surcharge

¶9 We first settle the question whether DeBorde’s surcharge had

to be reduced when his conviction was converted from a felony to a

misdemeanor. 2

¶ 10 The answer to that question turns on the interpretation of the

surcharge and wobbler statutes, issues of statutory construction we

review de novo. See People v. Steen, 2014 CO 9, ¶ 9. We conclude

that the court properly applied these statutes.

¶ 11 Our primary duty in interpreting statutes is to give full effect

to the intent of the General Assembly. Ryan Ranch Cmty. Ass’n,

Inc. v. Kelley, 2014 COA 37M, ¶ 39. To determine legislative intent,

we look first to the plain language of the statute. State v. Nieto, 993

2 The People assert that DeBorde’s claim amounts to a time-barred
request for a reduction of his sentence under Crim. P. 35(b). We
reject this contention and, instead, construe DeBorde’s claim as a
challenge to the propriety of a felony sentence pursuant to section
18-1-409(1), C.R.S. 2016.

4
P.2d 493, 500 (Colo. 2000). When the language of a statute is clear,

we apply the statute as written. Id.

¶ 12 Each drug offender who is convicted or receives a deferred

sentence “shall be required to pay a surcharge” in an amount set

forthby statute. § 18-19-103(1). After DeBorde pleaded guilty to a

class 4 drug felony, the court imposed the mandatory $1500 drug

offender surcharge that corresponded to his offense of conviction. §

18-19-103(1)(d); see also People v. McQuarrie, 66 P.3d 181, 183

(Colo. App. 2002) (drug offender surcharge is considered

punishment and must be imposed with the initial sentence).

¶ 13 DeBorde does not dispute that, at the time of sentencing, the

court properly imposed the felony drug offender surcharge. But he

maintains that when his conviction was reduced from a felony to a

misdemeanor, the court was required to adjust the surcharge

accordingly.

¶ 14 The wobbler statute provides that, for certain felony drug

offenders, “the court shall order, upon successful completion of any

community-based sentence to probation or to a community

corrections program, the drug felony conviction vacated and shall

5
enter a conviction for a level 1 drug misdemeanor offense of

possession of a controlled substance pursuant to section 18-18-

403.5.” § 18-1.3-103.5(2)(a).

¶ 15 The statute contains a single mandate: if the defendant

successfully completes his sentence to probation or community

corrections,3 the court must substitute a misdemeanor conviction

for the original felony conviction. The statute, however, does not

similarly authorize the court to vacate any part of the defendant’s

original sentence and re-impose a new sentence.

3 While the surcharge is part of a defendant’s sentence, see People
v. Stead, 845 P.2d 1156, 1160 (Colo. 1993), payment of the
surcharge does not affect the defendant’s eligibility to have his
felony conviction vacated. A defendant becomes eligible for relief
under the statute “upon successful completion of any community-
based sentence to probation or to a community corrections program.”
(emphasis added). § 18-1.3-103.5(2)(a), C.R.S. 2016. Subsection
2(b) instructs that the district court shall determine whether a
sentence has been successfully completed, and notes that a
“community-based sentence is not successfully completed if the
defendant has not successfully completed the treatment as ordered
by the court and determined appropriate to address the defendant’s
treatment needs.” § 18-1.3-103.5(2)(b). Thus, successful
completion of the “community-based sentence” means satisfactory
completion of the supervision component of a defendant’s sentence.
Cf. Martin v. People, 27 P.3d 846, 859 (Colo. 2001) (statutory
reference to “maximum sentence” only referred to the incarceration
component of defendant’s sentence).

6
¶ 16 The conviction and sentence together make up the judgment

in a criminal case. People v. Turner, 644 P.2d 951, 953 (Colo.

1982). The wobbler statute, however, is directed only to the

conviction portion of the judgment. If the legislature had intended

to direct the court to also vacate any unfulfilled component of the

defendant’s sentence, and enter a new conviction and sentence, we

presume that the legislature would have said so. As a well-settled

matter of statutory construction, we must accept the General

Assembly’s choice of language and may not add or imply words that

simply are not there. Williams v. Dep’t of Pub. Safety, 2015 COA

180, ¶ 85; see also Tatum v. Basin Res., Inc., 141 P.3d 863, 871

(Colo. App. 2005) (“Courts may not interpolate into a statute words

that it does not contain, or extract a meaning which is not

expressed by it.”).

¶ 17 We find further support for our reading of the statute by

observing that a surcharge must be imposed even when a defendant

receives a deferred judgment and sentence. § 18-19-103(1). In

those cases, no judgment of conviction is entered unless the

defendant violates the terms of his deferred judgment. Under

7
DeBorde’s theory, the legislature intended to impose, and then

rescind, the surcharge requirement in every case, except where the

deferred judgment is revoked. We generally avoid a construction of

a statute that renders the result illogical. M.T. v. People, 2012 CO

11, ¶ 14.

¶ 18 Moreover, the statute contemplates that vacating the original

felony conviction will occur only after successful completion of the

defendant’s sentence to probation or community corrections and

without a sentencing hearing. In our view, the sequence of these

events emphasizes that the sentence will not be affected by the

court’s later substitution of a misdemeanor conviction for the

original felony conviction. § 18-1.3-103.5(2)(a) (felony conviction

reduces to misdemeanor “upon successful completion” of a

community-based sentence); see also § 18-1.3-103.5(2)(b) (district

court determines “[w]hether a sentence is successfully completed”);

§ 18-1.3-103.5(1) (one purpose of wobbler statute is to incentivize

offender to successfully complete sentences to probation and

community corrections). The statute does not provide any

procedural mechanism for re-sentencing; rather, the court

8
determines “without a jury” and with mere “notice to the district

attorney and defendant” whether the defendant has successfully

completed his community-based sentence, and then vacates the

felony conviction. § 18-1.3-103.5(2)(b). Re-sentencing procedures,

which would be required to impose a new drug offender surcharge,

are simply not contemplated by the statute.

¶ 19 Our conclusion that the statute is intended to reduce the

offense of conviction, not the sentence, also comports with the

broader legislative scheme expressed in article 1.3 of title 18.

Johnson v. People, 2016 CO 59, ¶ 18 (“[W]e must interpret a statute

so as to effectuate the purpose of the legislative scheme.”). The

purpose of the wobbler statute is to allow offenders to “avoid a drug

felony conviction” and its concomitant adverse collateral

consequences if they successfully complete their community-based

sentences. § 18-1.3-103.5(1). In our view, the drug offender

surcharge is not an adverse collateral consequence of a drug felony

conviction that the wobbler statute was designed to ameliorate;

9
instead, it is part of the defendant’s sentence. See McQuarrie, 66

P.3d at 183.4

¶ 20 In sum, based on the language and purpose of the statutes,

we conclude that the conversion of the defendant’s felony conviction

to a misdemeanor conviction under section 18-1.3-103.5 does not

affect the amount of the drug offender surcharge required to be

imposed under section 18-19-103. Thus, the proper surcharge for

a defendant, like DeBorde, who is originally convicted of a class 4

drug felony, is $1500.

4 Our view is supported by our examination of a related statute.
See Sullivan v. Indus. Claim Appeals Office, 22 P.3d 535, 538 (Colo.
App. 2000) (“A court may . . . look outside the statute to related
sources for the definition of an applicable term [and] must . . .
attempt to harmonize other statutes relating to the same subject
matter.”) (citation omitted). Under section 18-1.3-303(3), C.R.S.
2016, the court may issue an order that relieves a defendant
sentenced to a community corrections program of “any collateral
consequences of the conviction . . . .” The statute defines a
“collateral consequence” as a “collateral sanction,” which, in turn,
means “a penalty, prohibition, bar, or disadvantage . . . imposed on
an individual,” but does not include “imprisonment, probation,
parole, supervised release, forfeiture, restitution, fine, assessment,
[or] costs of prosecution . . . .” § 18-1.3-303(8)(a)-(b).

10
III. Evidence of DeBorde’s Ability to Pay the Drug Offender
Surcharge

¶ 21 We next turn to whether the district court should have waived

all or part of the felony drug offender surcharge based on a finding

that DeBorde was unable to pay it. DeBorde contends that the trial

court erred in failing to consider evidence in the record of his

inability to pay the surcharge.

¶ 22 Although the surcharge is mandatory, the court may “waive

any portion of the surcharge” if “the court first finds that the drug

offender is financially unable to pay any portion of said surcharge.”

§ 18-19-103(6)(a). The drug offender has the burden of proving that

he is financially unable to pay by clear and convincing evidence,

and “[t]he court shall waive only that portion of the surcharge which

the court has found the drug offender is financially unable to pay.”

§ 18-19-103(6)(b)-(c).

¶ 23 Whether a defendant has the financial ability to pay a

statutorily mandated surcharge is a factual question we review for

clear error. People v. Griffiths, 251 P.3d 462, 467 (Colo. App. 2010).

If the record supports the trial court’s findings, we should not

disturb them on appeal. Id.

11
¶ 24 At the sentencing hearing, defense counsel requested that the

court waive the drug offender surcharge. Counsel did not direct the

court to any information in the presentence report. Instead, he

relied on DeBorde’s public defender application. While counsel

admitted that the application “contains virtually no information

regarding his financial status,” he argued that the court could infer

from the application and DeBorde’s inability to bond out of jail that

he “has basically nothing to his name” and therefore could not

afford the surcharge.

¶ 25 The court rejected the request, stating that it did not “have

any evidence at all,” let alone clear and convincing evidence, of

DeBorde’s inability to pay. Accordingly, the court imposed the full

$1500 surcharge. However, the court did not foreclose the

possibility of reexamining its ruling, and invited DeBorde to submit

additional evidence or affidavits demonstrating his inability to pay.

¶ 26 In imposing the full surcharge, the court did not indicate that

it had considered the presentence report, which contained

information that DeBorde was homeless and unemployed and had

been for a “significant period of time,” and that DeBorde “ha[d] not

12
earned a steady income in the past year and ha[d] no money or

assets” and “no credit cards, bank accounts, or other income

sources.” And the court expressly declined to consider DeBorde’s

public defender application, which stated that he had no income or

assets.

¶ 27 Even if we assume that the court should have considered

information in the presentence report and the public defender

application, we cannot conclude that the court clearly erred in

finding that DeBorde had failed to carry his burden.

¶ 28 In determining whether a drug offender has the ability to pay

the surcharge, courts consider both the offender’s present and

future ability to pay. People v. Archuleta-Ferales, 2014 COA 178,

¶ 13. In making this determination, courts evaluate the drug

offender’s “historical expenses and income, as well as [his]

reasonable prospects for future employment in light of [his]

disabilities and any assets []he may have.” Id. at ¶ 14. In this

inquiry, “the court should not speculate on future increases or

decreases in income or expenses in the absence of a record basis for

making such projections.” Id.

13
¶ 29 While evidence in the presentence report may have supported

a finding of DeBorde’s present inability to pay, there was no

evidence in the record of DeBorde’s future inability to pay the

surcharge. Nothing in the record indicated that DeBorde was

unemployable; rather, he has a general education diploma (GED),

requested work release, and indicated that he intended to find a job

while serving his community corrections sentence. See People v.

Fogarty, 126 P.3d 238, 241 (Colo. App. 2005) (court acted within its

discretion when determining that the defendant would be able to

pay costs in the future where he was incarcerated and had only $85

in his prison account but indicated that he would be able to work

upon his release); see also Griffiths, 251 P.3d at 468 (despite

current indigence, unemployment, and incarceration, defendant did

not meet burden of demonstrating that she could not pay the drug

offender surcharge when defendant had a GED and did not assert

that she could not earn an income while incarcerated).

¶ 30 Moreover, DeBorde had an opportunity to supplement the

record with additional evidence of his inability to pay, but he

declined the district court’s invitation to do so. Under these

14
circumstances, we will not disturb the court’s determination that

the evidence presented at the sentencing hearing failed to establish

DeBorde’s inability to pay the surcharge.

IV. Burden to Seek Benefit of Wobbler Statute

¶ 31 Finally, DeBorde contends that, under the wobbler statute, the

district court erred by placing the burden on him to show his

entitlement to the entry of a misdemeanor conviction in place of his

felony conviction. We conclude that this claim is moot. DeBorde

filed the necessary motion, and the trial court granted it.

¶ 32 An appeal is moot if granting relief would have no practical

effect on an actual or existing controversy. See People v. Fritz, 2014

COA 108, ¶ 21. Because DeBorde has already been granted relief

on his motion to apply the wobbler statute, his claims on appeal on

this issue are moot.

¶ 33 DeBorde concedes that the issue is moot, but argues that we

should review it under the exception to the mootness doctrine that

allows for review of a claim that is “capable of repetition, yet evading

review.” People v. Back, 2013 COA 114, ¶ 11. We acknowledge the

15
exception but disagree, as a factual matter, that this issue is likely

to evade review.

¶ 34 As the People point out, this claim will be presented for review

when a trial court rejects a defendant’s request to set a review

hearing for his expected date of completing community corrections,

and the defendant appeals, but does not later file the necessary

motion. Accordingly, we need not decide the issue here, when it

would have no practical effect on an actual controversy.

V. Conclusion

¶ 35 The judgment is affirmed.

JUDGE DAILEY and JUDGE FURMAN concur.

16